JUDGMENT V.Gopala Krishna Rao, J. - This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 03.08.2000, in O.S. No.8 of 1989 passed by the learned Senior Civil Judge, Kovur [for short 'the trial Court']. The Respondents herein are the plaintiffs in the said Suit. 2. The Plaintiffs 1 and 2 filed the above said suit for partition of plaint schedule properties into three equal shares by metes and bounds and to allot and deliver possession of two such shares to the plaintiffs 1 and 2 and directing the first defendant to pay the mesne profits to be ascertained on a separate application. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No.8 of 1989, are as under: One Sk.Nannu Saheb was a resident of Thimmayapalem. He was owning some properties. The plaintiffs 1 and 2, first defendant and one Sk.Kalesha are the sons of the said Nannu Saheb. Originally they were residents of Thimmayapalem village, but they left that village and settled at Atmakur and living together. The first defendant is the eldest of them and he is managing the properties. With the joint exertions of all the brothers and with the sale proceeds of the properties at Thimmayapalem, the schedule properties were purchased and the first defendant being the eldest among the brothers, he was managing the family, the sale deeds were taken in his name with an understanding that all the brothers shall have equal shares. While so, the above said Sk.Kalesha, one of the brothers, relinquished his rights in all the properties and executed a registered relinquishment deed dated 24.07.1969 in favour of the plaintiffs 1 and 2 and the first defendant. The plaintiffs 1 and 2 have been demanding the first defendant to effect partition of the plaint schedule properties and deliver their 2/3 share to them, as the first defendant is not rendering correct accounts, at last, the plaintiffs 1 and 2 got issued notice to the first defendant on 12.12.1988 calling upon him to co-operate with them to effect partition. On 31.12.1988, the first defendant sent a reply notice with all false and frivolous allegations. 5. On 31.12.1988, the first defendant sent a reply notice with all false and frivolous allegations. 5. The first defendant filed a written statement by denying the averments mentioned in the plaint and further contended as under: - i) The first defendant was managing the properties and acquired some properties and got some of them registered in his name as well as in the name of his brothers inclusive of plaintiffs 1 and 2. The said acquisitions are from his own earnings. Sk.Kalesha, one of the brothers, wanted to relinquish and executed a relinquishment deed dated 27.04.1969. The first defendant paid Rs.5,000/- to his brother Kalesha and obtained a registered relinquishment deed dated 27.04.1969. In the month of April 1985 all the properties except D schedule property, annexed to the written statement, was partitioned among the parties interse. In the said partition, the first defendant got some landed properties. The second plaintiff sold away his undivided share of the property under agreement of sale dated 01.09.1984 for Rs.27,000/- in favour of the first defendant's sons and their sister-in-law and put them in possession of the same. Thus, the properties fell to the share of second plaintiff were alienated in favour of the sons of the first defendant under agreement dated 01.09.1984. Similarly, the first plaintiff also sold away some of his share of properties to the first defendant, his sons and to his daughter-in-law Bibijan. The plaintiffs 1 and 2 and the first defendant still owned and retained lands of about Ac.39.41 cents at Thimmayapalem village as joint properties and are sharing the usufruct of the standing trees and the grazing fees realized thereon. ii) Plaint A schedule property disclosed only the properties situated in Atmakur, though properties are still available at Thimmayapalem as detailed in D schedule and other properties as detailed in B and C schedule of the written statement. Thus, the suit for partition was filed suppressing the fact of separate possession and enjoyment of the properties situated at Thimmayapalem as well as Joint properties at Thimmayapalem still owned and as such this suit is not maintainable for partial partition. The family is not possessed of B schedule property i.e., a tractor. The suit is not maintainable for want of non-joinder of sons and daughter-in-law of the first defendant. The family is not possessed of B schedule property i.e., a tractor. The suit is not maintainable for want of non-joinder of sons and daughter-in-law of the first defendant. iii) The first defendant further contend that the first plaintiff admitting the partition and not pressed the suit and as such, his claim is deleted and the suit is also liable to be dismissed with costs. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the partition pleaded by the defendant is true? (ii) Whether the properties shown in the A schedule of the written statement, belong to the defendant and his sons? (iii) Whether the suit is bad for non-joinder of parties? (iv) Whether the suit is not maintainable? (v) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A3 were marked. On behalf of the Defendants DW1 to DW3 were examined and Ex.B1 to Ex.B3 and Ex.X1 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court partly decreed the Suit vide its judgment, dated 03.08.2000, against which the present appeal is preferred by the appellants/defendants in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Sri S.V.Muni Reddy, learned counsel for appellants and Sri T.D.Phani Kumar, learned counsel for respondents. 10. The learned counsel for appellants would contend that the trial Court wrongly came to conclusion that there was no prior partition and he would further contend that the suit is not maintainable for non-joinder of necessary parties and the Court below grossly erred in decreeing the suit. He would further contend that appeal may be allowed by setting aside the decree and judgment passed by the trial Court. 11. Per contra, the learned counsel for the respondents would contend that on appreciation of entire evidence on record, the trial Court rightly decreed the suit by granting the relief of partition of plaint A schedule property and there is no need to interfere with the finding given by the Trial Court. 