Sri. N. Shiva Kumar vs Smt. Uma and Others

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned Counsel for the respondents. The appellant was defendant no. 1 in a suit for partition. The same having been decreed, as prayed for by the plaintiffs, the same is under challenge. The suit properties were defined under Schedule ''A'' and ''B''.

The learned Counsel for the appellant would submit that insofar as the findings arrived at in respect of Schedule ''B'' properties are concerned, he has no dispute. However, insofar as Schedule ''A'' properties are concerned, there is a larger extent of the property which has been overlooked. And the further circumstance that a portion of Schedule ''A'' properties was said to be the self-acquired property of Lakshmamma and that she had acquired it under a registered partition deed, was decided on that basis, without the registered partition deed being produced before the court. He would further submit that even during the pendency of the suit, out of which, this appeal arises, a suit had been field by the present appellant - defendant no. 1 in O.S.No. 6971/2007 and an endeavour was made to have the said suit clubbed along with the present suit in O.S.No. 8213/2000. However, the court had rejected the prayer on the footing that the suit filed by the appellant was seven years after the other suit filed by the plaintiffs and therefore, found it inadvisable to club the matters together and consequently, the present impugned judgment having been rendered, the issue remains inconclusive. In that, the same has been decided in favour of the plaintiffs, without the same being established by producing the relevant document in question.

The learned Counsel for the respondent, on the other hand, would submit that even in the absence of the partition deed, there were other attendant circumstances and material available to establish that it was the self acquired property of Lakshmamma and there was no dispute about the transfer made in favour of Dhananjaya throughout and it was without any contest or dispute especially, from the present appellant and hence the finding of the court cannot be faulted on the ground that the registered partition deed was the only basis for the claim of Lakshmamma and in the absence of the document, it could not have been decided in favour of the plaintiffs. While it is true that an issue which has been framed and decided against the present appellant could not be reopened in a pending suit, even if any such issue was raised. The contention of the learned Counsel for the appellant is that he has a case on merits and the same is being shut out in the present pending suit, on the footing that there is already a finding in the present case. The claim of the plaintiffs that a portion of Schedule ''A'' property was the self acquired property of Lakshmamma and that she had got it under a registered partition deed, if indeed, is the actual circumstance, there should be no difficulty for the plaintiffs, who are also parties in the present suit pending in O.S.NO. 8213/2000 to produce the same therein, which would put an end to the debate as regards whether or not, there was any such partition deed, which appears to be the primary contention of the appellant apart from the other grounds that he has raised. Therefore, while observing that there is no warrant for disturbing the findings of the trial court insofar as Schedule ''B'' are concerned, and having regard to the fact that the plaintiffs are in possession of Schedule ''A'' properties, there is no prejudice caused if insofar as the finding on Schedule ''A'' properties is set aside and kept open for fresh adjudication in the pending suit in O.S.No. 6971/2007 and if the plaintiffs are also permitted to produce and mark the registered partition deed and other supporting documents, the existence of which the appellant seeks to dispute.

Therefore, on this limited ground, the appeal is partly allowed in terms as above.

Insofar as the application in Miscellaneous Civil 2289/2011 is concerned, the same is an application seeking production of additional documents. As it is the prerogative of the appellant, who is the plaintiff, in the pending suit, to seek production of documents, he may file an appropriate application before the trial court itself, seeking permission to produce such documents and if the law permits, the same may be allowed. Therefore, the application being considered by this court when the matter stands disposed of in terms as above, is not warranted.

Accordingly, the application is disposed of.