Pagilla Chinna Chandraiah vs Pagilla Pedda Chandraiah
2022 Latest Caselaw 3384 Tel

             THE HON'BLE SRI JUSTICE M. LAXMAN

                  SECOND APPEAL No.247 OF 2022

JUDGMENT:

1. The present appeal has been assailed against judgment and decree

dated 08.09.2021 passed in A.S. No.25 of 2020 by the I Additional Chief

Judge, City Civil Court, Secunderabad, wherein and whereby the

judgment and decree dt.08.07.2020 passed in O.S.No.924 of 2005 was

confirmed whereunder the suit filed by the plaintiff for recovery of

possession basing on the title deed was decreed. Appellants are the

defendants and respondent is the plaintiff. For brevity, the ranks of the

parties as were mentioned in the suit is maintained.

2. The case of the plaintiff is that she is the absolute owner and

possessor of the suit schedule property basing on the sale deed under

Ex.A1. And according to her, defendants are none other than wives and

son of her brother-in-law and they were in permissive possession over the

property. Therefore, she filed the present suit.

3. The case of the defendants is that the suit schedule property was a

joint family property and the property was purchased in the name of the

plaintiff out of the earnings from the joint family Granite business, which

was run by defendant Nos.1 and 2's husband being Kartha of the family

since he was eldest male member of the family. After the death of 2 ML,J S.A.No.247 of 2022

husband/father of the defendants, defendants have been in continuous

possession not on permission but as joint owners and possessors of the

property.

4. Basing on the above pleadings, the primary Court framed the following issues:

i) Whether the plaintiff is the absolute owner of the suit premises?

ii) Whether the suit property is the self-acquired property of defendants 1 and 2?

iii) Whether the defendants No. 1 and 2 are in permissive possession of the scheduled property from the defendants as prayed for?

iv) Whether the plaintiff is entitled for recovery of possession of the suit property from the defendants as prayed for?

v) Whether the plaintiff is entitled for the future mesne profits @ Rs.5,000/- per month as prayed for?

vi) To what relief?

5. In support of her, the plaintiff herself was examined as PW.1 and

relied upon Ex.A1 to A46. Whereas defendants in support of their case,

examined 3rd defendant as DW.1 and relied upon Ex.B1.

6. The primary Court after appreciating the evidence available on

record found that the defendants have not made out their case and

consequently, the suit of the plaintiff was decreed. Aggrieved by the

same, the defendants filed appeal before the first Appellate Court and the

first Appellate Court after appreciating the evidence on record, found that 3 ML,J S.A.No.247 of 2022

the findings of the primary Court do not suffer from any infirmities, and

consequently, such findings were confirmed. Aggrieved by the same, the

present Second Appeal.

7. Learned Counsel for the appellants/defendants contended that the

both the Courts below have not considered the evidence placed by

defendants to show that the suit property sold under Ex.B1 was purchased

by defendant Nos.1 and 2's husband being the Kartha of the family and

the property under Ex.B1 was sold by plaintiff's husband and he received

sale consideration. As such, defendants are also entitled to have equal

share in the suit property.

8. The contention of the learned Counsel for the plaintiff is that the

evidence on record clearly shows that the suit property is standing in the

name of the plaintiff which was purchased under a registered sale deed.

According to him, both the Court have concurrently held that the

defendants failed to establish that sale consideration for the suit land was

flown from the joint family nucleus and such finding cannot be

interfered. According to him, no substantial question of law is framed.

9. Both the Courts have considered the non-examination of defendant

Nos.1 and 2 who are only witnesses to the purchase of property by their

husband in the name of the plaintiff. If such witnesses do not enter into

witness box, any amount of evidence led by defendant No.3, who is their 4 ML,J S.A.No.247 of 2022

son, cannot be said to be a direct evidence so as to prove that the suit

property was purchased out of joint family business run by defendant

Nos.1 and 2's husband. The evidence also shows that DW.1 himself

admitted that the husband of the plaintiff was independently doing

railway contract business. It is the case of the plaintiff that the purchase

and construction of suit property was made by selling the gold ornaments.

There is no evidence to show the existence of joint family business and

the funds utilized for payment of sale consideration of the suit property.

Apart from that, the defendants' pleadings show that the husband of

defendant Nos.1 and 2, being the Kartha of the family, was managing the

joint family business and out of earnings of business, suit land as well as

the property under Ex.B1 were purchased in the name of his wife.

However, DW.1 himself admitted that his mother executed sale deed in

respect of land covered under Ex.B1. The defendants could not say they

still have interest in the property, even purchased out of joint family

funds in the name of the plaintiff. Viewed from any angle, absolutely

there is no evidence that with the sale consideration of Ex.B1, they

purchased suit property and no evidence that funds flown from the joint

family. Both the Courts have rightly considered the evidence on record

and came to the conclusion plaintiff's exclusive title and possession over

the suit property and the possession of the defendants is only permissive 5 ML,J S.A.No.247 of 2022

possession, which findings do not deserve any substantial question of law

in this appeal. Therefore, the appeal is liable to be dismissed.

10. At this stage, learned Counsel for the appellants submits that

defendants are still in the suit property since long time and immediate

eviction of the defendants from the suit property causes hardship to them

and requested to grant certain time. Learned Counsel for the respondent

opposed granting of any time. However, learned Counsel for the

appellants submits that defendant Nos.1 and 2 are senior citizens who are

more than 80 years and immediate eviction would cause undue hardship.

Considering the relationship between the parties and stay of longer

period, this Court feels that six months time is sufficient to vacate from

the suit premises. And such time is given subject to filing of an

undertaking before the Primary Court within two weeks from the date of

receipt of copy of this judgment. If they fail to file any undertaking, the

plaintiff is entitled to go ahead with the execution of the decree.

11. Accordingly, the appeal is dismissed. There shall be no order as to costs.

12. As a sequel, pending miscellaneous applications, if any, shall stand closed.

_______________ M. LAXMAN, J DATE: 05.07.2022 BDR