Telangana High Court
Smt. Sarojamma vs Smt. Roshamma Died on 13 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.487 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 18.08.2023, passed in A.S.No.36 of 2018 on the file of the Court of Principal District Judge, Jogulamba Gadwal, confirming the judgment and decree dated 12.10.2018 passed by the Senior Civil Judge, Gadwal in O.S.No.72 of 2010, the present Second Appeal is filed.
2. The appellants are the plaintiffs 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 shorn off unnecessary details, which led to filing of the present Second Appeal, are that one Late Golla Beesanna, S/o Sonjanna was absolute owner of the suit schedule property. Defendant No.1 is the first wife of Golla Beesanna, defendant No.2 is his son, defendant Nos.3 and 4 are daughters of defendant No.1 born through Golla Beesanna. Plaintiff No.1 is second wife of Golla Beesanna and Plaintiff No.2 is daughter, Plaintiff Nos.3 to 5 are sons of plaintiff No.1 born through Golla 2 LNA, J S.A.No.487 of 2023 Beesanna. The property devolved upon the plaintiffs and defendants under Section 8 of Hindu Succession Act. The plaintiffs and defendants are members of Hindu undivided family and in joint possession of suit land. As such, the plaintiffs demanded for partition of suit schedule property, but the defendants were evading the same. Hence the suit for partition of the suit schedule property.
4. Defendant No.2 filed his written statement contending that 38 years ago, before birth of plaintiff Nos.2 to 5, one Golla Sanjanna and Golla Beesanna executed agreement on 24-05-1973 and transferred rights in favour of defendant Nos.1 and 2 by relinquishing their rights over the suit schedule property and since then, they are in peaceful possession and enjoyment of the property. As such, the plaintiffs are no way concerned and have no right over with suit schedule property and prayed to dismiss the suit.
5. Defendant Nos.1, 3 and 4 are set ex parte.
6. Basing on the above pleadings, the following issues were settled for trial:-
3
LNA, J S.A.No.487 of 2023 "(1)Whether the suit scheduled property to belongs to late Golla Beesanna?
(2) Whether the plaintiffs are entitled for share in the plaint scheduled property?
(3)Whether the court fee paid is proper? (4) To what relief?
7. On behalf of the plaintiffs, plaintiff No.4 himself got examined as PW-1 and one Golla Bajaranna was examined as PW2 and marked Exs.Al to A9. On behalf of the defendants, defendant No.2 got himself examined as DW-1 and one Golla Bandlaiah was examined as D.W-2 and Exs.B1 to 51 were marked.
8. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment dated 12.10.2018, observed as hereunder:-
"On a perusal of Exs.A-1 to A-5, it shows that Golla Sanjanna was pattadar of land in Sy.No.334. Therefore, the suit schedule property does not belong to Golla Beesanna. Further a perusal of Ex.B-1, it shows that both Golla Beesanna and Sanjanna executed settlement deed dated 24.05.1973 in favour of Roshamma. Therefore, Sanjanna who is original owner gave property to Roshamma and her son i.e., defendant Nos.1 and 2. Therefore, when the suit schedule property does not belong to Beesanna, the 4 LNA, J S.A.No.487 of 2023 plaintiffs are not entitled for share in the said property."
9. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record dismissed the appeal vide judgment dated 18.08.2023. The first Appellate Court observed that the evidence of D.Ws.1 to 3 is that during the life time of G.Sanjanna, he along with his son-Golla Beesanna has parted the suit schedule property in favour of defendant No.1 towards her maintenance under Ex.B-1-family settlement deed dated 24.5.1973. It further observed that even the admission made by P.W-1 that the suit schedule properties are owned and possessed by late G.Sanjanna, but not by late G.Beesanna, has to be taken into consideration. 9.1. The first Appellate court further observed that the plaintiffs did not produce any other evidence to show that Ex.B-1 was brought into existence by the defendants after death of G.Sanjanna and G.Beesanna and the plaintiffs also did not object while Ex.B-1 was marked. Thus, the first Appellate Court upheld the conclusion of the trial Court that the suit schedule property is not ancestral and joint family property and hence, the same is not liable for partition. 5
LNA, J S.A.No.487 of 2023
10. Heard Sri Akkam Eshwar, learned counsel for the appellants, and Sri Ajgal Ravi Babu, learned counsel for the respondents. Perused the record.
11. A perusal of the record discloses that both the trial Court as well as first Appellate Court concurrently held that the oral and documentary evidence adduced by both the parties goes to show that the suit schedule properties are the self-acquired properties of Golla Sanjanna, who executed Ex.B-1-Gift Settlement deed in respect of the said properties in favour of defendant No.1 towards her maintenance and hence, the request of the plaintiffs for partition of the suit schedule properties was declined.
12. 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.
13. 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 6 LNA, J S.A.No.487 of 2023 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.
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 appellant are factual in 1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.487 of 2023 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. No costs.
18. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:13.03.2024 dr