G Varalakshmi vs G Vimala
2023 Latest Caselaw 1416 AP

         THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                  SECOND APPEAL No.185 of 2019

   K.Ramanjulu, S/o Dasanna, aged about 36
   years, Occ: Cultivation, D.No.4/114, Masid
   Street, Pedda Tippasamudram village & Mandal,
   Chittoor District.
                                       ... Appellant/Defendant.
               Versus

   M.Sundaramma, W/o late M.Munaswamy,
   Reddy, aged about 73 years, Chandrakantha
   Street, Punganur Town, Chittoor District and two
   others.
                                       ... Respondents/Plaintiffs.

Counsel for the appellant       : Sri S.V.Muni Reddy
Counsel for respondents         : ---

                             JUDGMENT

Defendant in the suit filed the above second appeal

aggrieved by the judgment and decree dated 04.01.2019 in

A.S.No.107 of 2016 on the file of IX Additional District Judge,

Chittoor, reversing the judgment and decree dated 07.06.2016

in O.S.No.369 of 2006 on the file of Principal Senior Civil Judge,

Chittoor.

2. For the sake of convenience and brevity, parties to this

judgment are referred to as per their array in suit.

SRSJ SA No 185 of 2019

3. Plaintiff filed the suit O.S.No.369 of 2006 seeking

partition of plaint schedule properties.

4. The case of the plaintiff, in brief, is that plaintiff,

defendants 2 and 5 are daughters of defendants 1 and 4; that

another sister of plaintiff by name Padmavathi died in the year

1980 and 3rd defendant is her husband; that plaint schedule

properties are ancestral properties; that plaintiff, defendants 1

and 2 are in joint possession and enjoyment of schedule

properties; that plaintiff demanded for her legitimate share in

the schedule properties, however, 1st defendant is postponing

on one or other ground; that plaintiff also convened Panchayat

in the village on 20.08.2006, wherein 1st defendant agreed to

divided the properties into three equal shares and to allot one

share to the plaintiff; that plaintiff issued Ex.A-1 legal notice

dated 12.06.2006, for which 1st defendant issued Ex.A-2 reply

on 26.09.2006 with false allegations and also about alienations

made in favour of Padmanabhachari; that there are no debt to

the joint family and hence, filed the suit for partition.

5. 1st Defendant filed written statement and the same was

adopted by defendants 4 and 5. 3rd Defendant filed separate

written statement and the same was adopted by 2nd defendant.

SRSJ SA No 185 of 2019

6. In the written statement of 1st defendant, it was

contended interalia that 1st defendant had four daughters and

one son by name Venkatadri Achari, who died unmarried in the

year 2003; that plaintiff is 4th daughter; that eldest daughter by

name Padmavathi died in the year 1998 leaving her husband,

3rd defendant; that after death of Padmavathi, 3 rd defendant

married 3rd daughter Vimalamma, 2nd defendant; that 2nd

daughter by name Hymavathi, who is widow is staying with 1st

defendant; that plaintiff married one Devarajulu about 15 years

back and they are residing at Tirupati; that suit schedule

properties are self acquired proprieties of 1st defendant; that 1st

defendant is goldsmith by profession and also oil engine

mechanic; that some of the properties were sold away by him to

discharge the debts incurred for education and marriage of his

daughters; suit schedule house was constructed by incurring

loans and eventually, prayed the Court to dismiss the suit.

7. 3rd Defendant in the written statement and contended

interalia that 1st defendant sold the schedule property for valid

consideration to discharge the debts and he is a bonafide

purchaser.

SRSJ SA No 185 of 2019

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

following issues:

(1) Whether the plaint schedule properties are joint family properties?

(2) Whether the plaintiff is having any right, claim and title over plaint schedule properties? (3) Whether the plaint schedule properties are self acquired properties of 1st defendant and 1st defendant alienated schedule properties to 3rd defendant to discharge his debts?

(4) Whether the 3rd defendant is a bonafide purchaser for valid consideration?

(5) Whether there is a cause of action to file the suit? (6) Whether the plaint schedule properties are liable for partition as prayed by the plaintiff? (7) To what relief?

9. During the trial, plaintiff examined herself as P.W.1 and

got examined P.Ws.2 and 3. Exs.A-1 and A-2 were marked. On

behalf of defendants, D.Ws.1 to 5 were examined and Exs.B-1

to B-4 were marked.

