K. Venkataswami and Another vs Sakunthalamma and Others

B.K. Somasekhra, J.—The judgment of the learned Additional Sub Judge, Chittoor in A.S. No. 172/86 dated 28-7-1987 is the subject matter of this Second Appeal. That was the appeal against the judgment and decree of the learned II-Additional District Munsif, Chittoor in O.S.No. 435/81 dated 23-4-1983. The appellants herein who were the plaintiffs (sic. defendants) in the suit consecutively failed to establish their case both in the trial Court and the first appellate Court. The reference to parties as plaintiffs and defendants would serve the convenience in the context. One Varadaiah and Krishnaiah were brothers and the members of Hindu Joint Family. Krishnaiah died in the year 1960 whereas Varadaiah predeceased him. Plaintiffs 1 and 2 are the daughters and plaintiff No. 3 is the wife and widow of late Krishnaiah. Defendants 1 to 3 are the sons of late Varadaiah. These are the admitted facts. The joint family of Varadaiah, and Krishnaiah had certain joint family properties. They were sold away by the two brothers and their father to one Papamma under the registered sale-deed Ex. B-4 dated 7-10-1937. It was alleged that later on Varadaiah purchased back those properties from Papamma as the Manager of the joint family under the registered sale deed Ex. B-5 dated 9-1-1942. It was further alleged by the plaintiffs in the suit that the two brothers enjoyed all the properties as the members of the joint family as the properties belonging to joint family. There was also no partition among them. However, it appears that due to some family problems they resided separately wherein Varadaiah continued to reside at Nallabothulavarivuru whereas Krishnaiah shifted to Kasiralla village. It appears that the two brothers started enjoying the separate portions of the properties for some time and later on that was continued to be a partition by oral arrangement wherein Krishnaiah is said to have enjoyed the suit schedule properties to his share whereas Varadaiah enjoyed the other properties. Hence there was no actual partition in writing by metes and bounds. However the plaintiffs appear to have had some grievance that the properties in possession and enjoyment of Varadaiah were more than the properties which were in possession and enjoyment of Krishnaiah. The plaintiffs alleged that even after the death of Krishnaiah they continued in possession and enjoyment of the plaint ''A'' schedule properties as has been done by Krishnaiah. Since the extent of lands in possession and enjoyment of the defendants was unjustly more, the plaintiffs demanded some more extent of land from the defendants regarding which they did not agree and therefore at the intervention of mediators, a document Ex. B-3 dated 20-7-1978 was brought about wherein the defendants agreed to pay Rs. 4,000/- in lumpsum to the plaintiffs to compensate the difference and accordingly they received the amount and gave up their claim over the properties in possession and enjoyment of the defendants. Therefore, the plaintiffs contended that they were exclusively entitled to plaint ''A'' schedule properties and the defendants had no right over the same. They further alleged that taking advantage of the weak position of the plaintiffs, the defendants dispossessed them from the plaint ''A'' schedule properties about 6 months prior to the suit without any right or title. Alternatively it is contended that the plaintiffs perfected their title to the plaint ''A'' schedule properties by uninterrupted possession and enjoyment for over a statutory period of 12 years and therefore having been dispossessed of the same, they were entitled to the possession from the defendants. Therefore, they filed the suit for declaration of their title to the suit schedule properties for possession and mesne profits. Plaint ''B'' schedule properties are the moveable properties which were the subject matter of the enquiry into pauperism which the plaintiffs pleaded to sue as paupers without paying the initial Court fee.

The defendants resisted the suit on various grounds. They denied the existence of any joint family between Varadaiah and Krishnaiah as they became divided after 1937 and lived apart for 6 years after Gurappa migrated from Nallabothulavarivuru. They also denied that the suit schedule properties are the joint family properties. On the other hand, they contended that they were the self acquired properties of Varadaiah having purchased from Papamma with his own money and the money was borrowed from others. They contended that Varadaiah became the absolute owner of the said properties. They also denied that the plaintiffs enjoyed the suit schedule properties as the joint family properties left to the share of Krishnaiah. They pleaded that after the death of their father, the 2nd defendant sold away his share in the properties to one Y. Krishnaiah Naidu and migrated to his father-in-law''s village Palamakulapalle while defendants 1 and 3 continued to enjoy their respective shares in the family properties. They further pleaded that they divided their properties under the partition deed Ex. B-6 dated 7-4-1964.

