ORDER
P.S. Narayana, J.
1. The unsuccessful defendant-appellants have preferred this second appeal as against the judgment and decree made in A.S.10 of 1988 on the file of the Subordinate Judge, Tanuku confirming the judgment and decree made in O.S. No. 299 of 1980 on the file of the Principal District Munsif, Tanuku.
2. The first respondent is the plaintiff in the suit. The other respondents were added as party respondents by an order of this Court on 17.1.1997 in C.M.P. No. 19701 of 1996. These parties filed the said application under Order 1 Rule 10 r/w Section 151 C.P.C. praying for the relief that they should be added as party respondents as they are entitled to 1/11th share in the joint family properties and in the absence of they being added as parties, they would be deprived of their legitimate shares and the parties to the litigation appear to have obtained a collusive decree.
3. Originally, the suit was instituted by the plaintiff for the relief of permanent injunction. But subsequent thereto, the plaintiff filed I.A. No. 257 of 1985 on 30.1.1985 praying for amendment of the plaint for alternative relief of partition and separate possession of the plaint schedule property into five equal shares and for allotment of one such share to the plaintiff. The said application was dismissed on 18.3.1985 and the plaintiff preferred a revision petition being C.R.P. No. 999 of 1985 on the file of this Court. The revision petition was allowed on 3.4.1985. In view of the same, the second defendant to fifth defendant were added as parties. On the respective pleadings of the parties, originally the two following issues were settled;
1. Whether the plaintiff is entitled to permanent injunction as prayed for?
2. To what relief?
and subsequent to the amendment, in view of the respective pleadings of the parties, the other issues were settled, which are as under:
1. Whether the plaintiff is entitled for partition of A. B, C schedule properties?
2. Whether the plaintiff is entitled to claim 1/5th share in view of the fact that there are 11 members of the family?
3. Whether there is cause of action for the suit?
4. Whether the C.F. paid is sufficient or additional C.F. is payable?
5. Whether the suit is frivolous and the defendants are entitled for compensatory costs?
4. In the Court of first instance, the plaintiff had examined himself as P.W.1 and other witnesses P.Ws.2 to 4 and got marked documents Exs.A-1 to A-7. On behalf of the defendants first defendant was examined as D.W.1 and also two other witnesses D.W.2 and D.W.3 were examined and got marked documents Exs.B-1 and B-2. On appreciation of oral and documentary evidence, the trial Court had passed a preliminary decree for partition of plaint 'A' and 'B' schedule properties into five equal shares and the suit claim for partition of 'C' schedule property had been dismissed including the relief for permanent injunction prayed for relating to the original plaint schedule property. Aggrieved by the said judgment and decree in O.S. No. 299 of 1980 on the file of the Principal District Munsif, Tanuku the defendants preferred an appeal in A.S. No. 10 of 1988 on the file of the Subordinate Judge, Tanuku. The learned appellate Judge after considering all aspects had passed a preliminary decree for partition of plaint 'A' and 'B' schedule properties into six equal shares instead of five equal shares as granted by the Court of first instance. Both the trial Court and the appellate Court had recorded a finding relating to the stand taken by the father that he had got seven sons and three daughters and that two daughters were yet to be married at the relevant time. The appellate Court had discussed this aspect at paragraph 22 under point No. 4. Aggrieved by the same, the defendants in the suit, who are appellants in A.S. No. 10 of 1988 have preferred the present second appeal. As already referred to supra, at a belated stage i.e., at the stage of the second appeal the proposed parties filed C.M.P. No. 19701 of 1996, which was ordered and consequently they were impleaded as respondents 2 to 5 in the present second appeal.
5. Sri Mohan Srinivas, the learned counsel representing the appellants with all vehemence has contended that though in the additional written statement the father had taken a specific stand that he has got seven sons and three daughters and that two daughters were yet to be married by that time, the Court below had passed a preliminary decree granting a share to the first respondent plaintiff, which is definitely a larger share, and in that view of the matter the rights of other parties are definitely prejudiced. The learned counsel also submitted that a suit for injunction and a suit for partition are different and hence decreeing the suit for partition is bad and in the facts and circumstances of the case, especially in the absence of the other sharers, who are now brought on record as respondents 2 to 5 by an order made in C.M.P. No. 19701 of 1996 dt.17.1.1997. Strong reliance was placed on a decision of the Supreme Court in V.S. ACHUTHANANDAN v. R. BALAKRISHNA PILLAI, : AIR1995SC436 .
