HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA

A.S.No. 1020 OF 2012

J U D G M E N T:

This is Plaintiff’s Appeal filed under Section 96 of

CPC, impugning the Judgment and Decree of dismissal dated 06.01.2012 passed by the learned Senior Civil Judge at Siddipet

in O.S.No. 123 of 2007.

2. For brevity, the parties are referred to as they were

arrayed in O.S.No. 123 of 2007.

3. Plaintiff and father of Defendants 1 to 5 are biological brothers and are sons of Late Abdul Rasool who died in 1952. After the death of Abdul Rasool, Revenue Authorities mutated the name of Plaintiff and father of Defendants 1 to 5 in Shikmi column and Pattadar column vide proceedings No.A1/5/13/53/D2/53, in the revenue records in respect of the agricultural lands in Survey No. 53/AA admeasuring Acs.17-11 Gts, of Ponnala Village, Siddipet Mandal, Medak District. The

above mentioned property is the Suit Schedule Property.

4. Plaintiff requested Defendants to partition the suit schedule property by meets and bounds, personally and so also through mediators, however, Defendants were postponing the same on one pretext or other and finally, Plaintiff on 29.07.2007 had requested for partition which was refused by Defendants

and having no alternative, Plaintiff filed the above suit for partition of the suit schedule property.

5. In the written statement, defendants admit the relationship between themselves and Plaintiff, however, deny the claim of Plaintiff that Suit Schedule Property is Matruka Property. It is specific case of Defendants that suit schedule property is the self- acquired property of father of Defendants 1 to 5 and husband of Defendant No. 6. The suit schedule property never belonged to Late Abdul Rasool at any point of time even prior to or after 1952. Khasara Pahani reflects the name of Late Hyder Moinuddin as pattadar having purchased the same from private individuals.

Late Hyder Moinuddin died in 1977 and after his death, names of Defendants were mutated in revenue records in respect of the suit schedule property and nowhere Plaintiff’s name was reflected in the revenue records.

Defendants also challenged the nature of employment of Plaintiff and had denied that Plaintiff was in employment with Electricity Department and are vocal in stating that Plaintiff was in employment with Panchayat Raj Department and worked as Civil Engineer. Earlier there was partition suit being O.S.No. 220 of 1991 on the file of the Junior Civil Judge and the same was decreed and final decree was also passed vide I.A.No.519 of 1999. In the said partition suit, Plaintiff and Defendants were parties, however, suit schedule property in the present lis, was not the subject matter of the aforementioned suit.

It is the specific case of Defendants that suit schedule property was self-acquired property of Hyder Moinuddin and he sold the same to washermen and fishermen community and that said land was never in physical possession of the declarants in C.C.No.SPT/2645/75 on the file of the Land Reforms Tribunal as such, the said lands were deleted from the holding of the Hyder Moinuddin. State Government preferred Appeal as against the order of the Tribunal, however Appellate Tribunal had confirmed the order of the Land Reforms Tribunal. Thus during the period 1959-60 to 1974-75, the suit schedule property was not in possession of the declarant and so also with Plaintiff. After the disposal of the Land Reforms Proceedings, Defendants 1 to 5 have re-purchased the lands in Survey No.53 from the owners and possessors.

It is stated, Plaintiff had earlier filed O.S.No.209 of

1978 for partition claiming share in agricultural lands in Survey Nos. 175/E, 174/E, 54, and 55. In the said suit, Defendants are arrayed as Defendants. The said suit was decreed and final decree was also passed. The suit schedule property in the present suit is not subject matter of the first partition suit being O.S.No.209 of 1978, hence, Plaintiff cannot file a second suit for partition.

6. The trial Court, after considering the ple