JUDGMENT
P.S. Narayana, J.
1. This appeal is filed as against the decree and judgment made in OS No. 253 of 1984 on the file of the Subordinate Judge, Anakapalli. The suit was originally instituted as OS No. 79 of 1984 on the file of Vacation Civil Court, Visakhapatnam. Defendant No. 1 is the appellant and since the said appellant died, appellants 2 to 6 were brought on record as his legal representatives by an order dated 20.10.2003 made in CMP No. 21037 of 2003. The 3rd respondent is shown as not a necessary party in the appeal, as the suit was dismissed as against 3rd respondent-defendant No. 3.
2. The 1st respondent-plaintiff filed the above suit for partition of the plaint schedule properties. The said suit OS No. 253 of 1984 was tried along with yet another suit OS No. 79 of 1987 instituted by the 1st defendant in OS No. 253 of 1984. The said suit was originally instituted as OS No. 26 of 1985 on the file of Subordinate Judge, Chodavaram. Both suits were tried together and though on the respective pleadings of the parties initially the issues had been settled in both these suits, ultimately, in view of the Memo filed during the course of trial, the evidence in OS No. 253 of 1984 was treated as evidence in OS No. 79 of 1987 and in view of the joint trial, taking into consideration the issues settled in both the suits, consolidated issues had been framed at paragraph 13 of the judgment and the learned Judge while deciding the matter referred the parties as arrayed in OS No. 253 of 1984, proceeded to discuss the oral and documentary evidence on record PWs. 1 to 5, DWs. 1 to 6 and also Exs. A1 to A6, Exs. B1 to Ex. B5, recorded findings commencing from paragraphs 15 to 21 and ultimately decreed the suit OS No. 253 of 1984 holding that the plaintiff and defendants 1 and 2 alone would be entitled to the respective shares and the 3rd defendant had no right in the property and accordingly dismissed the suit as against the 3rd defendant, and further decreed OS No. 79 of 1987. It is also pertinent to note that at paragraph 18 of the judgment it was recorded that it is also conceded by the learned Advocate for plaintiff in OS No. 253 of 1984 and the 1st defendant in OS No. 79 of 1987 that he has no objection to partition the properties among himself and his brothers and it was further recorded that ‘hence the plaintiff in OS No. 79 of 1987 is entitled for partition of plaint A and B schedule properties and entitled to equal shares with defendants 1 and 2 only’. Though findings in detail had been recorded, in a way in substance the decree appears to be a consent decree.
Contentions of Sri Mukunda Rao
3. Sri Mukunda Rao, learned Counsel representing the legal representatives 2007(4) FR-F-55 of the appellant – 1st defendant (appellants 2 to 6) had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that inasmuch as 1st defendant is not aggrieved of the decree and judgment made in the connected suit OS No. 79 of 1987, no appeal as such had been preferred, but though the judgment was delivered in the light of the common evidence and the common trial and inasmuch as defendant No. 1 is not aggrieved of the decree and judgment made in yet another suit, the appeal is perfectly maintainable. While further elaborating his submissions, the Counsel would maintain that the suit as framed for partition is not maintainable since it is the case of the parties that the business is a partnership concern and the remedy, if any, is to file a suit for dissolution of partnership firm and rendition of accounts and hence the suit for partition filed definitely is a misconceived remedy. The learned Counsel also had taken this Court through the evidence of PW. 1 in detail and the other evidence available on record and had pointed out to the relevant portions of the findings recorded by the learned Subordinate Judge, Anakapalli and would maintain that in the light of the facts and circumstances and also the grounds which had been raised in detail in the grounds of appeal, the appeal to be allowed.
Contentions of Sri Narasimham
4. Sri Narasimham, learned Counsel representing the 1st respondent-plaintiff would maintain that the 1st respondent-plaintiff is no more and as on today the appellants had not brought his legal representatives on record. Even otherwise, the learned Counsel would submit that inasmuch as the common judgment had been delivered on the strength of the common evidence which had been recorded in both the suits and common findings had been recorded and in a way since on the strength of the consent of the parties the decree had been made, this appeal as against the decree and judgment made in one suit cannot be maintained. The learned Counsel pointed out to the relevant portions of the judgment and also the findings recorded in relation thereto.