6. Sri Venugopal Rao, the learned counsel representing the first respondent-plaintiff, on the other hand, submits that originally suit O.S. No. 299 of 1980 was instituted by the eldest son against the father and the other sharers. It is brought to my notice that the first respondent-plaintiff is the son of the first wife and the other parties are the children of the second wife. The learned counsel also submitted that the father has been agitating the matter and it is not as though the father has no knowledge of the names and other particulars of other children and except making a vague statement, no specific plea was taken in this regard and no attempt was made to have a specific issue framed in this regard and in such circumstances, the Courts below are well justified in granting a decree for partition. The learned counsel further elaborating his submissions had pointed out that even otherwise the rights of the parties are to be decided as they are crystallized on the date of the institution of the suit. The learned counsel submits that the dates of birth of the children, who are subsequently added, and whether these daughters are entitled to a share at all by virtue of the A.P. Amending Act, especially in view of the fact that the suit was instituted long prior to the Amending Act coming into force, are questions which cannot be decided in a second appeal merely because at the stage of the second appeal the application of these parties to come on record had been ordered. With all vehemence the learned counsel further submitted that it is not even a fit case for remand for the reason that the father is very particular of defeating the legitimate rights of the son (plaintiff) in the suit and hence the father is the scheming brain in trying to prolong the litigation so as to see that no finality reaches in relation to the share of this unfortunate first respondent-plaintiff, the son of the first wife.
7. Heard the learned counsel at length and also perused the material available on record.
8. Two substantial questions of law, which are extracted hereunder, have been raised by the learned counsel for the appellant.
1. Whether the relief of partition could be granted in a suit originally instituted as suit for permanent injunction?
2. Whether a decree for partition could be granted in the absence of other co-sharers who are now impleaded as respondents 2 to 5 in the second appeal?
9. The facts in nutshell as reflected from the pleadings can be narrated as hereunder. As already referred to supra, the first respondent-plaintiff originally instituted a suit O.S. No. 299 of 1980 on the file of the Principal District Munsif, Tanuku for the relief of permanent injunction but subsequent thereto the same was amended seeking the alternative relief of partition. Originally it was pleaded in the plaint as under.
10. The plaintiff is the son of the defendant (D-1) through his first wife owned Acs.3.78 cents (correctly Acs.3.70 cents in R.S. Nos. 435/2, 435/5, 405/1, 239/10, 487/1 and 349/5 of Penugonda village besides two attached houses and a tiled house and movable property in the shape of bullock cart, cattle, household utensils, cots, gold and silver ware etc. That the plaintiff was married on 30.5.1974 and soon after the marriage, there were some differences and the defendant gave to the plaintiff the said acres 0.97 cents of land (0.50 cents in R.S. No. 405/1 and 0.47 cents in R.S. No. 239/10) at Penugonda village towards his share in all the joint family property that the defendant and his minor sons through his second wife are in possession of the remaining joint family property of about Acs.2.73cents,that three houses and movable property as shown in the above ; that since 1974 the plaintiff has been in exclusive possession and enjoyment of the schedule property in his own right; that in 1976 O.s. NO. 655 of 1976 on the file of the Principal District Munsiff Court, Tanuku was filed by Jaddu Satyam and another against the plaintiff, and defendant and his minors and in that suit also both plaintiff and defendants filed joint statement to the effect that the plaintiff was given Acs.0.97 cents shown in the schedule lad in 1976 in view of his share in the joint family properties; that in September 1978both plaintiff and defendant deposed that the suit schedule property is the exclusive property of the plaintiff and the defendant or his minor sons have no share therein; that the taxes etc. were being paid by the defendant for the entire holding, taking money from the plaintiff for his Acs.0.97 cents of land. It is also averred in the plaint that the plaintiff has been residing at Pentapadu and is finding it inconvenient to personally cultivate the suit land in Penugonda village and so the plaintiff put up the said property for sale; that the defendant offered a very low price and also unwilling to pay in cash and therefore, plaintiff has been searching for other prospective buyers; that the defendant for this reason developed a grouse against the plaintiff and is scaring all the intending buyers stating that he has preferential claim to purchase the property; that of late the defendant started declaring in the village that he will take forceable possession of the suit property to prevent sale by plaintiff, and to intimidate plaintiff to come to terms as dictated by him; that the defendant is a powerful person in the village and if he were to trespass into the suit property, the plaintiff will not be able to resist him physically without fight; that the defendant is not entitled to trespass into the suit property belonging tot he plaintiff and therefore the present suit is filed for permanent injunction restraining the defendant from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property either by himself or through his men.
