THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 331 of 1999 Date of order: 10.12.2010 Between: Alugolu Veerabhadra Rao and another …Appellants and Alugolu Subbarao and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 331 of 1999 JUDGMENT: Defendants 1 and 2 who are husband and wife are the appellants in this second appeal. The first respondent is the plaintiff and the second respondent is the defendant No.3. The parties are hereinafter referred to as they are arrayed in the suit. The plaintiff instituted a suit for partition against the defendants 1 to 3 in respect of items 1 and 2 of the plaint schedule property on the ground that the said properties were left by his father Seshagirirao. Defendant No.1 is another son of the said Seshagirirao and brother of plaintiff. The plaintiff submits that as far as item No.1 is concerned, his father mortgaged the said item with defendant No.3 and received certain amount. Item No.1 being admittedly joint family property, there is no contest and therefore the decree of the trial Court to the extent of item No.1 is accepted by the defendants 1 and 2 also. The controversy that survives in this second appeal is only relating to item No.2 of plaint schedule property. It is the specific case of the defendants 1 and 2 in the written statement that while the plaintiff, first defendant and their father were in joint, their father was the manager of the joint family and on account of the family necessities, their father had sold item No.2 in favour of defendant No.2, the wife of defendant No.1. It is specifically alleged that their father executed a possessory agreement of sale dated 25.5.1975 – Ex.B1 and an acknowledgement – Ex.B2 having received Rs.2,600/- towards part payment of total consideration of Rs.3,200/-. It is specifically alleged that the said agreement of sale was executed by consent of all the parties including the plaintiff. It is further alleged that later defendant No.2 paid the balance of Rs.600/- and made an endorsement in the sale agreement itself and therefore the said item No.2 exclusively belongs now to defendant No.2 and cannot be said to be a joint family property available for partition. The plaintiff examined himself as P.W.1 and other two witnesses as PWs 2 and 3 and marked Exs.A1 to A4. The defendants examined defendant No.1 as D.W.1 and other two witnesses as DWs 2 and 3 and marked Exs.B1 to B4. The trial Court found, on consideration of the evidence, that the plaintiff never disputed the specific statement of the defendants 1 and 2 in the written statement with regard to Exs.B1 and B2. It was also noticed that the plaintiff never challenged his signature appearing on Ex.B1 nor denied the execution of Ex.B1 in his oral evidence as P.W.1. In that view of the matter, the trial Court was of the view that the defendants 1 and 2 have successfully established Exs.B1 and B2 and therefore item No.2 ceased to be joint family property and consequently held not available for partition. The suit to that extent was, therefore, dismissed. The lower appellate court has, however, reversed the said decree on the ground that Exs.B1 and B2 are subsequent to the suit and they were not confronted to the plaintiff and therefore the said documents are liable to be excluded from consideration. Since the lower appellate court reversed the decree to the extent of item No.2, the defendants 1 and 2 have preferred the present second appeal. The second appeal was admitted on the substantial questions framed under ground No.8 (b) and (c) of the memorandum of appeal, (b) Whether the decree of the lower appellate court cannot be sustained as it failed to consider the evidence of D.Ws 2 and 3 who were examined to prove Ex.B1? (c) Whether it is obligatory for the defendants 1 and 2 to confront the plaintiff with Ex.B1, when he failed to deny execution of the said document in his examination-in-chief? Heard learned counsel for the appellants. Notice sent to the respondents 1 and 2 by this Court were returned with refusal endorsements and as such it amounts to sufficient service. Nobody appeared for the respondents 1 and 2. I have seen the impugned judgments of the courts below. It would be noticed that Ex.B1-agreement of sale is dated 25.5.1975, whereas Ex.B2 is dated 6.7.1975. The averments in the written statement make a specific reference to those documents in para-2 and a specific assertion is made by the defendant Nos. 1 and 2 that during the life time of the father itself, item No.2 was alienated to defendant No.2. The defendants have, therefore, contested the suit only to the extent of this item. The trial Court has rightly appreciated the evidence on record and on noticing that the plaintiff neither disputed the contents of the written statement by filing any rejoinder nor had disputed Exs.B1 and B2 during his evidence either in chief-examination or cross-examination, the said documents were held to have been proved by the defendants 1 and 2. In view of the same, the trial Court upheld the claim of the defendants 1 and 2 to the extent of item No.2 and dismissed the suit to that extent. The lower appellate court has, however, reversed the said decree and it appears to have proceeded under misconception that Exs.B1 and B2 were not confronted to P.W.1 and the said documents are subsequent to the suit. Both the said assumptions of lower appellate court are factually incorrect, inasmuch as these documents are much prior to the suit and they were exhibited and in any case, there was a specific reference to these documents in the written statement itself. Therefore, there was no necessity to confront P.W.1 with these two documents, as he never disputed these documents in his evidence. The finding of the lower appellate court in this regard is not sustainable and consequently the documents Exs.B1 and B2 and the specific allegations of the defendants 1 and 2 in the written statement having not been disputed by the plaintiff either by filing any pleadings or in the evidence, there was no reason for the lower appellate court to reverse the trial court’s decree. The substantial questions are answered in favour of the appellants/defendants 1 and 2. The decree of the lower appellate court is set aside and that of the trial court is restored. The second appeal is accordingly allowed. No order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 10.12.2010 KR