This appeal is filed against the dismissal of O.S.No.16 of 2002 filed by the appellant herein in the Court of Senior Civil Judge, Pithapuram. The sole defendant is his brother. The suit was filed for partition of the suit schedule properties viz., a rice mill and vacant plots. He pleaded that some of the suit schedule properties were acquired by their father, and others, by their grandfather, and that they have devolved upon himself and the respondent, in equal shares. He made a reference to O.S.No.94 of 1993 filed by him in the Court of Junior Civil Judge, Pithapuram for dissolution of partnership firm and stated that a specific finding was recorded therein to the effect that the rice mill is not part of any partnership business at all. He has also stated that the respondent filed O.S.No.85 of 1992 against him for the relief of perpetual injunction in respect of item No.1 of the suit schedule property and that the suit was dismissed as not pressed. He prayed for the relief of partition of the suit schedule properties into two parts and allotment of one part to him.

The respondent filed written statement opposing the suit. He denied the various allegations made by the appellant. He admitted that he filed O.S.No.85 of 1992 for the relief of injunction, but stated that it was dismissed as not pressed. He too made a reference to O.S.No.94 of 1993 and the result that ensued therein. Anther plea raised by him was that the family properties were divided about 15 yeas prior to the filing of the present suit between himself and the respondent and that it is not maintainable. According to him, there is nothing joint between himself and the appellant.

Through judgment, dated 13.10.2003, the trial Court dismissed the suit.

Sri M.S.Ramachandra Rao, learned counsel for the appellant submits that the trial Court rendered conflicting and contradictory judgments as regards the status of item 1 of the suit schedule viz., rice mill. He submits that being under the impression that the rice mill is an asset of the firm comprising of himself, the respondent and certain others, the appellant filed O.S.No.94 of 1993 for dissolution and the respondent has taken the stand and convinced the trial Court that the rice mill was not the property of the partnership firm at all and got the suit dismissed. Learned counsel submits that AS.No.21 of 2003 filed against the decree in O.S.No.94 of 1993 was heard by the learned Senior Civil Judge, Pithapuram and it was dismissed by upholding the findings as regards the rice mill. He submits that on the one hand O.S.No.16 of 2002 was dismissed by the Court of Senior civil Judge, Pithapuram holding that the rice mill is not the joint family property of the appellant and the respondent and on other hand, about one year thereafter, the same Presiding Officer took exactly the opposite view in A.S.No.21 of 2003 that arose out of O.S.No.94 of 1993. Learned counsel further submits that once the relationship is not disputed, and the respondent did not enter the witness box, much less did he plead and prove that the suit schedule properties exclusively belong to him, there was no alternative for the trial Court except to pass a preliminary decree as prayed for. He submits that the respondent has been enjoying the suit schedule property to the exclusion of the appellant, for over a decade, after the death of their father.

Sri M.Sivanand Kumar, learned counsel for the respondent on the other hand submits that it was for the appellant to prove that the suit schedule properties were held by the joint family and on finding that the evidence on record does not support his plea, the trial Court dismissed the suit. He contends that the appellant filed O.S.No.94 of 1993 almost for the same relief though in a different form and O.S.No.16 of 2002 was barred under Order 2 C.P.C. Certain other contentions are also urged.

The suit was filed for the relief of partition and separate possession of the suit schedule properties. The r