NALLA SIVUNNAIDU Vs. NALLA APPALANAIDU

JUDGEMENT

(1.) This is a partition action. Appellant is the defendant in O.S.No.18/92 on the file of Subordinate Judge, Parvathipuram. Respondents are the plaintiffs in the suit. The 1st plaintiff is the father. 2nd plaintiff and the defendant in the suit are the sons of the 1st plaintiff.

(2.) Facts in nut-shell: The plaintiffs in the suit O.S.No.18/92 on the file of Subordinate Judge, Parvathipuram, the father and the son, filed the suit for partition of plaint A, B and C schedule properties into three equal shares by metes and bounds and for allotment and delivery of two such shares and for subsequent profits and costs of the suit as against the appellant/defendant in the suit, the other son of the 1st plaintiff. On appreciation of the evidence available on record the learned Judge passed a decree in the following terms:

(3.) Submissions of Sri K.S.R. Murthy: Sri K.S.R. Murthy, the learned Counsel representing the appellant/defendant made the following submissions. The learned Counsel had taken this Court through the evidence of PW-1 to PW-4, DW-1 to DW-4, Ex.A-1 to A-5 and also Exs.B-1 to B-14 and would maintain that the findings recorded in relation to Ex.B-1 and also Ex.B-2 in particular, in the absence of the parties being impleaded as parties, cannot be sustained. The learned Counsel also would maintain that though the appellant/defendant had taken a plea relating to illatom adoption of DW-2, as illatom son-in-law, DW-2 was examined as a witness but he was not impleaded as a party to putforth his contentions relating to the plea of illatom adoption. The learned Counsel also would maintain that in the absence of Nalla Narayanamma, the question relating to Ex.B-2 cannot be decided at all and in that view of the matter the trial Court erred in recording findings in this regard. The learned Counsel also made elaborate submissions on the aspect of burden of proof and would maintain that the partition in the year 1971 had been well established by both oral and documentary evidence and the learned Judge had not appreciated the evidence available on record in proper perspective. The learned Counsel also commented the findings recorded in relation to Ex.B-1 in the absence of the parties. The learned Counsel also would maintain that the real affected parties would be the illatom son-in-law on the aspect of illatom adoption and the learned Judge commenting on the aspect of pleading pleaded in the written statement by the appellant/defendant cannot be sustained especially in the absence of the necessary party to the present lis. At any rate the Counsel would contend that the partition action of this nature without impleading all the necessary parties and showing the properties alone cannot be sustained. The learned Counsel in all thoroughness had taken this Court through the respective pleadings of the parties, the evidence available on record and the findings recorded by the trial Court and would maintain that in the facts and circumstances of the case, the prior partition should have been believed by the trial Court especially in the light of the evidence of DW- 1, DW-2 and DW-4 and also the documentary evidence available on record.