12. 11. Per contra, the learned counsel for the respondents would contend that on appreciation of entire evidence on record, the trial Court rightly decreed the suit by granting the relief of partition of plaint A schedule property and there is no need to interfere with the finding given by the Trial Court. 12. Having regard to the pleadings in the Suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this court, the following point would arise for determination: Whether the trial Court is justified in decreeing the suit for partition of plaint A schedule property? 13. Point : The case of the plaintiffs is that Sk.Nannu Saheb was a resident of Thimayapalem and the plaintiffs 1 and 2, first defendant and one Sk.Kalesha are the sons of the said Nannu Saheb and the plaintiffs 1 and 2, first defendant and Sk.Kalesha were residents of Thimmayapalem village and they left the village and settled at Atmakur and living together and the first defendant is the eldest among them and he is managing the properties. The plaintiffs further pleaded that with the joint family income of all the brothers and so also with the sale proceeds of joint properties at Thimmayapalem, the schedule properties were purchased and the first defendant being the eldest among the brothers and managing the family, the sale deeds were taken in the name of the first defendant with an understanding that all the brothers shall have equal shares. The plaintiffs further pleaded that one of the brothers by name Sk.Kalesha relinquished his rights in all other properties and executed a registered relinquishment deed dated 24.07.1969 in favour of plaintiffs 1 and 2 and the first defendant and that the plaintiffs 1 and 2 and the first defendant each of them are having 1/3rd share in the plaint schedule properties. They further pleaded that despite of several demands made by them and despite of issuance of legal notice, the first defendant failed to partition the plaint schedule properties and that they are constrained to file the suit. 14. Initially the suit is filed against the sole defendant, during the pendency of the suit before the trial Court, the sole defendant died, defendants 2 to 7 were added as legal representatives of the sole defendant before the trial Court. 14. Initially the suit is filed against the sole defendant, during the pendency of the suit before the trial Court, the sole defendant died, defendants 2 to 7 were added as legal representatives of the sole defendant before the trial Court. The first defendant filed a written statement, defendants 2 to 7 have not filed any separate written statement or they have not filed any additional written statement. The deceased sole defendant pleaded that there was a prior partition between the parties i.e., the plaintiffs 1 and 2 and the first defendant long back. 15. In order to prove the case of the plaintiffs, the second plaintiff is examined as PW1. As per his evidence, he is the second plaintiff in the suit. During the lifetime of his father, his father used to manage the properties and they are 4 brothers and 4 sisters and during the lifetime of his father, his father performed the marriages of 3 daughters. He further deposed that after the death of his father, they performed the marriage of their last sister and his father died at about 50 years ago at Thimmayapalem village. He further deposed that after the death of his father, himself and other brothers are living jointly and looking after the properties of his father and the sole defendant is managing the properties as elder brother and himself and other brothers used to help him in managing the properties including the plaint schedule properties. He further deposed that after the death of his father they sold some land at Thimmayapalem village and purchased the lands at Atmakur village with the same sale proceeds and being an elder, they purchased the properties in the name of the defendant at Atmakur. The defendants did not choose to cross examine the PW1. The evidence of PW1 is remained unchallenged by the defendants. 16. The first defendant pleaded in the written statement itself that there was a prior partition in between the family members i.e., in between the plaintiffs 1 and 2 and the first defendant. Therefore, the burden is on the first defendant to prove the alleged oral partition. The first defendant, who is said to be the manager of the joint family died during the pendency of the suit. His legal representatives were brought on record as defendants 2 to 7 and they did not file any separate written statement. Therefore, the burden is on the first defendant to prove the alleged oral partition. The first defendant, who is said to be the manager of the joint family died during the pendency of the suit. His legal representatives were brought on record as defendants 2 to 7 and they did not file any separate written statement. Furthermore, the second defendant was examined as DW1. He is none other than the son of the sole defendant. As per his evidence Kalesha, another brother of first defendant, sold away his share to his father and plaintiffs 1 and 2 and that was happened at about 18 years ago, his father and plaintiffs 1 and 2 partitioned their properties and since then they have been enjoying, separately, their respective shares and that the partition was oral and there was no document. He further deposed that all the suit properties were acquired by his father and his three brothers and as his father is the eldest brother, the properties have been kept in his name. The above admissions of DW1 clearly goes to show that the suit schedule properties are joint family properties and the properties were purchased in the name of the sole defendant from out of the ancestral nucleus since the sole defendant is an elder brother of the plaintiffs 1 and 2. 