10. Pending the suit, 1st defendant died. Defendants 4 and 5

were added as her legal representatives.

SRSJ SA No 185 of 2019

11. Trial Court recorded finding that though the plaintiff

could not place any evidence to establish that the schedule

properties are ancestral properties, however, D.W.1 daughter of

1st defendant, D.W.2, her husband admitted in the evidence

that in the partition between 1st defendant and his brother, 1st

defendant acquired the properties and in view of admission of

D.Ws.1, 2 and 5, plaintiff discharged initial that the nature of

properties is ancestral and eventually preliminary decree was

passed by judgment dated 07.06.2006 and divided the plaint

schedule properties into four equal shares.

12. Aggrieved by the said judgment and decree, defendants 2

to 5 filed the appeal A.S.No.107 of 2006 on the file of IX

Additional District Judge, Chittoor. First appellate Court being

final factfinding Court framed the following points for

consideration:

(1) Whether the plaintiff is entitled for division of the suit schedule property as prayed for?

(2) Whether there is any necessity to interfere with the findings given by the trial Court or not?

13. First appellate Court came to conclusion that plaint

schedule properties are self acquired properties of 1st defendant SRSJ SA No 185 of 2019

Balakrishnamachari and 1st defendant and 4th defendant-

Muniratnamma alienated the plaint schedule properties to the

3rd defendant to discharge debts and 3rd defendant is a bonafide

purchaser for valid consideration and eventually, allowed the

appeal and dismissed the suit. Assailing the said judgment and

decree, the present second appeal is filed.

14. The second appeal was admitted on 04.01.2021 and the

following substantial questions of law were framed:

(1) Whether the finding of the lower appellate Court is perverse with respect to the appreciation of the evidence on record?

(2) Whether the lower appellate Court rightly came to the conclusion that the suit schedule property is the self acquired property of the 1st defendant and rejecting the relief as sought for by the plaintiff by dismissing the suit?

15. Heard Sri L.J.Veera Reddy, learned counsel for appellant

and Sri D.Kodandarama Murthy, learned counsel for

respondents 1, 3 and 4.

16. Learned counsel for appellant would submit that lower

appellate Court did not appreciate the facts and evidence in SRSJ SA No 185 of 2019

proper perspective and reversed the judgment of the trial Court.

He would also submit that property was devolved upon

Balakrishnamachari and the recitals in Ex.B-2 show that

property alienated is described as ancestral property and hence,

the plaint schedule properties are ancestral properties and

thus, the plaintiff being coparcener is entitled to share in the

schedule properties.

17. Learned counsel for respondents 1, 3 and 4 would submit

that plaintiff having filed the suit for partition failed to plead

and prove that plaint schedule properties are ancestral

properties. He would submit that no evidence was let in by the

plaintiff that suit schedule properties are ancestral properties,

except his self-serving evidence, plaintiff did not file any

document to prove the nature of properties and in fact, the

plaintiff failed to discharge the burden. He would also submit

that lower appellate Court considered both oral and

documentary evidence in proper perspective and no question of

law, much substantial question of law arose in the second

appeal.

SRSJ SA No 185 of 2019

18. Going by the pleadings, the undisputed facts are that

Balakrishnamachari and Muniratnamma are husband and wife

and they were blessed with four daughters and one son. Son

died in 2003. First daughter was married to Padmanabhachari,

3rd defendant herein and she died. After her death, 2nd

defendant was given in marriage to 3rd defendant, who is

brother of 4th defendant. As per the plaint schedule, A-

Schedule property is house property; B-Schedule property is

landed property and C-Schedule is described as trees.

19. Pending the second appeal, 3rd respondent died and a

memo was filed by learned counsel for appellant that legal

representatives of deceased 3rd respondent are on record.

20. Plaintiff pleaded that plaint schedule properties are

ancestral properties. To prove the same, plaintiff examined

herself as P.W.1 and marked Ex.A-1 office copy of legal notice

and Ex.A-2 reply notice and got examined two witnesses on her

behalf.

21. The cross examination of P.W.1 is extracted below:

a) I married one Devarajulu against the wish of my parents and living with him at Tirupati.

