THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR S.A.No. 127 OF 2000 JUDGMENT: This appeal is by defendants 1 and 2 who are the husband and the wife. The first respondent/plaintiff filed the suit for partition claiming half share in the suit schedule house on the ground that the said house belongs to the father of the first respondent and first appellant herein. For the sake of convenience, the parties are referred to as they are arrayed in the suit. Mr. Neelam Subbarayudu who is the father of the plaintiff and the first defendant was the admitted owner of the suit house. He was an excise contractor. The said Subbarayudu and his two sons constituted a joint family. It is alleged by the plaintiff that in the year 1970, there was a temporary arrangement for sharing of the suit house into two halves and a wall was constructed in between. But, later, defendants 1 and 2 demolished the wall and started enjoying the entire house whereupon he was forced to give suit notice Ex.A2 dated 16.11.1988 demanding partition of the house by metes and bounds. The said notice was replied to by the defendants under Ex.A3 dated 22.11.1988 alleging that the plaintiff as well as the first defendant had executed a registered relinquishment deed Ex.B1 dated 06.09.1969 relinquishing the said house property in favour of their father late Subbarayudu. It was alleged that for recovery of excise arrears, the Excise Department has auctioned the suit house and the same was purchased by DW3 in the year 1978 and from him the second defendant had purchased the said house under registered sale deed Ex.B4 dated 20.02.1988. In view of the aforesaid exchange of notices, the plaintiff filed the present suit for partition. In the plaint the plaintiff specifically disputed the relinquishment deed Ex.B1 by alleging that the said deed was brought only for the purpose of securing excise contracts. It is the further case of the plaintiff during evidence that though late Subbarayudu was in arrears to the excise department, the said arrears were waived. In order to establish the same, the plaintiff examined himself as PW1 and other witnesses as PWs 2 to 8, whereas the first defendant examined himself as DW1 and the second defendant as DW2. The auction purchaser and vendor of the second defendant was examined as DW3. While the plaintiff marked Exs A1 to A15 which include the notices exchanged between the parties viz., Exs A2 and A3 and more importantly Exs. A9 to A14 which are said to be proposals sent by the excise officials to the Collector and the Secretary to the Commissioner of Excise for waiver of the excise arrears of late Subbarayudu, defendants on the other hand filed and marked Ex.B1 registered relinquishment deed dated 06.09.1969 executed by the plaintiff and the first defendant in favour of their father late Subbarayudu, Ex.B3 challan dated 12.05.1978, Ex.B2 proceedings dated 17.08.1978 of the Revenue Divisional Officer, Cuddapah confirming the auction in favour of DW3 and Ex.B4 the sale deed dated 20.02.1988 under which the second defendant claims to have purchased the suit house from DW3. On consideration of the aforesaid evidence, the trial court came to the conclusion that the plaintiff himself having pleaded in the plaint that the suit house was partitioned between him and the first defendant in the year 1970, the present suit for partition again by the plaintiff is not maintainable. The trial court also found that Exs. B2 and B3 coupled with the evidence of DW3 clearly establish that the suit house was sold in the auction in favour of DW3 in the year 1978 and that the second defendant having purchased the same from DW3 under Ex.B4 after ten years thereafter, has a valid title to the suit house and in view of the relinquishment deed Ex.B1 having been established, no further right remains in the plaintiff or the first defendant to claim a share in the suit house. Consequently, the suit was dismissed. On appeal, the lower appellate court has reversed the said findings and has reached to a conclusion that though Exs. B2 and B3 are produced to show the payment of auction price and the confirmation of auction, neither the sale deed nor sale certificate are produced to establish the conclusive sale. Therefore, no title can be said to have been acquired by DW3 so as to transfer the same to the second defendant under Ex.B4. It was found by the lower appellate court that no officials connected with Exs. B2 and B3 were examined. The appellate court also found that there is a recital in the plaint that in the year 1970 there was a temporary arrangement under which the house was shared into two parts and the defendant in the written statement stated that there was no previous partition. In the light of the same, the appellate court came to the conclusion that there was no