IMPORTANT POINT
The power of attorney holder cannot testify on behalf of the principal, and prior partition claims were upheld due to lack of evidence from the plaintiff.

JUDGMENT :

V. Gopala Krishna Rao, J.

1. The appeal is filed against the judgment and decree dated 25-9-1998 passed by the learned Senior Civil Judge, Addanki, in O.S.No.29 of 1983. The learned trial Judge tried both the suits O.S.Nos.29 of 1983 and 27 of 1988 together and a common judgment is pronounced in both the suits. Both the suits are filed for the relief of partition. O.S.No.29 of 1983 filed by the appellant/ plaintiff was decreed in part.

2. Though O.S.No.27 of 1988 is decreed in part, no appeal or no cross- objections are filed by any of the parties against the decree in O.S.No.27 of 1988. Furthermore, the plaintiff in O.S.No.29 of 1983 is the 1st defendant in O.S.No.27 of 1988. The 3rd defendant in O.S.No.29 of 1983 filed the suit O.S.No.27 of 1988. The present appeal is filed against the judgment and decree passed in O.S.No.29 of 1983 on the file of Senior Civil Judge's Court, Addanki.

3. The case of the plaintiff as narrated in the plaint, in brief, is as follows:

(a) The plaintiff filed the suit O.S.No.29 of 1983 for partition and separate possession of his 1/5th share in the suit schedule properties and put him in possession of his 1/5th share in the plaint A-schedule and payments of his 1/5th share or its value in respect of plaint B-schedule properties for rendition of accounts and for costs.

(b) Murarisetti Kotaiah had five sons, by name late Venkata Subbaiah (plaintiff's father), Rama Kotaiah (1st defendant), Gurunadham (2nd defendant), Venkata Rathnam (3rd defendant) and plaintiff in O.S.No.27 of 1988 Ranganadham @ Ranganayakulu (4th defendant). The joint family headed and managed by late Venkata Subbaiah (plaintiff's father and brother of defendants 1 to 4) who acquired some properties for and on behalf of the joint family. The defendants used to meet needs of family of the plaintiff from the income derived on the joint family business.

(c) The 3rd defendant (plaintiff in O.S.No.27 of 1988) issued a legal notice dated 06-9-1982 for partition of properties and for separate possession stating them to be joint while himself is claiming to be separate business. The plaintiff felt that it is no longer congenial and convenient to continue any interest joint and therefore demanded for partition.

4. Brief averments in the written statement filed by the 1st defendant, which was adopted by defendants 5 to 7, are as follows:

(a) It is contended that the plaintiff's father and defendants 1 to 4 had partitioned their properties in the year 1952 and they are separately living and enjoying their estate in their own right. Subsequently, the five brothers got prepared a separate partition list showing details of the properties that have fallen to the shares and all the five brothers signed in these partition lists. Since the time of said partition, the brothers are pursuing their own business.

(b) It is further contended that subsequent to partition, defendants 1 and 3 purchased Item No.1 of plaint A-schedule land to an extent of Ac.0-08 cents. Subsequently, the 3rd defendant purchased another land to an extent of Ac.0-05½ cents and later sold Ac.0-02½ cents and 160 square links in two plots under a stamped agreement of sale dated 01-12-1980 to the 1st defendant and put him in possession of the same. Thus, in Survey No.1096/A1, the 1st defendant is having Ac.0-06½ cents on the east and to its west, the 3rd defendant is having the remaining extent. Item No.2 fell to the share of defendants 2 to 4 in the family partition. Item Nos.3 and 4 are separate properties of 2nd defendant which are acquired subsequent to the partition. In Item No.7, the plaintiff's father was allotted the southern Ac.0-05 cents and the 1st defendant was allotted the northern Ac.0-05 cents. Item No.8 was not in a fit condition for partition at the time of said partition and it was found not valuable then for immediate use and there are also disputes in regard to Item No.8 with neighbours. So, it was kept joint among the brothers. Item No.9 southern portion of th