JUDGMENT VENKATA JYOTHIRMAI PRATAPA, J. - Unsuccessful Defendant No.1 carried the matter in Appeal against the impugned decree and Judgment dtd. 30/6/2017 in O.S.No.273 of 2012 on the file of V Additional District Court, Nellore, wherein the suit filed by his sister for partition is decreed by striking off the defence of the defendants. 2. The appellant herein was the Defendant No.1 and the Respondent Nos. 1 and 2 were the Plaintiff and the defendant No.2 before the trial Court. For the sake of convenience and understanding, the parties herein are referred to as they were arrayed before the learned trial Court. 3. The case of the Plaintiff, in brief : a. Plaintiff-Kasa Varalakshmi, Defendant Nos., 1 and 2- Potteti Venkata Ramanaiah and Vengana Bharathi are the children of late Potteti Venkata Swamy, who died intestate on 27/4/2007 leaving behind the said persons as his legal heirs, since his wife pre-deceased him in 2001. The mother of the plaintiff and defendants also died intestate. It is the case of the plaintiff that the plaint schedule properties are self-acquired properties of her father-Potteti Venkata Swamy, that he purchased Item No.1 of the schedule property, vide registered Sale Deed dtd. 6/11/1979, purchased Item No.2 in the name of his wife -Jayamma and Defendant No.1, vide a registered Sale Deed dtd. 9/5/1997 and that he also purchased the gold ornaments, which are shown in Item No.3 of the schedule property. At the time of his death, some cash was available in his accounts as mentioned in Item No.4 of the schedule property. b. All the properties are the joint family properties and the plaintiff and Defendants all are having equal share in such properties. After the death of her father --Potteti Venkata Swamy, the plaint schedule properties are in joint possession of the parties. Whereas, Defendant No.1 has been collecting rent of Rs.30, 000.00 from the tenants of Item Nos. 1 and 2 of the schedule properties, but not giving the plaintiff's share. Despite the demand of the plaintiff for partition, as the defendants are not cooperating, the Plaintiff got issued a Legal Notice dtd. 23/8/2012 to the Defendant No.1 seeking partition by metes and bounds. Defendant No.1 did not choose to give any reply or come forward for the partition. 4. Despite the demand of the plaintiff for partition, as the defendants are not cooperating, the Plaintiff got issued a Legal Notice dtd. 23/8/2012 to the Defendant No.1 seeking partition by metes and bounds. Defendant No.1 did not choose to give any reply or come forward for the partition. 4. The contention of the Defendant No.1: a. Defendant No.1's contention is that the plaintiff is liable to pay ad valorem Court Fee under Sec. 34(1) of A.P.C.F and S.V. Act, but not fixed Court Fee under Sec. 34 (2) since she has never been in possession of Item Nos., 1 and 2 of the schedule properties. It is his submission that his father purchased Item No.1 and also constructed a house therein and On 17/8/2001, his father in a sound and disposing state of mind executed a Will bequeathing item No.1 of the schedule property to the defendant No.1. Subsequently, his mother -Jayamma and himself had purchased a site covered by Item No.2 of the schedule property from Budeti Prameela, W/o Narayana Rao. She executed her last Will dtd. 1/10/1997 bequeathing her undivided share to the defendant No.1 and later died on 27/7/2001. He mortgaged the said property with Nellore Cooperative Urban Bank, Nellore, in 2002 by raising a loan of Rs.50, 000.00 and also Rs.40, 000.00 on 7/5/2007 and remodeled the house shown in Item No.2 of the schedule property. b. The Cooperative Urban Bank, Nellore, filed a suit against the Defendant No.1 and a decree has been passed by the Deputy Registrar of Cooperative Societies. Defendant No.1 submits that the plaintiff's husband is the screw behind this litigation. The plaintiff, who is presently working as ACTO, Nellore, secured the job by suppressing her real date of birth and thereby obtaining a wrongful gain even after retirement. This fact was taken to the notice of the Government and the Government issued a Charge Memo to the Plaintiff and the enquiry is pending. There is no cause of action for the suit and prays to dismiss the suit with exemplary costs under Sec. 35-A of C.P.C. 5. In reply, plaintiff filed rejoinder to the effect that her father never executed any Will and he was not physically and mentally in sound state of mind at the time of alleged execution of Will. He was suffering from serious illness, and was hospitalized undergoing treatment. In reply, plaintiff filed rejoinder to the effect that her father never executed any Will and he was not physically and mentally in sound state of mind at the time of alleged execution of Will. He was suffering from serious illness, and was hospitalized undergoing treatment. The Will might have been created by the 1st defendant by fraud or misrepresentation, with an intention to grab the property. It is submitted that the alleged Will is brought into existence under suspicious circumstances and was not executed with free will and consent. Item No.2 of the plaint schedule property is also part and parcel of joint family property. It was purchased in the name of 1st defendant and her mother jointly. Her mother never executed the alleged Will dtd. 01/10/1997 bequeathing the property to the 1st defendant. The said Will is also a forged and concocted one which is created by the 1st defendant to grab the property. 6. Basing on the pleadings of both parties, the following issues have been settled for trial; i) Whether the suit property is in joint possession and enjoyment of plaintiff and 2nd defendant? ii) Whether the suit properties are joint family property? iii) Whether P. Venkata Swamy executed Will dtd. 17/8/2001 bequeathing Item No.1 of Plaint Schedule Property to Defendant No.1? iv) Whether the Item No.2 of Plaint schedule property was purchased by 1st defendant and P. Jayamma under registered sale deed dtd. 9/5/1997 vide document No.2976/1977? 