JUDGMENT : ENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This appeal is filed by the appellants/defendants 3 to 5 challenging the judgment and decree, dated 12-9-2001, in O.S. No. 24 of 1998 passed by the learned Senior Civil Judge, Gurazala, Guntur District. The 1st respondent herein is the plaintiff and respondents 2 and 3 are defendants 1 and 2 in the said suit. 2. The parties will hereinafter be referred to as arrayed before the trial Court. 3. The 1st respondent/plaintiff filed the suit for partition of the properties into three equal shares and to allot 1/3rd share to the plaintiff and for recovery of separate possession with mesne profits. 4. In a nutshell, the averments in the plaint are as follows: The 1st defendant is the mother and the 2nd defendant is the elder sister of the plaintiff. Defendants 3 to 5 are paternal uncles of the plaintiff. The suit schedule property is the self-acquired property of the father of plaintiff, by name Venkateswarlu, who purchased the same on 01-6-1963 from Udatha Venkata Purna Hanumantha Rao for Rs.15,000/- and obtained registered sale deed in his favour. It is in his possession by paying cists till his death on 04-7-1976 intestate. After the death of the father of plaintiff, plaintiff and defendants 1 and 2 were enjoying jointly the suit schedule property. Defendants 3 to 5 had no interest and right over the property. But some false documents were created by defendants 1, 4 and 5 to defeat the rights of the plaintiff. On 09-01-1998, the plaintiff got issued a registered notice demanding 1/3rd share in the property but there was no response. Thus, the suit is filed for division of properties into three equal shares and to allot 1/3rd share to the plaintiff and 1/3rd share to each of the defendants 1 and 2. 5. The brief averments in the written statement filed by the 4th defendant, which is adopted by defendants 3 and 5, are as follows: (a) They denied the plaint averments completely while admitting the relationship between the parties. It is stated that before the death of Veeraiah, grandfather of plaintiff, the joint family consists of father of plaintiff, defendants 3 to 5 and wife of Veeraiah owned Ac.4-48 cents in Survey No. 826/3-A and middle site in Survey No. 193/F of Ac.0-46 cents in Piduguralla. It is stated that before the death of Veeraiah, grandfather of plaintiff, the joint family consists of father of plaintiff, defendants 3 to 5 and wife of Veeraiah owned Ac.4-48 cents in Survey No. 826/3-A and middle site in Survey No. 193/F of Ac.0-46 cents in Piduguralla. They both were sold away by Veeraiah, father of plaintiff and defendants 3 to 5 on 09-4-1953 and 11-5-1955 and kept the cash with them. Later on 31-7-1957, late Veeraiah purchased a house site of Ac.0-07¼ cents in the joint family under a registered sale deed for Rs.300/- and constructed a midde wherein defendants 1 and 3 to 5 were residing. (b) It is stated that Veeraiah died in 1958. After the death of Veeraiah, the father of plaintiff being the eldest male member of the Hindu joint family, became the manager of the family. Out of the joint family funds i.e. the balance of the amounts available by the sale of joint family property in 1953 and 1954, the father of plaintiff purchased the plaint schedule property for Rs.1,500/- on 01-6-1963 under a registered sale deed for the benefit of the joint family and the joint family took possession of the same. The father of plaintiff was a Reserve Police Constable at Guntur. (c) It is stated that even prior to the sale of joint family properties, the father of plaintiff had bad vices. He left the house in 1969 leaving his job and family to their fate. Since the whereabouts of the father of plaintiff were not known, the Police Department got vacated the government quarters allotted to them and so the 1st defendant reached Piduguralla with plaintiff and 2nd defendant and joined joint family of defendants 3 to 5 and their mother Bullemma in 1970. Subsequently, the 1st defendant demanded for partition. Till 1971, the joint family waited for the return of the father of plaintiff. At last on 27-02-1973, the partition list was effected in the presence of elders in between the 1st defendant and defendants 3 to 5 and Bullemma in which each of the sharers had Ac.0-37½ cents of land and Bullemma got Ac.0-43 cents of land. In middle site, each of the sharers got 10½ feet X 54½ feet site and each of them signed on the partition list and kept a copy with them. In middle site, each of the sharers got 10½ feet X 54½ feet site and each of them signed on the partition list and kept a copy with them. Since then, the 1st defendant and defendants 3 to 5 were in their separate possession and enjoyment peacefully without any obstruction. (d) It is stated that Bullemma died in 1993 leaving her share to the 3rd defendant because he looked after Bullemma till her death. The 3rd defendant aged about 70 years. He had no wife and children. After the share of mother was given to the 3rd defendant, some misunderstandings arose in the family. The 1st defendant filed a petition before the Mandal Revenue Officer, Piduguralla, for the property. An enquiry was conducted by the Deputy Tahsildar, Giddalur. At last she approached the Civil Court with false allegations to harass defendants 3 to 5. The father of plaintiff had no capacity to purchase the property with his own funds. Therefore, the suit may be dismissed with costs. 