JUDGEMENT
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(1.)The appellant herein is defendant No.2 in O.S.No.617 of
2013 on the file of Addl. Judge cum VI Senior Civil Judge, Hyderabad, the first respondent is plaintiff and second respondent
is first defendant in the said suit. Being aggrieved by the
Judgment and Decree dtd. 12/4/2018 in O.S.No.617 of 2013 by
which the trial Court passed a decree in favour of the respondent
No.1/plaintiff, the present appeal has been preferred by the
defendant No.2. The parties will be referred to as they are arrayed
in the plaint.
(2.)The plaintiff has filed O.S.No.617 of 2013 for partition of suit schedule property and for allotment of 1/4th share each to
plaintiff and defendant No.1 and for allotment of half share to the
defendant No.2. The plaintiff has claimed in the suit that the
defendant No.1 is her elder sister and defendant No.2 is their
brother. The suit schedule property is self acquired property of
their father by name Mohammed Abdul Jabbar Khan and during his
life time, he has constructed a building over the property. The
father of plaintiff died intestate during 2005, the mother of the
plaintiff also died on 10/5/2007 leaving the plaintiff and
defendants No.1 and 2 as her legal heirs. The suit schedule
properties stood in the name of their father. Defendant No.2 was
collecting rents from the tenants of the premises, defendants No.1
and 2 are in occupation of part of the property whereas, the
plaintiff is residing with her husband. The plaintiff has claimed
that there was no partition between the parties and as per Muslim
Law, she and defendant No.1 are entitled to 1/4th share each and
defendant No.2 is entitled to half share in the properties and when
she demanded partition and for allotment of her share, the
defendant No.2 postponed the issue, thereby, she filed the suit
and sought for a decree for partition. She has also sought for
allotment of 1/4th share in the rents collected by her brother.
(3.)The defendant No.1 filed a written statement admitting the claim of plaintiff, whereas, defendant No.2 by filing a separate
written statement has claimed that his father is not the owner of
the property and his mother acquired the property with the funds
derived from presentations made to her from her parents side.
According to the defendant No.2, the property was acquired by his mother on 9/3/1988 and since then she was in possession of the property. During her life time, she made an oral gift i.e., 'HIBA' of the said property in favour of the defendant No.2 on 10/2/2000 and since then he has been in continuous possession of the property with ownership rights including collection of rents. The defendant No.2 has claimed that defendant No.1 along with her husband resided in a portion of the house for sometime but it was only a permissive possession. The defendant No.2 further averred that his mother has executed a memorandum of agreement confirming the oral gift on 2/6/2000. Therefore, according to defendant No.2, he has got absolute right on the suit property and plaintiff, defendant No.1 are not entitled to any share thereby, he sought for dismissal of the suit.
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