Telangana High Court

Patlolla Sangram Reddy vs Patlolla Rajamani on 8 July, 2022

Bench: A.Venkateshwara Reddy

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

                SECOND APPEAL No.680 OF 2015

JUDGMENT:

1. This second appeal is filed under Section 100 of the Civil

Procedure Code, 1908 (for short 'CPC') by the unsuccessful

defendants assailing the concurrent findings of the trial Court in

O.S.No.19 of 2010 and the first appellate Court in A.S.No.13 of

2015.

2. The plaintiff has filed the original suit in OS No.19 of 2010

on the file of the Senior Civil Judge, Zaheerabad, for declaration

as absolute owner, pattadar and possessor of the suit schedule

properties - agricultural lands in Survey No.16/1A admeasuring

Ac.0.28 guntas, Sy.No.43/2A - Ac.0.11 guntas, Sy.No.57/A -

Ac.3.30 guntas, Sy.No.59/A - Ac.1.00 guntas, Sy.No.73/A -

Ac.1.25 guntas and Sy.No.99/A - Ac.4.19 guntas, totally

admeasuring Ac.11.33 guntas situated at Kakkarwada Village,

Jharasangam Mandal, Medak District, with precise boundaries

as shown in the schedule of property alleging that she is the

absolute owner and possessor and in exclusive possession of the

suit schedule properties after the death of her husband. In fact, 2 AVR,J SA_680_2015

late Patlolla Sangareddy, father of her husband, had four sons

viz., Adivi Reddy, Agam Reddy, Sangram Reddy and Manik

Reddy and after the death of common ancestor, in the revenue

records mutation was effected by way of "Pouthi Virasat" and

she is in exclusive possession of the suit schedule properties

after the death of her husband, that the defendants are trying to

interfere with her possession and on 28.02.2010 she came to

know that the defendants are proclaiming themselves as original

owners.

3. The trial Court on receipt of the joint written statement

filed by the defendants 1 to 5, in all framed eight issues,

recorded the evidence of PW.1, got marked Exs.A.1 to A.15 on

behalf of the plaintiff, thereafter examined DWs.1 & 2 and

exhibited Exs.B.1 to B.7 on behalf of the defendants. On careful

appreciation of the oral and documentary evidence available on

record, the trial Court held that the plaintiff is entitled for

declaration of title and also for perpetual injunction in respect of

suit schedule property to the extent of Ac.11.33 guntas, out of

Ac.47.15 guntas as prayed for.

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                                                             SA_680_2015

4. The unsuccessful defendants have assailed the judgment

and decree of the trial Court dated 19.01.2015 in OS No.19 of

2010 before the VII Additional District Judge, Medak at

Sangareddy, vide AS No.13 of 2015. The learned first appellate

Judge having heard on both sides formulated three points as

contemplated under Order-41 Rule-31 of CPC and answered all

the points in favour of the plaintiff and against the defendants

and confirmed the judgment and decree of the trial Court

dismissing the appeal filed by the defendants.

5. Feeling aggrieved by the concurrent findings recorded by

the trial Court and the first appellate Court, the unsuccessful

defendants have preferred this second appeal. As per the

memorandum of grounds of second appeal, the following

substantial questions of law are formulated:

i) Whether the courts below justified in granting of relief of demarcation of Ac.11.33 gts (suit land) out of Ac.47.15 gts of the joint family land by metes and bounds without there being a preliminary decree for partition?

ii) Whether the courts below were justified in granting the decree of declaration of title and perpetual injunction in respect of an portion of Ac.11.33 gts out of Ac.47.15 gts against the co-owners?

