IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENT SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.341 OF 2010 Between:- Bobbili Yerrayya @ Yerribabu …Appellant A n d Bobbili Somulu …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.341 OF 2010 JUDGMENT: This second appeal is directed against the judgment and decree dated 05-01-2010 in A.S.No.54 of 2003, on the file of the Family Court-cum-Additional District Judge, Vizianagaram, wherein the said appeal filed by the appellant herein, the defendant in the suit, was dismissed, confirming the judgment and decree dated 18- 09-2001 in O.S.No.15 of 1995, on the file of the Principal Junior Civil Judge, Vizianagaram. 2 . Heard the leaned counsel for the appellant/defendant and the learned counsel for the respondent/plaintiff. Perused the record. 3. The respondent herein filed the suit O.S.No.15 of 1995 against the appellant for a preliminary decree for partition of the plaint schedule properties into two equal shares and for separate allotment of one such share to the plaintiff and evicting the defendant and his nominees. The plaintiff is son of defendant and Suramma. After the birth of the plaintiff, the defendant and his wife lived together for some time and subsequently disputes arose between them and finally the defendant drove his wife out of the house. The plaintiff and his mother were taking shelter in plaintiff’s maternal grandfather’s house. The defendant was trying to alienate the property without any necessity and with a view to cause loss to the plaintiff’s interest. On coming to know of the same, the plaintiff’s maternal grandfather got issued a registered notice dated 27-02-1986 for which the defendant issued a reply dated 03-03-1986. As the defendant was continuing to alienate the properties, the plaintiff filed the suit for partition and separate possession of his half share. 4. The defendant filed a written statement alleging that the plaintiff’s mother was living with one Kasireddy Apparao and subsequently the defendant kept a mistress by name Suri Demudu through whom he gave birth to two daughters Yernamma and Devi and they are also necessary parties to the suit. 5. Based on the above pleadings, trial Court framed the following issues and additional issue: Issues: 1. Whether Kundrapu Chinnayya has locus standi to represent the minor plaintiff? 2. Whether the plaintiff is entitled to the relief of partition? 3. To what relief the plaintiff is entitled? 4. Whether the defendant is entitled to exemplary costs under Section 35-A CPC, if so, what amount? Additional Issue: Whether Bobbili Yernamma and Bobbili Devi are necessary parties? 6. During the trial, the plaintiff was examined as P.W.1 and his grandfather was examined as P.W.2 and Exs.A-1 and A-2 were marked on his behalf. The defendant was examined as D.W.1 and another witness was examined as D.W.2 and Exs.B-1 and B-2 were marked on his behalf. 7. On a consideration of the evidence available on record, the trial Court decreed the suit granting a preliminary decree for partition of the plaint schedule property into two equal shares and possession of one such share to the plaintiff. The first issue became redundant, as the plaintiff became a major during the course of trial. On issue No.2, the trial Court held that the plaintiff, being the only son born through the legally wedded wife of the defendant, is entitled to seek partition of the plaint schedule property. On issue No.3, the trial Court held that the plaintiff is entitled for partition of the property into two equal shares and delivery of one such share. On issue No.4, the trial Court held that the defendant is not entitled for exemplary costs. On additional issue, the trial Court held that Bobbili Yernamma and Bobbili Devi are not coparceners and they acquired no rights over the ancestral properties and hence they are not necessary parties to the suit. Accordingly, the suit was decreed granting a preliminary decree. 8. Aggrieved by the said judgment and decree, the defendant preferred an appeal in A.S.No.54 of 2003, on the file of the Additional District Judge, Vizianagaram. The learned District Judge, on re-appraisal of the evidence available on record, held that the plaint schedule properties are ancestral properties and plaintiff, being the son born through the legally wedded wife, is entitled for partition of the plaint schedule property and for delivery of possession of half share therein. Accordingly, the appeal was dismissed, confirming the judgment and decree of the trial Court. Assailing the same, the present second appeal is filed. 9. The learned counsel for the appellant mainly contended that the defendant was having a brother, who is not made a party to the suit and, therefore, the suit for partition, as framed is not maintainable without impleading proper and necessary party. The said contention is based on evidence of D.W.1, who is said to have stated during the course of evidence that his younger brother is also having a share in the property. As rightly observed by the lower appellate Court, the said plea is nowhere raised either in the written statement or in the additional written statement and it was introduced for the first time during the course of evidence. That apart, no material was also produced to substantiate the said plea and to show that the defendant’s brother is also having a share in the property. The defendant has not examined his younger brother nor adduced any other evidence. When the brother of the defendant himself has not come forward claiming any share in the property, the plea of the defendant that his brother is also having a share in the property and, therefore, he is a proper and necessary party and the suit is bad for non-joinder of proper and necessary parties, is untenable, especially when the said plea is introduced for the first time in the course of defendant’s oral evidence and without any basis in the pleadings. The said plea raised belatedly also remained totally unsubstantiated as no effort was made by the defendant to establish the same. The lower appellate Court has rightly rejected the said contention raised by the defendant. There is absolutely no question of law, much less a substantial question of law, involved in the matter that arises for consideration in the second appeal. The concurrent findings recorded by the trial Court and the first appellate Court, resulting in granting of preliminary decree for partition and separate possession of plaintiff’s half share, do not call for any interference in this second appeal. There are absolutely no merits in the appeal. 10. In the result, the second appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 22nd June 2010 Lrkm.