HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

This Second Appeal is filed challenging the judgment and decree dated 19.12.2024 in A.S.No.87 of 2022 on the file of the X Additional chief Judge, City Civil Courts, Hyderabad, whereby and where under the judgment and decree dated 06.05.2022 in O.S.No.2517 of 2020 on the file of the XX Junior Civil Judge, City Civil Courts, Hyderabad was confirmed.

2. Heard Sri Mohammed Abdul Quadeer, learned counsel for the appellant.

3. The appellant herein is plaintiff and respondents herein are defendants. For convenience, the parties are hereinafter referred to as they were arrayed before the trial court.

4. The brief facts of the case as averred in the plaint are that the plaintiff filed suit for partition and separate possession, declaration and perpetual injunction against the defendants. Plaintiff and defendant No.1 are the real brothers and defendant No.2 is the sister of plaintiff and defendant No.1. It is averred that plaintiff and defendant No.1 have jointly purchased the property bearing Municipal No.18-13-6/52/2, admeasuring 239 square yards situated at Hashamabad, Chandrayanagutta, Hyderabad from its original owner one Mohammed Bin Saleh Abeas under a notarized agreement of sale deed dated 12.10.1989; that originally one Mohan Reddy sold the suit premises to the vendor of plaintiff and defendant No.1 herein in the year 1988; that plaintiff and defendant No.1 purchased the suit premises with the joint funds; that the relations between the plaintiff and defendant No.1 have strained and that plaintiff started residing in a separate house; that on 25.10.2019, the plaintiff requested defendant No.1 to partition the suit premises into two equal halves, one of which is to be given to the plaintiff, being joint owner of the same, however, the defendant No.1 refused to divide the suit premises and further stated that he had purchased the suit premises from his sister/defendant No.2.

5. It is further averred that the plaintiff upon enquiry found that one absolute agreement of sale was executed by defendant No.1 in favour of defendant No.2 on 17.05.2017 without the knowledge of the plaintiff herein; that the defendant No.2 had also executed a registered gift settlement deed vide document bearing No.2728 of 2007 dated 22.05.2007 in favour of defendant No.1;

that defendant No.1 in collusion with defendant No.2 created false and fabricated documents only with an intention to grab the share of the plaintiff herein; that the plaintiff had come to know that defendant No.1 is now trying to alienate the suit premises to third parties. Having no other alternative, the plaintiff filed the present suit seeking partition of the suit premises into two equal parts and to declare the agreement of sale deed dated 17.05.2017, registered gift settlement deed bearing No.2669 of 2007 and registered rectification deed bearing No.2728 of 2007 as null and void and perpetual injunction against the defendants.

6. Though summons were served on defendant Nos.1 and 2 they have not appeared before the trial Court and therefore, remained ex parte.

7. The trial Court based on the above pleadings framed following issue:

“(i) Whether the plaintiff is entitled for the relief sought for?

8. To substantiate the case, plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.9.

9. The trial Court on due consideration of oral and documentary evidence dismissed the suit vide judgment and decree dated 06.05.2022 with the following observations:

“(i) Plaintiff filed Ex.A.9 which is the copy of agreement of sale dated 12.10.1989 but there is no explanation by the plaintiff as to why the photo- stat copy of the said agreement of sale pertaining to the year 1989 has been filed. Section 60 of Indian Evidence Act lays down explanation for secondary evidence and lays down conditions were secondary evidence may be considered in the absence of primary evidence. However, the plaintiff herein had not complied with the any of the conditions la