The defendants pleaded that the plaintiffs were living in a portion of the house of the defendants on permission due to relationship between them. Plaintiff No. 3 is also related to the defendants as she is the junior aunt of the mother of the defendants. She was also permitted to cultivate 10 guntas of dry land and 3 guntas of wetland as tenant of the defendants. They denied the plea of the plaintiffs that the panchayat was convened to bring about Ex. B-3 due to the reasons mentioned by them. On the other hand, they contended that in or about 1978 plaintiff No. 3 started asserting a hostile title to the said properties. Therefore defendants 1 and 2 issued notice dated 6-2-1978 to her terminating the lease, for which she replied on 14-2-1978. According to them there is a mediation between the plaintiffs and the defendants whereby the plaintiffs executed Ex.B-3 giving up all the rights in the plaint schedule properties on receiving consideration of Rs. 4,000/-. The plaintiffs with a view to extract more money from the defendants gave a report to the Police. Again there was one more Panchayat wherein the mediators met and settled that defendants 1 and 3 should pay a further sum of Rs. 1,000/- to the plaintiffs and that is how on payment of the amount, one more document came into existence between the parties, Ex. B-10 dated 27-10-1978 affirming the earlier document Ex.B-3. They denied that the plaintiffs were dispossessed from the plaint schedule properties and further contended that by virtue of such arrangement under Exs. B-3 and B-10 the plaintiffs surrendered the land to defendants 1 and 3 and thus they have been in possession and enjoyment of the same since then. However, plaintiff No. 3 has been permitted to continue the occupation of thatched house during her life time and to surrender the same to defendants 1 and 3 thereafter. The defendants denied any right or title in regard to suit schedule properties. They further contended that the suit is not maintainable for setting aside Ex.B-3.

The learned District Munisif settled the following issues:

" 1. Whether the properties possessed by Varadaiah and Krishnaiah were lost for discharge of debts? under sale deed dt. 7-10-37 executed by Varadaiah, Krishnaiah and their father Gurappa.

Whether there was no joint family between Varadaiah and Krishnaiah after Varadaiah settled at Nallabothulavarivuru and whether they became divided and never possessed of any joint family properties?

Whether the defendants''s father purchased the properties from Papamma after borrowing from others and became absolute owner of the properties?

Whether the plaintiffs have never enjoyed any portion of the properties in their own right and ever asserted any title to the properties ever since the purchase of the properties from Papamma?

Whether defendants 1 and 3 alone continued to enjoy their respective shares in the properties in pursuance of the division effected previously evidenced by their payment of cist and issuance of passbook in their individual favour in recognition of their rights after the 1st defendant sold his share to one Y. Krishnaiah Naidu after the 1st defendant migrated to Palamakulapalle near Bhakarapet?

Whether the family arrangement with the mediation of the mediators giving up all the rights in the plaint schedule properties in consideration of receiving Rs. 4,000/- and the release deed dated 20-7-78 is not binding on the plaintiffs and whether they are entitled to go back to the said arrangements?

Whether the agreement dated 27-10-78 is not binding on the plaintiffs?

Whether the defendants 1 and 3 have been in possession of the properties from the date of agreement dated 27-10-78?

Whether the plaintiffs have no right to any of the suit properties and claim for a share is tenable?

Whether the suit is maintainable without the relief of declaration for setting aside the release deed dated 20-7-78?

Whether the plaint schedule is correct?

Whether the plaintiffs are entitled to the relief as prayed for?

To what relief?"

The parties went to trial. Plaintiff No. 3 examined herself as P.W.1 and the other witness as P.W.2 and produced documents as per Exs. A-1 to A-37 respectively whereas defendants examined D.Ws.1 to 4 and produced documents as per Exs. B-1 to B-23 respectively. Having heard both sides and after going through the materials before him the learned District Munsif held the relevant issues in favour of the plaintiffs and decreed the suit for delivering possession of plaint ''A'' schedule properties and directed enquiry into mesne profits, and also awarded costs.

Thus the defendants being aggrieved by the judgment and decree of the learned District Munsif, took the matter in appeal to the learned Additional Sub Judge who in A.S.No. 172/86 after hearing both sides and after re-assessing the whole material before him, totally agreed with the learned District Munsif and dismissed the appeal confirming the judgment and decree of the learned District Munsif. That is how the defendants are before us as the appellants in this appeal.

