PALAPARTHI MANIKYAM Vs. PALAPARTHI VENKATA SATYANARAYANA

JUDGEMENT

(1.) This Second Appeal is filed by the 3rd defendant in the Court below against the judgment and decree of the V Additional District Judge, (Fast Track Court) East Godavari, Rajahmundry in A.S.No.47 of 1998 dated 31.12.2002 wherein the learned Judge allowed the appeal and set aside the judgment and decree dated 21.05.1997 passed by the Senior Civil Judge, Pithapuram in O.S.No.16 of 1994 filed by the plaintiff for partition of plaint schedule properties into three equal shares and put him in possession of one such share.

(2.) The brief facts of the case are thus:

(3.) The trial Court basing on the evidence on record held on additional issue that there was no partition between plaintiff and defendants 1 and 2 prior to 20.06.1992 and settled the issue in favour of plaintiff. On issue No.1 it was held that when there is no partition between plaintiff and D1 and D2, plaintiff is entitled to a share in item No.3 of plaint A schedule property and with regard to item 2 of B schedule property, it was held that the agreement if any executed by D1 and D2 is binding only to the extent of their shares that too subject to the out come of suit filed by D4 and it is not binding on the plaintiff and he is entitled to a share in items 1 and 2 of plaint B schedule property and accordingly decided the issue in favour of the plaintiff. With regard to issue No.2 the trial Court held that the statement of DW1 is not challenged and no evidence is placed before the Court to show that D1 did not spend the amount obtained from D3 for the construction of house and the evidence on record would show that D1 borrowed the amount for the joint family necessity. Thus it was held, the plaintiff was not entitled to any share in items 1 and 2 of plaint A schedule property.