Telangana High Court
Jonnalagadda Ranga Reddy , vs Jonnalagadda Anji Reddy on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.270 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 13.12.2022, passed by the V Additional District Judge at Miryalaguda, Nalgonda District, in AS.No.9 of 2018, whereunder and whereby the judgment and decree dated 13.11.2017 passed by the Additional Junior Civil Judge, Miryalaguda, in O.S.No.248 of 2011, was confirmed.
2. The appellant is the plaintiff No.1, respondent Nos.1 to 3 are plaintiff Nos.2 to 4 and respondent Nos.4 to 6 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 plaintiff Nos.1 to 4, defendant No.2 and husband of defendant No.3 by name Narasimha Reddy (since died) are the sons and defendant No.1 is the daughter of Jonnalagadda Kanthamma and Koti Reddy. It is averred that Jonnalagadda Kanthamma was the owner of the land to an extent LNA, J S.A.No.375 of 2023 2 of Acs.4.23 guntas in Survey No.24/e situated at Kistapuram Village, Miryalaguda Mandal, Nalgonda District. Out of the said land, the said Jonnalagadda Kanthamma gifted Acs.4.00 guntas to defendant No.1 vide registered Gift Settlement Deed dated 21.08.2001 and kept the suit schedule land i.e., Ac.0.23 guntas of land with her till her death. It is further averred that the said Jonnalagadda Kanthamma died on 24.12.2008 and her husband Koti Reddy predeceased her.
3.1. It is averred that on 24.12.2008 at about 9:00 a.m., the said Jonnalagadda Kanthamma executed a Will deed bequeathing the suit schedule land and another non-patta land of Ac.1.20 guntas in the same survey number in favour of the plaintiffs and defendant Nos.2 and 3. On the same day i.e., on 24.12.2008 the said Jonnalagadda Kanthamma died. Consequently, the plaintiffs and defendant Nos.2 and 3 became the owners and possessors of the suit schedule land. Thereafter, they approached the Tahsildar, Miryalguda, for mutation of their names against the suit schedule land in the revenue records in pursuance of the said Will deed. The defendant No.1 also produced a Will deed stated to have LNA, J S.A.No.375 of 2023 3 been executed by Jonnalagadda Kanthamma and claimed that she is the owner and possessor of the suit schedule land. Therefore, the Revenue Authorities issued proceedings dated 06.02.2010 directing them to approach the Civil Court for adjudication of the Will deeds propounded by them. Hence, the plaintiffs filed the suit for declaration of Will Deed dated 24.12.2008 as true and valid and binding on defendant No.1 and for consequential relief of perpetual injunction.
4. The defendant No.2 remained ex parte and the suit against defendant No.3 was dismissed for default for not taking steps to serve summons on her by the plaintiffs.
5. The defendant No.1 filed written statement denying the plaint averments and inter alia stating that plaintiff No.1 harassed his parents during their life time seeking more share in their joint family properties. The Plaintiff No.1 got filed a case under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, against his father through his tractor driver Palla Narasimha. Due to the said act, his father felt humiliated and died. Thereafter, the plaintiffs, defendant No.2 and the husband LNA, J S.A.No.375 of 2023 4 of defendant No.3 did not look after their mother and therefore, she came to the house of defendant No.1 and she looked after her mother with love and affection.
5.1. It is stated that as per the records, Jonnalagadda Kanthamma was the owner of agricultural land to an extent of As.4.23 guntas, but, physically, the extent of the said land was Acs.6.00 guntas. Out of the said land, Jonnalagadda Kanthamma gifted an extent of Acs.4.00 guntas of land to defendant No.1 through registered gift settlement deed dated 21.08.2001. Thereafter, on 23.12.2008, Jonnalagadda Kanthamma executed a Will deed bequeathing the remaining extent of Acs.2.00 guntas of land, which includes the suit schedule land, in favour of defendant No.1 and she died on 24.12.2008 i.e., on the next day of execution of the said Will deed. It is further stated that there was no occasion for Jonnalagadda Kanthamma for executing the Will deed on 24.12.2008 bequeathing the suit schedule land in favour of her sons and that the plaintiffs have created and fabricated the alleged Will deed after the death of Jonnalagadda Kanthamma by forging her thumb impression. It is further stated that the LNA, J S.A.No.375 of 2023 5 plaintiffs are not in possession of any extent of the land in the suit Survey No.24/e.
6. On the strength of the above pleadings, the trial court framed the following issues:-
1. Whether the Will deed, dated 24.12.2008 said to have executed in favour of the plaintiffs and the defendant Nos.2 and 3 by late Jonnalagadda Kanthamma in respect of the suit schedule property is true and valid ? If so, the plaintiffs are entitled for declaration of their title over the schedule property?
2. Whether the plaintiffs are entitled for grant of perpetual injunction in respect of the suit schedule property against the defendant No.1 as prayed for?
3. To what relief?"
7. During the trial, on behalf of the plaintiff, PWs.1 to 4 were examined and Ex.A-1 to A-5 were marked and on behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-3 were marked.
8. After the full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court vide judgment and decree dated 13.11.2017 dismissed the suit.