Notwithstanding the grounds raised in the memorandum of appeal, Mr. A. Panduranga Rao, the learned advocate to the question of proper interpretation of Ex. B-3, which according to him, is the release deed executed by the plaintiffs followed by Ex.B-10 whereby they lost their right or title if any to the suit schedule properties and the properties of Varadaiah and therefore their suitwas misconceived. He has contended that the learned District Munsif and the learned Sub Judge have wrongly interpreted Ex. B-3 to accept their theory about their giving up dispute or right in regard to excess share of Varadaiah and further they were not right in rejecting the theory of the defendants. However according to the learned advocate the substantial question of law which arises in this Second Appeal is about improper interpretation of Ex.B-3 in spite of definite finding of fact and clear evidence on record. Mr. Subba Rao, the learned advocate for the respondents in this case has contended that in view of the facts and circumstances of the case, the only interpretation possible for the Courts below in regard to Ex.B-3 was to accept the case of the plaintiffs and to reject the case of the defendants and as such no substantial question of law arises and even if such a question of law arises it has been properly dealt with and thus this Court in the Second Appeal may not have any justification either to reassess such a question or to interfere with the judgment and decree of the learned District Munsif which is confirmed by the learned Sub Judge. Mr. Subba Rao, the learned advocate has contended that the questions between the parties in the suit and the appeal were mainly questions of facts regarding which the two Courts have concurrently found in their favour in the affirmative and in the Second Appeal there is no reason to interfere with the same.

Under the circumstances, the following points arise for consideration:

(1) Whether the interpretation of Ex. B-3 would raise the question of law or a substantial question of law?

(2) If so, whether the Courts below have properly constructed or interpreted Ex.B-3 so as to bring about its true meaning and intention?

(3) Whether by proper interpretation of Ex.B-3 it would mean that the plaintiffs have gave up of their right and claim to the suit schedule properties or whether they gave up only their dispute or claim in regard to any other property apart from the suit properties belonging to Varadaiah?

(4) Whether there is justification to interfere with the judgment and decree of the learned District Munsif as confirmed by the learned Sub Judge? If so, to what extent?

(5) What Order?

Both the learned senior advocates have not spared any pains in dealing with their respective controversial stands in regard to facts and law involved in this battle. This Court is totally guided by their able assistance in disposing of the matter. However we have to see whether this Court is also to accept one or other contentions of either side presented before this Court basing upon the facts and circumstances of the case and also law operating upon them.

In view of certain concurrent findings of facts, this Court may not be justified in re-opening the same. It need hardly be said that both the learned Judges of the trial Court and the appellate Court have dealt with the matter in recording such findings of facts. A repetition of the same in brief might properly lead us to further investigation into controversial partition of the suit schedule properties.

There are 7 items of plaint ''A'' schedule properties. Out of them, 6 are agricultural lands whereas item No. 7 is a thatched house. All of them situate at Kasiralla Village. Gurappa and his sons Varadaiah and Krishnaiah were the members of the Hindu Joint Family owning and possessing certain joint family properties. They sold them to one Papamma under registered sale deed Ex.B-4 dated 7-10-1937. Gurappa died thereafter. Varadaiah re-purchased the properties sold to Papamma under the registered sale deed Ex.B-5 dated 9-1-1942. He also acquired other properties. They continued to be the members of the joint family even thereafter. They were the residents of Nallabothulavarivuru. Subsequent to 1960, due to certain reasons Krishnaiah shifted to Kasiralla village. Thus, the two brothers started living separately with the members of their family and enjoyed different portions of the properties by oral arrangements for the sake of convenience although there was no partition by metes and bounds. It may be mentioned herein that Nallabothulavarivuru is a hamlet of Kasiralla village. Krishnaiah was in possession and enjoyment of the suit schedule properties. Varadaiah was in possession and enjoyment of other properties which he acquired from time-to-time. After the death of Krishnaiah and Varadaiah, the defendants continued in possession and enjoyment of the other properties of Varadaiah and defendant No. 2 sold his share and went to his father-in-law''s place whereas defendants 1 and 3 continued in the same place and divided such properties among themselves under the partition deed Ex.B-6 dated 7-4-1964. Krishnaiah and after his death, plaintiff No3 paid the land revenue to the suit lands as evidenced from Exs. A-1 to A-24 receipts in printed forms. Similarly they paid the house tax to the suit house in question under the house tax receipts Exs.A-25 to A-31 respectively. The fertilisers supply identity card Ex. A-32 has been issued in the name of plaintiff No. 3. Rough patta Ex.A-33 is in the name of both Krishnaiah and Varadaiah. Krishnaiah had mortgaged some of the suit properties under the mortgage deed Ex. A-34 for which Varadaiah had attested. Ex. A-35 is the endorsement of payment for which also Varadaiah has attested. Plaintiff No. 3 has leased out the plaint schedule lands to one Manyam Muniswamy Naidu of Kasiralla village under a registered deed Ex. A-36 dated 6-12-1971. The plaintiffs thus enjoyed the suit schedule properties after Krishnaiah''s death. These are the clear findings of act and on going through the evidence in the case and after hearing both sides, this Court finds no reason to interfere with the same.

