HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

The present Second Appeal is filed questioning the judgment and decree, dated 14.11.2024, passed by the I Additional Chief Judge, City Civil Court, at Secunderabad in AS. No.1 of 2021, whereunder and whereby the judgment and decree dated 12.03.2020 passed by the Senior Civil Judge, City Civil Court at Secunderabad in O.S. No.254 of 2013 was confirmed.

2. The appellants are the plaintiffs and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

3. Heard Sri K. Vinod Kumar, learned counsel for the appellants.

4. The brief facts of the case, which led to filing of the present Second Appeal, are that one late Venkaiah was the absolute owner of H.No1-11-272, admeasuring 105 sq. yards, Bawanthapur, Begumpet, Secunderabad (hereinafter referred to suit schedule property) and his name was mutated in the municipal records; that the said Venkaiah died intestate in the year 1966 and his wife late Smt. Laxmamma died in the year 1988 leaving behind three sons i.e. 1. N. Ganesh, 2. Shankaraiah and 3. N. Sathyanarayana (plaintiff No.1 herein); that Plaintiff No.2 and defendants are grandsons of late Venkaiah. It is averred that suit schedule property is self-acquired property of late Venkaiah and therefore, plaintiff No.1 and father of defendants are entitled to share in the suit schedule property; that after demise of father of defendant Nos.4 and 5, the plaintiffs requested defendant Nos.1 to 5 for partition and for allotment of their shares and the defendant Nos.1 to 5 orally agreed and divided the property into three shares and subsequently, plaintiff No.1 constructed a house in southern portion and also got electricity connection in his name; that contrary to the understanding, defendant Nos.1 and 2 at the instance of defendant No.4 fraudulently got mutated the suit schedule property in their name; that the plaintiff No.1 and defendant No.3 made representation dated 26.06.2008 before the municipal authorities to enter his name in municipal records and the defendants are not exclusive owners of suit schedule property however, as there was no response, the plaintiff Nos.1 to 5 got issued legal notice dated 26.09.2012 to defendants for partition and as there is no response from defendants O.S. No.254 of 2013 is filed on the file of XIX Additional Senior Civil Judge, City Civil Court, Secunderabad for partition.

5. Defendant Nos.4 and 5 remained ex parte.

6. Defendant Nos.1 to 3 filed written statement denying the averments made in the plaint and stated that the suit schedule property is only 98 sq. yards as per municipal records and is not the self-acquired property of late Yenkaiah @ Venkaiah and the same is “sarkary abadi lands” and the same was given to landless poor people and father of Venkaiah had paid tax to Nizam Sarkar after the abolition of the Nizam Sarkar Government, the said plots were mutated in the name of owners and possessors. It is further contended that the defendant Nos.1 to 3 are the absolute owners and possessors of the suit property since past 80 years and had been enjoying the same without interference; that plaintiffs are not entitled to any share in the suit schedule property and further contended that the father of the plaintiffs executed the Gift Deed on 23.01.1976 in the name of N. Susheela, W/o. N. Satyanarayana and the suit schedule property was handed over with possession to late Ganesh and late N. Shanakaraiah and father of defendant Nos.1 to 5; that after execution of Gift Deed by Laxmamma, W/o. Venkaiah the property was divided equally between three sons of late Venkaiah and from the date of partition, the defendants are enjoying their respective shares. It is further stated that plaintiffs have sold their share of property situated at Medchal Mandal to third party on 17.08.2002 and the sale consideration was taken by them and suppressing the same the present suit is file