                                      4                                    AVR,J
                                                                    SA_680_2015

iii) Whether the courts below justified in rejecting a 30 years old document without considering the presumption available under Section 90 of Indian Evidence Act?

iv) Whether the courts below are justified in relying on mere entries in the revenue records to declare the title of the plaintiff to the suit schedule property?

v) Whether the courts below justified in granting mutually conflicting relief of declaration of title of the plaintiff to the suit schedule property as well as demarcation of the same out of Ac.47.15 gts joint family property?

vi) Whether the Courts below were justified in rejecting Ex.B- 1 Adoption Deed contrary to Sections 8 to 11 of the Hindu Adoption and Maintenance Act, 1956?

vii) Whether the concurring judgments and decrees made by the courts below are perverse in law?

6. Heard the learned counsel for the defendants/appellants

and the respondent/plaintiff. Perused the material placed on

record. The submissions made on either side have received due

consideration of this Court.

7. I have carefully perused the judgments of the trial Court

and the first appellate Court. The plaintiff being the widow of

late Adivi Reddy, elder son of Sangareddy has filed the suit

against the defendants 1 to 5. The first defendant is the younger 5 AVR,J SA_680_2015

brother of late Adivi Reddy (husband of the plaintiff), defendants

2 to 4 are the sons of late Agam Reddy, 5th defendant is the son

of Manik Reddy, who are the younger brothers of late Adivi

Reddy. It is the specific case of the plaintiff that after the death

of Sangareddy, common ancestor, his land was mutated on the

name of his four sons by way of "Pouthi Virasat". Accordingly,

her husband, late Adivi Reddy has got the suit schedule

properties and after the death of her husband, she is in

exclusive possession and enjoyment of the same. It is further

pleaded by the plaintiff that after the death of late Adivi Reddy,

mutation was effected on to her name and on the name of

Anjamma, who is the only daughter of Adivi Reddy, but

Anjamma also died issueless and there are no other heirs of

Anjamma. Whereas, defendants 1 to 5 denied the claim of the

plaintiff holding that the plaintiff was never in exclusive

possession of the suit schedule property and that in fact

daughter of late Adivi Reddy has got two children, they are also

necessary parties and the suit is liable to be dismissed for non-

joinders of necessary parties. Based on the pleadings as many

as eight issues were settled by the trial Court touching on all

rival contentions.

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                                                          SA_680_2015

8. The trial Court has answered all these issues in favour of

the plaintiff holding that the plaintiff is entitled for declaration

and perpetual injunction. The defendants have also set up a

claim that the plaintiff has taken DW.2 in adoption. The trial

Court in paras-17 to 24 dealt with this issue and answered in

the negative against the defendants. I do not find any perversity

or irregularity in appreciation of evidence by the trial Court. The

first appellate Court in AS No.13 of 2015 has formulated as

many as three points touching on all rival contentions and re-

appreciated the evidence. Point No.1 deals with previous

partition between Adivi Reddy, husband of plaintiff and his

brothers. Point No.2 deals with adoption of second defendant

(DW.2) by the plaintiff after the death of her husband under

Ex.B.1 adoption deed. Point No.3 deals with the entitlement of

plaintiff for declaration of title and also for perpetual injunction.

All these point Nos.1 to 3 were answered by the first appellate

Court on re-appreciation of the oral and documentary evidence

available on record, finally concluded that the trial Court has

rightly decreed the suit and there are no grounds to interfere

with the detailed judgment of the trial Court. Accordingly, the 7 AVR,J SA_680_2015

judgment and decree of the trial Court were confirmed in its

entirety.

9. I have given my thoughtful consideration to the substantial

questions of law that are proposed by the appellants/defendants

in the memorandum of grounds of second appeal. Point Nos.(i)

and (ii) deals with granting of relief of declaration of Ac.11.33

guntas of land out of Ac.47.15 guntas of joint family property

without partition by metes and bounds. Be it stated that as per

the entries in the revenue records and as per the oral evidence of

PWs.1 and 2 as appreciated by the Courts below, the exclusive

possession of the plaintiff over the suit schedule properties is

made out. Therefore, I do not find any perversity or irregularity

in the findings recorded by the trial Court on this point.