6. Based on the above pleadings, the following issues are settled for trial by the trial Court: (1) Whether the plaintiff is entitled to 1/3rd share in the suit schedule property? (2) Whether the suit schedule property is the self-acquired property of the father of the plaintiff? (3) Whether there was a partition in the joint family property? (4) To what relief? 7. During the course of trial, on behalf of the plaintiff, she herself examined as P.W.1 and also examined three more witnesses as P.Ws.2 to 4 and marked Exs.A-1 to A-7. The 4th defendant is examined as D.W.1 and got examined six more witnesses as D.Ws.2 to 7. On behalf of the defendants, Exs.B-1 to B-16 are marked. 8. After completion of trial and hearing arguments of both sides, the trial Court decreed the suit without costs, directing the defendants 1 and 2 to divide the properties into three equal shares and allot 1/3rd share to the plaintiff in the suit schedule property by metes and bounds by 31-12-2001, otherwise the plaintiff is at liberty to get it through process of law. She is also entitled for mesne profits. 9. Aggrieved against the said judgment and decree, defendants 3 to 5 filed the present appeal questioning the finding given by the trial Court. 10. She is also entitled for mesne profits. 9. Aggrieved against the said judgment and decree, defendants 3 to 5 filed the present appeal questioning the finding given by the trial Court. 10. Heard Sri M.R.S. Srinivas, learned counsel for appellants and Sri N. Subba Rao, learned Senior Counsel for the 1st respondent/ plaintiff. 11. Learned counsel for the appellants would contend that the suit as framed for a decree for partition is not at all maintainable under law, since it is not the case of the plaintiff that defendants 3 to 5 are entitled to any share in the property. He would further contend that admittedly the plaintiff was not in possession of the property instead of filing of the suit for declaration of title and recovery of possession, the plaintiff purposefully filed the suit for partition. He would further contend that there is no cause of action for filing the suit for partition against the defendants 3 to 5 and there was an earlier partition in between defendants 1, 3 to 5 and their mother Bullemma and the same is reduced into writing. He would further contend that since there was a partition list dated 27-02-1973, therefore the suit for partition is not at all maintainable, the trial Court committed an error in decreeing the suit and the appeal may be allowed. 12. Per contra, the learned Senior Counsel for the 1st respondent/plaintiff would contend that on appreciation of the entire evidence on record, the trial Court rightly decreed the suit and there is no need to interfere with the finding given by the trial Court and he would further contend that the appeal may be dismissed. 13. Now, the points for determination are: (1) Whether the trial Court is justified in holding that the defendants 1 and 2 are hereby directed to divide the suit schedule properties into three equal shares and to allot 1/3rd share to the plaintiff by metes and bounds by 31-12-2001 and that in case of failure, the plaintiff is at liberty to get it through process of law? (2) Whether the judgment and decree passed by the trial Court needs any interference? 14. (2) Whether the judgment and decree passed by the trial Court needs any interference? 14. Points 1 and 2: (1) Whether the trial Court is justified in holding that the defendants 1 and 2 are hereby directed to divide the suit schedule properties into three equal shares and to allot 1/3rd share to the plaintiff by metes and bounds by 31-12-2001 and that in case of failure, the plaintiff is at liberty to get it through process of law? (2) Whether the judgment and decree passed by the trial Court needs any interference? The case of the plaintiff is that the plaintiff and the 2nd defendant are sisters, they are the daughters of the 1st defendant and defendants 3 to 5 are paternal uncles of the plaintiff and the 2nd defendant. The relationship of the plaintiff with the defendants is not in dispute. 