THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
SECOND APPEAL No.680 OF 2015
JUDGMENT:
1. This second appeal is filed under Section 100 of the Civil Procedure Code, 1908 (for short 'CPC') by the unsuccessful defendants assailing the concurrent findings of the trial Court in O.S.No.19 of 2010 and the first appellate Court in A.S.No.13 of 2015.
2. The plaintiff has filed the original suit in OS No.19 of 2010 on the file of the Senior Civil Judge, Zaheerabad, for declaration as absolute owner, pattadar and possessor of the suit schedule properties - agricultural lands in Survey No.16/1A admeasuring Ac.0.28 guntas, Sy.No.43/2A - Ac.0.11 guntas, Sy.No.57/A - Ac.3.30 guntas, Sy.No.59/A - Ac.1.00 guntas, Sy.No.73/A - Ac.1.25 guntas and Sy.No.99/A - Ac.4.19 guntas, totally admeasuring Ac.11.33 guntas situated at Kakkarwada Village, Jharasangam Mandal, Medak District, with precise boundaries as shown in the schedule of property alleging that she is the absolute owner and possessor and in exclusive possession of the suit schedule properties after the death of her husband. In fact, 2 AVR,J SA_680_2015 late Patlolla Sangareddy, father of her husband, had four sons viz., Adivi Reddy, Agam Reddy, Sangram Reddy and Manik Reddy and after the death of common ancestor, in the revenue records mutation was effected by way of "Pouthi Virasat" and she is in exclusive possession of the suit schedule properties after the death of her husband, that the defendants are trying to interfere with her possession and on 28.02.2010 she came to know that the defendants are proclaiming themselves as original owners.
3. The trial Court on receipt of the joint written statement filed by the defendants 1 to 5, in all framed eight issues, recorded the evidence of PW.1, got marked Exs.A.1 to A.15 on behalf of the plaintiff, thereafter examined DWs.1 & 2 and exhibited Exs.B.1 to B.7 on behalf of the defendants. On careful appreciation of the oral and documentary evidence available on record, the trial Court held that the plaintiff is entitled for declaration of title and also for perpetual injunction in respect of suit schedule property to the extent of Ac.11.33 guntas, out of Ac.47.15 guntas as prayed for.
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4. The unsuccessful defendants have assailed the judgment and decree of the trial Court dated 19.01.2015 in OS No.19 of 2010 before the VII Additional District Judge, Medak at Sangareddy, vide AS No.13 of 2015. The learned first appellate Judge having heard on both sides formulated three points as contemplated under Order-41 Rule-31 of CPC and answered all the points in favour of the plaintiff and against the defendants and confirmed the judgment and decree of the trial Court dismissing the appeal filed by the defendants.
5. Feeling aggrieved by the concurrent findings recorded by the trial Court and the first appellate Court, the unsuccessful defendants have preferred this second appeal. As per the memorandum of grounds of second appeal, the following substantial questions of law are formulated:
i) Whether the courts below justified in granting of relief of demarcation of Ac.11.33 gts (suit land) out of Ac.47.15 gts of the joint family land by metes and bounds without there being a preliminary decree for partition?
ii) Whether the courts below were justified in granting the decree of declaration of title and perpetual injunction in respect of an portion of Ac.11.33 gts out of Ac.47.15 gts against the co-owners?
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iii) Whether the courts below justified in rejecting a 30 years old document without considering the presumption available under Section 90 of Indian Evidence Act?
iv) Whether the courts below are justified in relying on mere entries in the revenue records to declare the title of the plaintiff to the suit schedule property?
v) Whether the courts below justified in granting mutually conflicting relief of declaration of title of the plaintiff to the suit schedule property as well as demarcation of the same out of Ac.47.15 gts joint family property?
vi) Whether the Courts below were justified in rejecting Ex.B- 1 Adoption Deed contrary to Sections 8 to 11 of the Hindu Adoption and Maintenance Act, 1956?
vii) Whether the concurring judgments and decrees made by the courts below are perverse in law?