Admittedly, Ex.B-3 is a registered document brought about in a panchayat held as between the plaintiffs and the defendants wherein the mediaters brought about some settlement therein whereby Rs. 4,000/-was paid by defendants 1 and 3 to the plaintiffs while they gave up their dispute in regard to right to the properties. The matter did not end there only. Plaintiff No. 3 approached the police, filed a complaint against the defendants and therefore there was one more Panchayat wherein Ex.B-10 was brought about between the parties wherein the plaintiffs were paid additional sum of Rs. 1,000/- to withdraw their complaint. According to the plaintiffs, they were dispossessed from the suit schedule properties about 6 months prior to the date of the suit whereas according to the defendants plaintiff No. 3 handed over possession of plaint 1 to 6 items in ''A'' schedule and continue in possession of thatched house agreeing to give up after her life time. There is a concurrent finding of fact that the plaintiffs have been dispossessed from the suit schedule properties as alleged. Whatever be the reason the plaintiffs did not continue in possession of the suit schedule properties subsequent to Exs.B-3 and B-10 or atleast by the date of the suit they were not in possession of the same.

Now we come to investigation of the real controversy between the parties. Both the Courts below have accepted the theory of the plaintiffs that under Exs. B-3 and B-10 the plaintiffs gave up their claim and dispute in regard to the other lands and excess share of the defendants in the joint family properties and rejected the case of the defendants that the plaintiffs relinquished their right and title in regard to suit schedule properties as having been of Varadaiah. The learned advocates in order to appreciate the rival contentions have taken this Court into the evidence in the case in addition to the reasons and findings given by the learned District Munsif and the learned Sub Judge. They have tried to make use of extrinsic evidence to interpret Ex.B-3 and also Ex.B-10. Mr. A. Fanduranga Rao, the learned advocate has made bold to make a fair statement that rights arising due to the facts and circumstances of the case prior to Ex.B-3 and B-10 may not be seriously challenged and the interpretation of Exs. B-3 and B-10 became very much relevant and necessary for raising a substantial question of law to know the truth and all the state of affairs between the parties. Prior to that date may not be very much relevant or important for our sake. Mr. Subba Rao, the learned advocate has contended that all the state of affairs prior to the date of Exs. B-3 and B-10 would become very much relevant and important to know the true intention of the parties under Exs. B-3 and B-10. This Court with an anxious consideration has examined all the materials placed before the Court to know the truth of Exs. B-3 and B-10 in order to appreciate the rival claims and to arrive at a proper conclusion in the matter.

Now we are dealing with the interpretation of the documents or the construction of the documents, viz., Exs. B-3 and B-10. Ex. B-3 is in Telugu language and the body of the relevant contents are not much and require to be repeated.

(Telugu Version) (In brief it means that since Varadaiah died without settling anything in regard to his moveable and immovable properties, the plaintiffs having accepted Rs. 4,000/- from the defendants, they gave up their dispute in regard to their right ''tagada hakku'' to the properties of Varadaiah). Since Varadaiah died without making any arrangements in regard to moveables and immovables, subsequently the parties were fighting in regard to the same, so as per the intervention of the elders the plaintiffs having accepted Rs. 4,000/- from the defendants, relinquished or gave up their dispute in regard to the properties of Varadaiah. Ex. B-10 only concerns with the withdrawal of the complaint filed against defendants 1 and 3 after accepting Rs. 1,000/- from them. Patently, Ex.B-3 does not contain any schedule as rightly pointed out by the learned Sub Judge. It did not also specify as to in what properties the plaintiffs gave up their ''tagada hakku'' on accepting Rs. 4,000/-. However in the nature of the admissions between the parties and the findings by the Courts, it is certain that the parties were fighting in regard to the properties of Varadaiah, which the plaintiffs claim to be the joint family properties whereas the defendants claim to be the self acquired properties of Varadaiah. Therefore the dispute in this case is not in regard to all the properties of Varadaiah but only in regard to certain properties which were claimed to be the joint family properties or otherwise. In other words, this may be a case of latent ambiguity but not patent ambiguity. In such a situation, this Court is called upon to construct or interpret Ex. B-3 to accept or reject one or the other theory presented by the parties. Therefore the first question is whether such a mode of construction or interpretation of document would raise a substantial question of law.

