The main legal point established in the judgment is the discretion of the appellate court to allow additional evidence in exceptional circumstances, as provided under Order 41 Rule 27 of the Civil Procedure Code.

JUDGMENT :

ENUTHURUMALLI GOPALA KRISHNA RAO, J.

1. This appeal is filed by the appellants/defendants 3 to 5 challenging the judgment and decree, dated 12-9-2001, in O.S. No. 24 of 1998 passed by the learned Senior Civil Judge, Gurazala, Guntur District. The 1st respondent herein is the plaintiff and respondents 2 and 3 are defendants 1 and 2 in the said suit.

2. The parties will hereinafter be referred to as arrayed before the trial Court.

3. The 1st respondent/plaintiff filed the suit for partition of the properties into three equal shares and to allot 1/3rd share to the plaintiff and for recovery of separate possession with mesne profits.

4. In a nutshell, the averments in the plaint are as follows:

The 1st defendant is the mother and the 2nd defendant is the elder sister of the plaintiff. Defendants 3 to 5 are paternal uncles of the plaintiff. The suit schedule property is the self-acquired property of the father of plaintiff, by name Venkateswarlu, who purchased the same on 01-6-1963 from Udatha Venkata Purna Hanumantha Rao for Rs.15,000/- and obtained registered sale deed in his favour. It is in his possession by paying cists till his death on 04-7-1976 intestate. After the death of the father of plaintiff, plaintiff and defendants 1 and 2 were enjoying jointly the suit schedule property. Defendants 3 to 5 had no interest and right over the property. But some false documents were created by defendants 1, 4 and 5 to defeat the rights of the plaintiff. On 09-01-1998, the plaintiff got issued a registered notice demanding 1/3rd share in the property but there was no response. Thus, the suit is filed for division of properties into three equal shares and to allot 1/3rd share to the plaintiff and 1/3rd share to each of the defendants 1 and 2.

5. The brief averments in the written statement filed by the 4th defendant, which is adopted by defendants 3 and 5, are as follows:

(a) They denied the plaint averments completely while admitting the relationship between the parties. It is stated that before the death of Veeraiah, grandfather of plaintiff, the joint family consists of father of plaintiff, defendants 3 to 5 and wife of Veeraiah owned Ac.4-48 cents in Survey No. 826/3-A and middle site in Survey No. 193/F of Ac.0-46 cents in Piduguralla. They both were sold away by Veeraiah, father of plaintiff and defendants 3 to 5 on 09-4-1953 and 11-5-1955 and kept the cash with them. Later on 31-7-1957, late Veeraiah purchased a house site of Ac.0-07¼ cents in the joint family under a registered sale deed for Rs.300/- and constructed a midde wherein defendants 1 and 3 to 5 were residing.

(b) It is stated that Veeraiah died in 1958. After the death of Veeraiah, the father of plaintiff being the eldest male member of the Hindu joint family, became the manager of the family. Out of the joint family funds i.e. the balance of the amounts available by the sale of joint family property in 1953 and 1954, the father of plaintiff purchased the plaint schedule property for Rs.1,500/- on 01-6-1963 under a registered sale deed for the benefit of the joint family and the joint family took possession of the same. The father of plaintiff was a Reserve Police Constable at Guntur.

(c) It is stated that even prior to the sale of joint family properties, the father of plaintiff had bad vices. He left the house in 1969 leaving his job and family to their fate. Since the whereabouts of the father of plaintiff were not known, the Police Department got vacated the government quarters allotted to them and so the 1st defendant reached Piduguralla with plaintiff and 2nd defendant and joined joint family of defendants 3 to 5 and their mother Bullemma in 1970. Subsequently, the 1st defendant demanded for partition. Till 1971, the joint family waited for the return of the father of plaintiff. At last on 27-02-1973, the partition list was effected in the presence of elders in between the 1st defendant and defendants 3 to 5 and Bullemma in which each of the sharers had Ac.0-37½