THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA

JUDGMENT:

This appeal suit is filed under Section 96, Order XLI Rule 1 of Code of Civil Procedure, 1908 by the Appellant/Plaintiff against the judgment and decree passed by the III Additional District Judge, Karimnagar, (hereinafter referred to ‘learned trial court’) in O.S.No.32 of 2006, dated 03.04.2007, wherein the plaintiff filed the said suit for partition of the suit schedule property and the same was dismissed.

Being aggrieved by the dismissal of the suit, the present appeal is filed.

2. The brief facts of the case are that the plaintiff is the son of the second wife of his father and the defendant is the son of first wife. Originally, the plaintiff and the defendant are brothers and sons of one Mr.Nazar Mohammed and they got agricultural land admeasuring Ac.2-30 guntas in Survey No.157, situated at Gunturpali, Bommakal Village. The father of the plaintiff died in the year 1981 and after the death of the father, the plaintiff and the defendant were enjoying the property jointly, though they got half share in each and the mother of the plaintiff and the mother of defendants are different and the father is one and the same.

3. Learned counsel for the appellant contended that after the death of the father of the plaintiff and defendant, the defendant is not looking after well and his interest was not safe in his hands, therefore, the plaintiff sought for the partition, but the defendant did not agreed for the same, as such, the suit was filed seeking partition of the suit schedule property.

4. The defendant filed written statement in the said suit admitting the relationship between the plaintiff and the defendant and further contended that no joint family is existing and they are not joint owners.

5. Learned counsel for the defendant contended that, during the life time of the father of the plaintiff and defendant, the partition took place and pursuant to the partition, the plaintiff and defendants have obtained their pattedar pass books of their share and they got a well and they are sharing water equally by arranging “katlamoddu” and they are paying the bills equally. He further contended that as the partition already being affected, as such the question of seeking partition by the plaintiff does not arise and hence prayed to dismiss the appeal.

6. Basing on the pleadings and averments made by both the counsels, the learned trial court framed the following issues which read as under:

“i) Whether the suit land is already partitioned and the defendant has raised teakwood plants in his land?

2. Whether the plaintiff entitled to seek for partition of the property?

3. To what relief?”

7. Initially, the suit was filed before the learned Senior Civil Judge, Karimnagar vide O.S.No.77 of 2003 and subsequently the same was transferred to the court of III Additional District Judge, at Karimnagar, vide O.S.No.32 of 2006.

8. During the course of trial, the plaintiff himself got examined as PW1 and Ex.A1 was marked and he also examined PW2 in support of his case. The defendant himself got examined as DW1, and also DWs2 to DW6 and marked Ex.B1 to B9.

9. After going into the merits of the case and hearing the parties, the learned trial court came to conclusion that the partition took placed between the plaintiff and defendant during the life time of their father and Ex.B1 and Ex.B9 were pattedar passbook and title deed was given in favour of the defendant and plaintiff and they are enjoying their respective shares since the partition.

10. Being aggrieved by the same, the present appeal is filed on the following grounds by the plaintiff. Learned counsel for the plaintiff contended that the learned trial court did not considered the evidence in proper perspective and did not appreciate the photographs filed by the plaintiff and erroneously came to conclusion that the plaintiff failed to proof his case and also did not consider the evidence of PW1 & PW2 which establishes the fact that no partition took p