JUDGMENT:

The unsuccessful plaintiff in O.S. No.10 of 1988 on the file of Subordinate Judge Court, Visakhapatnam District, preferred this appeal challenging the decree and judgment, dated 29.09.1997, whereunder the suit filed by the plaintiff for partition of A and B schedule property into two half (equal) shares and to allot one such half share was dismissed.

02. For convenience of reference, the ranks given to the parties in O.S. No.10 of

1988 before the trial court will be adopted through out the judgment.

03. The plaintiff filed a suit for partition of A and B schedule property into two equal shares and for separate possession of the plaintiff’s half share alleging that the plaintiff and first defendant are brothers and sons of Pothu Raju. The plaintiff and first defendant by cultivation of land and tailoring profession, acquired suit schedule property by joint exertions. Thus, the property is the joint family property of the plaintiff and first defendant.

04. The second defendant is the son of first defendant. Even though the plaint A schedule wet land was purchased from Nagulapally Pedda Atchaiah with the joint family earning of both plaintiff and first defendant, the document was obtained in the name of their sister - Nagulapally Appayamma, due to disputes between the first defendant and his wife, since then, the suit land has been in the joint family possession and enjoyment of the plaintiff and first defendant only. Thus, the plaint A schedule property is the joint family property of the plaintiff and first defendant.

05. The B schedule house and house site is joint family property, acquired and constructed with the joint earning. The ‘B’ schedule property is also in the joint possession of both the plaintiff and first defendant. As the first defendant filed a suit before the District Munisiff, Narsipatnam, claiming exclusive right over the schedule property, the plaintiff demanded the first defendant for partition of the schedule property, but his attempt was in vain. Thereupon, he got issued legal notice, demanding the first defendant to partition the schedule property. The first defendant having acknowledged, receipt of the notice got issued a contentious reply and claimed exclusive right over the property. Hence the suit.

06. The first defendant filed written statement admitting the relationship between the plaintiff and himself, while denying purchase of ‘A’ schedule property with the joint exertions of both plaintiff and first defendant. It is specifically contended that ‘A’ schedule land was purchased by Nagulapally Appayamma, who is sister of the first defendant, with her money under registered sale deed dated 08.02.1956. For performing the marriage of her son and also for discharging the debts, she sold away the land by registered sale deed dated 28.07.1966. Since then the first defendant has been enjoying the land purchased by him in his own right to the knowledge of the plaintiff. Initially, the land was under mortgage with Narsipatnam Co-operative Bank. Nagulapally Appayamma also executed settlement deed in favour of her adopted son, Babu Rao @ Kannayya, gifting Ac.0.50 cents of land on 08.04.1966 out of Ac.1.80 cents, she purchased under the registered sale deed dated 08.02.1956. The said Babu Rao also sold Ac.0.50 cents of land by registered sale deed dated 26.03.1968 to the first defendant. Since then the first defendant alone has been in possession and enjoyment of ‘A’ - schedule property in his own right.

07. The first defendant denied the allegation that the property was purchased by the plaintiff and first defendant nominally in the name of Nagulapally Appayamma due to disputes between the first defendant and his wife.

08. ‘B’ schedule vacant land originally belongs to the father of the plaintiff and first defendant, he purchased the same under registered sale deed dated 19.03.1949, constructed the thatched house in the west ten cents. Later indebted to several persons, sold the western part of Ac.0.10 cents