M Anjaneyulu, Ranga Reddy Dist Anr vs M Narasamma, Ranga Reddy Dist 2 ...
2022 Latest Caselaw 6498 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.259 of 2014

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 07.10.2013 in A.S.No.197 of 2009 on the file of V

Additional District Judge (FTC), Ranga Reddy, L.B.Nagar, which

is arising out of the judgment and decree dated 25.01.2009, passed

in O.S.No.457 of 2003 on the file of IV Additional Senior Civil

Judge (FTC), Ranga Reddy, L.B.Nagar.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The plaintiffs are the respondents.

3. Initially, the suit is filed by the plaintiffs for partition and

separate possession. Originally late M.Venkaaiah was the absolute

owner and possessor of the land admeasuring 5-26 guntas

(Sy.No.332 Ac.0-27 gts, Sy.No.334 Ac.0-38 gts Sy.No.335 Ac.1-0

gts, Sy.No.337 Ac.0-26 gts, Sy.No.338 Ac.0-24 gts Sy.No.339

Ac.0-34 gts Sy.No.340 Ac.0-36 gts) situated at Korremul Village,

Ghatkesar Mandal, R.R.District. It is pertinent to mention about

relationship between the parties. The said Venkaiah died in the

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year 1999 leaving behind his two wives namely M.Narsamma and

M.Balamma. The 1st plaintiff, M.Narsamma had two daughters

and the 2nd wife M.Balamma had one daughter and son. The 1st

plaintiff is the first wife of late Venkaiah and the defendants are the

son and the daughter of the 2nd wife M.Balamma & Venkaiah. The

plaintiff Nos.2 and 3 are the daughters of late Venkaiah who are

born through his 1st wife M.Narsamma. The plaintiffs who are the

1st wife and their daughters born through Venkaiah have filed the

present suit for partition against son and daughter of the 2nd wife,

Balamma. It is the specific case of the plaintiffs that they all are

entitled for 1/5th share of the suit schedule land which is the joint

family property inherited jointly through their common ancestor

late M.Venkaiah. But the 1st defendant with an intention to grab

the property colluded with revenue authorities and mutated his

name as pattadar for the suit schedule property, for which the

present suit is filed for partition.

4. On the other hand, the 1st defendant filed detailed written

statement which was adopted by the 2nd defendant. The recitals of

the written statement disclose that after the death of Venkaiah, the

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1st defendant succeed the property and got mutated his name in the

revenue records and that the 1st plaintiff herself had given no

objection to the MRO for mutating the properties on his name.

Therefore, the question of partition will not airse and prayed to

dismiss the suit as it was devoid of merits.

5. Basing on the pleadings, the trial Court has framed the

following issues:-

"1. Whether the plaintiffs are entitled for partition and separate possession of plaint schedule properties as prayed for?

2. To what relief?"

6. During the course of trial, on behalf of the plaintiffs, P.Ws.1

to 3 were examined and Exs.A-1 to A-9 got marked. On behalf of

the defendants D.Ws.1 and 2 were examined and got marked

Exs.B-1 to B-4.

7. The trial Court after considering the oral and documentary

evidence on record passed a preliminary decree in favour of the

plaintiffs with costs, with a finding that plaintiff Nos.1 to 3 are

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entitled for 1/5th share and separate possession of the suit schedule

property.

8. Being aggrieved by the same, the defendants preferred an

appeal vide A.S.No.197 of 2009 on the file of V Additional District

Judge (FTC) Ranga Reddy District.

9. On hearing the appellants, the 1st appellate Court has framed

the following points for determination:-

"1. Whether each of the plaintiffs are entitled to 1/5th share and for separate possession of the suit schedule property?

2. Whether the suit schedule properties are bequeathed to defendant No.1 by his father?

3. Whether there are any grounds to interfere with the findings of the judgment of the lower court?"

10. On hearing the rival contentions of the parties, the appellate

Court dismissed the appeal confirming the judgment and decree of

the trial Court in O.S.No.457 of 2003 date 25.01.2009 on the file of

IV Additional Senior Civil Judge (FTC), Ranga Reddy at

L.B.Nagar.

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11. Being aggrieved by the judgment and decree of the 1st

appellate Court, the Second Appeal is preferred by the defendants

raising following substantial questions of law:-

             "a.   Whether      the    suit      filed     by     the
                   respondents/plaintiffs         for        seeking

partition and allotment of their respective shares is maintainable under law, when the suit schedule properties are not joint family properties and they are not in joint possession of the same as on the date of filing of the suit?

b. Whether the respondents/plaintiffs are entitled for decree of partition, without challenging the orders passed Ex.B1 & B2 as the said orders have become final and binding upon the parties?

c. Whether the respondents/plaintiffs have proved that the suit schedule property is joint family property and they are in joint possession by producing necessary evidence under law?

              d.   Whether the courts below are right in
                   decreeing     the     suit,       when         the
                   appellants/defendants                 specifically

pleaded that the suit schedule property is

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self acquired property of late M.Venkaiah and he had executed a Will during his life time in favour of 1st appellant bequeathing the property?

e. Whether the judgment and decree passed by the trial court as confirmed by the appellate Court is legally sustainable under law without considering oral and documentary evidence on record as decided by the Apex Court?

f. Whether in the fact and circumstances of the case the decree and judgment of the lower appellate court is legally sustainable, since the parameters for deciding the first appeal as decided by the apex court have not been followed?

g. Whether the lower appellate court judgment and decree are erroneous and liable to be setaside in as much as it has decided the appeal without framing proper points for consideration as enumerated under Order 41 Rule 31 of CPC?"

12. Heard the learned counsel for the appellants as well as the

learned counsel for the respondents. Perused the record.

