Turaga Vijaya Saradhi vs Vadluri Someswara Rao Died
2021 Latest Caselaw 1662 AP

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                 SECOND APPEAL No.8 of 2017

JUDGMENT:

The present second appeal is filed under Section 100 of

Code of Civil Procedure, 1908 (for short "CPC") by the

unsuccessful plaintiff No.2 assailing the decree and judgment

dated 28.06.2013 in A.S.No.71 of 2007 on the file of V

Additional District Judge (Fast Track Court) West Godavari at

Eluru, whereby while dismissing the appeal, the lower appellant

Court has confirmed the decree and judgment dated 30.11.2006

in O.S.No.66 of 1998 on the file of the Court of Senior Civil

Judge, Tanuku.

2. The parties in this second appeal are referred to as they

are arrayed in the original suit for the sake of convenience.

3. The facts of the case in a nutshell are that the plaintiffs

filed the suit seeking partition of the plaint A schedule

properties into two equal shares and to allot one such share; for

return of 'B' schedule property and to render accounts with

regard to income realized from 'A' schedule properties and to

grant future profits from the date of suit till the date of delivery

of property.

4. It is stated that the 1st plaintiff is the fostered daughter of

1st defendant, who performed her marriage. The 1st defendant is

having the schedule properties and declared that he will give

half of the share in the properties to the 1st plaintiff as

pasupukunkuma and he used to manage the said properties.

The gold of the 1st plaintiff was kept with the 1st defendant for

safe custody, which is weighing 18 sovereigns worth

Rs.54,000/- as on the date of filing the suit. The 1st defendant

used to represent that he kept the amount in bank for her

benefit. The 1st defendant wrote a letter dated 20.02.1996

about the amount in F.D.R for Rs.30,000/- by October, 1996.

The 1st defendant did not render accounts for the amounts

realized from the lands. The amounts are assessed for the

present at Rs.90,000/-. The 1st defendant stated to the 1st

plaintiff that he adopted a boy in the year 1982. Then disputes

arose between the parties at the instance of parents of adopted

boy. The 1st defendant used to obtain signatures of 1st plaintiff

and her husband for management of properties, but in view of

disputes, the 1st plaintiff apprehends that he may create false

documents. Hence, the suit is filed for partition and other

reliefs.

5. The 1st defendant filed written statement contending that

the plaintiff is his wife's younger sister and after death of her

father, on the request of his mother-in-law, he looked after the

affairs of the marriage including Kanyadanam. The 1st defendant

never declared to give half of his property to the 1st plaintiff as

pasupukunkuma. The 1st defendant adopted his brother's son

who was aged 2½ months by following the rituals and at that

time, his wife presented Rs.10,000/- to the 1st plaintiff's

children, which was kept with 1st defendant, for which he

addressed a letter asking her to take that amount. The said

amount was paid under a receipt dated 04.07.1993 attested by

the 1st plaintiff's husband. The plaintiff's husband has been

blackmailing the 1st defendant to get some part of his wealth.

The 1st plaintiff is not entitled for partition and for other reliefs.

6. Basing on the above pleadings, the trial Court framed the

following issues:

1) Whether the plaintiff is entitled for partition of 'A' schedule property, if so to what share?

2) Whether the plaintiff is entitled to the return of value of 18 sovereigns of gold?

3) Whether the plaintiff is entitled to Rs.90,000/- as claimed in the plaint?

4) To what relief?

7. On behalf of the plaintiffs, P.Ws.1 and 2 were examined

and got marked Exs.A-1 to A-31. On behalf of defendants,

D.Ws.1 and 2 were examined and got marked Ex.B-1.

8. After considering the evidence on record, the trial Court

dismissed the suit of the plaintiffs. Aggrieved thereof, the 2nd

plaintiff preferred appeal and the 1st appellant Court has

dismissed the appeal by confirming the decree and judgment of

the trial Court. Assailing the same, the present second appeal

is preferred by the 2nd plaintiff.

9. Heard Sri Sai Gangadhar Chamarthi, learned counsel for

the appellant/2nd plaintiff.

10. Learned counsel for the appellant would submit that the

Courts below ought to have believed the version of the 1st

plaintiff that the 1st defendant orally agreed to give half of his

property to the 1st plaintiff towards pasupukunkuma, since the

1st defendant performed the marriage of the 1st plaintiff. He

submits the findings of the Courts below are erroneous and

unsustainable and the Courts below failed to appreciate the

evidence of the appellant in a proper perspective.

11. Learned counsel for the appellant submits that the

following questions of law have to be considered:

i) Whether the Courts below properly interpreted Exs.A-1 to A-31?

ii) Whether the findings of the Courts below by ignoring the admissions on the foot of documentary evidence vitiate the decree and judgment?

12. The Courts below having considered the oral and

documentary evidence brought on record, held that the plaintiffs

failed to establish the oral gift made by the 1st defendant at the

time of marriage of 1st plaintiff. Further, 18 sovereigns of gold

was entrusted to the 1st defendant and he has liability to return

the gold or its value and the plaintiffs are not entitled to claim

the income over half share in the plaint A schedule property.

Thus, the trial Court on consideration of both oral and

documentary evidence in its proper perspective answered all the

issues against the plaintiffs and dismissed the suit. The 1st

appellate Court concurred with the findings of the trial Court in

all respects and dismissed the first appeal preferred by the 2nd

plaintiff.

13. Having gone through the well-reasoned judgments of the

Courts below and having given earnest consideration to the

facts and submissions, this Court finds that there is no error or

illegality in the findings of the Courts below warranting

interference by this Court and that the questions being sought

to be raised on the basis that there was oral gift made by the 1st

defendant to give half share in his properties at the time of

performing the marriage of 1st plaintiff and that 1st defendant

was entrusted with 18 sovereigns of gold, cannot be considered

as substantial questions of law and that the said questions are

purely questions of fact.

14. On careful consideration of the questions that are

articulated in the grounds and urged in this second appeal, this

Court finds that the questions being sought to be raised are not

substantial questions of law. Therefore, this Court further finds

that no question of law much less a substantial question of law

is involved requiring interference with the decree and judgment

impugned. The law is well settled that a second appeal shall not

be admitted if no substantial question of law arises for

consideration and when no substantial question of law is

involved. In the case on hand, after careful examination of the

entire material available on record this Court finds that there is

no substantial question of law involved in the second appeal and

the same is liable to be dismissed at the stage of admission, in

view of the narrow compass of Section 100 of the Code of Civil

Procedure.

15. In the result, the Second Appeal is dismissed. There shall

be no order as to costs.

As a sequel, all the pending miscellaneous applications

are closed.

___________________________ LALITHA KANNEGANTI, J

22nd March, 2021

PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

SECOND APPEAL No.8 of 2017

22nd March, 2021

PVD