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2024 DIGILAW 772 (AP)

V. Chandramouli v. V. Veera Subrahmanyam

2024-07-12

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/first defendant challenging the Decree and Judgment, dated 28.10.2002, in O.S. No. 688 of 1991 passed by the learned II Additional Senior Civil Judge, Vijayawada [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit. The second defendant died during the pendency of the suit itself before the trial Court, the first defendant and the plaintiff are none other than the sons of second defendant. 2. The Plaintiff/respondent filed the above said suit for partition of the plaint schedule properties into two equal shares and to allot one such share to the plaintiff and future profits and for costs. 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. 688 of 1991, are as under: The first defendant is the elder brother of the plaintiff and second defendant is their father. All of them are members of joint Hindu family and they are in joint possession and enjoyment of the plaint schedule properties. The second defendant is the illatom son-in-law of Late Gaddam Veera Subbaiah. On 05.03.1994 the said Subbaiah executed a 'Khararunama' in favour of second defendant. In the said deed it is clearly stated that he had no male issues and that he had only one daughter Veera Subbamma and second defendant marriage was performed with his daughter Veera Subbamma. Subsequently the said Subbaiah died on 13.04.1944, thereafter Veera Subbamma died on 01.04.1953 after giving birth to two male issues viz. the plaintiff and the first defendant herein. As time passes on, the first defendant being an eldest son used to take part in the family activities including Court affairs. The second defendant continued his joint possession having half share in the proportion of Veera Subbaiah along with his mother-in-law Chinna Veeramma, who inherited the remaining half portion of her husband. Likewise, both the son-in-law and mother-in-law jointly enjoyed the same till the death of Chinna Veeramma. During the life time of Chinna Veeramma, she executed a will in respect of her half share bequeathing equally to her grandsons i.e. the plaintiff and the first defendant, thus, the plaintiff has got half share. Likewise, both the son-in-law and mother-in-law jointly enjoyed the same till the death of Chinna Veeramma. During the life time of Chinna Veeramma, she executed a will in respect of her half share bequeathing equally to her grandsons i.e. the plaintiff and the first defendant, thus, the plaintiff has got half share. (ii) In the course of time, some of the properties were sold and huge amounts are brought from the joint family by the first defendant through his father to Poranki and purchased Ac.0.25 cents of land under a registered sale deed dated 20.06.1984 and also constructed a pucca terraced building with the joint family funds which is shown as item No. 1 of plaint A schedule property. The plaintiff and the first defendant started slabs and marble industry under the name and style of 'SRI SAIRAM SLABS AND MARBLE POLISHING INDUSTRIES'. The said business was flourishing very well, thereby the first defendant started misappropriation of the funds of the joint family and the profits of the above business, therefore, the plaintiff demanded for partition of the joint family properties and also to settle accounts of the above business. Accordingly, the plaintiff, defendants and the husband of first defendant's wife's sister sat together and settled the joint family properties by virtue of an agreement dated 21.03.1990 reciting the arrived conclusions. But as per the terms of the said agreement the first defendant did not pay the agreed amount in time as recited. As the first defendant failed to discharge his liability under the above said agreement, the plaintiff demanded the said payment of the amount due under the said agreement on 16.07.1991. The first defendant refused to pay and asked the plaintiff to do whatever he likes. To surprise of the plaintiff, without paying the amount due under the agreement dated 21.03.1990 the first defendant filed a caveat claiming that the business of the firm 'Sri Sairam Slabs and Marble Polishing Industries' belongs to him and his wife, suppressing the existence of the partnership agreement dated 22.11.1985, after receiving the caveat, the plaintiff approached his advocate for advice showing the agreement dated 21.03.1990 and also the partnership agreement dated 22.11.1985, then he came to know that the agreement dated 21.03.1990 is not duly stamped and that is why the first defendant is trying to avoid the payment, taking advantage of the improperly executed document. Therefore, the plaintiff filed a suit in O.S. No. 536 of 1991 on the file of the I Additional Subordinate Judge's Court, Vijayawada for dissolution of partnership and settlement of accounts of the firm business, the said suit is pending, the first defendant is attempting to grab the joint family properties, hence the plaintiff is constrained to file a suit for partition. 