5. Heard both the learned Counsel.
6. In the light of the respective contentions of the parties, the following points arise for consideration in this appeal:
1. Whether this appeal is maintainable in the light of the fact that no appeal had been preferred as against the decree and judgment in OS No. 79 of 1987 on the file of Subordinate Judge, Anakapalli?
2. Whether the findings recorded by the learned Judge to be confirmed or to be disturbed in the facts and circumstances of the case?
3. If so, to what relief the parties would be entitled to?
Points 1 and 2:
7. For the purpose of convenience, points 1 and 2 are being discussed together.
8. The 1st respondent herein, (the plaintiff) filed OS No. 253 of 1984 on the file of Subordinate Judge, Anakapalli praying for partition of 1/4th share in the value of the movables. The dispute is in relation to a theatre and the income therein. It was pleaded in the plaint as hereunder:
The plaintiff is the eldest son of Vuppu Panchakshari and the defendants 1 and 2 are the brothers of the plaintiff. They constitute members of joint family. The 1st defendant was entrusted with the responsibility of looking after cinema business since at that time the family was running a touring talkies known as Annapurna Touring Talkies in Sabbavaram. The plaintiff and the defendants are agreeing to carry on the business as joint members of joint family by each contributing Rs. 10,000/- for the purchase of equipment, furniture etc., and they have also included one Yerra Appa Rao, who is the son-in-law of the plaintiff, to look after the cinema business. Accordingly the licence was obtained in the name of the 1st defendant. Initially a lease of the vacant site of 60 cents covered by S. No. 278/1 situated in Sabbavaram was obtained and the sale deed was obtained in the name of the 1st defendant. Accordingly, the licence under the Cinema Regulation Act, the electricity and other certificates were duly obtained in the name of the 1st defendant and it is for the benefit of the family and the 1st defendant had no exclusive right in the said property. The plaintiff and the defendants having run cinema business right from 1974. In addition to the theatre in the plaint schedule property, 1 building consisting of ten rooms in the front and two rooms in the back of me said site and the 1st defendant is in occupation of two rooms and the seven rooms have been let out to the tenants and getting Rs. 100/- per month for each room and the 1st defendant has been collecting the rents regularly. In addition to it, there are two permanent structures which are leased out to two Killi Baddies and they are getting a rent of Rs. 50/- each and the 1st defendant has been collecting the same for and on behalf of the members of the family. The 3rd defendant is not only the son-in-law of the plaintiff and the defendants 1 and 2 and the 1st defendant himself has also settled a portion of the property on the 3rd defendant. For the last two years, the 1st defendant taking advantage of the fact that the property is standing in his name, conceived the civil idea of depriving the other members of the family of their share and stopped paying the share of the plaintiff and defendants 2 and 3. The plaintiff has raised a dispute on several occasions, but the 1st defendant refused to partition the property and subsequently a demand of partition was made in January, 1983 and subsequently a demand of partition was made in January, 1983. No purpose was served. Therefore, the plaintiff is entitled to claim partition and also separate possession of this 1/4th share insofar as house property is concerned and insofar as cinema business is concerned and also 1/4th share in the theatre and its equipment and the income. The plaintiff also to 1/4th share in the plaint schedule item II and also for the allotment of 1/4th share in the theatre. Hence the suit/
9. Defendant No. 1 in the said suit filed written statement with the following averments:
It is true that the relation between plaintiff and the defendants are correct. The plaintiff and the defendants 1 and 2 constitute a joint family is incorrect. The plaintiff and the defendants have agreed to carry on the cinema business as joint members of the joint family by each contributing Rs. 10,000/- and the licence was obtained in the name of the 1st defendant for the said business is not true. This defendant is the owner of the site and the said theatre and he constructed the theatre in his site i.e., his exclusive property. This defendant after constructing the theatre, obtained the licence for running theatre. The plaintiff and the defendants 2 and 3 have no manner of right, title or interest to the said site, the cinema theatre and other constructions made therein and they have nothing to do with income thereof and they are not entitled to the same. Since the property is the exclusive property of this defendant, there is no question of this defendant to render any accounts. It is incorrect to state that seven rooms have been let out and they are fetching monthly income of Rs. 100/- each including electricity consumption charges and also the two wooden structures are fetching Rs. 50/- each is incorrect. The Settlement Deed dated 26.7.1982 executed by this defendant in favour of the 3rd defendant, his wife and mother settling a portion of the said site was never acted upon and this defendant has always been in possession of the said portion covered by the settlement deed was also cancelled by registered settlement revocation