Telangana High Court
Merugu Prabhakar Reddy vs Merugu Renuka on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.177 of 2022
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 14.12.2021, passed by V Additional District Judge, Bhongir in AS.No.102 of 2016, whereunder and whereby the judgment and decree dated 21.01.2013 passed by the Junior Civil Judge, Ramannapet in O.S.No.148 of 2004 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. Succinctly stated, the facts of the case, which led to filing of the present Second Appeal, are that the plaintiff and defendant No.2 are the children of one Merugu Linga Reddy. Defendant No.1 is wife of one Merugu Vema Reddy, who is the brother of the plaintiff. The said Linga Reddy was the absolute owner and exclusive possessor of the suit schedule property having acquired the same from his ancestors. While so, the said Linga Reddy settled the suit land in favour of defendant No.2 through a registered gift settlement deed in the month of May 2003 without the knowledge and consent of the plaintiff and his brother Vema Reddy, 2 LNA, J S.A.No.177 of 2022 fraudulently. As such, the plaintiff and his brother-Vema Reddy filed O.S.No.31 of 2004 for partition and cancellation of the said registered gift deed on the file of Junior Civil Judge, Ramannapet. During the pendency of the said suit, defendant No.2 herein and the first plaintiff therein-Vema Reddy, who is the husband of defendant No.1 herein, colluded with each other and transferred the schedule property in favour of defendant No.1 under a registered sale deed dated 10-09-2004. Hence, the plaintiff filed the suit seeking cancellation of the said registered sale deed.
4. Defendant No.1 remained set ex parte.
5. Defendant No.2 filed her written statement denying the averments of the plaint. She stated that the suit land and non-suit lands were divided among the plaintiff, his brother Vema Reddy, who is husband of defendant No.2 and their father-M.Linga Reddy in an oral partition and the same was implemented in the revenue records. Further, since the plaintiff and his brother Vema Reddy were not looking after their father-Linga Reddy, he gifted the suit land to defendant No.2 as she is his only daughter and was looking after him and that, defendant No.2 sold the schedule property to defendant No.1 and delivered vacant possession of the suit lands 3 LNA, J S.A.No.177 of 2022 and that, since then defendant No.1 has been in possession and enjoyment of the same.
5.1. It was further stated that the plaintiff is not a party to the said sale deed and as such, he cannot challenge the same and that O.S.No.31 of 2004 was dismissed for default and therefore, the principle of lis pendency is not applicable to the said suit. Hence, she prayed to dismiss the suit.
6. Basing on the above pleadings, the trial court framed the following issues:-
"(1)Whether the appellant herein is entitled for the relief of cancellation of the sale document No.1045 of 2004 dated 10-09-2004 marked as Ex.B1/Ex.A1 as prayed in the plaint?
(2) Whether the impugned judgment of the Junior Civil Judge, Ramannapet in O.S.No.148 of 2004, dated 21-01-2013 to be sustained, modified or set aside?"
7. In support of his case, the plaintiff examined PWs.1 to PW4 and got marked Exs.A1 to A6. The defendants got examined DWs.1 to 3 and got marked Exs.B1 to B-5.
8. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, 4 LNA, J S.A.No.177 of 2022 observed that the plaintiff was aware of dismissal of O.S.No.31 of 2004, which was filed seeking cancellation of registered gift settlement deed in favour of defendant No.2 herein by his father- Linga Reddy, however, he did not take any step in that regard and filed the present suit. Therefore, when the donor under the said deed i.e., defendant No.2 executed registered sale deed under Ex.A-1, the right of the donor ceases to exist and unless the said gift deed is cancelled, the plaintiff cannot question Ex.A-1/B-1. 8.1. The trial Court further observed that admittedly, the plaintiff is not a party to the said registered sale deed and that too, he did not question the gift deed executed by his father in favour of defendant No.2 and therefore, he is not entitled to seek cancellation of the said document and accordingly, dismissed the suit, vide judgment dated 21.01.2013.
9. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record and observed that in pursuance of the gift deed, defendant No.2 has got exclusive rights over the suit property and therefore, the sale deed-Ex.A-1 executed by her in favour of defendant No.1 is a genuine and a bona fide deed. 5
LNA, J S.A.No.177 of 2022 9.1. The first Appellate Court further held as under:-
"As per the settled law, the appellant is not a party to Ex.B1/ A-1. As such, he ought to seek the specific relief of declaration of the registered document as null and void and not the relief of cancellation, who is meant for the parties to the document The appellant is not party to Ex.B1/Ex.A1, as such the relief of cancellation is not available to the appellant herein."
10. By the aforesaid observations, the first Appellate Court upheld the judgment of the trial Court, vide judgment dated 14.12.2021.
11. Heard Sri Manda Adam, learned counsel for the appellant. Perused the record.
12. A perusal of the record discloses that both the Courts below, on appreciating the oral and documentary evidence adduced by both the parties, concurrently held that the plaintiff, who is not a party to Ex.A-1/B-1, is not entitled to seek the relief of cancellation of registered sale deed and accordingly, it declined to grant the relief claimed by the plaintiff.
13. Learned counsel for appellant argued that the trial Court decreed the suit without proper appreciation of the evidence and 6 LNA, J S.A.No.177 of 2022 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 where a substantial question of law is raised and fell for consideration.
1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.177 of 2022
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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