THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.622 OF 2009 BETWEEN: 1. Kovvuri Venugopala Krishna Reddy, and others PETITIONERS And 1. Tetala Venkata Reddy S/o. Venkata Reddy, Anaparthi, Anaparthi Mandal, East Godavari District. RESPONDENT Counsel for Petitioner: Sri Badana Bhaskara Rao Counsel for Respondents: N.A The Court made the following JUDGMENT: This second appeal, by the unsuccessful defendants before the courts below, is directed against the judgment and decree dated 23.10.2008 passed by the Senior Civil Judge, Ramachandrapuram in A.S.No.3 of 2004 whereby and whereunder the appeal filed by the appellants/defendants against the decree and judgment dated 4.07.2003 passed by the Principal Junior Civil Judge, Ramachandrapuram, East Godavari District in decreeing O.S.No.209 of 2001 filed for partition of the suit schedule property into two equal shares and for allotment of half share to the plaintiff and for awarding mesne profits @ Rs.500/- p.m., from the date of filing of the suit. The defendants are the brothers. The respondent/plaintiff filed the above suit for partition alleging that he purchased the undivided half share of the second defendant in the suit schedule property, which is a house, under a registered sale deed dated 30.06.1997, which was attested by the father of the defendants, as they both got the property in pursuance of a registered Will deed dated 19.08.1983 executed by their grandfather by name Kovvuri Sura Reddy; and that in spite of his demands to cooperate for partition of the schedule property the first defendant is not coming forward, on the other hand, the defendants colluded together and the first defendant is proclaiming in the village that he will dismantle the house. Hence the suit for partition and for mesne profits for his half share from the date of the suit. The first defendant contested the suit by filing written statement admitting that the second defendant and himself are brothers. His grandfather executed Will deed dated 19.08.1983 and died in the year 1986. Under the said Will deed, they alone are not entitled to the suit schedule property but any male issue to be born to their father would also be entitled to share in the property. He denied the sale of undivided half share in the plaint schedule property by the second defendant to the plaintiff and that the plaintiff has become the joint owner along with him. It is pleaded that his father and the second defendant are addicted to vices and the second defendant is a drug addict. The plaintiff, being a rich and influential person doing finance business, must have created the sale deed by threatening the second defendant and their father. The alleged sale deed dated 30.06.1997 is nominal and sham document and that the second defendant had no right or capacity to execute such a document as he was addicted to drugs and was suffering mentally and that the said sale was not supported by any consideration. Their mother gave birth to another son, who died at the age of one year and he has come to know about the suit document only after he filed suit in O.S.No.164 of 2001. Therefore, the plaintiff is not entitled to half share. The second defendant filed separate written statement admitting that his grandfather executed a registered Will on 19.08.1983 bequeathing the plaint schedule property in favour of the first defendant and himself and died in the year 1986. He denied that he received Rs.68,000/- and sold the property to the plaintiff by executing the registered sale deed on 30.06.1997, and he came to know about the alleged sale deed only after his receiving a copy of the plaint in this suit. He reiterated the plea taken by the first defendant and prayed to dismiss the appeal. On the above pleadings the trial Court framed the following issues for trial. 1. Whether the plaintiff is entitled for partition of the schedule property into two equal shares and for allotment of one such share as prayed for? 2. Whether the plaintiff is entitled for future profits for his half share in the schedule property from the first defendant? 3. To what relief? To prove his case, the plaintiff apart from himself examining as PW.1, also examined three independent witnesses as PWs.2 to 4 and got marked Exs.A.1 to A.6. The first defendant himself was examined as DW.1 and the second defendant as DW.4 apart from examining two more witnesses as DWs.2 and 3, but no documents were marked on their behalf of the defendants. The learned Junior Civil Judge by his judgment and decree dated 4.07.2003, at point No.1 held that the plaintiff was able to substantiate that the suit schedule properties are the self acquired properties of the defendants’ paternal grandfather, who executed Ex.A.1-Will deed in a sound and disposing state of mind bequeathing the schedule property with equal shares to the defendants and some other house property towards its East to the defendants father one kovvuri Venkatareddy. The defendants 1 and 2 are entitled to half share each and the half share of the defendant No.2 was purchased by the plaintiff. To prove his case that the second defendant executed Ex.A.2-sale deed in his favour to discharge his debts covered by Ex.A.5 and A.6 and for his business purpose and the same is supported by consideration, the plaintiff examined the scribe as PW.2, attestor as PW.3 and the mediator, who conducted mediation, as PW.4, and that as per the recitals of Ex.A.2 the father of the defendants is also one of the attestors. Observing so, the learned Principal Junior Civil Judge decreed the suit for partition of half share purchased by the plaintiff holding that the plaintiff is entitled for mesne profits @ Rs.500/- p.m., from the date of filing of the suit till the date of delivery, since the first defendant, who examined as DW.1, admitted that the schedule property was fetching approximately Rs.1,000/- per month as rent. The second defendant died on the date of pronouncement of the judgment by the trial Court. Hence, the first defendant and the legal representatives of the second defendant, being aggrieved by the judgment of the trial Court, carried the matter in appeal contending that non framing of issue specially about the genuineness of Ex.A.2 sale deed renders the judgment invalid; that Ex.A.2 sale deed was obtained by the plaintiff by the way of either misrepresentation or fraud or when the second defendant was under intoxicated condition; and that without framing appropriate issue the suit cannot be decreed. The lower appellate Court after framing appropriate points for consideration, following the judgment of this Court in Mohd. Karimuddin Khan v. Syed Azam[1], held that denial of a fact or law affirmed by another party must be made as an issue which would help the parties to lead evidence and also to help the Court to come to a correct decision. But it may be noted that mere non-framing of issue on any part or aspect on which basis if the evidence let in by the parties and giving a finding thereon by the Court will invalidate the entire judgment. The defendants raised the plea of impersonation in obtaining Ex.A.2-sale deed from the second defendant who is a drug addict, alcoholic and lost his mental balance. When the first defendant, who was examined as DW.1, admitted that the second defendant has a share in the plaint schedule property, he cannot attack the sale deed, which is a registered document in favour of the plaintiff. The said plea can be taken by the second defendant, who is the executant of the sale deed. If the plea of the second defendant is true, it is open for the second defendant to file a suit for cancellation of sale deed within the limitation period. The plaintiff has discharged the initial burden of examining himself and also the scribe and the attestors for passing of consideration. The parties were aware that Ex.A.2-sale deed is genuinely obtained by the plaintiff and the defendants having not insisted for framing of any issue by the lower Court cannot question the judgment on the said ground after sufficiently leading evidence with regard to the genuineness of Ex.A.2-slae deed. Observing so the lower appellate Court dismissed the appeal holding that the judgment cannot be invalidated on the said technical ground. Both the courts concurrently held that the sale deed obtained by the plaintiff has been proved satisfactorily by examining the scribe, attestors and the mediator, who conducted mediation between the parties. When the second defendant could not challenge the validity of Ex.A.2-sale deed during his lifetime, it is not open for the first defendant or the legal representatives of the second defendant to contend that the sale deed is obtained by fraud or misrepresentation. In view of the same, concurrent findings of fact recorded by the lower Court decreeing the suit do not give raise any question of law much less any substantial question of law to admit the second appeal. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. ____________________ (A. GOPAL REDDY, J.) 28th August, 2009 Js. [1] 1997 (2) ALT 625 (DB)