THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.925 of 2009 Date: 23rd September, 2009 Between: Bodduluru Chinnagaiah and another. ..Appellants and Bodduluru Eswaraiah and others. ..Respondents THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.925 of 2009 JUDGMENT: The first appellant filed O.S.No.1172 of 1987 in the Court of III Additional District Munsif, Cuddapah, against the respondents for partition of the suit schedule property comprising of Acs.8.38 cents of land. He pleaded that the said land is property and for the past several generations, partition had not taken place. The respondents, in particular, respondent Nos.4 and 5 pleaded that the property was partitioned way back in 1926 under a registered partition deed and the suit is untenable. The trial Court dismissed the suit through judgment dated 29.07.1991 and the first appellant filed A.S.No.13 of 1995 in the Court of the District Judge, Cuddapah. The appeal suit was dismissed on 17.11.1998. Hence, this Second Appeal. Heard Sri S. Srinivas Reddy, the learned counsel for the appellants. The relationship pleaded by the appellants with the various respondents is not disputed. It is also admitted that the suit schedule property was held by the joint family at one point of time. While the appellants pleaded that the property remained joint, the respondents pleaded prior partition. The trial Court framed the following issues for its consideration:- 1. Whether the plaintiff and defendants 1 to 3 are in joint possession of the plaint schedule property? 2. Whether the plaint schedule land was sub-divided between Tirupathiah and plaintiff and his brothers by the orders of the R.D.O.? 3. Whether the plaintiff is entitled for partition of the plaint schedule property? 4. To what relief? The first appellant deposed as P.W.1 and he filed Exs.A1 to A8. On behalf of the respondents, D.Ws.1 and 2 were examined and Exs.B1 to B22 were filed. It has already been mentioned that there is no dispute as to the relationship of the parties and the factum of the property having been held by the joint family. If there was no partition, a preliminary decree could certainly have been passed duly indicating the respective shares. On the other hand, if a prior partition is proved, the suit deserves to be dismissed. The second appellant has also admitted that there existed a prior partition way back in 1926. The copy of the registered document is filed as Ex.A1. However, he proposed to disprove the partition on the ground that a condition as to the discharge of debts was incorporated in Ex.A1 and on account of non-implementation thereof, the partition did not take place. The trial Court recorded a finding to the effect that no default clause as such exists. Even assuming that a clause of that nature was incorporated and there was default, the partition cannot be ignored. Any aggrieved party has to seek necessary remedy by way of declaration. No such steps were taken. The trial Court as well as lower appellate Court has dealt with the matter in a correct perspective. Therefore, this Court is not inclined interfere with the concurrent finding of the Courts below. No substantial question of law arises for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. No order as to costs. ________________________ (L. NARASIMHA REDDY, J) 23rd September, 2009 GHN