15. The case of the plaintiff is as follows: The suit schedule property is the self-acquired property of the father of plaintiff by name Venkateswarlu who purchased the same on 01-6-1963 and obtained a registered sale deed in his favour and it is in his possession by paying cists till his death on 04-7-1976 intestate. After the death of the father of plaintiff, the plaintiff and defendants 1 and 2 are enjoying the suit schedule property jointly and defendants 3 to 5 had no interest and right over the property. 16. The 4th defendant filed a written statement, which was adopted by defendants 3 and 5, as follows: The relationship is admitted by the defendants. Before the death of Veeraiah, the joint family consists of the father of plaintiff, defendants 3 to 5 and the wife of Veeraiah owned Ac.4-48 cents in Survey No. 826/3-A and middle site in Survey No. 193/F of Ac.0-46 cents in Piduguralla and they both were sold away by Veeraiah and the father of plaintiff and defendants 3 to 5 on 09-4-1953 and 11-5-1955 and kept the cash with them. Later on 31-7-1957, late Veeraiah purchased a house site of Ac.0-07¼ cents in the joint family under a registered sale deed for Rs.300/- and constructed a house in which the defendants 1 and 3 to 5 were residing. Veeraiah died in the year 1958. Later on 31-7-1957, late Veeraiah purchased a house site of Ac.0-07¼ cents in the joint family under a registered sale deed for Rs.300/- and constructed a house in which the defendants 1 and 3 to 5 were residing. Veeraiah died in the year 1958. After the death of Veeraiah, the father of plaintiff being the eldest male member of the joint family, purchased the plaint schedule property for Rs.1,500/- on 01-6-1963 from out of ancestral nucleus under a registered sale deed for the benefit of the joint family. 17. From the beginning itself, the appellants pleaded in the written statement itself that there was a partition list on 27-02-1973 among the 1st defendant and defendants 3 to 5 and Bullemma i.e. the mother of defendants 3 to 5. They further pleaded that the 1st defendant is none other than the mother of plaintiff and 2nd defendant. Therefore, the alleged partition list dated 27-02-1973 is a crucial document to decide the subject matter of the issue. The appellants filed I.A. No. 2 of 2022 to receive the additional document i.e. copy of the partition list dated 27-02-1973 as additional evidence and the same may be received as Ex.B-17. The appellants pleaded that the original of partition list was filed along with the written statement on the date of written statement itself. The material on record further reveals that the appellants also filed I.A. No. 1 of 2022 to receive additional documents for the proper adjudication of the disposal of the appeal. Therefore, I am of the considered view that in first, I.A.Nos.1 and 2 of 2022 have to be decided to determine whether there are any merits in both the interlocutory applications in I.A.Nos.1 and 2 of 2022. 18. I.A.Nos.1 and 2 of 2022: I.A. No. 1 of 2022 is filed by the appellants to receive the documents enclosed along with the petition as additional evidence. The brief averments in the affidavit of the 3rd appellant are as follows: The appeal is filed questioning the judgment and decree dated 12-9-2001 passed in O.S. No. 24 of 1998 on the file of Senior Civil Judge’s Court, Gurazala, Guntur District. The 1st respondent herein filed the aforesaid suit for partition claiming that her father purchased the suit schedule property under a registered sale deed and he died intestate. The 1st respondent herein filed the aforesaid suit for partition claiming that her father purchased the suit schedule property under a registered sale deed and he died intestate. The suit schedule properties were purchased in the name of father of 1st respondent with the joint family fund and the same is not self-acquired property. The whereabouts of the father of 1st respondent were not known from 1969 and in the death certificate, it was mentioned that he died on 04-7-1976. The same is issued by the Revenue Department drawing presumption under Sections 107 and 108 of the Indian Evidence Act, 1872. Hence, the allegation that the father of 1st respondent died intestate on 04-7-1976 is not at all true. As per Section 107, presumption is that a person is alive for 30 long years and the presumption of death drawn by the Revenue authorities is not correct and having partitioned the properties in the year 1973, filing a suit for partition in the year 1998 is not at all maintainable. The respondents herein were not in possession of the suit schedule property ever since from the date of alleged purchase. Further, without challenging the earlier partition, again filing a fresh suit for partition is not maintainable. 