The High Court · 2025

SRI SHYAM S AGRAWAL The Court delivered the following Judgment i l HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA C.C.C.A. No. 4O OF 2o22 AND cRoss oBJECTTONS NO. 27 0F 2022 JUDGMENT: C.C.C.A.No. 40 of 2022 was filed by the 1"t defendant in O.S.No. 839 of 2Ol4 on the file of the XIV Additional Chief Judge (FTC), City Civil Courts at Hyderabad. The said suit was frled by plaintiff - the lst respondent herein for partition of suit schedule properties.

2. Parties herein are referred to as they are arrayed in the suit, for convenience.

3. Plaintiff and defendants 1 to 3 are sons and daughters of late Sri P. Ram Gopal Rao and Smt. P. Laxmamma. It is the case of plaintiff that on 04.03.1974, he purchased house propert5z bearing No. 1-7 -629 I 93, admeasuring 233 square yards at Zamisthanpur, Ramnagar, Hyderabad for a sale consideration of Rs.4,OOO/- from one Smt. Gandla Bharathi Bai in the name of his mother and got construed ground and hrst floor and residing therein. On 27 .03.1985, he purbhased another schedule property bearing H.No. l-7-lOO2/341A admeasuring 2O4 sq. yards at Ramnagar, Hyderabad (A' Schedule property) from G.S. Srinivasa Rao for a sale f: n l l I 2 consideration of Rs.5,000/- in the name of his father; at the time of purchase it was an open plot and thereafter he got constructed two-storied building out of his ou.n funds and permitted his brother - the 1"r defendant to stay therein temporarily. On 30.10.1985, plaintiff is stated to have purchased 'B' schedule property bearing No. l_7-1022 /29 lA/ 1 admeasuring 90 square yards for a saie consideration of Rs.6,O00/- from Ch. Kantamma in the name of his father and raised a shed lor carrying on his furniture business; thus, plaintiff is the sole and absolute owner of the above properties. It is the further case of plaintiff that Will deed dated

05.03.2007 u.as not executed by their rhother and it was created and fabricated by the lst defendant who filed O.S.No. 44O of 2008 based on the said Will deed seeking partitron of house property bearing No. l-7-629 /93 and the same \r,as pending as on that date. As the defendants are not coming for partition, he got issued a legal notice dated 12.08.2014 and since there n.as no response from the l"t defendant, he hled the present suit seeking partition of A' ald B, Schedule properties which stand in the name of their father Sri p. Ramgopal Rao by passing a preliminary decree by allotting lz share in the said properties. I I ;t&**&&ffi,6&&;. J The 1"t defendant filed the written statement

4. denying the averments in the plaint. It is stated therein that plaiqtiff purchasing three properties in the. name of his parents even when he was a ll-year-old boy is highly unbelievable. It is stated that A' schedule property was a vacant land about 40 years ago and the same was occupied by him and got constructed a double-storied house and originally, it is situated in Harinagar slum; the said property correlates to Town Survey No. 22 in Block P, Ward No. 153, Zamisthanpur Village and belongs to Surabyarjug as per authentic town survey land records, therefore, the alleged notarised sale deed dated

27.O3.lgaiis a fictitious document a.td it ca.rnot be considered as secondary evidence as per the judgment reported in J' Yashoda a. K. Shobha Ranil an-d Shalimor Chetnical Work's Ltd. v. Surendra Oit and Dal Mills (ReJineriesf. According to the 1st defendant, A'Schedule properly belongs to him and it is not liable for partition and it never belongs to their father and B' Schedule property only is liable for partition as it was purchased by their father under a registered sale deed and himself and plaintiff will get 5O7o share each in the said property ' (2007) 5 scc 730 ' (2010) 8 scc 423 I I I 4

5. Before the trial Court, on behalf of plaintiff, p.Ws. 1 to 3 were examined and trxs.Al to A7 were marked. On behalt of the 1"t defendant, D.W. 1 was examined ar-rd no documents were marked. On considering the evidence and. on hearing the counsel, the trial Court dismissed the suit.

6. Heard Sri G. Anil Kiran Kumar, learned counsel on behalf of Appellant and Sri Shyam S. Agarwal, learned counsel on behalf of the 1st respondent - plaintiff. 7 . Plaintiff approached the Court seeking partition of A' and ts' schedule properties claiming to have been purchased by him in the name of his parents, hence, he has to establish those properties were purchased by him with his orvn earnings in the name of his parents, as per Section 1O 1 of the Indian Evidence Act. However, he did not choose to hle any documents in proof of the same. Ex.A1 is the certifred copy of the salc deed uide doc. No. 1665 of 1985 dated 30.10.1985 which discloses that father of plaintiff purchased plot No. 2a / t in Survey No. 148, admeasuring 90 square yards situated at Miyakal Banda, new Atchiyya Naar, Slum area, Zamishthanpur from one Ch. Kantamma (ts'Schedule property), whereas in the plaint, ,8, Schedule property was shown as house admeasuring 9O square yards bearing No. t-7-1O22/29 /Al I in plot No. 28l 1 in part of t I 5 Plot No 28 situated in Ramnagar, Hyderabad, may be after purchasing plot, the parties might have raised structure therein. However, plaintiff on the one hand contended that ,A' and B' Schedule properties were purchased by himl with his own earnings and on the other, is seeking for partrtion of the said properties. This itself creates a doubt on the case of plaintiff. Admittedly, in the suit hled by the 1sr defendant i.e. O.S.No.44O of 2008, Ex.AS Will deed was relied on by the parties. The said suit u.as decreed (wrongly noted by the trial Court as dismissed at page 2O ol its judgment) granting preliminary decree dated

