THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL No.375 OF 2019

JUDGMENT:

This is an appeal filed by the appellant, being aggrieved by the judgment and decree, dated 24.06.2019 passed in O.S.No.210 of 2011 by the learned XXVII Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”).

2. The appellant herein is the plaintiff and the respondents 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 his father Dwaraka Das was the owner and possessor of the suit schedule property and that he had two sons and two daughters i.e. plaintiff and defendant No.1 are the sons while defendant Nos.2 and 3 are the daughters. That Dwaraka Das purchased a vacant plot bearing plot No.25 in Sindhi Housing Co-operative Society under document No.1382 of 1960 and later on he constructed a house in the said property. Subsequently, he died intestate on 01.11.1977 and that after his death the defendants have become the legal heirs of the said property. It is his case that due to domestic problems, he left the suit schedule property and was residing in a rental premises and that after the death of their father, defendant Nos.2 and 3 i.e. their sisters executed a relinquishment deed on 18.11.1997 which was not registered and that this relinquishment deed was executed in favour of the plaintiff and defendant No.1 when their mother was alive. Subsequently, their mother died in the year 1984. Then another release deed was executed by the plaintiff, defendant Nos.2 and 3 on 14.02.1990 in favour of defendant No.1 and that even the said release deed was not registered. He further averred that the said unregistered relinquishment deed is non-est in the eye of law. That the parties never intended to give their shares in favour of defendant No.1 and that the plaintiff has equal share in the suit schedule property along with defendant Nos.2 and 3. It is his case that defendant No.1 has created a mortgage of suit schedule property by playing fraud with Bank of India for obtaining the loan by submitting the alleged release deed. It is further averred that on learning about the alienation of the suit schedule property through an advertisement in paper, he got issued a legal notice to the defendant No.1 on 25.01.2009 and he learnt that defendant No.1 got the mortgage discharged and also got the property released in his favour from Sindh Housing Cooperative Society Ltd., That the plaintiff has requested the defendant No.1 to divide the property and release his share but defendant No.1 resisted the same and started avoiding on one pretext or the other, therefore, the plaintiff has filed the suit.

4. The defendant No.1 has filed written statement. He admitted the relationship but denied all the material averments in the plaint. He further contended that plaintiff had dire necessity of money and made persistent demands with defendant No.1 to sell the suit schedule property in 1990 and thus, instead of selling the suit property, defendant No.1 expressed his willingness to purchase 50% share of the plaintiff in the suit schedule property for a sum of Rs.1 lakh, accordingly, he accepted the said offer and that by accepting Rs.1 Lakh he has executed the release deed in favour of defendant No.1. Thus, defendant No.1 has paid the said amount of Rs.1 Lakh vide cheque No.936900 dated 28.02.1990 drawn on Vyshya Bank Limited and the plaintiff has also executed a receipt on 01.03.1990. Thus, by virtue of the release deed, the property was released in favour of Defendant No.1. Thereafter, the first floor and the part of second floor were constructed exclusively by the 1^st defendant out of his funds. He further admitted that relinquishment deed dated 18.11.1977 was executed by defendant Nos.2 and 3 in favour of the plaintiff and defendant No.1. By virtue of the