AKELLA SURYA PRAKASA RAO Vs. AKELLA PRABHAKARAM

JUDGEMENT

(1.) The second defendant in O.S.No. 50 of 2001 on the file of the Court of Senior Civil Judge, Amalapuram, is the petitioner herein. During the trial, when the third respondent/third defendant offered to give evidence as D.W.5, the petitioner filed memo of objections praying the trial Court to disallow the evidence of the third defendant by an order dated 23.08.2010. The objections were overruled. Being aggrieved, the petitioner filed the present Civil Revision Petition.

(2.) The first respondent (hereinafter, plaintiff) and defendants 1 to 3 are sons and defendants 4 and 5 are daughters of one Venkata Krishna Chainulu, who died leaving behind considerable extents of properties - agricultural lands and houses. The plaintiff instituted suit for partition of plaint 'A' schedule properties, which are agricultural lands. He also alleged that suit schedule 'A1' property is in exclusive possession of the third defendant, who perfected title by adverse possession. For this reason, he sought partition of only suit schedule 'A' properties.

(3.) During the trial, the evidence of P.W.1 was completed on 03.07.2009. The plaintiff's evidence was closed on 29.10.2009. The second defendant (petitioner herein) gave evidence in October 2009 and the matter was coming for further evidence of defendants. At that stage, the third defendant/third respondent herein, who is sailing with the plaintiff, filed affidavit in lieu of chief examination as D.W.5 when the petitioner unsuccessfully raised objections. The counsel for the petitioner would submit that the plaintiff is setting up the third defendant as D.W.5 only to render the evidence of D.W.1 (petitioner herein) ineffective by filling up of gaps in his evidence. He would urge that such a course of action is not permissible under the Code of Civil Procedure, 1908 (CPC for brevity). He placed reliance on M. Hymavathi v. M. Koteswararao, 2006 5 ALT 595.