24.IO.2O15 and Appeal was filed by plaintiff against the said decree.

8. Today, the said Appeal was dismissed on the ground that plaintiff failed to prove that he purchased suit property therein out of his own funds earned by doing business from 1972 onu,ards, particularly, as pointed out by the other party, he was only I 1 at that point of time and that it is unbelievable that he could earn such amounts during that age. Further, from the Will, it is clear that A' Schedule propert5r referred to in the subject suit was bequeathed in the name of the 1"t defendant herein and ts'Schedule property in the name I l I I 6 of plaintiff and the only issue is with regard to the other house f\ property which was shown as Item 3 therein 9 The trial Court in the suit on hand observed that admittedly, plaintiff did not make all the properties as part of suit, he especially sought for partition of A' and 'B' schedule properties only by leaving other properties. It is well-settled that in a suit for partition, all the properties and all the legal heirs must be made as parties, otherwise the suit for partition is not maintainable- Moreover, in the suit for partition, plaintiff has to establish that suit properties are joint family properties, then only the question of division and allotment of shares would arise. Under the Hindu Succession Act, a female member is also having share in the joint family properties, but plaintiff sought for equal share between himself and the 1"t defendant Icaving daughters. It is further observed that neither plaintiff nor the lst defendant chose to file any piece of paper showing their occupation in either of the properties and even there is no document to show that they are paying taxes in respect of the said properties; they have not hled any document to show that their names were enterbd in the relevant records in proof of their possession or title and that their father or mother uras in possession and enjoyment of the said propert5r at any time. t t 7 -.,] Further, plaintiff did not choose to adduce any evidence to show that he was an earning member at the time of purchase of properties and also proof of his age at the time of purchase of properlies in the conlext of the plea taken by th6 1,r defendant that he was only 1 l-year-old at that time. Though the lst defendant contended that he is in occupation of A, Schedule property since last 40 years and he got construed a double storied building on that property, he did not produce any document in proof of his possession. Thus holding, the trial Court dismissed the suit.

10. In this Appeal, the l"t defendant had taken the plea that the trial Judge ought to have herd that Ex.A 1 was purchased by their father and was available for partition among all the chiidren under Section g of the 1956 Act. The trial Judge ignored trx.A1 document and erroneously held that there was vrrtually no document in respect of ,B, schedule property. Here, it is to be seen that this very l"t defendant hled O.S.No. 44O of 20O8 seeking partition of House bearing No. l_7_629 /93 and 1_ 7-629/93/A situated at Ramnagar between himself and plaintiff re\ring on the Will deed executed by his mother and the said suit was decreed; against the said judgment, plaintiff herein ftled CCCA No. 60 of 2016, wherein this Court retying on the I l I I 8 (i:. .: Will deed and the fact that piaintiff was aged 13 years in 1974 and it is difficult to believe that he purchased properties at that age, dismissed the Appeal conhrming the judgment in the suit. In the said Will, A' schedule property was shown to have been bequeathed in favour of the 1st defendant and 'B' Schedule property in favour of plaintiff. At page 3, it is mentioned that though Item No.(i) of schedule property exclusive ly belongs to her elder son (the l"t defendalt) who is in possession, she is mentioning about the . said property only as a matter of precaution and her younger son (plaintiff) shall not have any right or title in rcspect of the said item; similarly, Item No. (ii) of schedule property exclusively devolve. on her younger son. Though plaintiff disputed the said Will as a fabricated document, he did not file any proof in that regard. When the Will deed is relied on by the 1"t defendant, how he again claimed that B' Scheduie property said to have been covered by Ex.AI was available for partition among all the children, is not explained. In view of the foregoing discussion, this Court is not in a position to grant any relief to the l*t defendant - appellant. Hence, the judgment under Appeal does not warrant any interference in the hands of this Court. The Appeal therefore, must fail. I I I 9