5. The first defendant filed a written statement denying the contents of the plaint and further contended as under: He pleaded that the property shown in the schedule except item No. 1 of plaint A schedule property belonged to late Gaddam Veera Subbaiah. He has executed a will in his sound and disposing state of mind on 15.11.1941 and got it registered as document No. 46 in the office of the District Registrar, Kurnool and it is his last testament and the said will is acted upon soon after his death. He further pleaded that the said Veera Subbaiah has bequeathed his property to his wife with life interest and vested remainder to his daughter Veera Subbamma. On the death of Veera Subbamma, her only legal heirs are the plaintiff and defendant and so they have become entitled for the vested remainder right and on the death of their grand mother they have become the absolute owners and they are in joint possession and enjoyment of the same and they are managed by their father i.e. second defendant on behalf of them, thus the plaintiff and the defendants only are entitled to share the properties of late Gaddam Veera Subbaiah and their father has no interest or share in their property. It is further pleaded that Gaddam Chinna Veeramma has relinquished her rights in item No. 5 of the plaint schedule and also in the jareeb land of Ac.4.78 cents in S. No. 353 of Cherlapalli village in favour of this defendant and the plaintiff and as such they have become followers long back for those items and after her death, for all the properties. Their father has no share in any of the properties. Their father has no share in any of the properties. (ii) The plaintiff has not included Ac.4.78 of Jareeb land situated in S. No. 353 of Cherlopalli and also Ac.0.22 cents in S. No. 336/1 of Edupugallu village which are the joint properties of the plaintiff and this defendant and has included item No. 1 which is the partnership property even as per his plaint in O.S. No. 536 of 1991, thus the plaint is full of suppressions of truths and suggestions of falsehoods and the valuation made by the plaintiff is incorrect. They have settled the matter in the presence of their relatives, they have decided that the firm and the properties of the firm and the other shall be taken over by this defendant and the plaintiff shall be paid Rs.1,60,000/- in instalments by this defendant within less than one and half year. The said settlement was arrived in the month of March 1990, accordingly, this defendant has paid the amount even before the stipulated period and the plaintiff has passed the final receipt acknowledging the receipt of the entire amount and agreeing not to claim any rights in any of the properties of the firm etc. It is further pleaded that the first item is not the joint property or the alleged joint family property and it is only firm's property and subsequently it has become the absolute property of this defendant. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the plaintiff is entitled to 1/4th share in all the plaint schedule properties? (ii) Whether the second defendant has for ½ share in all the plaint schedule properties? (iii) Whether the item No. 1 of the plaint schedule property is a partnership property and subsequently first defendant became the absolute owner of its as per the settlement arrived in the month of March 1990? (iv) Whether this Court has no jurisdiction to try the suit? (v) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the Defendant, DW1 was examined and Ex.B1 to Ex.B9 were marked. 8. (iv) Whether this Court has no jurisdiction to try the suit? (v) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the Defendant, DW1 was examined and Ex.B1 to Ex.B9 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court passed a preliminary decree for partition of item No. 1 of plaint A schedule and item No. 2 of plaint B schedule into two equal shares vide its judgment, dated 28.10.2002, against which the present appeal is preferred by the appellant/first defendant in the Suit questioning the Decree and Judgment passed by the trial Court. 9. The application in I.A. No. 1 of 2024 is filed by the appellant/ defendant No. 1 to receive certain documents i.e. original agreement of partition dated 21.03.1990, certified copy of registered sale deed dated 26.05.1988 and Photostat copy of true copy, certified copy of order dated 21.04.2008 in Arbitration O.P. No. 3 of 2005, copy of endorsement dated 00.04.2018 as additional evidence in A.S. No. 127 of 2003. 10. The respondent/plaintiff filed a counter affidavit contending that the present petition filed by the petitioner is not at all maintainable, the same is filed with abnormal delay and therefore, the documents referred in additional evidence petition cannot be received as additional evidence. 11. Heard Smt. Nimmagadda Revathi, learned counsel for appellant/defendant No. 1 and Sri V.S.R. Anjaneyulu, learned senior counsel, appearing on behalf of Sri Vajjhala Satyanarayana Prasad, learned counsel for respondent/plaintiff. 