*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.388 of 2011 %28-06-2011 # Upputuri Venkateswarlu ..appellant And $ Upputuri Koteswara Rao & others ..Respondents !Counsel for the appellant : Sri Nimmagadda Satyanarayana ^Counsel for respondent : < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.388 of 2011 JUDGMENT: The respondents 1 and 2 herein filed O.S.No.248 of 2005 in the Court of Additional Senior Civil Judge, Ongole, against their elder brother, the appellant herein, for partition and separate possession of the suit schedule properties, comprising of 11 items. The 3rd respondent herein was shown as the 2nd defendant, since he purchased an item of property from the appellant. After receiving the summons in the suit, the appellant filed a written-statement, admitting that, all the items, except item 10 of the suit schedule properties are owned by the joint family and that he has no objection for partition of the said properties into three equal shares, to be distributed among the three brothers. The respondents 1 and 2 did not insist on partition of item No.10. Taking note of these admissions by the respective parties, the trial Court dispensed with the recording of evidence and passed a preliminary decree on 27-02- 2006, directing partition of items 1 to 9 and 11 of the suit schedule, into three equal shares and allotting one share each, to the appellant and his brothers, i.e., respondents 1 and 2. The appellant filed A.S.No.107 of 2006 in the Court of I Additional District Judge, Ongole, against the preliminary decree. He pleaded that due to oversight and inadvertence, he did not state the fact that, item Nos.2, 3 and 7 are also not the joint family properties. He filed an application to receive additional evidence in the appeal. The lower Appellate Court dismissed the appeal, through judgment dated 07-02-2011. Hence, this Second Appeal. Sri Nimmagadda Satyanarayana, learned counsel for the appellant submits that his client is an illiterate person and on account of his not having full knowledge about the existence of documents and entries in the revenue records, he did not plead the correct facts in the written-statement. He further submits that his client lost the opportunity to state the relevant facts, on account of dispensing with the trial, in the suit. Learned counsel further submits that the lower Appellate Court ought to have, at least remanded the matter to the trial Court to enable the appellant to seek necessary amendments in the written-statement. The appellant is the eldest among the three brothers. After the death of their father, the appellant started managing the family. Respondents 1 and 2 filed the suit for partition and separate possession of the suit schedule properties. The appellant did not dispute the existence of joint family or the relationship among the parties. In all fairness, he filed a written-statement stating that except item No.10, rest of the properties are owned by joint family. Respondents 1 and 2 did not contest the claim of the appellant as to the exclusive ownership of item No.10. It is in such cases, that Orders X, XI, XIV and XV of C.P.C. get attracted. Order X empowers the Court to examine the parties at the first hearing and ascertain the area of controversy, even by examining the parties orally. Order XII provides for passing of a decree by a Court, without the necessity of trial, if the defendant admits the claim of the plaintiff in its entirety or in part. The decree can be to the extent of admission. If no such possibility exists, the stage for framing of issues arises, once the pleadings are complete. At that stage also, the Court is conferred with the power to examine the parties and in some cases, their witnesses also to understand the nature of controversy and then to proceed to frame issues. Rule 1 of Order XV directs that, if the Court finds that the parties are not at issue on any question of law or fact, the Court may pronounce judgment on such aspects. Even if some of the defendants oppose the suit, the decree can be passed to the extent it concerns the defendants, who are not opposing the claim. The admission by the appellant that items 1 to 9 and 11 of the suit schedule are the properties of joint family and the tacit admission by the respondents 1 and 2 that item No.10 belongs, exclusively, to them, brought into existence, a situation, where the trial Court was to exercise its power under Rule 1 of Order XV C.P.C. Accordingly, a preliminary decree had emerged. What was passed between the parties was almost a consent decree. A consent decree can be assailed only when the grounds of fraud, coercion, undue influence, etc., are pleaded. The appellant did not plead any such grounds. It is not as if he was stranger to the subject-matter, or that he did not have full knowledge about the properties. There could have been some possibility for a member of the joint family, who is not conversant with the management thereof, to take an incorrect view as to the particulars or nature of an item of property. An individual who was in the management of the joint family for decades together, cannot be expected to be unaware of the ownership of the properties, irrespective of the fact that he was illiterate or well-read. When the illiteracy of the appellant did not come in the way of his administering whole of the suit schedule properties, he cannot press that ground into service, against a consent decree based upon the information furnished by him. The lower Appellate Court has taken the correct view of the matter. No question of law arises for consideration. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.28-06-2011. Note: LR copy to be marked. KO