HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.162 of 2025

JUDGMENT:

The Second Appeal is filed aggrieved by the judgment and decree dated 11.12.2024 in A.S.No.11 of 2019 on the file of the learned I-Additional District Judge, at Kamareddy, whereunder and whereby, the judgment and decree dated 01.07.2019 in O.S.No.37 of 2011, on the file of the learned Senior Civil Judge, at Kamareddy, was confirmed.

2. Appellants herein are defendants No.1 and 2, respondent No.1 is the plaintiff and respondents No.2 and 3 are defendants No.3 and 4 in the suit. For convenience, hereinafter the parties are referred to as they were arrayed before the trial Court.

3. Brief facts of the case, which led to filing of the present second appeal are that plaintiff has filed a suit vide O.S.No.37 of 2011, against the defendants, for partition in respect of the suit schedule property. In the plaint, it is averred that plaintiff is the younger sister of defendants No.1, 3 and 4 and defendant No.2 is their mother and all constitute a joint Hindu family; that their father died intestate in the year 1999, leaving behind plaintiff and defendants as legal heirs; that during his life time he constructed two houses bearing Nos.7-18 and 7-19, with built up area of about 2700 Sq.fts and 216 Sq.fts respectively, at Bhavanipet village, he also purchased an open plot bearing Nos.1 and 2 and constructed a house bearing No.1-5-83/1J, situated at Nethaji Road, Kamareddy; that the defendant No.1 has occupied the above properties; that plaintiff being the legal heir of their father, she is entitled to 1/5^th share in the suit properties; that defendants refused to give her share, therefore, the suit for partition.

4. Defendants No.1 and 2 filed the written statement denying the averments of the plaint, and contended that the father of the defendant No.1 has already partitioned the ancestral properties at the time of marriage of defendant No.3 and the properties fell to the share of plaintiff and defendants No.3 and 4 were given as dowry as well as Sridhana at the time of their marriages; that schedule-B property fell to the share of defendant No.1 and he is looking after their mother i.e., defendant No.2, and that he constructed a house bearing No. 1-5-201 over plot Nos.1 and 2, which fell to his share by obtaining loan from Vijaya Bank, Kamareddy District; that after marriage, plaintiff is not a member of joint family, therefore, she is not entitled for share in the suit schedule properties; that their mother i.e., defendant No.2 fell sick and the entire medical expenses were paid by defendant No.1 and thus, suit is not maintainable. Hence, prayed to dismiss the suit.

5. Defendants No.3 and 4 filed a separate written statement in the same lines as that of defendants No.1 and 2.

6. Basing on the pleadings of both the parties, the following issues were framed by the trial Court for trial:

i) Whether the ancestral properties of the plaintiff and defendants including suit schedule properties for partition among them long back and that they have been in possession and enjoyment of their respective shares?

ii) Whether the ‘A’ schedule property fell to the share of defendant No.1 in the said partition?

iii) Whether the ‘B’ schedule property was sold out by Gampa Somaiah during his life time?

iv) Whether the plaintiff is entitled for partition of suit schedule properties?

v) To what relief?

7. Subsequently, plaintiff filed an application for amendment of the plaint vide I.A.No.429 of 2012, and the same was allowed by Order dated 31.10.2012, and schedule-C property was included as one of the properties to the suit. Consequently, additional issue was framed as under:-

vi) Whether the ‘C’ schedule property is purchased by the defendant No.1 out of the funds kept by the plaintiff’s father during his life time with the defendant No.1?

8. During the course of trial, on behalf of the plaintiff, P.W.1 was examined and Exs.A1 to Ex.A11, were marked. On behalf of the defendants, D.Ws.1