previous partition of the suit house and there is no impediment for entertaining the present suit. Consequently, the appeal was allowed and partition decree as prayed for was granted. The aforesaid decree is questioned in this appeal by the defendants. Though this second appeal was admitted by this Court on 02.03.2000 and interim stay of passing of final decree was also granted, I find that substantial question of law as required to be formulated under Section 100(1) C.P.C. was not formulated. The learned counsel for the appellants has pointed out that several substantial questions of law are framed in the grounds of appeal and perhaps by over sight the question of law was not formulated at the time of admission. Since I have heard both the learned counsel elaborately, I deem it appropriate to formulate the following substantial questions of law under proviso to Section 100(5) C.P.C. 1) Whether the lower appellate court would have reversed the judgment of the trial court without dealing with Ex.B1 relinquishment deed. 2) Whether the lower appellate court would have reversed the judgement of the trial court in the absence of any evidence establishing the plaintiff’s case of waiver of excise arrears against their father. Insofar as the first question is concerned, the house undoubtedly belongs to the father of the first defendant and the plaintiff. Under Ex.B1 registered relinquishment deed dated 06.09.1969 the plaintiff as well as the first defendant said to have relinquished their rights in the said house in favour of their father. The plaintiff specifically states in paragraph ‘5’ of the plaint that “…… the plaintiff submits that the relinquishment referred to by the first defendant was colourful and brought about only to secure the arrack depot contract in the name of Neelam Subbarayudu…..” In order to succeed in the suit, the plaintiff must establish that notwithstanding the said relinquishment deed, the plaintiff and the first defendant continued to have share in the property. Secondly, the auction sale for excise arrears as allegedly held against the suit house also has to be disputed. The plaintiff, therefore, would succeed in the present suit for partition upon proof of the fact that there was no auction sale as alleged and that the relinquishment deed Ex.B1 was neither true nor acted upon and was only sham and nominal. It is no doubt true that the defendants have failed to produce clinching evidence on either sale certificate or sale deed in the name of auction purchaser and as such though Exs. B2 and B3 are produced by the defendants the document under which the title goes to the auction purchaser has not come before the courts below. The title of the second defendant would therefore, depend upon establishing the above. Similarly, so far as the plaintiff is concerned documents under Exs. A9 to A14 are in the nature of proposals sent by excise officials recommending waiver of excise arrears against Subbarayudu. However, actual proceedings establishing waiver or otherwise of the excise arrears have not been produced. It is therefore evident that the evidence lead by both the parties is obscured. So far as their respective case is concerned, it is neither clinching nor conclusive to decide the said issue one way or the other. Accordingly, the lower appellate court has reversed the judgment of the trial court without meeting the finding of the trial court on the aspect of Ex.B1 relinquishment deed as mentioned above. The trial court has upheld the said document and it was essential for the lower appellate court to meet the said finding and record its own finding, but one finds no reference to Ex.B1 in the judgment of the appellate court. Substantial questions of law are accordingly answered in favour of the appellants. Faced with this situation, I am of the view that interests of justice would be served by setting aside the impugned judgement of the lower appellate court and remitting the appeal to the lower appellate court for fresh consideration. It would also be necessary to afford an opportunity to both sides to lead such oral and documentary evidence as they deem appropriate so as to clear off the obscurities in the evidence as mentioned. The lower appellate court therefore, shall provide one opportunity to each of the parties if they so desire and after considering the evidence if any so adduced shall hear and decide the appeal afresh. It is made clear that the observations made herein are only for the purpose of disposal of the second appeal and they shall not influence the lower appellate court in arriving at appropriate conclusions by reconsideration. Second Appeal is accordingly allowed. No costs. VILAS V.AFZULPURKAR,J Dt. 21.01.2011 lvl THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR S.A.No. 127 OF 2000 DT. 21.01.2011