11. The first defendant filed his written statement denying the right or title of the plaintiff over plaint schedule property, which is as under.
12. The plaint schedule is not property of the plaintiff; that the land covered by various survey numbers is not Acs.3.78 cents but is only Acs.3.70 cents and the tiled house in which the defendant got a portion consisting of a room, vasara and a pian, that there is one thatched house consisting of one room that it is not correct that there are two thatched houses; that the houses and sites are the properties of the defendants family that the father of the defendant had no property at any time and the defendant did not got any property movable or immovable from his natural father; that the plaintiff has no possession over the plaint schedule land at any time; that the defendant is the adopted son of Chalmumuru Simhadri and his natural father is Appalaswamy; that the adoptive father of the defendant gave to the defendant Acs.1.70 3/4 cents of land and the plaint schedule is part of that extent; that Acs.o.73 3/4 cents of land covered by R.S. No. 253/5 and R.S. No. 91/8 were sold away by the defendant; that the property is joint family property that the defendant never possessed of bulls, bullock carts, cattle, household utensils, cots, gold and silverware as noted in the 'C' schedule property. It is also stated in the written statement that the plaintiff is the first son of the defendant; that there are five more sons to the defendant and three daughters and the wife of the defendant is pregnant; that the plaintiff was married in 1974;that there were no disputes between the plaintiff and the defendant after marriage; that he did not give the plaint schedule land of Acs.0.97 cents to the plaintiff; that the said property of Acs.0.97 cents is only a part of the joint family property; that when there are several sons it is absurd that the plaintiff is given Acs.0.97 cents out of the total extent; that the entire property of Acs.3.70 cents and the houses are in possession of the defendants. The defendant in his written statement denied that the plaintiff is in possession of Acs.0.97 cents since 1974; that the defendant does not remember that his statement alleged to have been given in O.S. No. 655/76 and whatever statement was given in the said suit was not valid and binding on the defendant; that the statement given in that suit will not clothe the plaintiff with any rights over the plaint schedule property; that as a defence in that suit this defendant might have followed the legal advice and by itself plaintiff will not get any right over the plaint schedule; that it is not correct that Acs.0.97 cents is the exclusive property of the plaintiff; that it is false that the plaintiff paid money on the taxes. It is also contended in the written statements of the defendants, that since last 7 months the plaintiff has been requesting the plaintiff to give some cash towards his share; that on 14.3.1980 mediators Chalumuri Ramamurthy, Chelumuri Krishnamma, Donga Rameswara Rao and others settled the affair; that the plaintiff wanted Rs.5,000/-in full satisfaction of his claim in the family property; that mediators suggested the defendant to pay plaintiff Rs.5,000/- that he received Rs.1,000/- on 14.3.1980 and the balance of Rs.4,000/- was payable by the end of April 1980; that the defendant borrowed money from Cooperative Agricultural Bank, Penugonda by pledging the plaint schedule and another Acs.0.60 cents of land and out of that the plaintiff received Rs.1,000/- that an agreement was written and it was signed by the plaintiff in the presence of Chalumuri Rama Murthy and Dogga Rameswara Rao (underEx.B-1) which was drafted by Parakala Venkataramakrishna according to which agreement the plaintiff has no rights whatsoever in the family properties consisting of all the numbers of the lands noted in the schedule; that it clearly show the plaintiff is not in possession of the schedule property by 14.3.1980; that the defendant could not pay the balance of Rs.4,000/- as the defendant could not secure the money; that when the defendant filed a suit against his brother Chalumuri Achanna for money on the basis of a pronote executed by him; that his brother Chalumuri Achanna instigated the plaintiff to file a suit and the plaintiff filed the suit with false allegations it is also stated in the written statement, that the plaintiff resided at Penugonda till 1977 and afterwards he went away to Pendapadu that the plaintiff never offered the plaint schedule for sale and it is false that himself offered any price low or high; that himself has no need to proclaim that he will take possession by force; since himself is in possession of the schedule property and there is no need for him to purchase the plaint schedule property; that since the defendant himself is in possession of the plaint schedule property ether is no question of his trespassing into the plaint schedule property; that there are debts to the tune of Rs.10,000/- that all the children are yet to be married; that the plaintiff alone is married hand the plaintiff alone is married and the plaintiff at the instigation of some of the brothers of the defendant wants to get a major share out of the property; that at the instance of his father-in-law and brothers of the defendants, the present suit is filed with false allegation that whatever share the plaintiff gets out of the family property it is along with debts that the marriage expenses of daughters of the defendants are also to be credited, that thereby the suit has to be dismissed with the costs.
