IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.234 of 2010 Between: Guruvallab Dev alias A. Ampaiah & 2 others .. Revision Petitioners AND Cheerla Pateshwari Devi & 7 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.234 of 2010 ORDER: Heard the learned counsel for both sides. 2. The Civil Revision Petition is directed against the order in C.F.R.No.2311 of 2009 in O.S.No.24 of 1999, on the file of the II Additional Senior Civil Judge’s Court (Fast Track Court), Mahabubnagar, dated 16.12.2009, rejecting the petition to delete the cross-examination of D.W.1 conducted by the plaintiffs from the record. 3. The petitioners/defendants 1, 8 and 9 contended that in the suit for partition and separate possession in respect of the suit schedule properties, the 7th defendant filed a written statement admitting the averments of the plaint, with collusion of the plaintiffs. The Defendants 1 and 9, who were contesting the suit, objected to the 7th defendant being permitted to be cross-examined by the plaintiffs, as he was sailing with the plaintiffs. Relevant precedents were also placed before the trial Court, but still, the trial Court permitted the plaintiffs to cross-examine D.W.1. The Defendants 1, 8 and 9, therefore, requested for deletion of the cross-examination portion of the deposition of D.W.1, as he intentionally and wilfully admitted the averments in the plaint which would damage the case of the contesting defendants. 4. The trial Court passed the impugned order noting that the same objections were raised by the learned counsel for the contesting defendants at the time of the deposition of D.W.1 and the Court passed an order stating that on perusal of the decision reported in KARUMANCHI SUBBA RAO VS. YARLAGADDA VENKATAPPAIAH AND OTHERS[1], relied on by the contesting defendants and with reference to the facts and circumstances, the plaintiffs cannot be restrained from cross-examining the defendants as the admission in the written statement was only partial and not full. The trial Court, therefore, felt that in the light of the order passed by it during recording the evidence of D.W.1 itself, the cross- examination portion of the deposition of D.W.1 cannot be deleted and the Court cannot sit in appeal against its own observations. Accordingly, it rejected the petition. 5. The Defendants 1, 8 and 9 challenged the said order in this civil revision petition contending that there was an error apparent on the face of the record in not entertaining the petition and not permitting the contesting defendants to raise their objections against the cross-examination of D.W.1 by the plaintiffs. 6. The point for consideration is whether the portion of the deposition of D.W.1 containing the cross-examination by the plaintiffs has to be deleted from the record. 7. It is seen from the copies of the plaint and the written statement of the 7th defendant, filed along with the civil revision petition, that the plaintiffs specifically pleaded in para 3 of the plaint that late A. Sambaiah has created a registered gift deed for an area of 121.5 square yards in favour of the second defendant and the second defendant transferred the same to the 7th defendant after the death of A. Sambaiah at the instance of the first defendant. They sought for the relief of partition and allotment of their share in respect of the entire plaint ‘A’ schedule area, which was a residential house in a plot area of 600 square yards. In the written statement of the 7th defendant, though the other claims of the plaintiffs were admitted, it was specifically pleaded in para 5 that the second defendant, who was gifted 121.5 square yards by A. Sambaiah during his lifetime under a registered gift deed, came to gift the same under a registered gift deed to the 7th defendant on 07.09.1997. The 7th defendant, claiming to be in exclusive possession of the said plot of land, sought for the deduction of the same from the plaint ‘A’ schedule area. Thus, it is seen from the plain and unambiguous language of the pleadings that the plaintiffs and the 7th defendant are at dispute about the susceptibility of 121.5 square yards of plaint ‘A’ schedule property to partition as claimed by the plaintiffs in the suit and consequently, it is not a case of the 7th defendant admitting the claim of the plaintiffs as a whole and without any qualification and exception. In such circumstances, if the 7th defendant had entered the witness box, the plaintiffs cannot be considered to be having no right to cross-examine the 7th defendant in respect of the suit claim. That portion of the cross-examination, which is now attempted to be deleted from the record by the contesting defendants, also shows that the cross-examination was mainly directed against the gift in favour of the second defendant and the gift by the second defendant in favour of the 7th defendant. It is also seen from the cross-examination that the 7th defendant was denying about any sales of any portions of the subject property in collusion with the other defendants to the disadvantage of the plaintiffs. The examination-in-chief and the cross-examination also, thus, do not show cent percent identity of interest between the plaintiffs and the 7th defendant in this regard and the trial Court permitting the cross-examination of the 7th defendant, examined as D.W.1, by the plaintiffs, cannot, therefore, be considered unreasonable or improper. 8. The trial Court had, in fact, passed an order during the course of recording the evidence of D.W.1 himself on 22.10.2009 overruling the objection by the contesting defendants against the cross-examination by the plaintiffs and this order itself was not challenged by the contesting defendants. 9. Apart from the question whether without any challenge to that order, the cross-examination portion of the deposition can be requested to be deleted by an independent interlocutory application, the decision reported in KARUMANCHI SUBBA RAO’s case (supra 1) is a case where the parties in question had absolutely no adverse interest to each other and, therefore, the learned Judge opined with reference to Section 137 of the Indian Evidence Act, 1872, that the witness cannot be called an adverse party to be subjected to cross-examination. Similar was the decision reported in SADHU SINGH VS. SANT NARAIAN SIGH SEWADAR AND OTHERS[2], where it was recognized that when contradictory stands were taken on relevant material issues therein, the defendants shall be adversaries to each other entitled to exercise the right of cross- examination. So was the decision reported in HUSSENS HASANALI PULAVWALA VS. SABBIRBHAI HASANALI PULAVWALA AND OTHERS[3], where a supporting defendant was held to be not liable to be cross-examined by the plaintiffs, but the decision nowhere runs contrary to the principle that parties with adverse interest can cross- examine each other. As none of the decisions relied on by the revision petitioners laid down any contrary principle and as the interests of the plaintiffs and the 7th defendant are not identical and are in conflict at least in respect of a portion of the suit property and as the cross-examination in question does not appear to have crossed the limits of permissible cross-examination in that regard, the order passed by the trial Court rejecting the petition cannot be considered susceptible to interference in exercise of the restricted revisional jurisdiction in any manner. 10. Accordingly, the Civil Revision Petition is dismissed without costs. _______________________ G. BHAVANI PRASAD, J Date: 27th July, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.234 of 2010 Date: 27th July, 2011 KL [1] AIR 1978 ANDHRA PRADESH 193 [2] AIR 1978 PUNJAB & HARYANA 319 [3] AIR 1981 GUJARAT 190