9. The trial Court categorically observed as under:-
LNA, J S.A.No.375 of 2023 6 "It is an admitted fact that the plaintiffs and D2 and D3 are not in possession of the suit schedule property and the same is under the possession and enjoyment of the 1st defendant as a legatee under Ex.B.1 will dt:23.12.2008 and her name was mutated in revenue records and as such without seeking the relief for recovery of possession of the suit schedule land from the 1st defendant, the plaintiffs are not entitled to seek for declaration of their title over the suit schedule land on the basis of Ex.A.1 will dt. 24.12.2008. The above conclusion arrived by me is fortified by the Hon'ble Apex Court in Vinaya Krishna Vs. Kesavachary reported in AIR 1993 SC 957 while dealing with the proviso to section 34 of the Specific Relief Act, 1963 the Hon'ble Supreme Court categorically held " in a suit for declaration of the share in the property, where the plaintiff was in no exclusive possession of the property, failure to claim relief of possession will bass the discretion of the court to grant decree for declaration. So, irrespective of the evidence adduced on behalf of both parties in the suit either by oral or documentary, I have no hesitation in holding that the present suit for mere declaration of the title of the plaintiffs by virtue of Ex.A.1 will dated 24.12.2008, is not maintainable and is liable to be dismissed."
9.1. The trial Court further observed as under
"PW.1 and PW.4 who are the plaintiffs 1 & 2 in the suit during their cross examination have categorically deposed that the suit schedule land is never in their possession and the same is under the possession and enjoyment of the 1st defendant and her name is also mutated in revenue records as per the orders of the Tahsildar as legatee under Ex.B.1, will LNA, J S.A.No.375 of 2023 7 dated 23.12.2008 and so the plaintiffs who are not in possession of the schedule land as on the date of filing of the suit on 23.08.2011 are not entitled to seek for an equitable relief of permanent injunction against the defendants."
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 confirming the judgment and decree of the trial Court, dated 13.11.2017. 10.1. The first Appellate Court observed as hereunder:-
"The plaintiff No.2/P.W.4, in his cross-examination, has stated that his mother died on 24.12.2008 at his sister's house at Hyderabad. He has admitted that the obsequies of his mother were performed at his sister's house. As admitted by the plaintiff No.1/P.W.1, which is noted above, the relations between him and his parents were not cordial and criminal cases were registered against him on the complaint lodged by his father with regard to land disputes. When the relations between the plaintiff No.1/PW.1 and his parents were strained to the extent of getting registered criminal cases against each other, it would be improbable to believe the case of the plaintiffs that their mother has executed Ex.A.1/Will deed in their favour. As stated by the plaintiff No.1/P.W.1 himself, on the night of 23.12.2008, his mother, due to the harassment of the defendant No.1 and her husband, took some pills and at the time of execution of Ex Al, she was under the shock of the said incident and she died one hour LNA, J S.A.No.375 of 2023 8 after the execution of Ex.A1. If that be so, the case of the plaintiffs that their mother i.e., Jonnalagadda Kanthamma was in a sound and disposing state of mind at the time of alleged execution of Ex.A1 becomes improbable."
10.2. The first Appellate Court further observed as under:-
"The plaintiffs failed to prove that Jonnalagadda Kanthamma has executed Ex.A.1/Will deed bequeathing the suit schedule land in their favour and also in favour of the defendant Nos.2 and 3. So, the said Will cannot be said to be the last Will of Jonnalagadda Kanthamma and if that be so, the plaintiffs would not be entitled for the relief of declaration sought in that regard."
10.3. The first Appellate Court further observed as under:-
"The plaintiff No.1/PW.1, in his cross-examination, admitted that the defendant No.1 got mutated her name as owner and possessor of the suit schedule land in the revenue records and the MRO has issued proceedings (Ex.B3) in favour of the defendant No.1 and that the defendant No.1 is in possession of the suit schedule land and she has been cultivating the said land. The plaintiff No.2/PW4 also, in his cross-examination, has admitted that the suit schedule land is in possession of the defendant No.1 and she has been cultivating the same. So, there would be no hesitation to hold that the plaintiffs are not in possession and enjoyment of the suit schedule land. If that be so, they would not be entitled to seek any injunction the defendant No.1, who is, admittedly, in possession of the said land."
LNA, J S.A.No.375 of 2023 9
11. Heard Sri S. Chandar Mohan Reddy, learned counsel for the appellants and Sri M. Venkat Ram Reddy, learned counsel for the respondent No.4. Perused the entire material available on record.
12. A perusal of the record discloses that the trial Court held that the plaintiffs and defendant Nos.2 and 3 were not in possession of the suit schedule property and the same is under the possession and enjoyment of the defendant No.1 as a legatee under Ex.B.1 Will dated 23.12.2008 and her name was also mutated in the revue records and as such without seeking the relief of recovery of possession of the suit schedule land from the defendant No.1, the plaintiffs are not entitled to seek declaration of their title over the suit schedule land on the basis of Ex.A.1 Will dated 24.12.2008. On appeal, the first appellate Court confirmed the judgment of the trial Court holding that the plaintiffs were not in possession and enjoyment of the suit schedule land, and therefore, they are not entitled to seek any injunction against the defendant No.1, who is in possession of the suit land.
LNA, J S.A.No.375 of 2023 10
13. The 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.
14. 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.
15. 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 LNA, J S.A.No.375 of 2023 11
16. 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 appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
17. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 11.03.2024 va