6. Heard the learned counsel for the defendants/appellants and the respondent/plaintiff. Perused the material placed on record. The submissions made on either side have received due consideration of this Court.
7. I have carefully perused the judgments of the trial Court and the first appellate Court. The plaintiff being the widow of late Adivi Reddy, elder son of Sangareddy has filed the suit against the defendants 1 to 5. The first defendant is the younger 5 AVR,J SA_680_2015 brother of late Adivi Reddy (husband of the plaintiff), defendants 2 to 4 are the sons of late Agam Reddy, 5th defendant is the son of Manik Reddy, who are the younger brothers of late Adivi Reddy. It is the specific case of the plaintiff that after the death of Sangareddy, common ancestor, his land was mutated on the name of his four sons by way of "Pouthi Virasat". Accordingly, her husband, late Adivi Reddy has got the suit schedule properties and after the death of her husband, she is in exclusive possession and enjoyment of the same. It is further pleaded by the plaintiff that after the death of late Adivi Reddy, mutation was effected on to her name and on the name of Anjamma, who is the only daughter of Adivi Reddy, but Anjamma also died issueless and there are no other heirs of Anjamma. Whereas, defendants 1 to 5 denied the claim of the plaintiff holding that the plaintiff was never in exclusive possession of the suit schedule property and that in fact daughter of late Adivi Reddy has got two children, they are also necessary parties and the suit is liable to be dismissed for non- joinders of necessary parties. Based on the pleadings as many as eight issues were settled by the trial Court touching on all rival contentions.
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8. The trial Court has answered all these issues in favour of the plaintiff holding that the plaintiff is entitled for declaration and perpetual injunction. The defendants have also set up a claim that the plaintiff has taken DW.2 in adoption. The trial Court in paras-17 to 24 dealt with this issue and answered in the negative against the defendants. I do not find any perversity or irregularity in appreciation of evidence by the trial Court. The first appellate Court in AS No.13 of 2015 has formulated as many as three points touching on all rival contentions and re- appreciated the evidence. Point No.1 deals with previous partition between Adivi Reddy, husband of plaintiff and his brothers. Point No.2 deals with adoption of second defendant (DW.2) by the plaintiff after the death of her husband under Ex.B.1 adoption deed. Point No.3 deals with the entitlement of plaintiff for declaration of title and also for perpetual injunction. All these point Nos.1 to 3 were answered by the first appellate Court on re-appreciation of the oral and documentary evidence available on record, finally concluded that the trial Court has rightly decreed the suit and there are no grounds to interfere with the detailed judgment of the trial Court. Accordingly, the 7 AVR,J SA_680_2015 judgment and decree of the trial Court were confirmed in its entirety.
9. I have given my thoughtful consideration to the substantial questions of law that are proposed by the appellants/defendants in the memorandum of grounds of second appeal. Point Nos.(i) and (ii) deals with granting of relief of declaration of Ac.11.33 guntas of land out of Ac.47.15 guntas of joint family property without partition by metes and bounds. Be it stated that as per the entries in the revenue records and as per the oral evidence of PWs.1 and 2 as appreciated by the Courts below, the exclusive possession of the plaintiff over the suit schedule properties is made out. Therefore, I do not find any perversity or irregularity in the findings recorded by the trial Court on this point.