13. Subsequent thereto, as referred to supra, certain other parties were brought on record and by virtue of the orders in C.R.P. No. 999 of 1985 dt.3.4.1985 the alternative relief of partition also was prayed for and accordingly the plaint was amended. The first defendant again filed additional written statement and defendants 2 to 5 have adopted the written statement filed by the first defendant. It was pleaded that the alternative relief of partition is not maintainable and the suit for injunction cannot be converted into a suit for partition of the properties and that the plaint schedule properties are not ancestral properties of the plaintiff and the defendants. The relevant averments pleaded in the additional written statement are as under...that in the plaint schedule property the total extent of Ac.3.7 cents included the land given by the adoptive father of the D-1 and the remaining extent of land covered by schedule is the acquired property of the defendant; that the defendant did business in cattle selling and cultivated the lands of others on lease including the land given by the adoptive father; that by having some money the defendants as and when possible purchased small bits of land covered by a schedule and it is the self acquired property of him, that the plaintiff, defendants 2 to 5 are not entitled for any share I the plaint 'A' schedule property. It is also contended in the written statement that the 'B' schedule property extents are not correct; that the extent site and house have come to this defendant from his adoptive father; that the plaintiff is not entitled to claim any share therein; that item 2 of 'B' schedule also is not the ancestral property that the extent is180 Sq.yds.; that the adoptive father has given some site an extent of 65 sq.yds. in addition to item 1 of 'B' schedule, D-1 gave that extent to his brothers and took 65sqy.yds.in item 2 in exchange; that the total extent of item 2 of B schedule is 180 sq.yrds. deducting 65 sq.yrds. the remaining 115 sq.yds. of site is purchased by the defendant from Reddy people; that therefore the B schedule property is also the self acquired property of the defendant that the C schedule is not at all in existence; that these properties noted in C schedule are only imaginary and himself never possessed those items 1to 8 of C schedule movable property; that whatever immovable property is there in the house it is only the property of his wife Sarojini; that A B C schedules are not joint family properties; that the plaintiff is not entitled for 1/5th share and he is also not entitled for injunction or for partition and possession. It is also averred in the written statement that the plaintiff paid court fee of Rs.56/- only in the suit, and at present seeks amendment of the plaint and plaint schedule praying for partition of the property separate court fee is to be paid; that D-1 has got debts to a tune of Rs.30,000/- and these debts were incurred at the time of purchase of land, for maintenance of large family of the defendant; that the plaintiff never cared for D-1; that he was brought up by him, and he left him without caring for his benefit; that one daughter is married and two daughters are yet to be married; that thereby the suit finally has to be dismissed with compensatory costs.
14. After recording the evidence of P.Ws.1 to 4 and D.Ws.1 to 3 and after marking the documents Exs.A-1 to A-7 and Exs.B-1 and B-2, the suit was decreed and a preliminary decree was granted dividing plaint A and B scheduled properties into five equal shares and the same was modified in appeal A.S. No. 10 of 1988 dividing plaint A and B scheduled properties into six equal shares. In view of the concurrent findings recorded by both the Courts below several of the factual aspects need not be dealt with in detail.
