Telangana High Court
Sirigiri Narayana, vs Sirigiri Nampelli on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.532 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 30.10.2023, passed in A.S.No.3 of 2019 on the file of the Court of Principal District Judge, Rajanna Sircilla, confirming the judgment and decree dated 04.12.2018 passed by the Senior Civil Judge, Sircilla in O.S.No.35 of 2014, the present Second Appeal is filed.
2. The appellant is the plaintiff and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the plaintiff filed the suit for partition and separate possession of the suit schedule property and also to declare the ROR proceedings, vide File No.R.O.R/1910/1989, dated 27.08.1994, of Tahasildar, Sircilla, who is defendant No.3, as null and void and not binding on the plaintiff to the extent of his share and for costs. 2
LNA, J S.A.No.532 of 2023 3.1. In the plaint, it was averred that the plaintiff and defendant No.1 are the natural brothers and sons of late Sirigiri Narsaiah who was the owner and possessor of the suit schedule property and he died in the year 1994, leaving his wife namely Yellavva and his two sons. Thereafter, on the death of the said Yellavva in the year 2002, the plaintiff and his brother-defendant No.1 succeeded to the suit schedule lands from their father Sirigiri Narsaiah as Class -I legal heirs and are in joint possession, occupation and enjoyment of the same having half (½) share each. While so, the plaintiff came to know that the defendant No.2 in collusion with his father i.e., defendant No.1 and by managing the revenue officials/defendant No.3, got created the R.O.R proceedings vide file No.ROR/1910/1989 dated 27-8-1994 and got his name mutated in respect of the suit schedule lands.
3.2. It was further averred that even though the plaintiff approached defendant No.3 several times with an application for cancellation of the said R.O.R proceedings, the latter refused to even receive the said application.
3.3. It was also averred that defendant Nos.5 and 6 and one Puli Anjali, who are the natural sisters of the plaintiff, were got 3 LNA, J S.A.No.532 of 2023 married by giving sufficient cash and gold ornaments and as such, the said persons relinquished their rights over the suit schedule property. Even defendants Nos.7 to 11-legal heirs of the said Puli Anjali have no right whatsoever on the suit schedule property.
4. Before the trial Court, defendant Nos.3 and 4 forfeited their right to file written statement and defendant Nos.5 to 11 remained ex parte.
5. The only contesting defendants i.e., defendant Nos. 1 and 2 filed written statement inter alia denying the allegations made in the plaint and stated that the plaintiff was aware that defendant No.2 is the owner and possessor of the suit schedule lands having purchased the same on 16-8-1982 from one Sirigiri Narsaiah, who was the grandfather of defendant No.2 and that during the life time of Sirigiri Narsaiah itself, defendant No.2 applied for validating his purchase and on due enquiry, the Mandal Revenue Officer, Sircilla, issued the Forms-13-8 and 13-C validating the purchase of defendant No. 2 and got mutated his name in the revenue records. However, the plaintiff did not take any legal steps for cancellation of the same and therefore, the question of depriving the rights of the plaintiff over the suit schedule lands does not arise. 4
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6. It was further averred that the suit schedule lands are the self acquired properties of late Sirigiri Narsaiah who sold the same in favour of defendant No.2 for valid consideration and the said purchase was also validated and hence, prayed the court to dismiss the suit.
7. On the basis of the above pleadings, the trial Court framed the following issues for trial:-
"1. Whether the suit schedule properties are joint family properties as pleaded by the plaintiff?
2. Whether the plaintiff is entitled for partition and separate possession?
3. Whether the R.O.R proceedings vide file No.R.O.R/ 1910/1989 dt:27-8-84 of defendant No.3 are liable to be declared as null and void and not binding on the plaintiff?
4. To what relief?"
8. On behalf of plaintiff, PWs.1 and 2 were examined and Exs.A1 to A7 are marked. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B1 to B6 were marked.
9. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, dismissed the suit, vide judgment dated 04.12.2018. The trial Court observed that the admission of the plaintiff as P.W-1 that his grandfather was not having any agricultural lands, itself shows that the suit schedule 5 LNA, J S.A.No.532 of 2023 property is the self-acquired property of his father-Sirigiri Narsaiah. The trial Court further observed that the admissions of P.W-1 in his cross-examination and further a scrutiny of Ex.B-1- certified copy of ROR proceedings, goes to show that the suit schedule land was sold by the said Narsaiah to defendant No.2 through a simple sale deed for consideration of Rs.4,500/-. Accordingly, the trial Court held that the plaintiff failed to prove his claim for partition and separate possession of the suit schedule property.
10. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record and dismissed the appeal, vide judgment dated 30.10.2023. The first Appellate Court categorically observed that the plaintiff admitted that the suit schedule lands are the self- acquired properties of his father-Sirigiri Narsaiah. It also observed that P.W-1 admitted that during the life time of his father, i.e., by the year 1982, defendant No.1 was living separately and since then defendant Nos.1 and 2 are in possession and enjoyment of the same and cultivating the said lands. In the light of the said observations, 6 LNA, J S.A.No.532 of 2023 the first Appellate Court held that the suit schedule lands were not in joint possession of the parties.
10.1. The first Appellate Court further observed that Exs.B-1 to B-6 support the version of the defendants that the suit schedule lands were sold in favour of defendant No.2 in the year 1982 and a perusal of Exs.A-2 and A-3 shows that after conducting due enquiry, the suit schedule property was mutated in the name of defendant No.2. Having observed thus, the first Appellate Court held that the plaintiff is not entitled to the relief of partition of the suit schedule property.
11. Heard Sri J.Venkateshwar Reddy, learned counsel for the appellant. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held that the oral and documentary evidence adduced by both the parties goes to show that the suit schedule lands are the self-acquired properties of one Sirigiri Narsaiah, who sold the same for a consideration to defendant No.2 and hence, the said lands are not the joint family properties which can be partitioned, as claimed by the plaintiff.
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13. Learned counsel for appellant argued that the trial Court decreed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
14. However, learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
15. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
16. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.532 of 2023 where a substantial question of law is raised and fell for consideration.
17. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
18. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
19. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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