12. The learned counsel for the appellant would contend that the trial Court failed to observe that item No. 1 of the plaint A schedule property is not at all a joint family property and the same is no longer available for partition among the appellant and the respondent herein. She would further contend that item No. 1 of plaint A schedule property was purchased by the appellant herein in his name and the trial Court came to wrong conclusion and decreed the suit and the appeal may be allowed by setting aside the judgment passed by the trial Court. 13. She would further contend that item No. 1 of plaint A schedule property was purchased by the appellant herein in his name and the trial Court came to wrong conclusion and decreed the suit and the appeal may be allowed by setting aside the judgment passed by the trial Court. 13. Per contra, learned senior counsel on behalf of respondent would contend that on appreciation of the entire evidence on record, the trial Court rightly decreed the suit by granting preliminary decree for partition of item No. 1 of plaint A schedule and item No. 2 of plaint B schedule into two equal shares and one such share was allotted to the plaintiff. 14. 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 points would arise for determination: 1. Whether the appellant/ petitioner in I.A. No. 1 of 2024 in this appeal proceedings is entitled the relief as prayed for? 2. Whether the trial Court is justified in preliminary decreeing the suit for partition in respect of item No. 1 of plaint A schedule and item No. 2 of plaint B schedule and to allot one such share to the plaintiff? 15. Point No. 1: Whether the appellant/petitioner in I.A. No. 1 of 2024 in this appeal proceedings is entitled the relief as prayed for? The appellant, who is the first defendant, filed a petition under Order 41 Rule 27 read with Section 151 of Civil Procedure Code with a prayer to receive the documents enclosed along with the petition as additional evidence. 16. It was pleaded by the petitioner/appellant that despite of respondent admitting the execution of family settlement, the respondent filed the present partition suit only for the property fell to his share in the agreement leaving aside the Edupugallu property, 2 lorries and share in Vasavi Slab Industry of Avuku village, which were also joint family properties that fell to the respondent's share in the agreement dated 21.03.1990 and he further pleaded that the respondent suppressed the existence of those other properties that fell to his share in the agreement and did not show them in the list of suit schedule property. He further pleaded that the joint family purchased the property at Edupugallu under the name of the respondent/plaintiff under a registered sale deed. No doubt, the plaintiff also pleaded the said alleged partition agreement dated 21.03.1990 in Para No. 5 of the plaint itself, the plaintiff stated that the plaintiff, defendants and husband of the first defendant's wife's sister sat together and settled the joint family property by virtue of an agreement dated 21.03.1990 reciting the arrived conclusions, as per the terms of the said agreement the first defendant did not pay the agreed amount in time as recited. The plaintiff further pleaded that the first defendant failed to discharge his liability under the said agreement and the plaintiff demanded the payment of amount due under the agreement dated 21.03.1990, on 16.07.1991 the first defendant refused to pay and asked the plaintiff to do whatever he likes. Admittedly the plaintiff has not taken any steps in the suit itself by issuing a notice to the defendant to produce the said family partition agreement dated 21.03.1990 and the plaintiff also did not file the copy of the said agreement. As stated supra, none of the parties filed the said family partition agreement dated 21.03.1990 before the Court below. As stated supra in Para No. 5 of the plaint itself the plaintiff specifically pleaded that since the first defendant is not complying the terms and conditions of the said partition agreement dated 21.03.1990, therefore, he filed the suit for partition, therefore serial No. 1 document i.e. partition agreement dated 21.03.1990 in between the appellant and respondent is a crucial document to decide the subject matter of the suit as pleaded by the respondent/plaintiff in the plaint itself. Another contention put forth by the appellant is that the joint family purchased the property at Edupugallu under a registered sale deed dated 26.05.1988 in the name of the plaintiff and the same was not shown in the plaint schedule. In cross examination it was elicited by the learned counsel for defendant from plaintiff i.e. PW1 about the alleged sale deed, PW1 stated that the said property is a self acquired property and it was purchased with the money given by his in-laws and so also with his own funds. In cross examination it was elicited by the learned counsel for defendant from plaintiff i.e. PW1 about the alleged sale deed, PW1 stated that the said property is a self acquired property and it was purchased with the money given by his in-laws and so also with his own funds. Furthermore, the plaintiff replied in his evidence in cross examination that there is document to show that he got funds to purchase the said property and the said registered sale deed is with him. As noted supra, the original registered sale deed dated 26.05.1988 is with the respondent/plaintiff itself but he failed to produce the same before the trial Court for the reasons best known to the plaintiff. 