THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S. 998 OF 1992 JUDGMENT:- The first defendant in O.S.No.80 of 1986 on the file of the Court of Principal Subordinate Judge, Tenali is the appellant herein. The suit one was filed for specific performance directing the execution of the partition deed dated 21-02-1986 executed by the first defendant or in the alternative to direct the first defendant to execute a fresh partition deed. The case of the plaintiffs is that they are brothers and sons of the first defendant through his second wife; whereas the second defendant is the son of the first defendant through his first wife. The suit schedule properties are the properties belonging to the family. Second defendant separated from the family and a partition deed was executed on 02-01- 1986 and living separately. The plaintiffs, first defendant and mother were living separately. The plaintiffs demanded for a partition of the properties and the elders in the village have mediated and a deed of partition was executed on 19-02-1986 with a condition to execute a regular partition deed subsequently. The properties were taken possession on 21-02- 1986 as per the partition deed. On 21-02-1986 a deed was executed on stamps and attested by the second defendant but the first defendant did not execute the same. The plaintiffs enjoyed the crop in the suit schedule property and thereafter in March-1986 the first defendant pleaded that there are family debts of Rs.12,000/- and they should be shared by the plaintiffs for which the plaintiffs did not agree. As the first defendant is not cooperating for execution of the partition deed, the suit was filed for the same relief. The first defendant filed a written statement which was adopted by the second defendant. The suit for specific performance is not maintainable and is barred by limitation. The partition deed dated 21-02- 1986 was executed with some conditions. The plaintiffs have not performed their part and they have not executed the conveyance deed with regard to 290 square yards of house site as stipulated in Clause.II and debts were not discharged. Therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the plaintiffs are entitled for specific performance of the partition deed dated 21-02-1986 as prayed for? 2. Whether the plaintiffs are entitled for perpetual injunction as prayed for? 3. Whether the suit barred by limitation? 4. Whether the second defendant is a necessary party? 5. To what relief? On behalf of the plaintiffs PWs.1 to 3 were examined and marked Exs.A-1 to A-13. On behalf of the defendants DWs.1 and 2 are examined and marked Exs.B-1 and X-1. After considering the evidence on record, the lower court decreed the suit of the plaintiffs and aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the plaintiffs are entitled for the specific performance as granted by the lower court? 2. Whether the judgment and decree passed by the learned Senior Civil Judge, Tenali is legal and enforceable? POINTS:- There is no dispute about the fact of relationship between the parties and also the execution of the alleged partition deed dated 21-02-1986. There is also a stipulation to discharge some debts and the lower court found that debts due to the Bank and Cooperative Society were written off and therefore there is no liability. The plaintiffs admitted that they will abide by condition No.2 to convey Ac.0.06 cents of vacant site to the first defendant to be enjoyed by him with life interest and to revert back to the plaintiffs. But the contention of the appellant herein is that it is a condition precedent before the partition deed is to be registered. The lower court found that some private debts were shown in the settlement but the existence of those debts was not proved and no suit was filed and therefore it is not a condition precedent for discharge of the debts by the plaintiffs. The movables also have already been partitioned. The lower court did not accept the condition that the partition of movable and immovable properties is not existing and the plaintiffs are not at fault. On consideration of the partition deed, the learned Senior Civil Judge concluded that the plaintiffs will be entitled to the properties as per the partition deed. There was only a dispute with regard to item No.9 and the lower court has substituted item No.9 as follows:- D.No.736/4 1.03 cents 736/5 1.11 736/6 1.05 736/7 1.11 736/8A 1.16 731/1A out of 93 cents, 50 cents Evidently, the execution of the partition deed is sought for as there was an agreement and in the alternative a fresh deed of partition was also claimed. Though the suit is technically filed as a suit for specific performance of contract, it is essentially a suit for partition of the suit schedule properties and in fact when a partition has been affected and document has not been executed, a suit for recognition of the partition and passing a decree in pursuance of it is not barred. Therefore, in view of the above circumstances, as rightly contended by both parties, inspite of passing a decree for specific performance, a final decree is passed declaring that the plaintiffs are the owners of the suit schedule properties claimed in the plaint substituted by item No.9 by judgment of the court as referred above and also declaring that the first defendant shall enjoy 290 square yards of house site in Block.II in Vemuru Village with life interest and the same shall revert back to the plaintiffs after the death of the first defendant. The decree for injunction granted by the lower court is confirmed. Accordingly, the points are answered. In the result, the Appeal Suit is allowed in part. The decree of the lower court is modified and a final decree is passed recognising the plaintiffs as owners of the suit schedule properties and also recognising the first defendant as the person entitled for enjoyment of 290 square yards of house site in Balock No.II situated at Vemuru Village with life interest and revert back to the plaintiffs after his death by granting a permanent injunction with regard to enjoyment of the properties by the plaintiffs. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 08-09-2011 TSNR