deed dated 24.2.1983. The averment that the profits that have accrued in cinema business were paid till two years ago. It is absolutely false. It is for the purpose of the suit, there is no need for this defendant to pay any part of the income derived out of the cinema business either to the plaintiff or to the defendants 2 and 3. The plaintiff never raised any dispute for partitioning the cinema theatre. Therefore, the plaintiff is not entitled to 1/4th share in the plaint schedule property and also not entitled to any relief of rendition of accounts. The plaintiff schedule is not correct. The plaintiff has no cause of action against this defendant. The valuation of the suit is also not correct. The plaint pleadings themselves clearly shows that this defendant is the owner of the said properties and he is a licensee of the said property. The plaintiff, this defendant and the 2nd defendant are owned joint family properties being the lands situated in Rolugunta and Kowuru Villages and the houses situated at Rolugunta. The defendant has been demanding the plaintiff and the 2nd defendant to partition the said joint family lands and houses situated in Rolugunta and Kowuru and other joint family properties. They bore grudge on the said account and failed to partition and give away this defendant’s share in the said joint family properties suppressing the said vast joint family properties and aforesaid facts the plaintiff filed this present suit. The present suit as framed is not maintainable. This defendant submits that the 3rd defendant was for sometime looking after the said theatre and he misappropriated the theatre income of this defendant and the 3rd defendant acquired properties in the name of his wife and purchased gold for her and when this defendant questioned the plaintiff and the 3rd defendant about the said misappropriation and demanded repayment of the said amount they bore grudge and threatened him that they will ruin this defendant. The document dated 25.11.1974 is not true, valid and binding on this defendant. This defendant never executed any such joint agreement.
10. The 2nd defendant filed a Memo sating that he has no objection for partitioning the property as prayed for by the plaintiff and he also prayed for a decree to be granted for 1/4th share and also 1/4th profits.
11. The 3rd defendant filed written statement with the following averments:
It is true that the plaintiff, defendants 1 and 2 constitute as members of the joint family. The cinema business running as Annapurna Touring Talkies in Sabbavaram was entrusted to the 1st defendant for its management. The plaintiff and the defendants have agreed to carry on business as members of the joint family and also as per the agreement the 3rd defendant was also agreed to implead him as partner in the said business with equal share. The 3rd defendant is no other man the sister’s son of the plaintiff and the defendants 1 and 2. Since the 3rd defendant is being brought up in the above said joint family, soon after the death of his father. This defendant was also impleaded in the joint family as well as in the cinema business. The licence for the cinema talkies was obtained in the name of the 1st defendant as it was agreed by the plaintiff and the defendants 1 to 3. So also the electricity and other certificates in respect of the said theatre were also obtained in the name of the 1st defendant. This defendant has been looking after the cinema theatre with utmost care and interest and at the instance of this defendant, huge profits are being earned and they were being distributed among the plaintiff and the defendants upto the end of the year 1982. As this defendant was working diligently for the improvement and development of the family properties and also so-called cinema theatre, the plaintiff and other defendants after mutual consultation agreed to settle some properties on him and thus the 1st defendant executed a registered Settlement Deed dated 26.7.1982 in favour of this defendant, his mother and wife in respect of the total extent of 16.1/4 cents out of 65 cents originally purchased in the name of the 1st defendant for the establishment of cinema theatre. So from the facts and circumstances of the Settlement Deed, it is clear that until after the date of Settlement Deed, the plaintiff and the defendants are in amicable possession and enjoyment of die properties, licence and other certificates in respect of the said cinema theatre are put in the name of the 1st defendant. The 1st defendant used to stop distribution of profits amongst the other share holders of the theatre, and subsequently several disputes were raised for distribution of the income from me theatre and the related properties, but in vain. Therefore, this defendant has no objection for partition of the properties as prayed by the plaintiff.
12. On the strength of the above pleadings, the following issues were settled:
1. Whether the plaint schedule properties are the joint family properties of the plaintiff and the defendants as contended by the plaintiff or the separate and exclusive properties of the 1st defendant as contended by him?
2. Whether the 3rd defendant is a partner of the cinema theatre and the concerned properties in question?
3. Whether the 1st defendant was entrusted with the management of the cinema theatre and the concerned properties?
4. Whether the site of the cinema theatre and the properties acquired in the name of the 1st defendant belongs to all the defendants and the plaintiff?
