THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.871 OF 2010 Date:04.02.2011 Between: Chandramma and others .. Appellants And B.Gidda Reddy .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.871 OF 2010 JUDGMENT: The Second Appeal is against the concurrent judgment of the District Court, Chittoor, dated 28.06.2010 in A.S.No.154 of 2004 whereby and whereunder the decree and judgment in O.S.No.90 of 2000 dated 20.07.2004 on the file of the Additional Senior Civil Judge, Chittoor, was confirmed. The plaintiffs are the appellants. They are legal heirs of one B.Venkatesu Reddy. During his lifetime, he gave a notice of partition to the respondent herein (hereafter called as the defendant), who is none other than the younger brother of the defendant, demanding partition. After death of Venkatesu Reddy, his wife and two daughters instituted the suit for partition being O.S.No.90 of 2000 on 01.06.2000. They pleaded that the suit schedule property comprising of Plaint-A immovable properties and Plaint-B movable properties belongs to the joint family of Venkatesu Reddy and the defendant. The demand made by the plaintiffs for partition was negatived necessitating filing of the suit. The defendant opposed the suit contending that he and his brother got divided their properties, that there is no Hindu Joint Family, that the third plaintiff, wife of Venkatesu Reddy, stayed in her parents house at Varidikuppam Village till the death of her husband and that after partition, the defendant purchased other properties with his own earnings. The trial Court framed a substantial issue as to whether the plaintiffs are entitled to preliminary decree. The plaintiffs examined three witnesses and marked Exs.A1 and A2. On behalf of defendant, he himself examined as DW.1 and four other witnesses were marked as DWs.2 to 4. Exs.B1 to B8 and X1 to X30 (10(1) copies and No.2 Adangal) were marked to corroborate his version. The trial Court believed the version of the defendant and dismissed the suit. When the matter was pending, the plaintiffs took the plea that in the earlier suit between Venkatesu Reddy and his wife for maintenance, Venkatesu Reddy never pleaded that there was partition and that the certified copy of the plaint therein is essential and therefore it may be received as additional document. They also raised other grounds. Learned appellate Judge has reconsidered the evidence and come to the conclusion that there was an inordinate delay on their part in filing necessary evidence and therefore certified copy of the plaint cannot be received as additional evidence. The appellate Court then relied on Exs.B1 to B8 and X1 to X30 to come to the conclusion that there was a partition between the brothers and their names were also mutated in the revenue records. Accordingly, the decree of the lower Court was confirmed. In this appeal, the appellants’ counsel submits that the first appellate Court was not justified in dismissing the suit in view of the observations and findings in O.S.No.56 of 1982 that there was no partition. The issue whether plaintiffs were entitled for partition mainly turned on the basic question as to whether there was existence of Hindu Undivided Joint Family. The defendant denied and produced sufficient evidence to show that there was partition and there was existence of joint family. When the allegation is made that there was joint family, the burden lies on the person who asserts that the joint family owned properties. The petitioner failed to discharge the burden in that direction. The question of fact was appreciated by the Courts below with reference to the evidence and no question of law would arise. The Second Appeal is accordingly dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 04.02.2011 KH