17. The learned senior counsel for respondent/plaintiff would contend that the aforesaid documents cannot be received as additional evidence, since the appellant filed the above said documents with abnormal delay. Order XLI Rule 27 of Civil Procedure Code reads as under: 27. Production of additional evidence in Appellate Court: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if: (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. Reasons for not filing the aforesaid 2 documents as stated by the petitioner in his affidavit in support of the petition is he was not advised by his counsel in the Court below. The alleged 2 undisputed documents sought to be received as additional evidence are original agreement of partition dated 21.03.1990, true copy of registered sale deed dated 26.05.1988 certified by the Sub-Registrar concerned, those are all not denied by the plaintiff. The alleged 2 undisputed documents sought to be received as additional evidence are original agreement of partition dated 21.03.1990, true copy of registered sale deed dated 26.05.1988 certified by the Sub-Registrar concerned, those are all not denied by the plaintiff. The above said two documents are admitted by plaintiff. But the contention of plaintiff is that the appellant filed the said two documents with abnormal delay. The original of document No. 2 is with the plaintiff itself, in the plaint itself the plaintiff clearly pleaded that the appellant failed to produce the said partition agreement dated 21.03.1990. Furthermore the cause of action to file the suit as alleged by the plaintiff in the plaint is since the defendant did not comply the terms and conditions in the agreement of partition dated 21.03.1990, he filed the suit for partition. It is brought to the notice of this Court by the learned counsel for petitioner that along with the appeal in the year 2002, the petitioner/appellant filed a petition along with agreement of family settlement deed dated 21.03.1990 entered into between the petitioner and respondent under USR No. 102674 of 2002 on 26.12.2002 before the composite High Court of Andhra Pradesh, copy of the said petition is placed on record. 18. The learned counsel for respondent placed a reliance in N. Kamalam (Dead) and another vs. Ayyasamy and another, 2001 (5) ALD 69 (SC), in that case, the Apex Court held as follows: Incidentally, the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal-It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and others has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and others has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In paragraph 9 of the judgment, this Court observed: “...This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports “in a large measure” the plaintiffs contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl. (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision.” In the case on hand the original agreement of partition dated 21.03.1990 is not at all disputed by the respondent/ plaintiff. The respondent/plaintiff specifically pleaded in the plaint itself that the cause of action for filing the suit for partition is since the defendant is not complying the terms and conditions in the family partition agreement dated 21.03.1990 that is the reason he was constrained to file the suit. In the evidence of PW1 in cross examination itself admitted about the sale deed dated 26.05.1988 and he further stated original sale deed is with him. Therefore, it cannot be said those 2 documents are filed by the petitioner before the appellate court with a view to patch up the weak points in the case and to fill up the omissions in the Court of appeal. Those 2 documents are relates to prior to the institution of the suit. Therefore, it cannot be said those 2 documents are filed by the petitioner before the appellate court with a view to patch up the weak points in the case and to fill up the omissions in the Court of appeal. Those 2 documents are relates to prior to the institution of the suit. Those 2 documents are pleaded by both the parties in the suit in the pleadings in the plaint and written statement itself, those 2 documents are the crucial documents to decide the subject matter of the dispute in a more effective manner. The other 2 documents, copy of the order passed in the arbitration dated 21.04.1908 in Arb. O.P. No. 3 of 2005 and the copy of endorsement relates to subsequent to the institution of the suit and subsequent to disposal of the suit, the said other two documents cannot be received as additional evidence. Another document is copy of sale deed dated 20.06.1984, registration extract of the said sale deed is marked as Ex.A3 before trail Court. 