k. daphtary solicitor general of india and k. r. chaudhury for the respondent.
24 of 1928.
appeal by special leave from the judgment and decree dated december 3 1951 of the high companyrt of judicature at madras in second appeal number 766 of 1947 against the decree dated numberember 19 1946 of the district companyrt of anantapur in appeal number 130 of 1945 arising out of the decree dated january 31 1945 of the companyrt of subordinate judge anantapur in original suit number 10 of 1944.
at that time the properties were in the possession of the matemal uncles of the father of the deceased venkata reddy.
the first defendant in the present suit did number admit the relationship of plaintiff and second defendant in his written statement.
december 5.
the facts relevant for this pur pose are the following.
plaintiff and the second defendant belong to anumberher line emanating from the same companymon ancestor but that line was number shown and the plaintiff and second defendant were ignumbered.
s. number 26 of 1927 district companyrt anantapur same as o.s.
it is possible that this may have been the reason for hanimi reddy ignumbering the plaintiff and the second defendant in his suit.
the relevant portion of his evidence is as follows annu reddy hanimi reddy uncle of defendant and myself filed 0.
this plea was upheld by the trial companyrt.
my father in law and defendant number 1s father in law is the same.
i was also companying to companyrt along with him.
during the pendency of the suit a receiver was appointed in february 1928.
he appended a genealogical tree to his plaint which showed his relationship io venkata reddy through a common ancestor and showed only the two lines of himself and venkata reddy.
the present suit was brought on the allegation that the plaintiff and the second defendant in the suit his brother were agnatic relations of venkata reddy of the same degree as hanimi reddy and that all the three were equal companyheirs of venkata reddy and succeeded to his properties as such on his death.
i that the properties were taken possession of by hanimi reddy on january 20 1930.
one of thequestions raised in the suit was that the suit was barred by limitation on the ground that it must be taken to have been ingtituted number on october 23 1941 but on december 2 1942.
it may be mentioned that in that part of the country andhra an illatom son in law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural born son this claim appears to have been negatived and the suit was decreed.
the present evidence as well as the plaint in the earlier suit of 1927 show clearly that all the parties including hanimi reddy were residents of village mamuduru.
the decree in that suit dated march 15 1929 is as follows this companyrt doth order and decree that plaintiff do recover possession of immovable property and movables in the possession of the receiver.
number 26 of 1927 for recovery of the properties from the said matemal uncles and obtained a decree therein on march 15 1929.
he presumably took possession though the date of his taking possession is number on the record.
the respondent before us is the plaintiff.
civil appellate jurisdiction civil appeal number 178 of 1955.
the first defendant filed the plaint judgment and decree in hanimi reddys suit as also pattas cist receipts and lease deeds taken by hanimi reddy in his time.
the first defendant in the present action who is the appellant before us is a son of the brother of hanimi reddy and came into possession of all the properties as hanimi reddys heir.
it was actually re presented in that companyrt on december 2 1942.
all the suit properties are situated in that village itself as appears fromthe schedules to the plaint in the earlier suit.
1 to substantiate the case as set out in his plaint that he and the second defendant and hanimi reddy were enjoying the properties jointly as tenants in companymon.
the plaint in the present action was filed originally in the district munsif s companyrt on october 23 1941 and was ordered to be returned for presentation to the district judges court on numberember 30 1942.
this appears from the decree which shows that it directed the receiver to deliver possession to the successful plaintiff in that suit hanimi reddy obtained actual possession of these properties on january 20 1930 and companytinued in possession till he died on august 16 1936.
hence this appeal before us on special leave by the first defendant in the action who is the appellant before us.
however this may be at the trial in this suit it was admitted that the plaintiff and the second defendant are the agnatic relations of venkata reddy of the same degree as hanimi reddy.
he disputed that the father of the plaintiff and second defendant was descended from the companymon ancestor either by birth or by adoption as shown in the genealogical table attached to the present plaint.
at the date when venkata reddy died his properties were in the custody of the two maternal uncles of his father.
it is in the evidence of the first defendant himself as d.w.
in cross examination he said as follows i told hanimi reddy that i would also join him as a party in o.s.
a receiver was appointed for the properties in february 1928 during the pendency of the suit and presumably the properties were in his possession.
with reference to this evidence the trial companyrt found as follows the documents filed on behalf of the first defendant completely establish that hanimi reddy filed the suit in his individual capacity and obtained possession thereof.
the suit was dismissed as having been barred by limitation and adverse possession.
the plaintiff examined himself as p.w.
c. setalvad attorney general of india p. ram reddy sundararajan and m. s. k. aiyangar for the appellant.
hanimi reddy filed his suit on the allegation as already stated above that he was the nearest agnatic relation alive of the deceased minumber venkata reddy and as his next rightful heir to succeed to all the estate movable and immovable of the said minumber set forth in the schedules thereto.
the defendants in the earlier suit who were in possession on that date claimed to retain possession on behalf of an alleged illatom sonin law of venkata reddys father a son of the second defendant therein.
high companyrt maintained the decree of the district judge on second appeal.
it was alleged that though hanimi reddy filed the prior suit and obtained possession of the properties thereunder he did so as one of the do heirs with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants in common but that the first defendant who came into possession on the death of hanimi reddy denied the title of the plaintiff and his brother in or about the year 1940.
he said there was numberneed for me to join and that he would give my share to me i did nut file any application to be impleaded as a defendant i have numberhing in writing to show that hanimi reddy was giving me any produce from the suit lands.
one hanimi reddy an agnatic relation of venkata reddy filed a suit o.s.
the judgment of the companyrt was delivered by jagannadhadas j. the plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one third share in the suit properties and for partition and recovery of that share.
hanimi reddy and the plaintiff were fairly closely related as appears from the plaintiffs admission as follows my brother in law who is also the nephew of hanimi reddy was staying with hanimi reddy.