19. The appellants filed I.A. No. 2 of 2022 to receive copy of the partition list dated 27-02-1973 as additional evidence. The brief averments in the affidavit of the 3rd appellant are as follows: He is the 3rd appellant. The 1st respondent herein filed a suit for partition O.S. No. 24 of 1998 on the file of Senior Civil Judge’s Court, Gurazala. Pending suit, along with the written statement they filed the original partition list dated 27-02-1973. The scribe and attestors of the said partition list died. D.W.2 is examined to identify the signatures of the said partition list. D.W.5 was also examined to prove the signature of his father on the said document. Hence, the document was filed along with the written statement and confronted to the witnesses, it ought to have been admitted and marked as a document on their behalf since no objection was raised for marking the said document. 20. Both these applications were filed under Order XLI, Rule 27 of CPC. Hence, the document was filed along with the written statement and confronted to the witnesses, it ought to have been admitted and marked as a document on their behalf since no objection was raised for marking the said document. 20. Both these applications were filed under Order XLI, Rule 27 of CPC. Under Order XLI, Rule 27 of CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) where the trial court had refused to admit the evidence though it ought to have been admitted. (II) the evidence was not available to the party despite exercise of due diligence. (III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents. 21. The legal position in this regard is no more res integra. The same is well settled by the Apex Court in Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148 . The Apex Court in the aforesaid case held as follows: “36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.” The Apex Court in the above case further held as follows: “47. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.” The Apex Court in the above case further held as follows: “47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.” 22. As seen from the material on record, the 1st defendant is none other than the mother of plaintiff and 2nd defendant. Admittedly, the mother of plaintiff and 2nd defendant i.e. the 1st defendant is remained set ex-parte. The 2nd defendant is also remained set ex-parte before the trial Court. As seen from the written statement filed by defendants 3 to 5, the defendants 3 to 5 filed original partition list dated 27-02-1973 along with the written statement itself. The Chief Ministerial Officer (CMO) of trial Court certified on the written statement itself on 18-01-1999 that one document i.e. original partition list filed along with the written statement. The above endorsement made by the CMO of trial Court clearly goes to show that the original partition list dated 27-02-1973 was filed by the defendants 3 to 5 along with the written statement itself. The contention of appellants is that themselves, 1st defendant and mother of defendants 3 to 5 partitioned the plaint schedule property and the same is reduced into writing on 27-02-1973 and the appellants are in possession and enjoyment of the plaint schedule property and they relied on the documentary evidence of pattadar pass book, title deed and bunch of tax receipts. Unfortunately, the trial Court has not discussed the said partition list in its judgment. Therefore, certainly additional evidence sought to be adduced as prayed by the appellants removes the cloud of doubt over the case of the parties. Therefore, the trial Court shall receive photo copy of the partition list which is enclosed along with I.A. No. 2 of 2022, subject to proof and admissibility because the original is lying with the trial Court. The same is not marked as an exhibit before the learned trial Judge. Therefore, the trial Court shall receive photo copy of the partition list which is enclosed along with I.A. No. 2 of 2022, subject to proof and admissibility because the original is lying with the trial Court. The same is not marked as an exhibit before the learned trial Judge. Therefore, the said original partition list was not sent along with the material part of the record to this Court. Since it was not marked as an exhibit, the same is not sent by the trial Court in the material part of the record. 