Before that we must know what is meant by the interpretation or construction of a document. As per Lord Eldon interpretation means ascertaining the meaning of the language of a document or the manner in which it is related to existing facts. Such a concept as a primitive rule is to be found that generally speaking we must construct instruments by what is found within their four corners (Smith v. Doe, 1821, 2B & B 473,602) (P. 1293 of Sarkar on Evidence, Vol.1,14th Edition 1993). The expression Construction'' as applied to a document, at all events as used by English lawyers includes two things: first, the meaning of the words, and secondly their legal effect or the effect which is to be given to them. The meaning of the words, I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law. (per Lindley LJ, in Chatenay v. Brazilian S. T. Co. 1891 1 QB 79: 63 LT 739. Relied on in Badri v. Rajkumar 75 IC 686: 1923 All. 337). Therefore, the meaning of the words in Ex.B-3 if wrongly given by the Courts below, although questions of facts on proper interpretation leading to different meaning, the effect would be something different in the result and therefore it would raise a question of law and therefore substantial question of law because the inferences leading to a particular result on the rights of the parties would legitimately and ultimately would become rights and liabilities of the parties to the document. It is true that the parties have tried to put up their own interpretation on Ex.B-3. But ultimately it is for the Court to put up proper construction or interpretation on a document because in R.V. Nathalal (1939 Bom. 434) it was emphatically held that the interpretation of a document is the duty of the Court and it is not permissible to call a witness to explain it unless he is an expert under the Evidence Act. Therefore if the Court commits an error in proper interpretation of a document leading to results that would naturally give rise to a question of law or a substantial question of law. Therefore, Mr. Panduranga Rao is right in asserting that the interpretation of a document like Ex.B-3 if not done properly or if done, leading to wrong inferences would obviously raise a pure question of law or atleast a substantial question of law.

Then coming to the question as to how to interpret the document like Ex.B-3 which has certain expressions without mentioning the properties or the details thereon it is already pointed out that this as a latent ambiguity and not patent ambiguity calling for interpretation or construction. The manner and the method in which the law expects such an interpretation or construction of document has been incorporated in Sections 93 - 98 of the Indian Evidence Act; viz....

When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects (Section 93)

When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. (Section 94).

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. (Section 95).

When the facts are such that the language used might have been meant to apply to anyone, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to. (Section 96).

When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence maybe given to show to which of the two it was meant to apply. (Section 97).

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. (Section 98).

These provisions are in way exceptions to Sections 91 and 92 of the Indian Evidence Act. In substance the law enshrined in these provisions may be recorded in brief:

Although the primitive rule of interpretation of construction is to act within the four corners of the contents of a document once freed from the primitive formalism which views the document as a self-contained and self operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words (Wings of the Law of Intrinsic Evidence P. 2470) (P. 1293 of Sarkar on Evidence supra). In all cases, the object is to see what is the intention expressed by the words used. But for the imperfection of language, it is impossible to know what the intention is, without enquiring further, and seeing what the circumstance were with reference to which the words were used, and what was the object appearing from these circumstances which the person using them had in view, for the meaning of the words varies according to the circumstances with respect to which they were used (Royal Bank of Canada v. Salvatori 107 IC 346: 1927 PC 271).

