IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD SATURDAY, THE THIRTIETH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 190 OF 2003 BETWEEN: G.N.Ashok Kumar …APPELLANT AND G.N.Dasharathy and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 190 OF 2003 JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) The plaintiff in O.S.No. 146 of 1998 on the file of I Additional Chief Judge, City Civil Courts, Secunderabad, is the appellant herein. 2. The suit was filed for partition of the schedule property and allotment of 4/7th share to the plaintiff and 1/7th share each to the defendants 1 to 3. 3. The case of the plaintiff is that the plaintiff and defendants are brothers and their father was one G.N.Narayana, who died on 03.05.1987 leaving behind him the plaintiff, the defendants and his three brothers by name G.N. Narender Kumar, G.N.Srinivasa Murthy and G.N.Chandra Prakash. There was a partition of the joint family properties on 04.02.1991 and in the said partition, the schedule property was allotted to the share of the plaintiff and defendants 1 to 3 and the plaintiffs was allotted 4/7th share and the defendants 1 to 3 were allotted 1/7th share each. Inspite of repeated demands, the defendants have not co-operated with the plaintiff for partition of the property. Hence the suit. 4. The defendants filed a written statement admitting the relationship. The allegation that there was a partition on 04.02.1991 in respect of the schedule property is denied. According to the defendants, apart from the plaintiff and defendants the other three brothers are also entitled for equal share and they are necessary parties to the suit. The plaintiff though claimed mesne profits, it was pleaded that the plaintiff is not entitled for the same. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the suit is bad for non-joinder of three brothers of the plaintiff? 2) Whether the alleged oral partition dated 04.02.1991 is true, valid and binding on the defendants? 3) To what share each of the parties is entitled to? 4) To what relief? 6. On behalf of the plaintiff, PW.1 was examined and marked Exs.A-1 to A-4. On behalf of the defendants, DW.1 was examined and no documents were marked. 7. After considering the evidence on record, the learned I Additional Chief Judge, Ciity Civil Court, Secunderabad, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 8. During the pendency of the appeal, the appeal against defendant No.3 was dismissed for default. 9. The points that arise for consideration are: 1) Whether the claim of the plaintiff for partition of the schedule property and allotment of 4/7th share is legal and sustainable? 2) Whether the dismissal of the suit by the learned I Additional Chief Judge, Ciity Civil Court, Secunderabad, is proper? 3) To what relief? 10. POINTS: The counsel for the appellant strongly contends that Ex.A1 is the partition deed dated 04.02.1991, whereunder the present schedule property was allotted to the shares of the plaintiff and the defendants only and in fact, this fact was admitted by DW.1 in cross-examination and the fact of signing on Ex.A.1 was also admitted by the DW.1 in cross-examination and Exs.A.3 and A.4 Registered Sale Deed and Gift Deed proves the factum of partition on 04.02.1991 and therefore, the suit should not have been dismissed even if Ex.A.1 is not true. Even otherwise according to the counsel for the appellant, the lower Court should have granted 1/7th share by decreeing the suit of the plaintiff. 11. It is to be mentioned that admission of partition between the family members is different from allotment of a particular item of the property to the members. Merely because DW.1 admits and Exs.A.2 to A.4 reference to a partition on 04.02.1991, no presumption can be drawn that the schedule properties were allotted to the plaintiff and defendants 1 to 3 only. The burden is definitely on the plaintiff to prove the particulars of the partition. Evidently, Ex.A.1 partition deed was not mentioned in the plaint. The lower Court found that the document cannot be looked into for want of registration. Even if it is to be taken as a document to be looked into for collateral purpose, it can only be to prove a factum of partition and it cannot be taken as a document to be looked into about the allotment of particular property to the share of the parties. Therefore, the reliance on the evidence of DW.1 about the share he got with reference inadmissible document Ex.A.1 cannot be taken into consideration. There is no reason as to why the plaintiff has not chosen to examine the other brothers, who did not get any share in this item of the property. Though the learned counsel for the appellant contended that as the value of the property to his share was less he was given 4/7th share in the suit schedule property, this was not pleaded in the plaint. Further, a perusal of the document Ex.A.1 clearly goes to show that the description of this property is not proper. Therefore, we have no hesitation in holding that Ex.A.1 cannot be taken into consideration and in view of the specific plea of the defendants 1 to 3 about the denial of the particular partition pleaded by the plaintiff, the lower Court has rightly rejected the claim for 4/7th share. It is to be remembered that there is no advantage for the defendants in denying the partition set up by the plaintiff, as they are not getting any excess share. Therefore, we hold that the plaintiff failed to prove that he has got 4/7th share. 12. But however as rightly contended by the counsel for the appellant, the lower Court should not have dismissed the suit for partition at least to the extent of 1/7th share of the appellant. Evidently, in a suit for partition, even if the other sharers are not in record, if the share of the plaintiff is determined in the final decree proceedings, the other necessary parties can be added and relief can be granted. Therefore, in this case, the suit cannot be dismissed for not adding the other brothers as parties to the suit and the appeal also cannot be said to be not maintainable for dismissal as against defendant No.3, who is an undisputed sharer. 13. Therefore, in view of the above circumstances, we hold that the judgment and decree passed by the learned I Additional Chief Judge, City Civil Court, Secunderabad, insofar as dismissal of the total suit of the plaintiff is not proper and we hold that all the brothers are entitled to 1/7th share each and accordingly a preliminary decree is passed. In the final decree proceedings, the plaintiff shall add the other brothers as parties and seek the necessary reliefs. Accordingly points are answered. 14. In the result, the appeal is allowed setting aside the judgment and decree passed by the learned I Additional Chief Judge, City Civil Court, Secunderabad, and all the brothers are entitled to 1/7th share each and accordingly a preliminary decree is passed. In the final decree proceedings, the plaintiff shall add the other brothers as parties and seek the necessary reliefs. The appellant is at liberty to file an application for mesne profits towards his share, which shall be determined separately by the Court. There shall be no order as to costs. ______________ V.ESWARAIAH, J ________________________ N.R.L.NAGESWARA RAO, J Date: 30-04-2011. INL