IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: AT HYDERABAD WEDNESDAY, THIS THE FOURTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT: HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.978 of 2009 Between: Kuncha Venkata Ramana S/o. Chinnappa and others …. Appellants AND Kuncha Venkataramana S/o. Late Narayana and another …. Respondents HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.978 OF 2009 JUDGMENT: Appellants filed O.S. No.45 of 2003 in the Court of the Senior Civil Judge, Rayachoti against the respondents for the relief of partition and separate possession of the suit schedule property comprising of Acs.3.00 cents of land in survey No.690 and Acs.7.20 cents of land in survey No.767 of G.Reddivaripalli Village, Tsundupalli Mandal, Kadapa District. It was pleaded that Sri Kuncha Narayana had three sons, viz., Pedda Reddiah, Chinna Reddaiah and Chinnappa. Chinna Reddaiah is said to have separated from the family long back and the two brothers i.e. Pedda Reddaiah and Chennappa remained joint. The appellants are the sons of Chinnappa, whereas respondents are the sons of Narayana, who in turn is, son of Pedda Reddaiah. It was alleged that the suit schedule property remained in joint enjoyment of both the branches and inspite of repeated demands, partition was not effected. 2. 1st respondent filed written statement and the 2nd respondent filed a memo adopting the same. According to them, the partition between the two branches took place about 100 years back and the properties were divided by metes and bounds. It was stated that they got Ac.1.62 cents from the plaint ‘A’ schedule, and Acs.2.82 cents from ‘B’ schedule. They stated that they are enjoying the land in their own right and that the partition cannot be reopened. 3. Through its judgment dated 04-01-2006, the trial Court dismissed the suit. Aggrieved thereby, the appellants filed A.S. No.11 of 2008 in the Court of V Additional District Judge, Rayachoty. The appeal was dismissed on 01-07-2009. Hence, this second appeal. 4. Sri B.Venkata Rama Rao, learned counsel for the appellants, submits that the trial Court as well as the lower appellate Court negatived the plea of the appellants only on the ground that partition has taken place long back and that it cannot be reopened. He further submits that execution of the sale deeds etc., by various members of the family were treated as an exclusive enjoyment of the properties. He contends that with great difficulty and after making serious efforts, the appellants came to know that ‘A’ schedule property was purchased on 26-05-1969 that too, in the name of the three sons of Narayana and that would belie the contention of the respondents that there was partition about 100 years prior to filing of the suit. 5. Sri L.J. Veera Reddy, learned counsel for the respondents, on the other hand, submits that except pleading that the family remained joint, the appellants failed to prove the existence of joint family. He further contends that for the past several decades the parties are not only living separately, but also are enjoying their respective shares independently and to the exclusion of others. He contends that the sale deed dated 26-05-1969 was not part of record and the same cannot constitute the basis for reversing the concurrent findings recorded by the trial Court and the lower appellate Court. 6. The trial Court framed the following issues for its consideration, on the basis of the pleadings before it. i. Whether the suit schedule properties including many other properties belonging to Hindu joint family were partitioned about 100 years back by metes and bounds under oral partition during the time of grand father of plaintiffs and defendants as per the custom prevailing in their caste? ii. Whether the plaintiffs are entitled for preliminary decree for partition of the plaint A and B schedule properties as prayed for? iii. To what relief? 7. On behalf of the appellants, PWs.1 to 4 were examined and the documentary evidence adduced by them comprised of only a notice issued by them and the reply thereto. On behalf of respondents, DWs.1 to 3 and Exs.B-1 to B-16 were filed. Exs.B-1 to B-8 are certified copies of registered sale deeds, spread over the period between 1972 and 1996. Exs.B-9 to B-10 are Pattadar Passbooks. Rest of the documents are electricity bills etc. The trial Court answered both the issues against the appellants. It was found that though the prior partition pleaded by the respondents is not evidenced by any document, the exclusive enjoyment of the property by the parties would suggest severance of status. The lower appellate Court also proceeded almost on the same basis. 8. If one goes by the evidence on record, inescapable conclusion is that the parties were enjoying all the properties in their individual rights and the concurrent findings recorded by the trial Court and the lower appellate Court do not warrant interference. However, the appellants have come into possession of an important piece of evidence and they filed an application under Rule-27 of Order-XXXXI CPC. It is the certified copy of the sale deed dated 26-05-1969. Through it, ‘A’ schedule property is said to have been purchased by the three brothers i.e. father of the appellants, grandfather of the respondents and Chinna Reddaiah. If the recitals therein are true, the plea of the respondents that ‘A’ schedule property was divided about 100 years ago becomes untenable. In case, the property was acquired by the three brothers jointly in the year 1969, the partition, if any, can be only thereafter. This aspect needs to be considered by the trial Court after giving opportunity to both the parties. The respondents also need to be given opportunity to adduce evidence, if any, in opposition to the said document. For this purpose, the matter has to be remanded back to the trial Court for fresh consideration and disposal. 9. For the foregoing, the Second Appeal is allowed and the judgment dated 04-01-2006 rendered in O.S. No.45 of 2003 by the Senior Civil Judge, Rayachoty and the judgment dated 01-07-2009 rendered in A.S. No.11 of 2008 by the V Additional District Judge, Rayachoty, are set aside and the matter is remanded back to the trial Court for fresh consideration and disposal. It shall be open to the parties to adduce any further oral or documentary evidence on the first issue. The answer to the second issue would depend upon the answer to the first issue. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J August 04, 2010. KTL