19. In fact, original agreement of partition dated 21.03.1990, copy of sale deed, certified by the Sub-Registrar, dated 26.05.1988 are crucial documents to decide the subject matter of the suit, if those 2 documents are received as additional evidence, the dispute in between both the own brothers will be settled once for all because the plaintiff also pleaded in the plaint itself that the said family partition agreement dated 21.03.1990 is a crucial document and the cause of action for filing the present suit before the trial Court is since the appellant failed to comply the terms of the conditions in the family partition agreement dated 21.03.1990, he filed the suit for partition. The copy of the sale deed dated 26.05.1988 certified by the sub-Registrar is also another crucial document. The appellant pleaded that there was another joint family property at Edupugallu which was purchased with the joint family funds in the name of plaintiff, but the said property is not at all included in the plaint schedule. As stated supra, the original document of sale deed is with the plaintiff and copy of the sale deed certified by the Sub-Registrar is filed by the appellant to receive as additional evidence. Therefore, those 2 documents have to be received as additional evidence and no prejudice will be caused to the respondent/plaintiff if the said documents are received. As stated supra, the original document of sale deed is with the plaintiff and copy of the sale deed certified by the Sub-Registrar is filed by the appellant to receive as additional evidence. Therefore, those 2 documents have to be received as additional evidence and no prejudice will be caused to the respondent/plaintiff if the said documents are received. The application filed by the petitioner by narrating the reasons cannot be dismissed on the pretext that the appellant produced the documents with delay, as noticed supra, if the above 2 documents, as admitted by the plaintiff, as stated supra, are received as additional evidence, the dispute in between both the own brothers will be settled once for all, because the plaintiff also pleaded the said family partition agreement dated 21.03.1990 is a crucial document, the plaintiff pleaded that since the appellant violated the terms and conditions in the said agreement, the disputes arose in between both the parties and that is the reason he was constrained to file the suit. Therefore, on considering the above facts and circumstances, I fell that the ends of justice demanded the additional evidence being allowed to be produced de hors the deficiency in the application filed by the petitioner/ appellant. With these above observations, the Interlocutory Application No. 1 of 2024 is partly allowed to receive the copy of registered sale deed dated 26.05.1988, attested by the Sub-Registrar and original agreement of partition dated 21.03.1990 signed by both the parties subject to payment of stamp duty and penalty, if any. With the above observations the point No. 1 is answered accordingly. 20. Point No. 2: Whether the trial Court is justified in preliminary decreeing the suit for partition in respect of item No. 1 of plaint A schedule and item No. 2 of plaint B schedule and to allot one such share to the plaintiff? The relief sought by the plaintiff in the suit proceedings is to grant the relief of partition of plaint A and B schedule properties. The trial Court decreed the suit for granting share in item No. 1 of plaint A schedule property and item 2 of plaint B schedule property. No cross objections are filed by the plaintiff. The relief sought by the plaintiff in the suit proceedings is to grant the relief of partition of plaint A and B schedule properties. The trial Court decreed the suit for granting share in item No. 1 of plaint A schedule property and item 2 of plaint B schedule property. No cross objections are filed by the plaintiff. In the grounds of appeal filed by the appellant/defendant, the appellant pleaded that the item No. 1 of plaint A schedule property is his absolute property and he purchased the same under a registered sale deed. 21. The respondent/plaintiff has taken a specific plea in the plaint that the plaintiff, defendants and the husband of the first defendant's wife's sister sat together and settled the joint family properties by virtue of agreement dated 21.03.1990 reciting the arrived conclusions. The plaintiff further pleaded that as per the terms of the said agreement, the first defendant did not pay the agreed amount in time, since the first defendant failed to discharge the liability under the said agreement, the plaintiff demanded the payment of amount due under the said agreement dated 21.03.1990, the first defendant refused to pay the same, since the first defendant violated the terms and conditions of the agreement, the plaintiff filed the suit before the learned trial Judge. The appellant pleaded in the written statement before the trial Court that because of the disputes between the plaintiff and the defendant regarding partnership and some other properties like lorries etc. in the