Telangana High Court
Gujjula Rajani vs Singareddy Venkatrami Reddy on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.36 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 12.10.2021, passed by Principal District Judge, Suryapet in AS.No.02 of 2018, whereunder and whereby the judgment and decree dated 05.01.2018 passed by the Principal Junior Civil Judge, Kodad in O.S.No.185 of 2009 was confirmed.
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 brief facts of the case, which led to filing of the present Second Appeal, are that the suit was filed for partition and separate possession of the suit schedule properties. It was averred that the plaintiff, defendant Nos.1 and 2 are joint family members governed by Hindu Mithakshara School of Law They are the joint owners and possessors of the suit schedule properties having acquired the same from their ancestors and they have equal rights in the properties having 1/3 share each.
3.1. It was further averred that the plaintiff demanded defendant Nos.1 and 2 for partition of the suit schedule properties, 2 LNA, J S.A.No.36 of 2023 but they did not come forward for the division and they sold away the lands in suit Survey No.247 to defendant Nos.3 and 4 through registered sale deeds without her knowledge. She came to know about the said alienation in the month of December, 2008 and immediately, she got issued a legal notice to defendant Nos.1 and 2 demanding them for partition of the suit schedule properties and cancellation of the said registered sale deeds. Further, defendant Nos.1 and 2 are trying to alienate the other suit schedule properties also and hence, she filed the present suit.
4. Defendant Nos.1 to 4 filed their common written statement before the trial court inter alia denying the plaint averments. It was stated that the plaintiff is not the daughter of defendant No.1, but she is daughter of brother of defendant No.1 by name Singareddy and as such, she is not a member of the joint family of defendant No.s.1 and 2. Therefore, the plaintiff does not have any share in the suit schedule properties. The sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 are valid documents. Keeping in mind some financial disputes between the husband of the plaintiff and defendant No.2, only to harass 3 LNA, J S.A.No.36 of 2023 defendant Nos.1 and 2, the present suit is filed and prayed to dismiss the suit
5. Basing on the pleadings of both the parties, the trial Court framed the following issues for trial:-
"1. Whether the suit is barred by limitation?
2. Whether the Court fee paid by the plaintiff is Insufficient?
3. Whether the plaintiff is entitled to a preliminary decree of partition as prayed for?
4. Whether the plaintiff is entitled to the declaration that the registered sale deed No. 8847-2008 and 8848/2008 executed by defendant not in favour of defendant Nos.3 and 4 are collusive and fraudulent and are not binding on the plaintiff?"
6. In support of his claim, the plaintiff examined PWs.1 and 2 on his behalf and marked Exs.A-1 to A-13. On behalf of the defendants, D.Ws-1 to 8 were examined and Exs.B-1 to B-9 were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, dismissed the suit vide judgment dated 05.01.2018, by observing as hereunder:-
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LNA, J S.A.No.36 of 2023 "The admissions of PW-2, who is said to be the father of the plaintiff, also supports the version of the defendant Nos.1 and 2 that the plaintiff is not the daughter of the defendant No.1. If at all the plaintiff is the daughter of the defendant No.1, definitely his name would be reflected in all his educational certificates and other certificates of P.W.1. However, except mee-seva generated birth certificate of PW.1 under Ex-A15, there is no scrap of paper before this Court to come to a conclusion that the plaintiff is the natural daughter of the defendant No.1 and the natural sister of the defendant No.2."
7.1. The trial Court has further observed as under:-
"The evidence of DW.7 is very crucial. Because this court has to give a great sanctity to the evidence of DW.7, who is said to be the alleged mother of the plaintiff herein. Except the oral contention of the plaintiff and Ex.A.13-mee-seva generated birth certificate, there is no evidence before this Court to come to a conclusion that the plaintiff is the joint family member of the defendants Nos.1 and 2 as per the Mithakshara School of Hindu Law."
8. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available 5 LNA, J S.A.No.36 of 2023 on record, vide its judgment dated 12.10.2021 confirmed the judgment of the trial court by observing as hereunder:-
"A perusal of the record shows that the appellant did not take any steps to subject herself and respondent No.1 and his wife for DNA test to ascertain her paternity and to show that she is the natural daughter of respondent No.1.
In view of the above discussion, it can be safely held that the appellant is not the daughter of respondent No.1 and sister of respondent No.2 and also not a joint family member of respondents Nos.1 and 2. Therefore, she is not entitled to seek partition and separate possession of the plaint schedule properties."
9. Heard Sri S.V.S.Chowdary, learned counsel for the appellant and Sri K.Muralidhar Reddy, learned counsel for the respondents. Perused the record.
10. 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.
11. Learned counsel for the defendants seriously disputed the genuineness of Ex.A-13 stating that it was issued basing on the 6 LNA, J S.A.No.36 of 2023 Birth certificate issued by a hospital and the notarized affidavit of the plaintiff herself and therefore, the same cannot be considered.
12. A perusal of the record discloses that both the Courts below concurrently held that the oral and documentary evidence adduced categorically proves that the plaintiff is not the daughter of defendant No.1 and as such, she is not a joint family member of respondent Nos.1 and 2. Consequently, she is not entitled to seek partition and separate possession of the suit schedule properties.
13. The record discloses that the plaintiff has marked Ex.A-13- Birth Certificate to show that she is the daughter of defendant No.1. The said Certificate reveals that the same was issued by mee seva on 25.10.2017.
14. As per the information furnished by the Public Information Officer, obtained under the Right to Information Act, the plaintiff submitted Birth certificate issued by St. Ann's Maternity Hospital, Jaggayyapet and a notarized affidavit and basing on the said documents, Birth certificate was issued to the plaintiff through mee-seva. A close scrutiny of the Birth Certificate alleged to be issued by St. Ann's Maternity Hospital reveals that it does not bear the date of its issuance and therefore, there is a cloud of suspicion 7 LNA, J S.A.No.36 of 2023 with regard to the genuineness of the same. Hence, due credence cannot be given to Ex.A-13.
15. It is to be noted that except Ex.A-13, the plaintiff has not filed any document issued by any competent authority/officer, which creates a shadow of suspicion on her case.
16. Further, 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.
17. 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.
18. 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.36 of 2023 where a substantial question of law is raised and fell for consideration.
19. 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.
20. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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