23. The prayer of the appellants in I.A. No. 1 of 2022 is that all the additional documents sought to be received as additional evidence are certified copies of documents relate to the proceedings under Sections 6 and 7 of the Right to Information Act, 2005 issued to the Municipal Commissioner and also endorsement issued by the Municipality, Piduguralla and also attested copy of letter of the Sanitary Inspector, Piduguralla Municipality to the Executive Officer of Piduguralla Gram Panchayat and also attested copy of proceedings of the Revenue Divisional Officer, Narasaraopet and also death certificate of father of plaintiff and 2nd defendant, those are enclosed along with I.A. No. 1 of 2022. All the additional documents sought to be received as additional evidence in I.A. No. 1 of 2022 are certified copies. The additional evidence sought to be received as prayed by the appellants removes the cloud of the case of the parties to the appeal. The additional evidence sought to be adduced, as stated supra, removes the cloud of doubt over the case of the parties. The additional evidence sought to be received as prayed by the appellants is certainly enables the Court to pronounce the judgment in a proper manner. 24. As seen from the material on record, the case of the appellants is that there was an earlier partition in between the family members i.e. the 1st defendant and defendants 3 to 5 and their mother. The appellants also relied on Exs.B-4 to B-16. Ex.B-4 is the original of Ex.A-1. The contention of the appellants is that the suit schedule property is purchased by the father of plaintiff from out of ancestral nucleus under a registered sale deed way back in the year 1963 and the original registered document is in the possession of the appellants. The appellants also relied on Exs.B-4 to B-16. Ex.B-4 is the original of Ex.A-1. The contention of the appellants is that the suit schedule property is purchased by the father of plaintiff from out of ancestral nucleus under a registered sale deed way back in the year 1963 and the original registered document is in the possession of the appellants. In fact, the appellants filed original registered sale deed and the same is marked as Ex.B-4. The plaintiff file certified copy of registered sale deed and marked as Ex.A-1. The appellants also filed another registered sale deed, which is marked as Ex.B-5 and to show their possession, they filed pattadar pass book and title deeds and the same are marked as Exs.B-6 to B-9. They also filed bunch of cist receipts and bunch of demand notices and bunch of house tax receipts and voters’ list and No. 3 adangal for faslis viz., Exs.B-10 to B-16. The above aspects are crucial aspects and the same are not properly discussed by the trial Court. 25. Another important point is that admittedly the plaint schedule property is not in possession of the plaintiff. The appellants also relied on Exs.B-1 to B-16. As stated supra, defendants 1 and 2 remained set ex-parte before the trial Court. Unfortunately, the trial Court has not at all touched upon the above aspects. 26. For the foregoing reasons, the judgment of trial Court is not legally sustainable. On a conspectus of pleadings, evidence and law, the judgment and decree of the trial Court is unsustainable and liable to be set aside. Therefore, interest of justice requires that the matter has to be remanded back to the trial Court with a direction to frame relevant additional issue (1) whether there was an earlier partition in between the 1st defendant and defendants 3 to 5 and their mother Bullemma and the same is reduced into writing on 27-02-1973? Further, the trial Court is directed to give an opportunity to both the parties to adduce additional evidence, if any and to dispose of the suit on merits. For the foregoing reasons, I.A.Nos.1 and 2 of 2022 are allowed. 27. Further, the trial Court is directed to give an opportunity to both the parties to adduce additional evidence, if any and to dispose of the suit on merits. For the foregoing reasons, I.A.Nos.1 and 2 of 2022 are allowed. 27. In the result, I.A.Nos.1 and 2 of 2022 are allowed and the appeal suit is allowed and the judgment and decree, dated 12-9-2001, passed in O.S. No. 24 of 1998 on the file of Senior Civil Judge’s Court, Gurazala, is liable to be set aside and the matter is remanded back to the trial Court with a direction to frame the relevant additional issue (1) whether there was an earlier partition in between the plaintiff, 1st defendant and defendants 3 to 5 and their mother Bullemma and the same is reduced into writing on 27-02-1973? The trial Court is directed to give an opportunity to both the parties to adduce additional evidence, if any, and to dispose of the suit on merits, without being influenced by the findings in its earlier judgment dated 12-9-2001. The entire exercise shall be completed within 4 (four) months from the date of receipt of a copy of this judgment. Registry is hereby directed to transmit the entire material part of the record, which was submitted by the trial Court, to the trial Court forthwith. Pending applications, if any, shall stand closed. No costs.