presence of co-brother of the first defendant, they have decided that the firm and the properties of the firm and other share shall be taken over by the first defendant and the plaintiff shall be paid Rs.1,60,000/- in instalments by the first defendant within a less than one and half year and the said settlement was arrived in the month of March 1990. The said settlement deed dated 21.03.1990 is not at all filed by the defendant before the Court below. The plaintiff also not taken any steps by issuing a notice to the opposite party to produce the said crucial undisputed original partition agreement dated 21.03.1990. As noticed supra, the said original agreement of partition dated 21.03.1990 is filed before this appellate Court in additional evidence petition in the Interlocutory Application. The plaintiff also not taken any steps by issuing a notice to the opposite party to produce the said crucial undisputed original partition agreement dated 21.03.1990. As noticed supra, the said original agreement of partition dated 21.03.1990 is filed before this appellate Court in additional evidence petition in the Interlocutory Application. As stated supra, I.A. No. 1 of 2024 filed by the appellant is partly allowed with an observation to receive the said original partition agreement dated 21.03.1990 subject to payment of stamp duty and penalty, if any. 22. The defendant specifically pleaded in the written statement that the property situated at Edupugallu is purchased from out of the joint family income in the name of plaintiff, but the plaintiff had not included the same in the plaint schedule. Though a specific plea was taken by the defendant in a written statement that the property at Edupugallu is not added in the plaint schedule for partition of the plaint schedule property, unfortunately, the learned trial Judge did not frame any issue on that aspect. The plea taken by the appellant is that the property at Edupugallu is purchased from out of the joint family income in the name of the plaintiff. In cross examination by the learned counsel for defendant, the plaintiff stated that the said property is self acquired property and with his own income and with money provided by his in-laws he purchased the same and the original document is with him. Therefore, it is also desirable to direct the trial Judge to frame an additional issue “whether the suit for partial partition is bad in the absence of inclusion of other joint family properties.” In view of the plea taken by both the parties in the plaint and written statement before the Court below, since I.A. No. 1 of 2024 is partly allowed with an observation to receive original agreement of partition dated 21.03.1990 subject to payment of stamp duty and penalty if any and to receive the copy of the registered sale deed dated 26.05.1988 certified by the Sub-Registrar as additional evidence. Therefore, it is desirable to give opportunity to both the parties to adduce additional evidence if any on the additional issue and on the aforesaid two documents as ordered supra. Therefore, it is desirable to give opportunity to both the parties to adduce additional evidence if any on the additional issue and on the aforesaid two documents as ordered supra. Therefore, the matter is remanded to the trial Court to receive the original agreement of partition dated 21.03.1990 in between the defendant and plaintiff subject to payment of stamp duty and penalty if any and to receive the copy of registered sale deed dated 26.05.1988 certified by the Sub-Registrar as additional evidence if any and also to frame the additional issue 'whether the suit for partial partition is bad in the absence of inclusion of other joint family properties' and both parties are at liberty to adduce additional evidence if any on the above 2 referred documents and also on the additional issue as ordered supra and the learned trial Judge is directed to dispose of the suit on merits. For the aforesaid reasons, the decree and judgment passed by the learned trial Judge is liable to be set aside. Accordingly point No. 2 is answered. 23. In the result, this appeal is allowed and the I.A. No. 1 of 2024 is partly allowed and the matter is remanded to the trial Court. The 2 documents, which are ordered to be received, viz. original agreement of partition dated 21.03.1990 subject to payment of stamp duty and penalty if any and copy of registered sale deed dated 26.05.1988, certified by the sub-Registrar, as additional evidence, filed by the appellant in this Court shall be forwarded to trial Court and the trial Court is directed to give an opportunity to both the parties to adduce evidence if any on the aforesaid 2 documents and on additional issue as ordered supra. The entire exercise shall be completed within four (4) months from the date of receipt of a copy of this judgment and the trial Court is directed to decide the suit in accordance with law. The registry is hereby instructed to transmit the entire record forthwith to the trial Court. There shall be no order as to costs. 24. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.