IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO. 789 OF 2009 Between : Mandava Lakshmi Tapati. ... APPELLANT A N D Gudivada Venkata Subbarao and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT NO. 789 OF 2009 JUDGMENT: This Appeal Suit, under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 14.10.2009 in O.S. No.436 of 2007, whereunder and whereby, the suit filed for partition of plaint schedule properties into 7 equal shares and to allot one such share to the plaintiff herein and to deliver physical possession of the same to the plaintiff and to pass a decree for past and future profits, was dismissed. 2. The brief facts that are necessary for disposal of the appeal suit may be stated as follows: The claim of the plaintiff is that the plaintiff and the defendants are children of one Gudivada Venkata Laxmi Narayana, and the properties were acquired in the name of appellant with the income derived from the joint family properties which are devolved on the appellant and the defendants 1 to 6 as the Gudivada Venkata Laxmi Narayana died intestate. During his life time, defendants 1 to 4 filed suit against Gudivada Laxmi Narayana, for partition by pleading that the appellant and 6th defendant have no share in the joint family property and for division of the property into six equal shares. The said averments are totally false and the properties are in joint possession of the plaintiff and defendants. 3. Except defendant No.7, all the defendants remained exparte. He filed written statement stating that the suit is not maintainable, and there is no cause of action to file the suit. Defendant No.7 is necessary and proper party as he is managing the cinema theatre. Hence, he prays to dismiss the suit. 4. Basing on the above pleadings, the following issues have been settled by the trial court for trial: 1. Whether the plaintiff is entitled for partition of plaint schedule property as prayed for ? 2. Whether there is cause of action to file this suit against 7th defendant ? 3. Whether Defendant No.7 is a necessary party to the suit ? 4. To what relief? 5. The plaintiff himself was examined as PW-1 and got marked Ex.A1. On behalf of the defendants DWs.1 and 2 were examined and Exs.B1 to B8 were marked. 6. The trial court after considering the evidence available on record, dismissed the suit. Aggrieved thereby this appeal has been preferred. 7. Heard both sides. 8. The appellant is the defendant in O.S.No.107 of 2004, which was dismissed for default. Though the appellant is the 4th defendant in that suit, he cannot ask for restoration of the suit when it is dismissed for default. The trial court ought to have given a finding as to whether the properties sought for partition are the joint family properties of Gudivada Venkata Lakshmi Narayana or whether the properties are acquired in the name of father of plaintiff out of the income derived from the joint family properties. No such finding is given but simply dismissed the suit on the ground that earlier suit was dismissed for default. The appellant has not filed the earlier suit. Therefore, the trial court has not considered the evidence in perspective to resolve the issue involved in the suit. Similarly the trial court has not given finding with regard to plea that the defendant No.7 is a necessary party. As a matter of fact, no finding was given as to why the appellant is not entitled for a share in the joint family properties of G.V.Lakshmi Narayana. 9. Hence, it is a fit case to set aside the decree and judgment passed by the trial court and to remand the matter to trial court to decide the suit on merits, basing on the issues framed and if necessary both the parties are permitted to let in evidence. 10. Accordingly, the appeal is disposed of. There shall be no order as to costs. ______________ K.C.BHANU. J APRIL 16, 2010. YVL