BANDAMEEDI NARAYANA Vs. BANDA MEEDI RAJAIAH

JUDGEMENT

(1.) This appeal is filed by the unsuccessful defendant aggrieved by the judgment and Decree made in O.S. No. 121/89 on the file of Subordinate Judge, Karimnagar. The respondent/plaintiff filed the said suit praying for partition and separate possession of his half share in the plaint schedule property. The learned Judge on the strength of the respective pleadings of the parties had settled the Issues, recorded the evidence of P.W.I to P.W.3, D.W.I to D.W.5, marked Exs.A-1 to A-8 and Exs.B-1 to B-18 and ultimately decreed the suit. Aggrieved by the same, the present appeal is preferred.

(2.) Contentions of Sri C. Ramesh Sagar: Sri Ramesh Sugar, the learned Counsel representing the appellant/defendant made the following submissions. The learned Counsel pointed out to the respective pleadings of the parties and would contend that even on a just look at Issue No.1 it could be taken that the learned Judge had not appreciated the pleadings properly and Issue No.l was not settled in the light of the pleadings of the respective parties and in view of the same inasmuch as the matter was decided in the absence of proper framing of the Issues, prejudice is caused to the appellant/defendant and hence the matter may have to be remanded. The learned Counsel also while further making his submissions had commented that in the light of the material available on record there are certain other properties belonging to the family and all the properties are not shown before the Court and hence in the absence of all the properties, the relief of partition cannot be granted since it would amount to a suit praying for the relief based on only partial partition which is impermissible in law. The learned Counsel also commented that in the light of the endorsement made on Ex.-18 and also in the light of the order made by this Court in CRP No. 1142/95 when the document as such was marked, non-consideration of the endorsement which would form part and parcel of the said document also is a serious infirmity to be taken into consideration. Even otherwise, the said endorsement can be looked into by virtue of which it can be taken that the plaintiff had left these properties or relinquished these properties in favour of the defendant, the present appellant. The learned Counsel also would comment that it may be that the relationship between the parties may be true, but had taken a specific stand that there was an exchange of properties and this property exclusively belongs to the appellant/defendant and in the light of the oral evidence adduced by him, the stand taken by the appellant/defendant should have been believed. The learned Counsel also had taken this Court through the evidence of P.W.I and also D.W.I and the evidence of other witnesses available on record. The learned Counsel also placed reliance on certain decisions to substantiate his contentions.

(3.) Contentions of Sri Mowa Chandra Sekhar Rao: Sri Mowa Chandrasekhar Rao, the learned Counsel representing Sri Bhaskar Reddy, Counsel on record on behalf of the respondent/plaintiff, made the following submissions. The learned Counsel would maintain that on a careful reading of the findings which had been recorded by the learned Judge, it is clear that the parties had understood the respective stands taken by them and had gone to trial and adduced the evidence and invited findings. Even if the framing of any Issue, especially Issue No.1, is not strictly in accordance with the pleadings, the same had not caused any prejudice whatsoever since both the parties are conscious of their respective stands. The learned Counsel also would maintain that the relationship between the parties that they are brothers is not in serious dispute. When the appellant/defendant had taken the stand of Exchange and also had taken the stand of the availability of other properties, the burden is on him. Even otherwise, several of these factual details are absent in the pleading i.e., written statement filed by him. It was pleaded that several other properties are available to the family. At any rate the Counsel would maintain that the appellant/defendant was unable to discharge the burden cast upon him and hence the learned Judge arrived at the correct conclusion. While commenting about the endorsement made on Ex.B-18, the learned Counsel pointed out that even by the order in the Civil Revision Petition, this Court just permitted the appellant/defendant to mark the same. Even otherwise, there is no clear pleading nor proof in relation to the said endorsement. When that being so, by virtue of the said endorsement said to have been made on Ex.B-18, it cannot be said that the alleged relinquishment or the Exchange had been established by the appellant/defendant. The learned Counsel also pointed out to the contradictory stands which had been deposed even by the witnesses examined on defence side and would contend that this would show that one brother is trying to postpone the litigation by requesting for an order of remand. This is definitely not a justifiable stand and there should be some reason for making an order of remand. At any rate, the party cannot take advantage of his own wrong of the non-marking of endorsement and cannot make it a ground again inviting an order of remand at the hands of this Court. This is totally impermissible and at any rate such order of remand cannot be made under any of the provisions of the Code of Civil Procedure. The learned Counsel would contend that in the absence of any acceptable evidence relating to either Exchange of the properties or relating to relinquishment or leaving these properties totally in favour of the other brother or relating to the existence of several other properties belonging to the family, necessarily the preliminary decree passed by the learned Judge may have to be confirmed, especially in the light of the stand taken by the appellant/defendant in the written statement. The learned Counsel also placed reliance on Nagubai Ammal v. B. Snama Rao, AIR 1956 SC 593, Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884, Pawan Kumar v. State of Haryana, AIR 2003 SC 2987 and Samdani Begum v. Dir Mohammed Khan, 2004 (4) ALD 296 = AIR 2004 AP 272.