KOPPULA KOTESHWARA RAO Vs. DR. KOPPULA HEMANTHA RAO

JUDGEMENT

(1.) Heard Sri T. Durga Prasada Rao, the learned Counsel representing the appellants and Smt. M. Vinobha Devi the learned Counsel representing the respondent.

(2.) The dispute is between the brothers and no doubt the wife of one of the brothers also is impleaded as a party to the litigation. Sri Durga Prasada Rao, the learned Counsel representing the appellants/defendants with all vehemence had contended that the reversal of the well considered Judgment of the trial Court with out properly considering both the oral and documentary evidence and recording certain perverse reasons not based on evidence cannot be sustained. The learned Counsel had drawn my attention to Ground Nos. 12 (i) to (v) of the Memorandum of Grounds of Appeal and had submitted that these are the substantial questions of law which arise for consideration in the present Second Appeal. The learned Counsel also had drawn my attention to C. M. P. No. 14452/2002, an application filed under Sec. 100 clause (5) read with Sec. 151 of the Code of Civil Procedure , hereinafter for short called the "Code", seeking permission to raise additional substantial question of law, which reads as follows:

(3.) Smt. Vinobha Devi, the learned Counsel while answering and emphatically opposing the submissions made by the learned Counsel for the appellant had initially submitted that as far as the reception of the evidence in a Second Appeal is concerned, the same cannot be received and as far as the framing of the substantial question of law is concerned, the learned Counsel had drawn my attention to the provisions of Sec. 100 C. P. C. and had pointed out the limitations in this regard. The learned Counsel further commented that under the general principals of Hindu Law, it is not always essential that there should be a complete partition and there can be a partial partition or there can be a partition keeping certain properties joint and when the joint owners relating to those items feel that those items are to be partitioned, there is no legal bar in claiming the relief of partition. The learned Counsel also had drawn my attention to the respective pleadings of the parties and the peculiar facts of the case relating to the plaint schedule properties. The learned Counsel had explained about the plaint A schedule and B schedule properties and also the evidence available on record. The learned Counsel further commented that in facts and circumstances of the case, and especially in the light of the evidence of DW-1 and PW-1 and also the documentary evidence, the question of casting the burden of proof does not assume much importance. But however, while appreciating the pleadings and proof, in stead of adhering to the strict technicalities, it is better to look into the substance of the pleading and the evidence adduced in this regard and if this approach is adopted, the appellate Court is well justified in reversing the Judgment of the trial Court. The learned Counsel also had placed strong reliance on W.K. Singh v. W.O.P. Devi, AIR 1954 Manipur 9, Mt. Bhagwani Kunwar v. Mohan Singh, AIR 1925 PC 132, Dattatreya v. Shakuntalabai, AIR 1956 Nagpur 95, Chunnilal Ojha v. Mulshankar Ojha, ILR (1961) Cut 635, Savitri Devi v. Jiwan, AIR 1960 Patna 548. Hiralal Jadavji v. Fulchand Jadavji, AIR 1956 Saurashtra 89, Raghavmma v. Chenchamma, AIR 1964 SC 136, Ramlaxmi v. Bank of Baroda, AIR 1953 Bombay 50. Mohamed All v. Abdul Sinab, (2000) 1 Cur CC 157, Prakash Chandra Swain v. Kusima Bewa (2000) CLT 127 (Ori), Dinabandhu Pradhan and another v. Chaitan Sahu, (2001) CLT 134 (Ori), Hamida v. Md. Kahlil (2001) 3 CLT 57 , Sukumaran v. Mahalakshmi (2001) 3 CC 248 (Mad) and the decision referred (AIR 1982 SC 760) supra.