VUNDAVALLI NARAYANAMURTHY Vs. BEZWADA RATTIAH ALIAS VENKATA KATNAM

JUDGEMENT

(1.) Defendant is the appellant in this appeal, which has been preferred against the final decree passed in I. A. 405 of 1970 in O.S. 74 of 1953, which was a suit for partition, filed by the respondent herein in the court of the isbordinate Judge, Narasapur.

(2.) The suit consisted of A, B, B--I and C, Schedule properties. In the plaint it was asserted that the A schedule properties were with the plaintiff and B schedule properties were in the possession of the defendant. AS we are only concerned with a few items in these two schedules I need not refer to the other matters in the pleadings. In the written statement of the defendant he has not disputed that he was in possession of 6 schedule. His only contention was that all the suit properties were the joint properties of one Paparayudu and the defendant got them by survivorship after the death of Paparayudu. Issue 3 in the suit related to the question whether the suit properties were separate properties of Paparayudu or joint family propsrties and whether the will and Ex. A-2 filed in the suit were binding upon the defendant. The trial court passed a preliminary decree on 9-4-1955 directing division of A,B, B-1 and C schedule properties into two equal shares, after holding that the will and A-2 are binding upon the defendant. The defendant thereupon carried the matter in appeal to this court in A.S. 318 of 1955. The said appeal was practically dismissed with a slight modification in clause No. 1 of the decree of the lower court on 18-11- 1959. The effect of the modification made by the High Court was that the p aintiff should give Ac, 1-00 of his choice to the defendant out of the properties that are allotted to the share of the plaintiff.

(3.) In I.A. 405 of 1970, which was filed for division of the properties as per the preliminary decree a Commissioner was appointed on 20-10-1960.- He filed a report on 10-7-1961. In that report in paragraph 2, he stated as follows :