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13. It is the specific contention of the appellant that Ex.B-3,

mutation proceedings have been issued by the MRO in favour of

the appellants only with consent of the 1st plaintiff and the plaintiffs

without challenging the MRO proceedings have preferred the suit

for partition which is not tenable. It is also the further contention

of the learned counsel for the appellants that an unregistered Will

deed was executed by late Venkaiah, in favour of the 1st defendant

which has come to the knowledge of the appellant during the

pendency of the trial. But the trial Court has not received the

document i.e., Will as it is a fit case to remand the matter to the

trial Court by giving an opportunity to the appellants to adduce

evidence with respect to the unregistered Will and prayed to allow

the Second Appeal.

14. On the other hand, learned counsel for the respondents

contended that both the Courts below have properly appreciated the

question of law as well as the mixed question of law and fact and

there is no error or irregularity in the orders of the Courts below so

as to interfere with the same and prayed to dismiss Second Appeal

as it is devoid of merits.

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15. On perusal of the entire oral and documentary evidence on

record, it is evident that one M.Venkaiah is the absolute owner and

possessor of the land prescribed in the suit schedule property which

is situated at Korremul Village, Ghatkesar Mandal, R.R.District.

There is no dispute as to the relationship between the parties. As

per the record, the said Venkaiah had two wives and the 1st plaintiff

is the first wife of Venkaiah and plaintiff's 2 and 3 are his

daughters. Defendants 1 and 2 were born to Venkaiah through his

2nd wife-Balamma. The death of Venkaiah is not in dispute. As

per the averments of the written statement and admissions of the

defendants, the said Venkaiah died in the year, 1995 prior to the

filing of the suit and the suit schedule properties are the self

acquired property of late Venkaiah and he died leaving behind

Class-I heirs. Though it is the contended by the plaintiffs that the

suit schedule properties are the joint family properties inherited by

late Venkaiah from his common ancestor, there is no evidence on

record to prove the said contention.

16. At the first instance, it is the specific contention of the

appellants that the suit schedule properties are self acquired

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properties of late Venkaiah and the said properties got mutated in

the name of 1st defendant/1st appellant with the consent of 1st

plaintiff. The later contention of the defendant is that said

Venkaiah executed an unregistered Will in favour of the 1st

defendant which has come to his knowlwdge at the stage of

arguments before the trial court and inspite of filing the petition

before the Court, the trial Court dismissed it. Being aggrieved by

the same, the 1st appellant has also preferred Civil Revision Petition

before the High Court, but this Court returned said Civil Revision

Petition, as decretal order of the interlocutory petition was not

filed, along with the revision petition.

17. It is important to note that the defendants have not taken plea

in their written statement about the unregistered Will alleged to

have been executed by late Venkaiah in favour of the 1st appellant.

This plea has been taken by the appellants at the stage of 1st appeal.

The judgment of the trial Court in O.S.No.457 of 2003, there is no

iota of evidence as to the said unregistered Will which was alleged

to have been filed before the trial Court, by way of interlocutory

application or about its dismissal. It is also pertinent to mention

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that even before the appellate Court, the appellants have not filed

any application under Order 41 Rule 27 of C.P.C. to receive the

said un-registered Will which was alleged to be executed by late

Venkaiah in favour of the 1st defendant.

18. The record also reveals that two inconsistent pleas have been

raised by the appellants. On one hand, the appellants have taken

the plea that the lands were mutated in the name of the 1st appellant

with the consent of plaintiff No.1 and 2nd plea is that he inherited

the lands by way of testamentary Will i.e., unregistered Will. But

the said Will was not filed before the Court to prove that 1st

appellant is the absolute owner of the property by way of

testamentary Will. Admittedly, the plaintiffs and defendants are

Class-I legal heirs of the suit schedule property in the absence of

unregistered Will.

19. As stated supra, it is the specific contention that mutation

proceedings were in favour of defendant No.1 and without

challenging the said mutation proceedings, both the Courts have

erred in granting preliminary decree in favour of the plaintiffs. It is

relevant to mention that the revenue records cannot establish the

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title of the parties. Except oral evidence of the parties, there is

nothing on record to show that the 1st plaintiff has given consent to

mutate the name of the 1st defendant in the revenue records. Both

the Courts have given concurrent findings that the plaintiffs are

entitled to 1/5th share of the suit schedule property being legal heirs

of late Venkaiah along with appellants herein. Furthermore, even

in the Second Appeal, no application has been filed by the

appellants under Rule 41 Order 27 of C.P.C. to receive the alleged

unregistered Will which is alleged to have been executed by late

Venkaiah in favour of the 1st defendant. It is the contention of the

appellants before the trial Court as well as the 1st appellate Court

that the 1st defendant is the absolute owner of the suit schedule

property. But the unregistered Will, has not come to light till day.

Moreover, in the absence of pleadings, the trial Court cannot frame

an issue as to whether the plaintiffs are entitled for partition basing

on the testamentary Will alleged to have been executed by late

Venkaiah in favour of the 1st appellant herein. In the absence of

proper recitals in the pleadings, oral and documentary evidence,

this Court cannot give a finding with regard to said unregistered

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Will which has not come to light of the day. Further, there are no

substantial questions of law involved in the Second Appeal in order

to interfere with the orders of the Courts below.

20. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court

can interfere with the orders of the Courts below. On perusal of the

entire material on record, this Court is of the considered view that

the orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

21. In the result, the Second Appeal is dismissed at the stage of

admission confirming the judgment and decree dated 07.10.2013 in

A.S.No.197 of 2009 on the file of V Additional District Judge

(FTC), Ranga Reddy, L.B.Nagar. No order as to costs.

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Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 06.12.2022 dv