HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

This Second Appeal is filed challenging the judgment and decree, dated 17.08.2023, passed by the I Additional District Judge, Karimnagar, in A.S.No.108 of 2019 whereunder and whereby the judgment and decree, dated 11.07.2019, passed by the Principal Junior Civil Judge, Karimnagar, in O.S.No.123 of 2013 was confirmed.

2. The appellant herein is defendant and respondent herein is plaintiff, before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

3. The brief facts of the case are that plaintiff filed the suit in O.S.No.123 of 2013, seeking partition of the properties. In the plaint, it is averred that the defendant and plaintiff are sons of Late Mogula Ashalu, who constitute a Hindu Joint undivided Family, governed by Mitakshara School; that Schedule ‘A’ property is house bearing H.No.2-99, admeasuring 363 Sq.yards, situated at Valichal Village, Ramadugu Mandal, Karimnagar District and Schedule ‘B’ property is land bearing No.210, situated at Valichal Village, Ramadugu Mandal, to an extent of Ac.0-08 gts, which are in the name of Mogula Ashalu; that the plaintiff and defendant are in joint possession of the suit schedule property and after the death of their father, defendant dismantled the house only to deprive his share from the property; that plaintiff gave complaint to the Grampanchayath and a legal notice dated 14.12.2012 was issued to the defendant to stop construction and defendant issued reply notice dated 26.12.2012 denying all the facts. Therefore, plaintiff filed suit for partition of schedule properties into two equal shares.

4. Defendant filed written statement denying the allegation made in the plaint, however, admitted the relationship that they are brothers; that schedule A property is self acquired property of his father and schedule B property does not belong to their father; that their father gave all the properties to plaintiff and defendant and schedule A property is held for himself with the explicit purpose of giving it to the person who would provide services to him, take care of his well being and his medical expenses. Defendant further averred that as he performed the above duties including funeral to his father, schedule A property belongs to him and plaintiff is not entitled to any share of the same. Hence, prayed to dismiss the suit.

5. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:-

“(1) Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule properties as prayed for?

(2)) To what relief?”

6. During the course of the Trial, plaintiff got examined as PW.1 and PW2 and Exs.A1 to A4 were marked. On behalf of the defendant, DW.1 and DW.2 were examined and Ex.B1 was marked.

7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court decreed the suit, vide judgment and decree dated 11.07.2019.

8. The trial Court categorically observed as hereunder:- “11. With regard to the suit Schedule A property, it is pleaded by the plaintiff that the defendant is residing in the suit schedule A house and after the demise of their father the defendant has dismantled the house. With regard to this averment, the plaintiff has got marked Ex.A2 letter, dt:

10.01.2013 addressed by the Grampanchayath Secretary, Valichal village to the plaintiff herein stating that house No.2- 99 is in the name of Mogula Ailalah and Mogula Komuraiah, i.e., the plaintiff and defendant herein. Ex.A3 is the letter addressed by the plaintiff to the Grampanchayath Secretary to stop the construction under taken by his brother Mogula Komuraiah, as he is also having a share in the suit schedule A property. Ex.A4 is legal notice, dt: 14.12.2012 given by the plaintiff to the defendant thereby asking the defendant not to proceed with the constriction of the h