VUPPU VEERABHADRUDU Vs. VUPPU MALLAYYA

JUDGEMENT

(1.) This appeal is filed as against the decree and judgment made in OS No.253 of 1984 on the file of the Subordinate Judge, Anakapalli. The suit was originally instituted as OS No.79 of 1984 on the file of Vacation Civil Court, Visakhapatnam. Defendant No.1 is the appellant and since the said appellant died, appellants 2 to 6 were brought on record as his legal representatives by an order dated 20.10.2003 made in CMP No.21037 of 2003. The 3rd respondent is shown as not a necessary party in the appeal, as the suit was dismissed as against 3rd respondent- defendant No.3.

(2.) The 1st respondent-plaintiff filed the above suit for partition of the plaint schedule properties. The said suit OS No.253 of 1984 was tried along with yet another suit OS No.79 of 1987 instituted by the 1st defendant in OS No.253 of 1984. The said suit was originally instituted as OS No.26 of 1985 on the file of Subordinate Judge, Chodavaram. Both suits were tried together and though on the respective pleadings of the parties initially the issues had been settled in both these suits, ultimately, in view of the Memo filed during the course of trial, the evidence in OS No.253 of 1984 was treated as evidence in OS No.79 of 1987 and in view of the joint trial, taking into consideration the issues settled in both the suits, consolidated issues had been framed at paragraph 13 of the judgment and the learned Judge while deciding the matter referred the parties as arrayed in OS No.253 of 1984, proceeded to discuss the oral and documentary evidence on record PWs.1 to 5, DWs.l to 6 and also ExsA1 to A6, Exs.Bl to Ex.B5, recorded findings commencing from paragraphs 15 to 21 and ultimately decreed the suit OS No.253 of 1984 holding that the plaintiff and defendants 1 and 2 alone would be entitled to the respective shares and the 3rd defendant had no right in the property and accordingly dismissed the suit as against the 3rd defendant, and further decreed OS No.79 of 1987. It is also pertinent to note that at paragraph 18 of the judgment it was recorded that it is also conceded by the learned Advocate for plaintiff in OS No.253 of 1984 and the 1st defendant in OS No.79 of 1987 that he has no objection to partition the properties among himself and his brothers and it was further recorded that 'hence the plaintiff in OS No.79 of 1987 is entitled for partition of plaint A and B schedule properties and entitled to equal shares with defendants 1 and 2 only'. Though findings in detail had been recorded, in a way in substance the decree appears to be a consent decree. Contentions of Sri Mukunda Rao

(3.) Sri Mukunda Rao, learned Counsel representing the legal representatives of the appellant-1st defendant (appellants 2 to 6) had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that inasmuch as 1st defendant is not aggrieved of the decree and judgment made in the connected suit OS No.79 of 1987, no appeal as such had been preferred, but though the judgment was delivered in the light of the common evidence and the common trial and inasmuch as defendant No.1 is not aggrieved of the decree and judgment made in yet another suit, the appeal is perfectly maintainable. While further elaborating his submissions, the Counsel would maintain that the suit as framed for partition is not maintainable since it is the case of the parties that the business is a partnership concern and the remedy, if any, is to file a suit for dissolution of partnership firm and rendition of accounts and hence the suit for partition filed definitely is a misconceived remedy. The learned Counsel also had taken this Court through the evidence of PW.1 in detail and the other evidence available on record and had pointed out to the relevant portions of the findings recorded by the learned Subordinate Judge, Anakapalli and would maintain that in the light of the facts and circumstances and also the grounds which had been raised in detail in the grounds of appeal, the appeal to be allowed. Contentions of Sri Narasimham