10. Point Nos.(iii) and (vi) deals with the adoption of second defendant by the plaintiff under Ex.B.1 adoption deed. The trial Court and the first appellate Court have appreciated and re- appreciated their oral and documentary evidence. Though Ex.B.1 is more than 30 years old document and entitled for presumption in favour of its genuineness, on appreciating the entire evidence, both the Courts have clearly stated that the 8 AVR,J SA_680_2015 essentials of valid adoption under Hindu Adoption and Maintenance Act were not made out and the adoption is not established. Therefore, I do not find any perversity or irregularity in appreciation of the oral and documentary evidence on this aspect by the Courts below. In fact, in paras-19 and 20 of the judgment of trial Court it is clearly observed that any such adoption cannot divest PW.1 of her share and entitlement as widow of late Adivi Reddy. It is further held that no record is produced by the defendants to show that there was compliance of Sections 6 to 11 of Hindu Adoption and Maintenance Act, there is no evidence of giving and taking of DW.2 by his natural parents to his adoptive mother-PW.1. However, as per Ex.B.1, age of DW.2 was 15 years which is the higher age than what is prescribed under Section 10 (4) of Hindu Adoption and Maintenance Act, accordingly, held that merely because Ex.B.1 is 30 years old document, in view of the above, no such presumption can be drawn as to its genuineness and also relied on the principles laid by the Hon'ble Apex Court in Ghisalal v. Dhapubai (dead) by LRs and others1.
1
AIR 2011 SC 644
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11. Point Nos.(iv) & (v) deals with placing reliance on the entries found in the revenue records to declare the title of plaintiff over the suit schedule property. Point No.(vi) deals with demarcation of the entire land. The trial Court and the first appellate Court have answered all these points in detail while appreciating and re-appreciating the oral and documentary evidence and therefore, I do not find any perversity or irregularity in the findings recorded. The learned counsel for the appellants/defendants also failed to make out any such perversity in the findings recorded during his submissions made before this Court.
12. Point No.(vii) deals with the concurrent findings recorded by the Courts below. The trial Court and the first appellate Court while appreciating the oral and documentary evidence available on record, assigned valid reasons to decree the suit and also for dismissal of the appeal, negatived the claim of second defendant, who claimed that he was taken in adoption by the plaintiff under Ex.B.1. In that view of the matter, I do not find any question of law much less substantial questions of law in any points (i) to (vii), as extracted above from the 10 AVR,J SA_680_2015 memorandum of grounds of second appeal. All the grounds as indicated above, are either on factual side, questioning the manner of appreciation of oral and documentary evidence or the points which were decided by the Courts below on proper appreciation of the material available on record, which does not warrant any interference by this Court.
13. Section 100 of CPC deals with second appeals. The existence of a substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. The jurisdiction of the High Court is now confined only to entertain such appeals wherein substantial question of law has specifically set out in the memorandum of appeal and formulated by the Court (Thiagarajan v. Venugopalaswamy B. Koil2 and Dharmarajan v. Valliammal3).
14. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by LRs and others v. Lehna Singh (D) by LRs4 while dealing with the scope of Section 100 of CPC held at para-18 as under:
2 (2004) 5 SCC 762 3 (2008) 2 SCC 741 4 AIR 2019 SC 1441 11 AVR,J SA_680_2015
"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law. Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."
15. When the facts of the present case are tested on the touchstone of the principles laid by the Hon'ble Supreme Court in the above decisions with reference to the scope of Section 100 of CPC, the answer is in the negative. No question of law much less substantial question of law is made out either from the grounds of second appeal or from a plain reading of the judgments of trial Court and first appellate Court. No material has been over looked nor any inadmissible 12 AVR,J SA_680_2015 evidence has been considered by the Courts below for recording such findings. Further, the judgments of the trial Court and the first appellate Court do not disclose any irregularity or perversity and there is no scope for interference in such concurrent findings recorded by both the Courts below. No question of law much less substantial question of law is made out in the second appeal.
16. In the result, the second appeal is dismissed at the admission stage itself confirming the concurrent findings of the trial Court in O.S.No.19 of 2010 and the first appellate Court in A.S.No.13 of 2015. However, in the circumstances of the case, there shall be no order as to the costs.
As a sequel, miscellaneous applications, if any, pending in this second appeal, shall stand closed.
________________________________ A.VENKATESWHARA REDDY, J Date: 08-07-2022 Isn