IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION Nos.2415 & 2728 of 2008 CRP.No.2415/2008: Between: Badi Varahalamma and another ..... PETITIONERS AND Pinapatruni Sanyasamma @ Ammaji .....RESPONDENT CRP.No.2728/2008: Between: Badi Varahalamma and another ..... PETITIONERS AND Pinapatruni Sanyasamma @ Ammaji and 2 others .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION Nos.2415 & 2728 of 2008 COMMON ORDER: These two Civil Revision Petitions arise out of the same proceedings and the petitioners herein are the plaintiffs who filed the suit O.S.156/2001 on the file of the Principal Junior Civil Judge, Yellamanchili against the respondents herein for partition of the suit schedule properties in three equal shares and to allot two such shares to the petitioners and one share to the respondents. The first petitioner and the respondent are the own sisters of late Karri Bullemma and the 2nd petitioner is the daughter of another sister. According to the plaintiffs, Karri Bullemma died intestate and therefore, all the parties are entitled to equal shares. Whereas, the respondents/defendants relied on Ex.B1 Will dated 07.03.1998 said to have been executed by late Karri Bullemma. The plaintiff disputes the said Ex.B1 Will. However, based on the oral and documentary evidence adduced before the trial Court, the trial Court believed Ex.B1 Will as genuine and dismissed the suit. Aggrieved by the same, the plaintiffs filed appeal in A.S.6/2007 on the file of the Senior Civil Judge, Yellamanchili. During pendency of the appeal, plaintiffs filed I.A.511/2007 in A.S.6/2007 under Or.41 Rule-27 CPC to permit them to produce the original registered sale deed dated 27.07.1994 said to have been executed by the said late Karri Bullemma (the testatrix of the alleged Ex.B1 Will) in favour of some third parties viz., Akkapu Narayana and Jogarao as additional evidence. The learned Judge dismissed the said application by the impugned order dated 01.04.2008, against which CRP.2415/2008 is filed. It is stated that the same petitioners/plaintiffs/appellants filed another application in I.A.512/2007 under Sec.45 of the Indian Evidence Act for sending the original registered sale deed dated 27.07.1994 executed by late Karri Bullemma in favour of Akkapu Narayana and Jogarao and Ex.B1 Will to finger print expert for comparison of both the thumb marks of late Karri Bullemma on the registered sale deed dated 27.07.94 as well as Ex.B1 Will dated 07.03.1998. The said application was also dismissed by the lower appellate Court by order dated 01.04.2008, against which CRP.2728/2008 is filed. The learned counsel for the petitioners/plaintiffs submits that they were not known about the execution of the sale deed by the same testatrix on 27.07.1994 in favour of third parties and though they have disputed the genuineness of Ex.B1 Will dated 07.03.1998 they could not get the admitted signatures of late Karri Bullemma and a week back only they came to know that late Karri Bullemma executed a registered sale deed in favour of third parties on 27.07.1994 and therefore, if the thumb marks of late Karri Bullemma on the registered sale deed are examined, the genuineness or otherwise of Ex.B1 would be established. Therefore, they filed the said application for receipt of the additional evidence, following by another application for sending the said registered sale deed dated 27.07.1994 and Ex.B1 to a finger print expert for comparison of thumb marks of late Karri Bullemma. The lower appellate Court dismissed the said two applications filed under Or.41 Rule-27 CPC on the ground that the defendant never admitted the thumb impression of late Karri Bullemma on the registered sale deed dated 27.07.1994 and therefore, in the absence of any admitted signatures by the defendant, the registered sale deed cannot be permitted to be received for sending the same to an expert opinion. The question that arises for consideration is whether the petitioners/plaintiffs/appellants are entitled to produce the additional evidence in the appellate Court as contemplated under Or.41 Rule-27 CPC. Under Or 41 Rule-27 CPC, the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within, his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate Court may allow such evidence or document to be produced, or witness to be examined. In the instant case, according to the plaintiffs, it is stated that only after passing of decree and during pendency of appeal, a week prior to filing of the application, they came to know about the execution of the registered sale deed by late Karri Bullemma and therefore, they are entitled to produce the same as additional evidence before the appellate Court. The learned Judge has not decided about the genuineness or otherwise of the said averment with regard to their knowledge about the execution of the registered sale deed. In fact, the said averment that a week back only they came to know about the execution of the registered sale deed was not denied. If that be so, it cannot be said that the original registered sale deed dated 27.07.1994 is not relevant document to establish the thumb marks of late Karri Bullemma. However, it is always open for the defendant to dispute and establish that the thumb impressions of late Karri Bullemma on the original sale deed dated 27.07.1994 do not belong to late Karri Bullemma and that Karri Bullemma never executed the said sale deed, and it is for the Court to decide as to whether the thumb impressions contained on the original sale deed dated 27.07.1994 belongs to late Karri Bullemma or not. Ultimately if the petitioners/appellants/plaintiffs establish that late Karri Bullamma alone executed the registered sale deed and that the thumb impressions on the registered sale deed belongs to late Karri Bullemma, the said document is a relevant document and in the event of the defendant disputes the thumb impression, the plaintiffs are entitled to send the original sale deed for expert opinion. Therefore, I am of the opinion that dismissing I.A.511/2007 for receiving additional evidence is illegal and erroneous as the petitioners/plaintiffs have made out the case stating that in spite of exercise of due diligence they could not procure the said sale deed during course of trial and therefore, the CRP.2415/2008 is allowed and the I.A.511/2007 stands allowed. No order as to costs. In so far as CRP.2728/2008 is concerned, I am of the opinion that it is just and proper to give a reasonable opportunity to the defendant to prove her claim that the thumb impressions on the registered sale deed dated 27.07.1994 belongs to late Karri Bullemma or not. It is open for the petitioners/appellants before the lower appellate Court to send both the documents i.e. registered sale deed dated 27.07.1994 and Ex.B1 Will dated 07.03.1998 to a finger print expert for comparison of the thumb impressions of late Karri Bullemma and for report. Therefore, the order impugned in this revision petition is set aside and the matter is remitted back to the lower appellate Court to consider and dispose of the same afresh, in accordance with law. Accordingly, the CRP.2728/2008 is allowed. No order as to costs. ________________ V.ESWARAIAH,J Dated: 27.01.2011 Dsr