The Privy Council in Laffer v. Gillen, enlarged the above expression by saying that when the question is entirely one of construction on a particular agreement, it can only be properly answered after a consideration of all the surrounding circumstances, the position of the parties to the agreement, its subject matter, and the apparent purpose and object thereof, and, in particular of the provisions to be construed (1927 PC 275) . These are the general principles of the construction or interpretation of the document. In addition thereof there are some specific legal guidelines to interpret that. Where the point in dispute is as to the meaning of a particular word in the document, evidence may be admitted to show in what peculiar sense that particular word was used, and extrinsic evidence including the evidence of subsequent conduct of the parties is admissible to determine the effect of the instrument as well as the intention of the parties State of Rajasthan Vs. Bundi Electric Supply Co. Ltd., Bundi, . When a document should be construed as a whole passage from that context, the interpretation of statutes and judgments are analogous to interpret the documents as has been settled by the Supreme Court in Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., and our High Court in Rajendranagar Municipality Vs. B.V. Perraju and Others, Workmen of Rajendranagar Muncipality and Another, . However, it may be hasten to add that where the language is plain and unambiguous no amount of extrinsic evidence or the totality of the circumstances would enable the Court to debar from the true expressions in the document leading to natural and proper inferences. Barring (sic. Bearing) these principles in mind now we have to interpret Ex.B-3.

The evidence in the case and the findings of facts by the two Courts below are very clear. There appears to be some misconception about the real state of affairs in regard to the joint family and joint family properties in the family of Krishnaiah and Varadaiah and their subsequent conduct in enjoying the particular properties and acquiring their properties by Varadaiah and enjoyment of the same by the defendant notwithstanding the suit properties having been allowed to be enjoyed by the plaintiffs. Ex.B-4 the earliest document between the parties shows that no other property other than the one mentioned therein belonging to joint family much less remained with the joint family after Ex.B-4 dated 7-10-37 came into existence. On the other hand, the concurrent finding is that after Ex.B-4, there was no other joint family property with the brothers and their father. It may be useful to mention 6 items covered by Ex.B-4 dated 7-10-1937 as hereunder:

S.No. Acres 93 Ac.3-15 cents. 161/8A Ac.0-04 cents 161/8/B Ac.0-02 cents 102 Ac.0-11 cents. 140B Ac.0-12 cents. 58-A Ac.2-08 cents. 18. Under Ex. B-5, Varadaiah purchased 10 items as a whole but the thatched house continued to be with the joint family and as a whole 11 properties were with Varadaiah. The 11 items are apart from the 6 items stated above including S. Nos. 58, 140/B1, 140/B8, 57, 102, 160, 161 and 105. Out of the 6 items Varadaiah purchased 3 items under Ex.B-5 dated 9-1-1942, viz., S.Nos. 93, 140-B and 58-A. Patently 4 items, viz., S.Nos. 161 /8A, 161 /8B, 102 and 140-B did not come back to the joint family property by virtue of Ex.B-5 dated 9-1-1942. Ex. B-6 dated 7-4-1964 registered partition deed between defendants 1 and 3 comprised 7 items, viz., S.Nos. 140/2, 153/7, 153/8, 236/3, 283/4, 190/2 and 236/3. Admittedly, the plaintiffs have not made any claim over any of the properties covered by Ex. B-6 dated 7-4-64 and in particular the other 7 items stated above under Ex.B-5dated 9-1-1942. Actually the suit schedule properties have nothing to do with any other property other than the one comprised in the plaint schedule and they were except S.Nos. 93, 230/3, 243/9 and 163/4. Therefore the evidence in the circumstances of the case should be taken to mean that although all the joint family properties were sold under Ex.B-4 i.e. 6 items, only 3 items were purchased back in addition to thatched house by Varadaiah and he acquired as many as 19 items subsequent to the brothers started living separately. It is also clear that only the suit properties were left with Krishnaiah as the share to be enjoyed by him. The clear expressions made in every document as above show that only the suit schedule properties were treated as the joint family properties, for having been left with Krishnaiah for the purpose of enjoyment. That is how whenever Krishnaiah dealt with the properties by mortgage or otherwise Varadaiah was taken into confidence to attest the documents. It is also clear from Ex.A-33 that pattas stood in the name of both Krishnaiah and Varadaiah in regard to the suit schedule properties although Krishnaiah and after him the plaintiffs paid the land revenue to the same. The circumstance is so apparent that except 3 items which were originally with the joint family, the other items were purchased back and since Varadaiah purchased so many items of properties subsequently, only some of the properties like suit schedule properties were left with Krishnaiah and thereafter the plaintiffs perhaps with the understanding that they were to be treated as joint family properties. The conduct of the plaintiffs in not setting up any claim in all the properties other than the suit schedule properties after so many properties were acquired by Varadaiah and conduct of the defendants not laying claim over the suit schedule properties under Ex.B-6 is an additional circumstance to show that only some of the properties were treated as joint family properties and the remaining properties were being enjoyed by Varadaiah and after him the defendants as their own properties over which neither Krishnaiah nor the plaintiffs claimed any right or title. This is a clear indication that in spite of the two brothers living separately one at Kasiralla village and another at Nallabothulavarivuru a hamlet within the same village, only the suit schedule property were continued to be treated as joint family properties allowing Krishnaiah to enjoy and pay the assessment but still allowing the patta to continue in the name of both the brothers. It is obvious that since Varadaiah and so many properties compared to properties of joint family left with Krishnaiah, possibly Varadaiah did not raise any dispute in regard to the same but appears to have allowed the brother to enjoy the joint family property without forfeiting his right over the same. On the other hand, it is clear . that even according to the plaintiffs own case, they had grouse with Varadaiah who had more properties than the properties held by Krishnaiah. That is how parties convened a Panchayat in which Ex.B-3 came into existence.

