MYAKLA KONDA REDDY Vs. MYAKLA KESHAVA REDDY

JUDGEMENT

(1.) The Civil Revision Petition is directed as against an order made by the Senior Civil Judge at Nagarkurnool m I.A.NO. 198/2000 in A.S.No.7/2000 dated 31-7-2000. The Revision Petitioner is the respondent in the said application and also respondent in the appeal. The respondent in the Civil Revision Petition filed the application I.A.No. 198/2000 in A.S.No.7/ 2000 on the file of Senior Civil Judge, Nagarkurnool under Order 41 Rule 27 C.P.C. to permit him to adduce additional evidence before the Court by examining one M. Kondareddy s/o. Chandraiah and to get the documents, namely, registered gift deed dated 949/2000 dated 29-4-2000, ryotwari passbook and title deeds, to be marked through him. It was stated that the petitioner herein filed a suit O.S.No.68/88 for declaration of title and injunction contending that he had acquired the same through a will alleged to have been executed by his late father and the respondent had resisted the suit denying the same and pleading that the disputed property is ancestral property which fell to his share dunng partition with his elder brother and his father never had executed any will and hence he made a counter claim for declaration of title and for injunction for the selfsame property. It was also stated that the Revision Petitioner had withdrawn his suit and the counter claim was proceeded with and his elder brother by name M.Kondareddy filed affidavit in I.A.No.295/88 in O.S.No.68/88 to the effect that the appeal schedule property had fallen to his share and during the pendency of the counter claim certain disputes arose between him and his elder brother and hence he was constrained to file a suit against his elder brother and others in O.S.No.29/95 on the file of Junior Civil Judge, Nagarkunrool and ultimately the same ended in compromise. In view of the said circumstances, his elder brother did not cooperate with him in the present suit and though he had requested him he did not come forward for giving evidence before the Court below and hence he could not be examined. Further the revenue authorities issued ryotwari passbook and title deeds relating to the schedule property in his favour and in favour of his elder brother showing equal extent after he had given evidence before the Court below as DW-1 and the matter was ripe for arguments and hence he could not produce the said documents into the Court. The Court below had dismissed his counter claim on the sole ground that he had not proved the partition with his elder brother and after coming to know the result of the matter, his elder brother came to him and expressed his readiness to depose in his favour and-further expressed to execute a relinquishment deed in his favour and accordingly after filing the appeal his brother had filed his affidavit in I.A.No. 104/2000 in A.S.No.7/2000 and he got drafted a relinquishment deed also in his favour for the schedule property to the extent of his share as shown in the ryotwari title deed, but the same was not registered by the Sub- Registrar, Nagarkumool on the ground that he cannot execute a relinquishment deed and under such circumstances, his elder brother executed a registered gift deed in his favour bearing No.949/2000 dated 294-2000 to the effect of his share shown in the ryotwari title deed and for the said reasons in an application specified supra filed under Order 41 Rule 27 C.P.C. it was prayed to permit him to adduce additional evidence before .the Court by examining M Kondareddy s/o. Chandraiah and get the documents namely, the registered gift deed dated 29-4-2000, ryotwari pass book and title deeds, marked through him and pass such other suitable orders. The Revision Petitioner as respondent in the application filed a detailed counter affidavit denying all the allegations and also specifically stating that the conditions specified in Order 41 Rule 27 C.P.C. are mandatory and none of the conditions had been satisfied and hence the application is liable to be dismissed. However, the Court below had allowed the said application and aggrieved by the same, the present Revision is filed.

(2.) Sri Mahipathi Rao, the learned Counsel representing the Revision Petitioner had contended that though the gift deed may be a subsequent event, as far as the ryotwari pass book and title deeds are concerned, they were available with the respondent even at the time of the pendency of the suit and the mere fact that his brother was not inclined to depose in his favour cannot be a ground to permit him to examine such a party to fill up the lacunae at the appellate stage. The learned Counsel also had contended that the decisions relied upon by the Court below i.e., K.P. Sekhar Babu and others v. T. Devarajulu and others, 2000 (2) ALT 243 (DB) and Gottipati Narasimhulu Naidu v. Devineni Gangi Naidu and others, 2000 (2) ALT 591, are not relevant for the purpose of deciding the present application. The learned Counsel also had drawn my attention that there is no factual foundation and also there is no pleading for the purpose of permitting the respondent to rely upon these documents or to permit him to let in oral evidence, if any, at the appellate stage. The learned Counsel had placed reliance on Chotelal v. Bholaram Agarwal and others, 1993 ALT Suppl. (1) 192, Jammala Ramulu v. Jammala Rajaiah, 1998 (4) ALD 221 = AIR 1998 AP 394, M/s Sona Optics v. Shyam Sunderbhargava and others, 1997 (1) ALD 628 - 1997 (1) ALT 105 and Roop Chand v. Gopi Chand, AIR 1989 SC 1416.

(3.) Sri Narasimha Sarma, the learned Counsel for the respondent had drawn my attention to paragraph-4 of the impugned order and had contended that the gift deed is dated 294-2000, which is subsequent to the date of decree in O.S.No.68/88 on the file of Junior Civil Judge, Nagarkumool and further in view of the changed circumstances the Court below is justified in allowing the application for reception of additional evidence. The learned Counsel also had pointed out paragraph-3 of the affidavit wherein it was specifically stated that the revenue authorities issued ryotwari passbook and title deed to the appeal schedule property in his favour and in favour of his elder brother showing equal extent after he gave evidence before the lower Court as DW1 and when the matter was npe for arguments. Thus, the learned Counsel had contended that the Court below after appreciating all the facts and circumstances and after satisfying that the provisions of Order 41 Rule 27 C.P.C. are satisfied, had allowed the said application and hence the Revisiomal Court need not interfere with such an order made by the Court below which is perfectly in accordance with law.