HON'BLE SMT.JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.694 of 2013
JUDGMENT:
The present Second Appeal is arising out of the judgment and decree in A.S.No.1 of 2006 dated 13.03.2006 on the file of Senior Civil Judge, Nagarkurnool.
2. For the sake of convenience, the parties are arrayed as in the suit. Plaintiff is the appellant.
3. The plaintiff filed O.S.No.26 of 2001 on the file of Junior Civil Judge, Achampet for partition and separate possession with metes and bounds, of the suit schedule property i.e. the land in Sy.No.32/1-10 to an extent of Ac.1-21 gts and Sy.No.32/1-11 to an extent of Ac.0-17 gts including the 'Well' in the land situated in Sy.No.66 to an extent of Ac.0.13 gts of dry land and two houses including open places, situated at Marripally Village, Uppununthala Mandal, Mahbubnagar District, claiming 1/5th share in the above mentioned suit schedule properties. 2
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4. The brief contents of the plaint are that the suit schedule property is the joint family property of the plaintiff. The relationship between the defendants and the plaintiff is that defendant Nos.2 to 4 are brothers of plaintiff and the 1st defendant is their mother. Subsequently, after the death of Chinna Galvaiah i.e. the father of the plaintiff and defendant Nos.2 to 4, the property devolved upon them, since then, they are enjoying the plaint schedule property, though living separately with their own families. It is the further case of the plaintiff that the Revenue officials recorded the names of defendant Nos.2 to 4 alone, as pattadars but not recorded his name inspite of repeated requests. Therefore, the plaintiff is constrained to file the suit for partition seeking 1/5th share in the suit schedule property and prayed to decree the suit.
5. A detailed written statement was filed by the defendants admitting their relationships, but denied as to the fact of devolving the property upon the plaintiff. It is the specific plea in the written statement that one Pedda Galvaiah, elder brother of the plaintiff and defendant Nos.2 to 4, died issueless and subsequently, during the liftetime of the father of the plaintiff, defendant Nos.2 to 4 3 GAC,J S.A.No.694 of 2013 partitioned their properties and as such the plaintiff has no right or interest over the plaint schedule properties. Accordingly, they prayed to dismiss the suit.
6. Basing on the above pleadings , the trial Court has framed the following issues for trial :-
1. Whether the suit schedule properties are joint family properties of the suit ?
2. Whether all the joint family properties of the parties are included in suit or not ?
3. Whether all necessary parties to the suit are impleaded or not ?
4. Whether the joint properties of parties are already partitioned or not ?
5. Whether the plaintiff is entitled for 1/5th share in the suit schedule properties as prayed for against the defendants ?
6. To what relief ?
7. On behalf of the plaintiff, PWs.1 to 4 were examined and got marked Exs.A-1 to A-6 and on behalf of defendants, DWs.1 to 4 were examined, but no documents were marked. 4
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8. The trial Court, after considering the oral and documentary evidence on record, dismissed the suit with costs with a finding that the plaintiff himself has admitted about partition which took before elders on 31.06.1992, in which, the property of Pedda Galvaiah fell to his share. Therefore, the question of further partition will not arise. Being aggrieved by the same, the plaintiff preferred an Appeal vide A.S.No.1 of 2006 on the file of Senior Civil Judge, Nagarkurnool. After hearing rival contentions, the 1st appellate Court had framed the following points for determination :
"1. Whether the plaintiff is entitled to 1/5th share of the suit schedule property ?
2. To what relief ?"
On hearing the rival contentions of both the parties, the 1st appellate Court dismissed the appeal without costs. Being aggrieved by the same, the present Second Appeal is filed raising the following substantial questions of law :-
"1. Whether property gifted by senior father can be excluded for making the claim of the partition from the properties of his own father ?
2. Whether the courts below has erred in coming to the conclusion in the partition suit is a presumption 5 GAC,J S.A.No.694 of 2013 that there is no partition unless until contrary is proved ?
3. Whether the courts below erred in applying the law to the facts and circumstances of the case ?"
9. Heard learned counsel for the appellant and perused the record.
10. On perusal of the substantial questions of law as raised by the appellant, it is evident that those are on the facts, in respect of which, concurrent findings were given by both the Courts below and no substantial question of law is involved in it. It is the contention of the learned counsel for the appellant that the evidence of PW.3 clearly discloses that a WILL was executed in favour of the plaintiff by Pedda Galvaiah for the suit schedule property and PW.3 acted as one of the attestors of the WILL. Admittedly, the pleadings of the plaint would not disclose about the WILL alleged to have been executed by Pedda Galvaiah in favour of the plaintiff. Moreover, the alleged WILL was also not marked before the trial Court. In the absence of proper pleadings and documentary evidence about the WILL, the plaintiff cannot establish his right over the suit schedule property in order to seek for partition. First 6 GAC,J S.A.No.694 of 2013 of all, it is for the plaintiff to establish his right over the property, for which, he is seeking right for partition. Except oral evidence of the plaintiff, there is no documentary evidence before the Court to prove that the plaintiff has acquired right over the property by virtue of testamentary WILL, which is alleged to have been executed in his favour by Pedda Galvaiah. No Court can frame issues beyond pleadings, and therefore, the trial Court has not framed any issue with regard to the WILL as there is no recital in the plaint. Though the evidence of PW.3 discloses about the WILL, in the absence of pleading and production of WILL before the Court, no finding can be given on that aspect.
11. Therefore, there is no error or irregularity in the judgments of the Court below so as to interfere with the same. Further, under Section 100 of CPC, this Court can interfere with the orders of the Courts below, only if any substantial question of law is involved. As there is no substantial question of law, this Second Appeal deserves to be dismissed.
12. Accordingly, the Second Appeal is dismissed as it is devoid of merits. No order as to costs.
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GAC,J S.A.No.694 of 2013 Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY,J 21.09.2022 dv