15. Reliance was placed by the learned counsel on a decision of a Supreme Court, which is to the effect that the suit for partial partition is not maintainable when all the joint family properties not made the subject matter of the suit nor the co-sharers impleaded. There cannot be any quarrel for the said proposition of law. In the present case, no doubt originally the first respondent-plaintiff instituted a suit for perpetual injunction, however, inasmuch as he is not in exclusive possession, he thought it fit to have the relief of partition and in fact an application for amendment was moved, which was dismissed. When the said order was questioned in revision, this Court permitted the amendment and consequently the amendment was carried out. On appreciation of both oral and documentary evidence, the relief of partition was granted. The counsel for the appellants also had drawn my attention to paragraph 16 of the judgment of the Supreme Court, referred to above, and contended that the relief of partition cannot be granted when a suit for injunction was instituted. The observations of the Apex Court relied upon by the learned counsel are hereunder:
Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different form holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial as affirmed by the first appellate court are restored. However, there shall be no order as to costs.
16. The Apex Court had no doubt observed that to hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be grated is incorrect. These observations are made by the Apex Court in the context of particular set of facts arising in the said case. The facts are definitely distinguishable for the reason that in the present case an application for amendment of the plaint seeking alternative relief of partition was moved, the same was dismissed, the matter was carried in revision and the same was permitted by this Court allowing the revision. Hence, at this stage, again the same question cannot be re-agitated stating that since the original suit for perpetual injunction was instituted, the relief of partition cannot be granted and hence I am not inclined to accept this contention raised by the learned counsel for the appellants that the relief of partition cannot be granted, since originally the first respondent-plaintiff had instituted a suit for permanent injunction. It is made clear that granting of smaller relief, when a larger relief has been prayed for, to avoid multiplicity of suits may have to be decided on the basis of particular set of facts and circumstances of each case and no hard and fast rule can be laid down in this regard.
17. The other question which had been argued at length is non-impleading of all the other co-sharers, who are now impleaded as respondents 2 to 5. Here is an unfortunate case where the son of the first wife had instituted the suit for partition as against the father and it is not as though the father has no knowledge about the particulars of the other children. Clear findings have been recorded by both the courts below that no particulars have been furnished except making a vague statement in the pleadings by the father. The other sharers already had been brought on record. The respective dates of birth of these proposed parties who have now come on record at the belated stage or other particulars or the aspects which may have to be gone into while arriving at a decision whether these will become the independent sharers or whether they are entitled to only to the respective sharers in the share of the father only, these factual aspects have to be decided under the principles of Hindu Law and cannot be gone into for the first time at the appellate stage in the absence of any evidence recorded in this regard and hence the contention advanced by the learned counsel for the appellants that the decree can be modified straight away granting 1/11th share to each of the parties cannot be accepted.
18. The next aspect that has to be considered in the light of the clear findings recorded by both the courts is that it is only due to lapse on the part of the father, who had not given the particulars relating to his children, whether an order of remand is justified. I am of the considered opinion that in the peculiar facts of the present case, the above question may have to answered in the negative since I am thoroughly satisfied from the nature of the litigation and the findings recorded by both the Courts below that the father is definitely bent upon defeating the rights of the first respondent in having his legitimate share by hook or crook by setting up parties and delaying the litigation so as to see that the litigation does not reach finality. This conduct of the father definitely should be deprecated. Be that as it may, I do not want to express any opinion relating to other aspects concerning the rights of the proposed parties. Suffice it to say that if the proposed party-respondents 2 to 5 in the second appeal are otherwise advised, they are at liberty to pursue their remedies as per law but definitely they cannot prevent the plaintiff in the present suit, the first respondent in appeal, who had approached this Court in the year 1980, to enjoy the fruits of the decree which he had already obtained.
19. In the light of these findings, I am of the considered opinion that, subject to observations made above, the second appeal is devoid of merits and is accordingly dismissed. However, keeping in view of the relationship between the parties, this Court makes no order as to costs.