SRSJ SA No 185 of 2019

b) My father was suffering from leprosy.

c) Since last 15 years, I am staying away from my parents.

d) Though I was staying in the house of Padmabhachari, my parents looked after my degree education.

e) After my marriage, I did not look after medical needs and other needs of my parents.

f) It is not true to suggest that I have not filed any record in Court to show that myself and defendants are enjoying schedule property as joint property.

g) I have no record to show that I paid any amount to defendants towards irrigation purpose.

22. Plaintiff also examined two other villagers. P.W.2 deposed

in the cross examination that schedule property is ancestral

property of 1st defendant. He further deposed that he verified

the revenue records before giving evidence. He deposed that

10-1 adangal and other revenue record are standing in the

name of father of 1st defendant for schedule property.

23. A perusal of the above evidence discloses that except the

averment that the schedule properties are ancestral properties,

no evidence was let in by the plaintiff. Against the said

evidence, 2nd defendant examined herself as D.W.1 and 3rd

defendant is examined as D.W.2. D.Ws.3 to 5 were also SRSJ SA No 185 of 2019

examined. The sale deeds executed in the name of 3rd

defendant were marked as Exs.B-1 to B-4.

24. In Mattulal Vs. Radhe Lal1, the Hon'ble Apex Court

considering the scope of Section 100 of CPC held thus:

"It is settled law that the High Court in second appeal cannot re-appreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse."

25. In C. Doddanarayana Reddy (Dead) by L.Rs. and Ors.

Vs. C.Jayarama Reddy (Dead) by L.Rs. and Ors.2, the Hon'ble

Apex Court held thus:

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan MANU/SC/1584/1999:(1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within

AIR 1974 SC 1596

(2020) 4 SCC 659 SRSJ SA No 185 of 2019

the second appeal. This Court held as under:

12. This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (MANU/SC/0790/1996: 1996 3 SCC 392), this Court held:

It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal Under Section 100 of the Code in the way he did.

14. In Navaneethammal v. Arjuna Chetty (MANU/SC/2077/1996:1996 6 SCC 166), this Court held:

Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.

15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (MANU/SC/1155/1997: 1997 4 SCC 484), this Court held: (SCC p. 486, para 5) SRSJ SA No 185 of 2019

The High Court was grossly in error in trenching upon the appreciation of evidence Under Section 100 Code of Civil Procedure and recording reverse finding of fact which is impermissible."

26. In the case on hand, the plaintiff having filed the suit for

partition, failed to prove that the properties are joint family

properties. The admissions said to have been made by the

defendants in the cross examination may not enure to the

benefit of the plaintiff in coming to the conclusion that plaint

schedule properties are joint family properties and hence, the

plaintiff is entitled for share in the properties. The evidence of

plaintiff as extracted supra would manifest that properties were

belonged to father of plaintiff and he sold the properties to 3rd

defendant for valid consideration. The judgment relied on by

the learned counsel for appellant in Arshnoor Singh Vs. Harpal

Kaur and Ors.3, is not applicable to the facts of this case. In

Arshnoor Singh's case, succession opened in the year 1951

prior to commencement of the Hindu Succession Act, 1956 and

basing on those principles, that case was decided.

27. In the case on hand, as stated supra, plea of 1st defendant

is that properties are his self acquired properties. Plaintiff

AIR 2019 SC 3098 SRSJ SA No 185 of 2019

having filed suit for partition has to discharge her burden that

the plaint schedule properties are joint family properties. If the

plaintiff discharges initial burden, then onus shifts to

defendants to prove that properties are self-acquired properties.

In the absence of any evidence to that effect, this Court is of the

opinion that plaintiff failed to prove that plaint schedule

properties are joint family properties.

28. This Court while exercising jurisdiction under Section 100

of CPC must confine to the substantial question of law involved

in the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Courts

are manifestly perverse and contrary to the evidence on record.

If the findings are based on inadmissible evidence or failure to

consider relevant evidence high court under Section 100 of CPC

can interfere.

SRSJ SA No 185 of 2019

29. In the above second appeal, the findings of fact recorded

by lower appellate Court, being the final fact finding Court are

based on appreciation of oral and documentary evidence and it

does not call for any interference of this Court as per Section

100 of CPC. This Court finds no question of law much less

substantial questions of law involved in the present second

appeal. Hence the second appeal fails and is liable to be

dismissed, however, without costs.

30. Accordingly, the Second Appeal is dismissed. There shall

be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI

15th March, 2023

PVD