THE HON'BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL NOs :104 & 1061 of 2010 Between: Kandukuri Suresh Babu and another .....APPELLANTS AND 1. Gurram Venkata Lakshmi Durga Prasad and others .....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL NOs :104 & 1061 of 2010 COMMON JUDGMENT: Since the issue involved in both the appeals is one and the same, they are heard together and being disposed of by this common order. Second Appeal No.1061 of 2010 is preferred by the 1st defendant against the decree and judgment dated 18.6.2010 in A.S.No.70 of 2006 on the file of the VIII Additional District & Sessions Judge (F.T.C.), Vijayawada, whereby the decree and judgment dated 19.12.2005 in O.S.No.352 of 1998 on the file of the III Additional Senior Civil Judge, Vijayawada is confirmed. Second Appeal No.104 of 2010 is preferred by the plaintiff against the decree and judgment dated 3.8.2009 in A.S.No.36 of 2006 on the file of the V Additional District Judge, Vijayawada, whereby the decree and judgment dated 19.12.2005 in O.S.No.618 of 2002 on the file of the III Additional Senior Civil Judge, Vijayawada is confirmed. The appellant in S.A.No.1061 of 2010 is the father of the appellant in S.A.No.104 of 2010. Originally, the 1st respondent herein filed O.S.No.352 of 1998 against the appellant in SA No.1061 of 2010 and others for partition of the plaint schedule property and to allot and put him in possession of 1/9th share therein and for directing defendants 2 to 7, who are tenants, to pay him 1/9th share in the rents. It is the case of the 1st respondent that himself and 1st defendant-appellant in SA No.1061 of 2010 are joint owners of the site measuring 1.24 ½ cents house site in D.Nos.388/2 and 388/3 and a building therein called “Sri Govardana Rice Dall Mill” along with machinery therein situated at Kondapalli. The 1st respondent-plaintiff is having 11 p.s., share and the 1st defendant-appellant is having 88 p.s., share out of 99 ps., in the property and defendants 2 to 7 are monthly tenants in their respective tenanted portions with a definite understanding to pay Rs.800/- pm., each towards rent. The 1st defendant-appellant is not obliged to divide the suit schedule property and for rendering accounts of the profits and income derived out of the suit property to the 1st respondent plaintiff and hence, he got issued a notice dated 24.11.1997 demanding to co- operate for partition of the suit schedule property and for rendering accounts, for which the appellant-1st defendant issued a reply notice dated 20.12.1997 with false and untenable allegations. The appellant-1st defendant filed a written statement in the suit denying the averments in the plaint and contending as follows: The plaintiff, himself and other partners purchased site of an extent of 1.24 ½ cents for the purpose of running a mill business and carried on the business under the name and style of Govardhana Rice Mill. The plaintiff is only a partner in the owner firm, later some persons including 1st defendant-appellant and father of the plaintiff formed into partnership and took the Dall Mill on lease from the owner and the 1st defendant-appellant is the partner in the lessee firm. Since the business went into losses, all the partners have decided to close down the business in the year 1990 and agreed to sell away the properties of the firm. Subsequently, the 1st defendant and his family members purchased the shares of other partners and paid consideration to them. The plaintiff sold away his share to one K. Suresh Babu, who is the son of the 1st defendant-appellant for sale consideration of Rs.80,000/- and entered into an agreement of sale dated 24.12.1990 and received part of sale consideration of Rs.20,000/- on the date of agreement of sale. During pendency of the same, the appellant in SA No.104 of 2010 filed I.A.No.83 of 2000 to implead him in O.S.No.352 of 1998 as 8th defendant on the ground that he entered into an agreement of sale with the plaintiff therein and his father. On dismissal of the said I.A., the appellant in SA No.104 of 2010 filed O.S.No.618 of 2002 for specific performance of an agreement of sale dated 24.12.1990 and for a direction to the defendants therein to pay Rs.21,000/- towards damages for breach of agreement. The learned III Additional Senior Civil Judge, Vijayawada, dismissed O.S.No.618 of 2002, against which, A.S.No.36 of 2006 was filed and the said appeal was also dismissed confirming the decree and judgment of the trial Court. Hence, he filed the Second Appeal No.104 of 2010. Heard the learned Counsel for the appellants and perused the material available on record. It is an undisputed fact that the appellant-1st defendant purchased shares of all the partners of the firm except the shares of the plaintiff in O.S.No.352 of 1998. The 1st respondent filed the suit in O.S.No.352 of 1998 for partition of the plaint schedule property and to put him in possession of his share. But however, it is the case of the appellant-1st defendant that the share of the 1st respondent was purchased by his son, who is appellant-plaintiff in SA No.104 of 2010, under an agreement of sale, dated 24.12.1990. If that being the case, there is no explanation forthcoming as to what has prevented the appellant in SA No.104 of 2010 from taking any steps to get the regular sale deed executed in his favour for more than 12 years. The material on record goes to show that even the appellant-plaintiff did not issue any notice prior to the suit filed by the 1st respondent herein. The judgments impugned goes to show that there is no evidence in support of the alleged transaction that had taken place in respect of the share of the plaintiff and that the appellants failed to establish their case. The grounds raised in this appeal, are all factual aspects, which are discussed at length by both the Courts below. I do not find any perversity in the judgments impugned. In the facts and circumstances of the case and in view of the concurrent findings of both the Courts below and in view of the fact that the grounds of appeal do not constitute any substantial question of law, I feel that the judgments impugned, do not warrant any interference by this Court. Accordingly, the Second Appeals are dismissed at the admission stage. No order as to costs. _____________________ Justice A. Gopal Reddy Dated:26.11.2010 Nn. THE HON'BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL NOs :104 & 1061 of 2010 26.11.2010