7. The record further shows that the plaintiff filed I.A. No.10 of 2013 under Sec.151 of C.P.C. seeking a direction to the 1st defendant to deposit the house rent at Rs.30, 000.00 per month, relating to Item No.2 of the plaint schedule property. After hearing both sides, the learned trial Judge allowed the petition directing the 1st defendant to deposit Rs.10, 000.00 per month in the Court from the date of the order till the disposal of the suit. 8. Thereafter, I.A. No.74 of 2017 was filed by the plaintiff under Order XV (A) of C.P.C. praying to strike the defence of Defendant No.1 in the suit stating that in spite of the orders of the Court, he failed to deposit the amount i.e., Rs.10, 000.00 per month. The learned trial Judge allowed the petition and defence of the 1st defendant in the suit was struck off. 9. The learned trial Judge allowed the petition and defence of the 1st defendant in the suit was struck off. 9. During the course of trial, the plaintiff herself was examined as PW.1 and one third party by name K.Veeraiah was examined as PW.2. Ex.A1 to A3 were the documents marked. The learned trial Judge though framed issue Nos.1 to 8, answered only point nos.1 to 3 by framing the following points; i. Whether the plaintiff is entitled for preliminary decree of partition over the plaint schedule properties, as prayed for ? ii. Whether the plaintiff is entitled for mesne profits over the plaint schedule properties, as prayed for ? iii. To what relief ? 10. After hearing the learned counsel for the plaintiff and on appreciation of the evidence on record, the learned trial Judge decreed the suit preliminarily with costs for partition of plaint schedule properties into three equal shares, according to good and bad qualities and allotted one such share to the plaintiff with separate possession. The mesne profits of the suit schedule property and the plaintiff's share therein were to be ascertained on a separate application. 11. Feeling aggrieved and dissatisfied with the impugned judgment and decree, the Defendant No.1 carried the matter in the appeal on the following grounds; a. Learned trial Judge allowed the partition suit without determining the rights among the parties. b.The trial Court committed glaring error in directing to strike off the defense of 1st defendant on the application filed by the plaintiff under Order XV(A) of C.P.C., which is contrary to law. c. The trial Court passed the judgment basing on surmises and conjectures and the impugned judgment is a cryptic one. 12. Heard Sri Penumaka Venkata Rao., learned counsel for the Appellant and Sri C. Subodh, learned counsel for Respondent No.1. Though Notice is served on Respondent No.2, none appeared. 13. Learned counsel for the Appellant would submit that though the orders passed in I.A.No.10 of 2013 and 74 of 2017, the Defendant No.1 could not file Revision Petitions against such orders. He would submit that the orders are non-est under law. He contends that striking of the defence of the defendant No.1, is not correct, when he came up with a plea that his parents executed registered Wills through which he got the property. He would submit that the orders are non-est under law. He contends that striking of the defence of the defendant No.1, is not correct, when he came up with a plea that his parents executed registered Wills through which he got the property. Learned counsel submitted that the matter may be remanded to the trial Court for afresh disposal according to law by giving opportunity to the defendants to participate in the suit proceedings. 14. Refuting the said submissions, learned counsel for the respondent would submit that in case of remanding the matter to the trial Court, an order may be passed directing the defendant No.1 to deposit the rent of Rs.10, 000.00 per month and time may be fixed for disposal of the suit. 15. This Court being the first appellate Court, a last Court for fact finding, has gone through the pleadings, evidence and other material on record, this Court will refer the evidence as and when necessary to the extent required in the judgment. 16. Having heard the submissions of both the learned counsel, the point that would emerge for determination is : Whether the impugned decree and judgment passed by the trial Court is sustainable on facts and law or any interference is required in the appeal? Determination by the Court 17. Before going to touch upon the point framed supra, the undisputed facts are that admittedly the plaintiff and Defendant Nos. 1 and 2 are the children of late Potteti Venkata Swamy. Admittedly, Item No.1 of the schedule property is purchased by late Venkata Swamy, vide a registered Sale Deed dtd. 6/11/1979. Ex.A.1 is the Certified Copy of the said Sale Deed relating to Item No.1 of the schedule property. Likewise, Item No.2 of the schedule property was purchased by the mother of the plaintiff late - Jayamma along with Defendant No.1, vide a registered Sale Deed dtd. 9/5/1997. Ex.A.2 is the Certified Copy of the said Sale Deed. It is also not in dispute that the mother of the plaintiff pre-deceased her father. Late Jayamma died on 27/7/2001. 18. Likewise, Item No.2 of the schedule property was purchased by the mother of the plaintiff late - Jayamma along with Defendant No.1, vide a registered Sale Deed dtd. 9/5/1997. Ex.A.2 is the Certified Copy of the said Sale Deed. It is also not in dispute that the mother of the plaintiff pre-deceased her father. Late Jayamma died on 27/7/2001. 