5. Whether the plaintiff is entitled to partition of the plaint schedule properties and for any share in the name?
6. Whether the plaintiff is entitled to rendition of accounts from 1.4.1982?
7. Whether the registered settlement deed dated 26.7.1982 executed by the 1st defendant is acted upon and whether it is finding on 1st defendant in view of the cancellation of the same?
8. Whether the valuation of the suit and Court fee paid thereon are correct?
9. Whether the plaintiff is liable to pay compensatory costs to the 1st defendant?
10. Whether the plaint schedules are correct?
11. To what relief?
13. The other suit OS No. 79 of 1987 was originally instituted as OS No. 26 of 1985 on the file of Subordinate Judge, Chodavaram and the said suit was filed by the 1st defendant in OS No. 253 of 1984 as plaintiff for partition of the plaint schedule property into three equal shares and for separate possession and other reliefs. The respective pleadings of the parties relating to the properties also substantially appear to be on the same lines though certain further details had been narrated in relation to the family properties. The following issues were settled in the said suit OS No. 79 of 1987.
1. Whether the plaintiff is entitled for partition of the plaint A&B schedule properties?
2. Whether the properties at Sabbavaram are not joint properties of the plaintiff and defendants?
3. Whether Yerra Apparao etc., are entitled to any share?
4. To what relief?
14. It is pertinent to note that during trial a Memo was filed to treat the evidence in OS No. 253 of 1984 as evidence in OS No. 79 of 1987 and accordingly both the suits were taken up for joint trial and in fact at paragraph 13 of the judgment the consolidated issues in both the suits had been framed which are as hereunder:
1. Whether the plaintiff in OS No. 79/ 87 is entitled for partition of the plaint ‘A’ & ‘B’ schedule properties?
2. Whether the plaintiff in OS 253/84 is entitled for partition of the plaint schedule properties and for any share in the same?
3. Whether Yerra Appa Rao i.e., the 3rd defendant in OS 253/84 is entitled to any share?
4. Whether the valuation of the suit OS 253/84 and Court fee paid thereon is correct?
5. Whether the plaintiff in OS. 79/87 is liable to pay compensatory costs?
6. Whether the plaint schedule in OS. 79/87 is correct?
7. To what relief?
15. The evidence available on record, PW. 1 (the plaintiff in OS No. 253 of 1984), PWs. 2 to 5, DW. 1 (the 3rd defendant), DW. 3 (1st defendant in OS No. 253 of 1984), DWs. 2, 4 to 6, Exs. A1 to A6 and Exs. B1 to Ex. B5 had been discussed at length and the suit OS No. 253 of 1984 was decreed declaring 1/3rd share to the plaintiff and defendants 1 and 2 only and negatived the relief to the 3rd defendant. Likewise OS No. 79 of 1987 was decreed.
16. As can be seen from the findings, which had been recorded at paragraph 18, it is clear that the learned Advocate for the plaintiff in OS No. 253 of 1984 and the 1st defendant in OS No. 79 of 1987 reported no objection for partition of the properties among the brothers. It is true that the learned Counsel representing the appellant had taken this Court in detail through the evidence available on record and made elaborate submissions in relation to Ex. A4 dated 25.11.1974, an agreement between the plaintiff and defendants. It is pertinent to note that the learned Subordinate Judge, Anakapalli on the strength of the Memo not only proceeded with joint trial by recording common evidence, but had consolidated the issues in both the suits and recorded findings, there is no controversy that the decree and judgment in OS No. 79 of 1987 had attained finality since no appeal had been preferred as against the said decree and judgment. Further, virtually it appears to be a consent decree and even otherwise the decree made in OS No. 253 of 1984 on the ground that a suit for partition as such is not maintainable and the remedy is to file a suit for dissolution of partnership and rendition of accounts also cannot be sustained for the reason that the learned Judge arrived at a conclusion that the 3rd defendant is not entitled to any share and had dismissed the suit as against the 3rd defendant. Hence, viewed from any angle the appeal preferred as against the decree and judgment in OS No. 253 of 1984 alone without challenging the common findings which had been recorded in yet another suit OS No. 79 of 1987 cannot be maintained.
Point No. 3:
17. In the light of the foregoing discussion, the appeal being devoid of merit, the same shall stand dismissed. In view of the close relationship between the parties, the parties to the litigation to bear their own costs.