11. The Appeal is accordingly, dismissed. No costs cRoss oBJEICTIONS:

12. Plaintiff filed the Cross-objections on the ground that the Court below has proceeded with the matter under wrong pretext that burden of proof always lies upon the person who has to prove the fact under Section lOi of the Indian Evidence Act, l8Z2 though the present suit being one for partition of joint family properties purchased in the name of parents, said principle is not applicable. The observation of the Court below that plaintiff did not choose to exhibit the document of agreement of sale in respect of Schedule A, property is incorrect as praintiff wanted to place on record the proof thereof but the Court below refused and hence, Revision was filed and it is pending. The observation of the trial Court that there is no iota of evidence on record to show that suit property is joint family property and liable for partition is pima facie tncorrect. Even as per the trial Court, Ex.Al is the certified copy of the sale deed of schedule ts, propert5r and oral evidence has been led to prove the ownership of father of the parties over Schedule 'A'propert5r which is not in dispute. After the death of parents, as per law, children are entitled to share the same and t I d I I r I i0 under no stretch of imagination also, it could l:e stated that there is no iota of truth in that regard. (i 13 Fleard Sri Shyam S. Agarwal, learnecl counsel for cross-objectioner and Sri G.An Kiran Kurhar, learned counsel for responden ts.

14. In vieu, of the discussion made in the preceding paragraphs, this Court is not inclined to enter[ain the Cross- objections and the same are hcreby dismissed.

15. Consequently, Miscellaneous Applica tions, if any shall stand closed. Sd/. K. SRINIVAS A RAO JOINT REGiSTRAR ..1 II I SECTION OFFICER To, //TRUE COPYII

1. The Chief Judge City Civit Court Hyderabad ( with records ) 2. One CC to SRI. G ANIL KIRAN One CC to SRI. SHyAM S Ac Two CD Copies KUMAR Advocate RAWAL Advocate IOPUCI IOpUCI 3

4. PSL W. I I i I I I HIGH COURT DATED:2810512025 ! t SiA[E A o o- i'\- a C) \\it 1d8 1t +( UEST Ai C 'a> -!/ (,) * + DECREI .IUDGMENT CCCA.No.40 ot 2022 AND CROSS OBJECTIONS NO. 27 OF 2022 DISMISSING THE CCCA AND CROSS OBJECTIONS 7 rU IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD WEDNESDAY, THE TWENTY EIGHTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA CITY CIVIL COURT APPEAL NO:4o oF 2022 AND CROSS OBJECTIONS NO. 27 oF 2022 Between: P. Yadagiri, S/o. Late P. Ramgopal, aged about 59 years, Occ. private service, Rl/o. H. No. 1 -7-1 0021 341 A, Ramnagar, Hyderabad. ...APPELLANT/;I"t Defendant in Appeal and Respondent No.1 in Cross Objections AND 1 P f. Raju, S/o. Late P. Ramgopal, Aged about 54 years, Occ. Business, Rt/o. H. No.'1 -7-62919 3 and 1 -7 - 1 0221 29 I Al 1, Ramnagar,'Hyderabad. .. Respondent No. 1 in Appeal and Cross Objector in Cross Objebtions

2. S_mt. M. Chandrakala, Wo, tr/. Laxmaiah, Aged about 68 years, Occ. Housewife, R/o. lst floor, Janapriya ApartmEnt, Opp. Bhaiat Gas Company, Bollarum, Secunderabad.

3. Smt. Ch. Bharathi, Wo. Ch. Venkateshwara Rao, Aced about 5g years, Occ. Housewife, Ri/o. Flat No.307, Andhra Bank Apartments, CottonOa'i ioadi, Hyderabad. ' ...REsPoNDENTs/2"d & 3'd Defendants in both Appear and cross objections Appeal filed under Order 41 Rule 1 R/w Section 96 of C.p.C. and Cross objections under order XLI Rule 22 of the code of civil procedure, 19og , to set aside the impugied judgment and decree in o.s.No.839 t2014, dated 22.02-2022 on the file of the Xtv Addl. chief Judge, city civit court, Hyderabad This appeal and Cross objections coming on for hearing and upon perusing the grounds of appeal, the Judgmbnt and Decree of the Lower court and the material papers in the suit and upon hearing the arguments of Sri G. Anil Kiran Kumar, Advocate for the Appellant in cccA and Respondent No. 1 in cross objections and Sri shyam S. Agarwal, Advocate for the Respondent No. 1 in cccA and Cross Objector in Cross Objections. This Court doth order and decree as follows

1. That the appeal and Cross Objections be and hereby are dismissed

2. That there shall be no order as to costs in this appeal and Cross Objections. //TRUE COPY// SD/- K.SRINIVASA RAO JOINT REGISTRAR SECTION OFFICER To

1. The Chief Judge, City Civil Court, Hyderabad 2. fwo CD copies. M- I F:?4=e,':.:rr] / HIGH COURT NBKJ DATED:2810512025 DECREE CCCA.No.40 of 2022 AND CROSS OBJECTTONS NO.27 OB 2022 DTSMISSING THB CCCA AND CROSS OBJECTIONS WITHOUT COSTS q qt\