18. The crux of the issue is the plaintiff being the daughter of late Venkata Swamy sought partition of the schedule properties into 1/3rd share each along with her brother and sister stating that though Item No.2 purchased in the name of her mother -Jayamma and the Defendant No.1, that was in fact purchased by her father. It is her claim that it is joint family property. Be that as it may, when the property i.e., Item No.1 purchased by her father in absence of any testament, the plaintiff succeeds. In defence, her brother set up a claim over Item Nos., 1 and 2 of the schedule property stating that a Will has been executed by his father relating to Item No.1 and another Will was executed by his mother relating to her share in Item No.2 of the property. Against which, the plaintiff says it is purchased by her father, it has to be treated as joint family property. 19. In the light of the rival claims made by the plaintiff and the Defendant No.1 in the suit, the manner in which the suit was dealt with by the trial Court is not proper and tenable under law. It is apposite to look into Order XV-A of C.P.C. brought in the State of Andhra Pradesh, at this juncture, which reads as follows; "ORDER XV-A (1) In a suit for recovery of possession, on termination of lease, or licence, with or without a prayer for recovery of arrears of rent, or licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated up to that date into the Court and shall continue to deposit such amount, which becomes payable thereafter within one week from the date on which it becomes due, till the judgment is rendered in the suit. (2) Whether the defendant pleads in the written statement that no arrears of rent or licence fee exists, it shall be competent for the Court to pass an order in this regard, after affording opportunity to both the parties, and in case any amount is found due, the defendant shall be under obligation to deposit the same, within the time stipulated by the Court and continue to deposit the amount which becomes payable thereafter, as provided under r 1. Provided that the time stipulated for payment of amount, as aforesaid, may be extended by the Court for reasons to be recovered for a period not exceeding 15 days. If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence. On such deposit it shall be competent for the plaintiff to withdraw the same. Explanation. -The expression "the amount representing the undisputed areas" shall mean the sum of rent, or licence fee calculated for the period for which it remained unpaid, after deducting from it, any amount, (a) paid as tax, to a local authority, in respect of the property, (b) paid to the plaintiff under written acknowledgment; and (c) deposited into the Court, any proceedings, in relation to the said property." 20. Striking off the defence of a party is a very serious matter and such order should be a speaking order after taking into consideration serious repercussions of the order passed and examining all relevant aspects of the matter and not on mere mechanical lines. As referred supra, the very first clause in Order XV-A opens with "In a suit for recovery of possession, on termination of lease, or licence, ..". In continuation of the same, the second clause provides for deposit of arrears of rent or licence fee and in case of default of making the ordered deposit, the court becomes empowered to strike off the defence. The context in which the said provision operates i.e., suit for recovery of possession, on termination of lease or license and the one through which the present appeal flows i.e., suit for partition, operate on different spheres. Simply, striking off the defence in a suit for partition under Order XV-A, when the other side set up their claim by testament appears to be perverse. The right of the plaintiff in the partition suit is not yet decided. Simply, striking off the defence in a suit for partition under Order XV-A, when the other side set up their claim by testament appears to be perverse. The right of the plaintiff in the partition suit is not yet decided. The Defendant No.1 is yet to establish his claim over the property through the said Wills said to have been executed by his parents. Such being the case, the impugned judgment passing preliminary decree allotting 1/3rd share to the plaintiff is not sustainable under law. In case, the plaintiff succeeds in the suit, the trial Court can ascertain the mesne profits in her favour since rights of the parties are not yet decided at this stage. The request made by the learned counsel for the respondent cannot be accepted at this stage. Accordingly, Point Answered. 21. In result, the Appeal Suit is allowed. The Impugned Decree and Judgment passed in O.S.No.273 of 2012 by the learned V Additional District Judge, SPSR Nellore District at Nellore is set aside; a. The trial Court is directed to restore the suit to file and proceed with the matter and decide the suit afresh by giving opportunity to both parties to adduce their evidence. It does not preclude the trial Court to proceed with the matter in case the defendants would not turn up to cooperate to the trial Court for disposal of the matter as directed. The learned Trial Court is requested to dispose of the suit within a period of 3 months from the date of receipt of a copy of this Judgment. b. To attend the cause as proposed by the learned counsel representing both parties, both parties are directed to appear before the trial Court to pursue their matter on 30/10/2023. c. Both parties shall bear their own costs. 22. It is also made clear that this Court has not expressed any opinion on the merits of the matter. It is open for the trial Court to decide the issues for consideration independently and uninfluenced by any of the observations in the order passed by this Court. Miscellaneous petitions pending, if any, in this case shall stand closed.