K RAJA REDDY Vs. B NARAYAN REDDY

JUDGEMENT

(1.) The plaintiff has filed the present petition calling in question the correctness of the order passed on I.A.No.8 under Order XIV Rule 5 CPC, whereby the plaintiff had sought for framing of additional issues which reads as hereunder: Whether the 5th defendant proves that he is the foster/adopted son of Late Annaiah and Gullamma ?

(2.) The trial court after a detailed consideration has rejected the application while making an observation that nowhere the 5th defendant has taken such contention in the written statement except in the verifying affidavit filed by him and that in the written statement there is no specific pleading by the 5th defendant with respect to the 5th defendant being the adopted son of Late Annaiah and Gullamma. Accordingly, the trial court has observed that in the absence of specific pleading by the 5th defendant, the question of proving that he is the adopted son of Late Annaiah and Gullamma does not arise and that existing issues are sufficient to determine the controversy between the parties.

(3.) It has been pointed out by the learned counsel appearing for the plaintiff in the amended plaint at Para 9 (a) wherein, the plaintiff has specifically asserted that Gullamma has left behind her only daughter Ashwathamma and after the death of Ashwathamma, defendant nos.2 to 4 became the legal heirs. It is specifically asserted that 5th defendant is not the adopted son of Annaiah and no adoption deed is produced before the court. It is further asserted that the 5th defendant got changed the RTC in his name without any manner of right, title and interest. As regards such averment at Para 9 (a) inserted by way of amendment to the original plaint, the 5th defendant has filed the written statement and it is averred at Para 27 as follows: