Andhra Pradesh High Court - Amravati
Pidathala Girijamba vs Th Nageswara Rao on 2 August, 2024
1
*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+SECOND APPEAL No.422 of 2024
Between:
# Pidathala Girijamba, W/o Venkataramana
... Appeallant
And
$ T.H. Nageswara Rao, S/o Late T.G Bhaskara Rao
R/o D.No.4-5-212 Vijayasree Bhavan, Koti
Hyderabad and 2 others.
.... Respondents
JUDGMENT PRONOUNCED ON 02.08.2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
- Yes -
2. Whether the copies of judgment may be marked to Law
Reporters/Journals
- Yes -
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
- Yes -
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+SECOND APPEAL No.422 of 2024
% 02.08.2024
Between:
# Pidathala Girijamba, W/o Venkataramana
... Appeallant
And
$ T.H. Nageswara Rao, S/o Late T.G Bhaskara Rao
R/o D.No.4-5-212 Vijayasree Bhavan, Koti
Hyderabad and 2 others.
.... Respondents
! Counsel for the Appellant : Sri K. Srinivas
Counsel for Respondents:
<Gist :
>Head Note:
? Cases referred:
3
APHC010169162024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE SECOND DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
SECOND APPEAL NO: 422/2024
Between:
Pidathala Girijamba ...APPELLANT
AND
Th Nageswara Rao and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. K SRINIVAS
Counsel for the Respondent(S):
1.
The Court made the following:
JUDGMENT :
The unsuccessful 1st defendant has filed the present Second Appeal
against the judgment and decree dated 23.12.2023 in Appeal Suit No.6 of
2018 on the file of Senior Civil Judge, Kadiri reversing the judgment and
Decree dated 6.8.2018 in O.S No.441 of 2005 on the file of Court of the
Principal Junior Civil Judge, Kadiri.
2. The parties in this second appeal are referred to as they are arrayed
in the original suit for the sake of convenience.
3. Brief facts of the case are that One Hebbar Lakshmamma filed
the suit in O.S No.31 of 1944 on the file of the District Munsif, Penukonda, for
specific performance of agreement of sale against Matta Surya and Hebbar
Chalapathi (plaintiff's grandfather). The said suit ended in compromise and
compromise decree dated 27.2.1945 was passed with a condition to execute
registered sale deed in favour of Hebbar Lakshmamma on payment of
Rs.1,500/- by her within one year from the date of the said decree and that
Hebbar Lakshmamma has got only limited rights of enjoyment over the
property during her life time without alienation and the said property should
devolve on her sons with absolute rights after her death. In pursuance of the
said compromise decree dated 27.02.1945, Hebbar Lakshmamma paid
consideration and obtained registered sale deed dated 06.04.1946 in her
favour.
4. It is further stated that one Hebbar Prakash Rao is the son of Hebbar
Lakshmamma and they lived together. While Hebbar Prakash Rao was
addicted to vices and making efforts to alienate the property, Hebbar
Lakshmamma to preserve the property executed settlement deed dated
26.08.1950 in favour of her daughter-in-law namely Hebbar Prasannamba
with limited rights of enjoyment during her life time and the property should
devolve on her children after the death of Hebbar Prasannamba. Further,
Hebbar Lakshmamma, her son Prakash Rao and daughter-in-law namely
Hebbar Prasannamba for their legal necessities and for the benefit of joint
family sold the plaint schedule property to T.H.Bhaskar Rao (plaintiffs father)
under the registered sale deed dated 09.09.1952/Ex.A-3 for valid
consideration and delivered possession of the property.
5. While the matter stood thus, the defendants No.1 and 2 and
T.H.Rama Murthy filed a suit in O.S.No.36 of 1980 on the file of Subordinate
Judge, Penukonda against the plaintiffs' father T.H.Bhaskara Rao for
declaration of their title, delivery of possession and mesne profits. The said
suit was decreed on 30.06.1980 wherein the appeal was preferred by
T.H.Bhaskara Rao in AS No.155 of 1980 was dismissed on 30.09.1986 and
Second Appeal No.197 of 1987 on the file of the Hon'ble High Court of
Judicature, AP, Hyderabad was also dismissed on 20.07.1994. It is further
stated that during the pendency of the appeal, defendants No.1 and 2
recovered possession of the suit property from T.H.Bhaskara Rao and mesne
profits from him. Subsequently, Hebbar Lakshmamma died on 14.05.1994 and
on the death of Hebbar Lakshmamma, T.H.Bhaskara Rao became entitled to
the suit property with absolute rights. In view of the observations of the
Hon'ble High Court in S.A.No.197 of 1987 dated 20.7.1994 that the
defendants are bound to deliver the possession of the suit property to the
plaintiffs. Further, T.H.Bhaskara Rao died on 17.04.1997 leaving behind the
plaintiffs No. and 2 as his legal heirs. Though the plaintiffs made efforts for
amicable settlement, the defendants postponed the same on one pretext or
the other. The possession of the defendants over the suit property is unlawful
and hence, they are bound to pay past and future mesne profits. In the said
circumstances, the plaintiffs are constrained to file the suit.
6. The 1st defendant has resisted the suit by way of his written
statement. The 2nd defendant has remained exparte.
7. The 1st defendant in his written statement denying the averments of
the plaint except admitting certain facts i.e, (a) D-1 states that T.H.Prakash
Rao has no right to execute any sale deed as he had relinquished his right
under relinquishment deed dated 04.07.1950/Ex.B-1. Thus, the plaintiffs will
not derive any right by virtue of sale deed dated 09.09.1952/Ex.A-3. (b)
Lakshmamma had four sons namely Prakash Rao, Nanjundappa, Subba Rao
and Vasantha Rao. After the death of Lakshmamma all the sons are entitled
to the property but the plaintiffs have suppressed the above fact and filed this
suit as if Prakash Rao is the only son of Lakshmamma. (c) Out of the 4 sons
of Lakshmamma, Prakash Rao and Nanjundappa died and other two sons of
Lakshmamma are alive. Thus, the suit is bad for non-joinder of necessary
parties. (d) D-1 is in possession of the property and the plaintiffs are not
entitled for any mesne profits either future or past. (e) The plaintiffs are not
entitled for declaration of their rights or for recovery of possession of the
property and there is no cause of action to file the suit. (f) The Court-Fee paid
by the plaintiffs is incorrect. At last, she sought to dismiss the suit with costs.
8. Basing on the above pleadings, the trial Court has framed the
following issues :
1. Whether the suit is bad for non-joinder of necessary parties?
2. Whether the plaintiffs are entitled for declaration of title over the suit schedule
property as prayed for?
3. Whether the plaintiffs are entitled for delivery of possession of the plaint schedule
property as prayed for?
4. Whether the plaintiffs are entitled for Rs. 18,000-00 towards mesne profits for the
past three years as prayed for?
5. Whether the plaintiffs are entitled for future mesne profits from the date of suit till the
delivery of possession of the suit property as prayed for?
6. Whether the Court Fee paid by the plaintiffs is correct?
7. To what relief?
9. During the course of trial, on behalf of plaintiffs, PW.1 was examined
and Ex.A1 to Ex.A7 were marked. On behalf of the defendants, DW1 and
DW.2 were examined and Ex.B1 and Ex.B2 were marked on their behalf.
10. On consideration of the facts and evidence on record, the trial
Court has decreed the suit vide its judgment dated 06.08.2018 and aggrieved
by the same, the 1st defendant has preferred A.S No.6 of 2018 and the
Appellate Court has dismissed the appeal by confirming the decree and
judgment of the lower Court. Assailing the same, the present Second Appeal
is preferred by the 1st defendant.
11. Learned counsel for the appellant would submit that the judgment
and decree of the lower appellate Court is illegal and contrary to law and facts.
The lower appellate Court failed to appreciate the material evidence on
record. He would further submit that the lower appellate Court misconstrued
the evidence and reached erroneous conclusions. Learned counsel for the
appellant would further submit that the following substantial questions of law
fall for consideration before this Court:
i) Whether the findings of the first appellate Court that the respondents suit was
not barred by limitation invoking Art 65 of Indian Limitation Act 1963, was
recorded dehors the pleadings to that effect or was it arrived at on misreading
of material documentary evidence Ex.A8 judgment in SA No.197 of 1987 or by
non application of Art 58 of limitation Act 1963 in proper perspective as laid
down by the apex court?
ii) Whether the first Appellate Court committed a grave error in not recording the
legal aspect vehemently argued, that what T.H Bhaskar Rao derived under
Ex.A8 was only a right to sue, which is not enforceable, transferable, or
succeeded under Section 6 of (e) of Transfer of Property act, which was
personal right and got extinguished upon his death on 17.04.1997, thereby
the respondents did not succeed to any effects of him on the subject matter,
which debarred them from instituting the suit itself?
12. Heard Sri K. Srinivas, learned counsel for the appellant/1st
defendant.
13. This Court before entertaining a second appeal has to examine
whether any substantial question of law arises in the case which warrants
interference of this Court with the finding of the lower appellate Court. It is
settled law that the Courts will entertain the second appeal only if it is
satisfied that the appeal involved a substantial question of law.
14. Before dealing with the merits of this case it is appropriate to
have a look at the catena of judgments of the Hon'ble Apex Court wherein the
scope of Section 100 C.P.C which restricts the right of second appeal, to
those cases where a substantial question of law is involved. The existence of
a substantial question of law is the sine qua non for exercise of jurisdiction
under Section 100 C.P.C.
15. Admittedly, Section 100 has introduced a definite restriction on to
the exercise of jurisdiction in a second appeal so far as the High Court is
concerned. Needless to record that the Code of Civil Procedure Amendment
Act, 1976 introduced such an embargo for such definite objectives and since
we are not required to further probe on that score, we are not detailing out, but
the fact remains that while it is true that in a second appeal a finding of fact
even if erroneous will generally not be disturbed but where it is found that the
findings stands vitiated on wrong test and on the basis of assumptions and
conjectures and resultantly there is an element of perversity involved therein,
the High Court in our view will be within its jurisdiction to dealt with the issue.
This is, however, only in the event such a fact is brought to light by the High
Court explicitly and the judgment should also be categorical as to the issue of
perversity vis-à-vis the Concept of justice. Needless to say however, that
perversity itself is a substantial question worth adjudication what is required is
a categorical finding on the part of the High Court as to perversity.
(Emphasis supplied) in Kulwant Kaur and Ors vs. Gurdial Singh
Mann (Dead) By Lrs. and Ors. Appeal (Civil) 1287 of 1990.
17. It will be apt to refer to Section 103 of C.P.C. which enables the
High Court to determine the issues of fact:
"103. Power of High Court to determine issue of fact.- In any
second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the
appeal,
(a) which has not been determined by the Lower Appellate Court or
both by the Court of first instance and the Lower Appellate Court,
or
(b) which has been wrongly determined by such court or courts by
reason of a decision on such question of law as is referred to in
section 100."
The section, noted above, authorizes the High Court to determine
any issue which is necessary for the disposal of the second appeal
provided the evidence on record is sufficient, in any of the following two
situations : (1) when that issue has not been determined both by the trial
court as well as the Lower Appellate Court or by the Lower Appellate
Court; or (2) when both the trial court as well as the Appellate Court or
the Lower Appellate Court has wrongly determined any issue on a
substantial question of law which can properly be the subject matter of
second appeal under Section 100 of C.P.C."
(Emphasis supplied) in Leela Soni vs. Rajesh Goyal 2001 (7) SCC
494.
18. It is essential for the High Court to formulate a substantial
question of law under section 100 CPC, after the 1976 amendment and it is
not permissible to reverse the judgment of the first appellate Court without
doing so.
(Emphasis supplied) in Ishwasdas Jain vs. Sohan lal 2000 (1) SCC
434.
19. In the light of the law laid down by the Hon'ble Apex Court on the
scope of interference of by the High Court in second appeal, this Court while
exercising jurisdiction under Section 100 of the CPC has to 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 Court are manifestly perverse and contrary to the evidence
on record.
20. Coming back to the facts of this case, the respondents No.1 and
2 have filed the suit for declaration of their right and title over the plaint
schedule property and thereby to recover possession of the plaint schedule
property from the defendants besides claiming mesne profits of Rs.18,000-00
for three years preceding the suit. The Court below on examination of both
oral and documentary evidence has allowed the suit. The first Appellate Court
has also confirmed the judgment of the trial Court holding that the suit file dby
the plaintiffs is not barred by limitation, if the death of H.Lakshmamma is taken
in to consideration or the date of judgment in S.A No.197/1987 is considered.
Therefore, the submission of the learned advocate for 1st defendant/appellant
that the suit is barred by limitation is not considered and the submission of
learned advocate for the respondents No.1 and 2/plaintiffs, is considered and
hence the judgment of lower court is sustainable in law and facts and hence
the appeal filed by the appellant/1st defendant has also dismissed confirming
the judgment of lower Court.
21. The case of the plaintiffs is that the father of the plaintiffs viz.,
T.H. Bhaskara Rao has purchased the suit property from Hebbar
Lakshmamma, his son Hebbar Prakasa Rao and Hebbar Prasannamba, who
is daughter-in-law of Hebbar Lakshmamma cum wife of Hebbar Prakasa Rao,
under a registered sale deed dated 9-9-1952 in respect of the suit property
wherein Hebbar Lakshmamma has only a limited right of enjoyment of the suit
property for her life time and the vested remainder interest in favour of her
children. Since neither of the three brothers of Herbbar Prakasa Rao, have
claimed any right or title over the suit property, their mother/Hebbar
Lakshmamma had executed a registered settlement deed dt. 26-8-1950 in
favour of her daughter-in-law Hebbar Prasannamba, wife of Hebbar Prakasa
Rao, creating limited right of enjoyment in her favour and the vested
remainder interest in favour of her children i.e. Defendant No.1, Defendant
No.2 and T.H. Ramamurthy. Indisputably Prasannamba, predeceased
Hebbar Lakshmamma, who is her mother-in-law. Admittedly, Hebbar
Lakshmamma died on 14-5-1994. Therefore after the demise of Hebbar
Lakshmamma, in the absence of any rival claim from her any other three
sons, Hebbar Prakasa Rao, having vested remainder interest in the suit
property by way of compromise decree dated 27- 2-1945 rendered in the suit
O.S. No.31 of 1944 on the file of then District Munsif, Penukonda, has become
entitled for entire suit property.
22. It is the case of the defendants that neither Hebbar Lakshmamma
nor her son/Hebbar Prakasa Rao nor Hebbar Prasannamba, who is daughter-
in-law of Hebbar Lakshmamma cum wife of Hebbar Prakasa Rao, have any
absolute right or title over the suit property and as such the sale deed dated
09.09.952 is Invalid, inasmuch as by the date of the sale deed, Hebbar
Lakshmamma has only limited life interest and that her son Hebber Prakasa
Rao, during her life time would not get any right over the suit property and that
Prasannamba, who has also a limited interest by way of gift deed dt.
26.8.1950 does not acquire any right to alienate the suit schedule property.
Hebbar Prakasa Rao, after the demise of his mother Hebbar Lakshmamma,
by virtue of compromise decree dated 27-2-1945 rendered in 0.S.No. 31/1944
on the file of then District Munsif, Penukonda has become entitled for absolute
rights over the suit property and as such the sale deed dated 9-9-1952
executed by himself along with his mother and his wife, is invalid.
23. Though the learned counsel for the appellant/ 1st defendant has
pointed out the grounds which are extracted in the earlier paragraphs as
substantial questions of law, this Court is of the view that there are no
questions of law much less the substantial questions of law involved in this
appeal.
24. In view of the aforesaid reasons 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.
25. In the result, the Second Appeal is dismissed. No order as to
costs.
26. As a sequel thereto, miscellaneous petitions pending, if any, shall
also stand closed.
__________________________
DR. K. MANMADHA RAO, J.
Date : -08-2024
Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
Date : .08.2024
Gvl