Now if we consider the evidence of the defendants, viz., that of defendant No. 1 as D.W.1 and that of scribe and attestor of Ex.B-3 as per D.Ws. 3 to 4, it is very dear that when plaintiff No. 3 tried to alienate the said properties, the defendants objected and at their instance, the Panchayat was convened. That is how the parties were satisfied by payment of Rs. 4,000/- to the plaintiffs to give up their dispute or claim over the properties of Varadaiah. Here to think of the properties of Varadaiah, it is rather difficult to enlarge the claim as the suit schedule properties as the plaint and evidence is silent as to the number of properties which Varadaiah had and regarding which the plaintiffs gave up their claim. Neither the evidence of the plaintiffs nor the defendants in this regard is useful or clear. Therefore, in such a situation it is very easy to gather that not only the plaintiffs and had a grievance in regard to the defendants having more properties through Varadaiah but also the defendants having their objection for the plaintiffs to deal with the suit properties having the share of Varadaiah although they were the joint family properties. Perhaps, that may give correct meaning to the implication of expressions made in Ex.B-3.

The Courts below appear to have put up some interpretations on the expressions in Ex.B-3 and particularly use of the words "tagada vidudala patram". In the opinion of this Court, such expressions have been made at the instance of both sides. A simple meaning of such expression shows that the plaintiffs had tagada and raised dispute in regard to the share of Varadaiah out of the suit schedule properties perhaps including their previous claim over the properties of Varadaiah also. The evidence of D.Ws. 2 to 4 is emphatic that the Panchayat was convened at the instance of defendant No. 1. When the suit schedule properties have been held to be joint family properties or should be taken to have been accepted as joint family properties the plaintiffs could not have any dispute over the other properties of Varadaiah when they have not filed any suit for general partition of the properties of Varadaiah including suit schedule properties. In that view of the matter, their ''tagada'' or dispute given in Ex.B-3 can never be their relinquishing their right to the entire suit schedule properties. If that is the interpretation it leads to absurdity. Admittedly, the plaintiffs have no other property. The defendants never claimed their right over the entire suit schedule properties. Such an implication is not spelt out by D.Ws.2to4. On the other hand, their clear expression is that when plaintiff No. 3 tried to sell the suit schedule properties they wanted to convene a Panchayat. The other circumstances leading to such an inference is that the suit schedule properties were in the name of both the brothers. It is not explained by the defendants and his witnesses as to why no schedule was mentioned in Ex.B-3 when all other previous documents mentioned the schedule in detail, examples being Exs 15-4, B-5 and B-30, B-34 and B-35 respectively. Ex.B-3 was never intended to relinquish the rights of the plaintiffs as a whole in regard to all the properties including the suit schedule properties. It is understandable that when the plaintiffs were allowed to enjoy the suit schedule properties, possibly they must have laid claim to the entire property including the share of Varadaiah. That is why when they tried to alienate the same the defendants interfered and forced to convey (sic. convene) a Panchayat resulting in Ex.B-3 and B-10 also. In that view of the matter the proper interpretation of Exs.B-3 is that the plaintiffs gave up their dispute or tagada in regard to their claim over the share of Varadaiah out of the suit schedule properties. In addition thereto they were not satisfied and therefore they approached the police by lodging a complaint which again resulted in a Panchayat and document Ex.B-10. Thus on receipt of Rs. 5,000/- the plaintiffs gave up their right or (sic. to) share of Varadaiah which were always treated as joint family properties by the two brothers.

