Though the matter is appearing under the caption of interlocutory, the counsel on record made elaborate submission; with a further request for final disposal of the second appeal itself.

2. Sri K. Srinivasa Rao, representing Sri P. Sri Raghuram, learned counsel representing appellants in the second appeal had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that in the facts and circumstances of the case the reliefs granted being beyond the pleadings of the parties and the reliefs prayed for in the suit, such reliefs cannot be sustained. The learned counsel also pointed out that the present suit is hit by Order II Rule 2 of the Code of Civil Procedure. The learned counsel also would maintain that in the light of the facts and circumstances the findings recorded by the appellate court on the question of res judicata also cannot be sustained. The counsel also relied on certain decisions.

3. On the contrary, Sri Upendra Rao, learned counsel representing Sri E.V. Bhagiratha Rao, had taken this Court through the findings recorded by the court of first instance and also the appellate court and would maintain that in the facts and circumstances of the case, no substantial question of law as such would arise for consideration in this second appeal. The counsel also pointed out that the decisions relied upon by the other side have no relevance to the facts of the case. Even otherwise these questions were not shown as substantial questions of law in the memorandum of grounds of second appeal and, hence, viewed from any angle the second appeal deserves a dismissal.

4. Heard the counsel.

5. The following substantial questions of law had been formulated in ground NO.13 and the said questions read as hereunder.

(1) Whether plaintiff would succeed in a partition suit without filing his title deed?

(2) Whether the courts below correctly construed theS.A.No.1164/80 on a respective way?

(3) Whether the Regd. Sale deed said to have executed by Sanjeevappa in favour of 2nd respondent by Anjanappa is valid and binding on appellants?

(4) Whether 2nd respondent is entitled to mesne profits more than 3 years preceding to institution of suit?

6. The unsuccessful defendants in O.S.No.17 of 1996 on the file of the Senior Civil Judge, Hindupur, and appellants in A.S.No.60 of 1997 on the file of the Additional District Judge, Hindupur, are the present appellants. Respondent as plaintiff instituted the suit O.S.No.17 of 1996 on the file of the Subordinate Judge, Hindupur, praying for the relief of partition and separate possession of half share of plaintiff in the plaint schedule properties; for delivery of possession of the same and for grant of Rs.15,000/- towards past mesne profits and to grant future mesne profits with costs relating to the suit schedule property.

7. Before the court of first instance, in the light of the respective pleadings of the parties, having settled the issues, the evidence of P.Ws.1 to 3, D.Ws.1 and 2 had been recorded, Exs.A-1 to A-7, Exs.B-1 and B-2 had been marked and on appreciation of evidence, the court of first instance made a preliminary decree with costs directing division of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff and the plaintiff is entitled to mesne profits at the rate of RS.750/- per year for half share in the suit schedule property from 1974 till the plaintiff is put in possession and enjoyment of his half share in the suit schedule property. Aggrieved by the same, the matter was carried by way of appeal A.S.No.60 of 1997 on the file of the learned Additional District Judge, Hindupur, and the appellate court also came to the conclusion that the plain It schedule property to be divided into two equal shares and one such share to be allotted to the respondent-plaintiff by metes and bounds keeping in view the good and bad qualities of the soil and nearness to the road or village and