17. Another important circumstance to disbelieve the oral partition is though the defendants examined one Sd.Khasim as DW2, he did not state about the alleged prior partition in between the parties to the suit. Absolutely there is no evidence on record, except the self-testimony of DW1, to show that there was an earlier partition in between both the parties to the suit. Even assume if there is any prior partition in between both the parties to the suit, certainly there will be a document proof i.e., revenue record to show that there was a prior partition in between both the parties and the said partition is acted upon. But, there is no such documentary evidence on record to show that there was a prior partition in between both the parties to the suit and the same is acted upon. But, there is no such documentary evidence on record to show that there was a prior partition in between both the parties to the suit and the same is acted upon. It is an admitted fact by both the parties that prior to filing of the suit there was an exchange of notices, Ex.A2 notice was given by the plaintiffs 1 and 2 and Ex.A3 is the reply notice given by the first defendant. There is no whisper in Ex.A3 by the first defendant that there was an earlier partition in between both the parties. No prior partition is pleaded in Ex.A3 reply notice by the first defendant. Therefore, in the absence of any documentary evidence to show that there was a prior partition, the said contention taken by the defendants as there was earlier partition in between both the parties to the suit cannot be accepted. The defendants also relied on the evidence of DW2, there is no whisper in the evidence of DW2 about the prior partition in between both the parties to the suit. 18. As stated supra, the evidence of PW1 is remained unchallenged by the defendants. Admittedly, there is no evidence on record to show that there was a prior partition in between both the parties to the suit. As stated supra, the defendants failed to prove that there was an earlier partition, therefore, in the absence of any such evidence, it is not safe to come to conclusion that there was a prior partition in between both the parties to the suit. On the other hand, there is an evidence on record to show that suit A schedule properties are joint family properties in between both the parties to the suit. Admittedly, DW1 who is the son of sole defendant admitted in his evidence in cross examination itself that all the suit properties have been acquired by his father and his 3 brothers and as his father is elder brother, the properties have been kept in his name. 19. It was pleaded by the sole defendant in the written statement that the suit is bad for non-joinder of necessary parties. 19. It was pleaded by the sole defendant in the written statement that the suit is bad for non-joinder of necessary parties. As stated supra, after the death of the sole defendant even though the legal representatives are brought on record as defendants 2 to 7, none of the defendants i.e., defendants 2 to 7 filed any written statement or did not choose to file any memo to adopt the written statement filed by their father. Admittedly, prior to filing of the suit there is an exchange of notices in between both the parties to the suit. It was pleaded by the learned counsel for respondents that the second plaintiff sold away his undivided share of the property under agreement of sale dated 01.09.1984 for Rs.27,000/- in favour of the son of the defendants i.e., Ameer Basha, Nazeer Basha and their sister-in-law Bibijan and put them in a possession of the same. Admittedly, there is no evidence on record to show that they were put in possession of the same. The plaintiffs strongly denied the alleged agreement of sale. As stated supra, after receipt of Ex.A2 legal notice, the first defendant issued a reply notice under Ex.A3. In Ex.A3 there is no mention about the alleged agreement of sale dated 01.09.1984. Even though there is no whisper about the alleged agreement of sale in the written statement filed by the sole defendant. Admittedly, the alleged sale agreement is not filed into the Court along with the written statement. At first instance, DW1 was examined on 12.04.1999, at that time also the said alleged agreement of sale was not at all filed into the Court, after subsequent to granting adjournments, the defendants filed the same and marked as Ex.B1, the trial Court by assigning cogent reasons, rightly came to conclusion that the alleged agreement of sale dated 01.09.1984 is not a genuine and not proved by the defendants. I do not find any reason to interfere with the said finding given by the trial Judge. The trial Court also arrived conclusion that after the death of the first defendant, the Ameer Basha, Nazeer Basha were impleaded as defendants 3 and 4 along with other legal representatives and the sole defendant died, his legal representatives are brought on record as defendants 2 to 7. The trial Court also arrived conclusion that after the death of the first defendant, the Ameer Basha, Nazeer Basha were impleaded as defendants 3 and 4 along with other legal representatives and the sole defendant died, his legal representatives are brought on record as defendants 2 to 7. Since the plaintiffs denied the execution of Ex.B1 and the defendants also failed to prove Ex.B1, the trial Court arrived conclusion that there is no necessity to implead Bibijan or other vendees as the parties to the proceedings. Moreover, Ex.B1 is not a registered sale deed; it is only unregistered document. By assigning the reasons, the learned trial Judge came to conclusion that there is no need to implead Bibijan or other vendees to Ex.B1 as parties to the suit because the Ex.B1 is not proved. Therefore, I do not find any illegality in the said finding given by the trial Court. 20. The trial Court decreed the suit by granting partition of the plaint A schedule properties and dismissed the relief of partition in respect of plaint B schedule property, no appeal or no cross objections are filed by the plaintiffs to challenge the said finding. 21. For the foregoing reasons, I do not find any illegality in the decree and judgment passed by the trial Court. The decree and judgment passed by the trail Court is perfectly sustainable under law and it requires no interference. The point is answered accordingly. 22. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 03.08.2000, in O.S.No.8 of 1989 passed by the learned Senior Civil Judge, Kovur. Considering the circumstances of the case, each party do bear their own costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.