The evidence of the defendants is totally silent as to why they did not include such properties in Ex.B-6 when they divided their properties left by his father. They have also not explained as to why the other properties of Varadaiah covered by Ex.B-5 were not the subject matter of the partition under Ex.B-6. Therefore the only inference possible is that the defendants had their own properties acquired from their father in addition to their share of Varadaiah in a suit schedule property. The Courts below have missed all these circumstances in accepting the case of the plaintiffs to hold that Ex.B-3 was with reference to the plaintiffs giving up their right in regard to the other properties and not regarding the right of Varadaiah in the suit schedule properties.

There is another circumstance which supports the other inference. Admittedly, the plaintiffs were dispossessed from the suit schedule properties. According to the evidence the plaintiffs handed over the possession of the suit schedule properties to the defendants after Ex.B-3. On the other hand, the dispossession of the plaintiffs subsequent to Ex.B-4, B-3 and B-10 appears to be more probable than the theory of the defendants for several reasons. In the first place not only the plaintiffs laid their claim over all the properties of Varadaiah but also in regard to his legitimate half share in the suit schedule properties. Even after receiving Rs. 4,000/- under Ex.B-3, the plaintiffs went to police to harass the defendants by filing a complaint. They forced them to pay the plaintiffs an additional amount of Rs. 1,000/- under Ex.B-10. Possibly there must have been harassment of the defendants and therefore they being men and strong people in the village conducted the Panchayat. The plaintiffs having failed to satisfy themselves with Rs. 5,000/- covered by Exs. B-3 and B-10 provoked defendants to dispossess them. Therefore the proper and correct interpretation of Ex.B-3 and B-10 and totality of the circumstances lead to correct conclusion that the suit schedule properties being the joint family properties, the plaintiffs who were agitating gave up their claim and dispute over the share of Varadaiah.

Thus the concurrent findings of the Courts below should persuade this Court to interfere with the same in regard to suit schedule properties and to decide the case accordingly.

The suit is for possession based on title. When the plaintiffs were dispossessed from the suit schedule properties by the defendants after Ex.B-3 and B-10 a cloud of doubt was created in regard to their title. Therefore it is proper that there must be a declaration about their right to half share in the suit schedule properties. The plaintiffs were allowed to enjoy the suit schedule properties by Varadaiah and the defendants from a very long time. When the suit is for possession based on title, the Court should normally decree the suit to restore the possession of the plaintiffs leaving open the remedy in regard to their share out of the suit schedule properties.

Then, the next question is whether the matter should lie over even after the legal battle for over two decades without setting it rest by giving appropriate remedy. The answer always lies in Order 7 Rule 7 C.P.C. The law and equity is certain that the Courts are always expected to put an end to the litigation than to drag on. Here is a case where the lady plaintiffs out of whom two are said to be widows have fought the litigation with the defendants for a very long time. At the same time, the defendants were compelled by the conduct of plaintiffs to resort to such a conduct although not justified. They are having half share in the suit schedule properties. Therefore, while confirming the judgment and decree of the Courts below, this Court should work out the remedy for the defendants to get their half share out of the suit schedule properties as a first measure.

In the result, the appeal is allowed partly. The plaintiffs are declared to be the owners having right to half share in the suit schedule properties. They shall be entitled to recover possession of suit schedule properties from the defendants. But if the defendants desire to get their half share in the suit schedule properties separated by metes and bounds, the decree shall be treated as a preliminary decree for partition for separating the half share of the plaintiffs and the defendants respectively out of the suit schedule properties. It shall be so done by appointment of a Commissioner in accordance with law and the plaintiffs shall be put into possession of half share after the same. Since the plaintiffs have been permitted to sue in form a pauperies, necessary Court fee may be recovered from them after passing final decree. The defendants are liable to pay the Court fee to half share out of the suit schedule properties. The second part of this judgment and decree shall be subject to the condition that the defendants shall pay or deposit all the mesne profits accrued till date and in future till the final decree is passed to the plaintiffs in regard to their half share out of the suit schedule properties, within three months from the date of communication of a copy of this order to the trial Court regarding which an enquiry shall be held by the trial Court and completed within two months from the date of communication of a copy of this order. If the defendants fail to exercise this option or act upon the second part of the decree within one month from to-day by filing a written affidavit before the trial Court or this Court, they shall be debarred from having the same but shall have liberty to file a fresh suit for partition and separate possession. The appellants shall pay the cost is to the defendants throughout.