10. Point Nos.(iii) and (vi) deals with the adoption of second

defendant by the plaintiff under Ex.B.1 adoption deed. The trial

Court and the first appellate Court have appreciated and re-

appreciated their oral and documentary evidence. Though

Ex.B.1 is more than 30 years old document and entitled for

presumption in favour of its genuineness, on appreciating the

entire evidence, both the Courts have clearly stated that the 8 AVR,J SA_680_2015

essentials of valid adoption under Hindu Adoption and

Maintenance Act were not made out and the adoption is not

established. Therefore, I do not find any perversity or irregularity

in appreciation of the oral and documentary evidence on this

aspect by the Courts below. In fact, in paras-19 and 20 of the

judgment of trial Court it is clearly observed that any such

adoption cannot divest PW.1 of her share and entitlement as

widow of late Adivi Reddy. It is further held that no record is

produced by the defendants to show that there was compliance

of Sections 6 to 11 of Hindu Adoption and Maintenance Act,

there is no evidence of giving and taking of DW.2 by his natural

parents to his adoptive mother-PW.1. However, as per Ex.B.1,

age of DW.2 was 15 years which is the higher age than what is

prescribed under Section 10 (4) of Hindu Adoption and

Maintenance Act, accordingly, held that merely because Ex.B.1

is 30 years old document, in view of the above, no such

presumption can be drawn as to its genuineness and also relied

on the principles laid by the Hon'ble Apex Court in Ghisalal v.

Dhapubai (dead) by LRs and others1.




    AIR 2011 SC 644
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                                                        SA_680_2015

11. Point Nos.(iv) & (v) deals with placing reliance on the

entries found in the revenue records to declare the title of

plaintiff over the suit schedule property. Point No.(vi) deals with

demarcation of the entire land. The trial Court and the first

appellate Court have answered all these points in detail while

appreciating and re-appreciating the oral and documentary

evidence and therefore, I do not find any perversity or

irregularity in the findings recorded. The learned counsel for the

appellants/defendants also failed to make out any such

perversity in the findings recorded during his submissions made

before this Court.

12. Point No.(vii) deals with the concurrent findings recorded

by the Courts below. The trial Court and the first appellate

Court while appreciating the oral and documentary evidence

available on record, assigned valid reasons to decree the suit

and also for dismissal of the appeal, negatived the claim of

second defendant, who claimed that he was taken in adoption by

the plaintiff under Ex.B.1. In that view of the matter, I do not

find any question of law much less substantial questions of law

in any points (i) to (vii), as extracted above from the 10 AVR,J SA_680_2015

memorandum of grounds of second appeal. All the grounds as

indicated above, are either on factual side, questioning the

manner of appreciation of oral and documentary evidence or the

points which were decided by the Courts below on proper

appreciation of the material available on record, which does not

warrant any interference by this Court.

13. Section 100 of CPC deals with second appeals. The

existence of a substantial question of law is the sine qua non for

the exercise of the jurisdiction under the amended provisions of

Section 100 of CPC. The jurisdiction of the High Court is now

confined only to entertain such appeals wherein substantial

question of law has specifically set out in the memorandum of

appeal and formulated by the Court (Thiagarajan v.

Venugopalaswamy B. Koil2 and Dharmarajan v. Valliammal3).

14. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs4 while dealing with the

scope of Section 100 of CPC held at para-18 as under:




  (2004) 5 SCC 762

  (2008) 2 SCC 741

  AIR 2019 SC 1441
                                    11                                 AVR,J
                                                                SA_680_2015

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

15. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Supreme Court

in the above decisions with reference to the scope of Section

100 of CPC, the answer is in the negative. No question of

law much less substantial question of law is made out

either from the grounds of second appeal or from a plain

reading of the judgments of trial Court and first appellate

Court. No material has been over looked nor any inadmissible 12 AVR,J SA_680_2015

evidence has been considered by the Courts below for recording

such findings. Further, the judgments of the trial Court and the

first appellate Court do not disclose any irregularity or perversity

and there is no scope for interference in such concurrent