HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.816 of 1999 Dated 18-7-2011 Between: Gundala Mallamma. …Petitioner. And: G.R.Veera Mallamma @ Veera Bhadramma. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.816 of 1999 JUDGMENT: This is defendant’s appeal questioning the decree for partition as granted in favour of the respondent/plaintiff by the trial Court and confirmed by the lower appellate Court. Learned counsel for the appellant has taken me through the entire material on record including Exs.B.1to B.5 marked on behalf of the appellant and submitted that both the courts below committed two serious errors which warrant reversal of the decree. According to the learned counsel, the 1st error committed by the courts below is in ignoring the documentary evidence Exs.B.1 to B.5 which are compromise recorded as well as depositions in maintenance case and on the basis of statements made by late Papulamma and Papinaidu, the parents of the appellant, clearly show that the respondent/plaintiff was not their biological daughter and in fact, was born to one Ramakrishna Reddy. The 2nd error according to the learned counsel for the appellant is that when Papinaidu died, his widow was being a class I heir, is entitled to the share in the property and assuming that the respondent is the daughter of Papinaidu, the suit property will have to be divided into three equal shares by giving one such share to widow of Papinaidu and thereby, the decree of partition ignoring Papulamma suffers from non-joinder of necessary parties. The substantial question of law on which this appeal was admitted on 20-7-2001 was based on ground No.6 which supports contention as raised above. 2. I have heard learned counsel length and I am of the view that both the questions are required to be answered against the appellant. Reasons therefor are as follows: 3. In the respondent’s suit for partition, she had claimed that she was one of the daughters of late Papinaidu and the defendant/appellant who is the other daughter is not giving her due share to the respondent/plaintiff. The said suit was contested by appellant by filing written statement denying paternity of late Papinaidu and her specific case was that respondent/plaintiff was born not to Papinaidu but to one Ramakrishna Reddy. In support of the said plea, she produced Exs.B.1 to B.5 which are certified copies of order in maintenance case together with depositions of witnesses Exs.B.2 to B.5 therein. While the order of maintenance case is relevant only to the extent of conclusion therein as it is an order on criminal court and except for the conclusions, other findings of the criminal court are not binding on the civil court. So far as depositions of witnesses under Exs.B.3, B.4 and 5 are concerned, admittedly, all the said witnesses are alive and as such, under Section 32 of the Evidence Act, their depositions as recorded by the criminal court are not admissible and rightly excluded from consideration by the appellate court. So far as Ex.B.2 deposition of M.Papinaidu is concerned, he undoubtedly denied paternity of the plaintiff but that being only interested witness, no importance can be attached to it. As against the aforesaid, the respondent/plaintiff filed Ex.A.1 apart from other documents 2 to 4 namely Birth Register extract, record sheets etc., Even if we go by Ex.A.1, it clearly shows the name of the father of the plaintiff i.e., Papinaidu. The evidence brought by the respondent/plaintiff therefore cannot got displaced merely on the basis of Exs.B.1 and B.2 and in the circumstances, courts below are justified in decreeing the suit. 4. So far as the 2nd contention of the learned counsel for the appellant is concerned, I find that no such ground of non- joinder was raised by the defendant/appellant either in the trial court or in the appellate court. It is, therefore, not permissible for the appellant to raise this ground at this stage in view Order 1 Rule 13 C.P.C. Order 1 Rule 13 C.P.C. reads as follows: “13. Objections as to non-joinder or mis-joinder.—All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.” 5. Therefore, the substantial questions of law which revolve round the contentions as referred to above, deserve to be answered against the appellant. 6. Accordingly, the appeal is dismissed. However, respondent being the sister of the appellant, there shall be no order as to costs. _________________________________ Justice VILAS V. AFZULPURKAR Dated 18-7-2011. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.816 of 1999 Dated 18-7-2011