THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA

CITY CIVIL COURT APPEAL No.83 OF 2019

JUDGMENT:

This is an appeal filed by the appellant, being aggrieved by

the judgment and decree, dated 29.12.2016 passed in O.S.No.994 of 2014 by the learned XI Additional Chief Judge,

City Civil Court, Hyderabad (for short “the trial Court”).

2. The appellant herein is the plaintiff and the respondents 1 and 2 are the defendants before the trial Court. The parties herein are referred to as they were arrayed in the suit before the

trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that late Smt. Late Qamar Sultana is the mother of the plaintiff and defendants 1 and 2 who was the original purchaser, owner and possessor of suit schedule property vide document No.2381 of 1961 having purchased the same from Muneeruddin S/o.Shaik Imam in the year 1961 with her own funds. It is their case that their mother Qamar Sultana died intestate on 19.10.1997 leaving behind her husband and three children and that subsequently her husband died leaving behind the plaintiff and defendants 1 and 2 herein. The plaintiff’s case is that Matruka property left by

Smt. Qamar Sultana got initially devolved on her husband, two sons and one daughter and subsequently, on the death of their father his share got devolved on the plaintiff and defendants i.e. the total number of shares would come to 35 as per Islamic Law and that each son will get 14 out of 35 shares, therefore, the plaintiff and the defendant No.1 would get 14/35^th and defendant No.2 would get 7/35th share. The plaintiff further averred that the share of defendant No.1 was gifted to plaintiff in 2010 through oral Hiba before the witnesses and therefore, the plaintiff’s share comes to 28 out of 35 shares and that the defendant No.2 is having only 7 shares in the suit schedule property. It is further averred that recently he came to know that defendant No.2 got registered a gift deed in her favour through their father vide document No.3111/2001 and 3112/2001 dated 25.10.2001 without any information to the plaintiff and defendant No.1 and that she is trying to sell away the suit schedule property for unlawful gain. It is the case of the plaintiff that since he is staying at USA, defendant No.2 is trying to alienate the property to cause loss to him, as he is the major share holder in the property. It is his case that number of times he has asked defendant No.2 to partition the suit schedule property but defendant No.2 kept on postponing the same on one pretext or the other stating that the reputation of the family would be affected. Finally, the plaintiff asked defendant No.2 on 05.04.2004 to partition the suit schedule property but defendant No.2 refused the same. It is further averred that the plaintiff learned through third parties that defendant No.2 also created a false and sham document showing oral Hiba through their father in respect of 181 Sq.yards and also another gift deed in respect of 262 Sq.yards vide document Nos.3111 and 3112 of 2001, dated 25.10.2001. It is the case of the plaintiff that defendant No.2 is intending to sell away the said properties which is a joint and ancestral property and that the intending purchasers are visiting the suit schedule property, therefore, he filed the suit for partition.

4. The defendants remained ex parte.

5. The plaintiff examined himself as PW1 and got marked Exs.A1 to A5. On a perusal of the oral evidence of PW1 and the documents under Exs.A1 to A5, the trial Court has dismissed the suit. Aggrieved by the said decree of dismissal, the present appeal is preferred by the plaintiff.

6. Heard the submissions of Sri K.K.Waghray, learned counsel for the appellant, Sri M.Vishnu Vardhan Reddy, learned counsel for the respondents.

7. The learned appellant counsel has submitted that the judgment and decree of the trial Court suffers from legal infirmities and that once the registered gift deeds are challenged, the burden of pro