Kommiti Himavathi vs Methuku Sharada
2022 Latest Caselaw 4721 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.395 of 2007
JUDGMENT :

This appeal is arising out of the judgment dated 22.02.2006

in A.S.No.32 of 2002 on the file of Senior Civil Judge, Peddapalli,

confirming the judgment and decree of the trial Court dated

14.08.2002, passed in O.S.No.43 of 1997 on the file of Junior Civil

Judge, Sultanabad.

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

arrayed before the trial Court.

3. The appellants herein are defendants 1 to 3 in O.S.No.43 of

1997 on the file of Junior Civil Judge, Sultanabad. The plaintiff

and defendant No.1 are sisters and defendant No.3 is their mother.

Defendant No.2 is the husband of defendant No.1.

4. The plaintiff and defendant No.1 are the daughters of one

Late Bhoom Reddy, who is the husband of defendant No.3. The

said Bhoom Reddy died, eight months prior to filing of the suit. It

is the specific contention of the plaintiff that Plaint 'A' and 'B'

GAC, J S.A.No.395 of 2007

scheduled properties are the ancestral properties of Late Bhoom

Reddy and that he acquired 'C' Scheduled movable properties i.e.

cash with the finances of ancestral properties and made them as

fixed deposits. The plaintiff got married to one Prathap and

defendant No.1 got married to defendant No.2 and they are living

with defendant No.3 and that the suit schedule properties are in

joint possession and enjoyment of plaintiffs, defendant Nos.1 and

3, and as such, plaintiff and defendant No.1 are entitled to 4/9th

share or 45 paise share each and defendant No.3 is entitled for the

remaining 1/9th or 10 paise share in the suit scheduled properties

being the wife of Late Bhoom Reddy.

5. A detailed written statement is filed by defendant Nos.1 to 3,

which was adopted by defendant No.5, who is the subsequent

purchaser. It is pertinent to note that defendant Nos.4 and 5 are the

subsequent purchasers, but the suit against defendant No.4 was

dismissed for default vide order dated 06.08.1998.

6. The defendants denied the entire contents of the plaint

except the relationship between the parties. It is the specific

GAC, J S.A.No.395 of 2007

contention of the defendants that Late Bhoom Reddy took

defendant No.2 as his illutam son-in-law. The defendant No.2

brought Rs.60,000/- from his parents and gave the same to Late

Bhoom Reddy at the time of his marriage with defendant No.1.

Late Bhoom Reddy executed registered sale deeds in favour of

defendant Nos.1 and 2 in respect of 'A' scheduled properties and

Late Bhoom Reddy gave 'B' scheduled house to defendant Nos.1

and 2 and that defendant Nos.1 and 2 are also entitled to 'C'

scheduled property since they are looking after the welfare of

defendant No.3, and thus, plaintiff is not entitled to any share and

the suit was filed to grab the suit scheduled properties of the

defendants.

7. Basing on the above pleadings, the trial Court has framed the

following issues:

"1. Whether the suit schedule properties are joint family properties of plaintiff and defendants No.1 and 3 ?

2. Whether the plaintiff is entitled to ask for partition ?

3. Whether the plaintiff is entitled to ask for declaration as prayed for ?

4. To what relief ?"

GAC, J S.A.No.395 of 2007

8. On behalf of plaintiffs, PWs.1 to 4 were examined and

Exs.A-1 to A-9 were marked. On behalf of defendants, DWs.1 to 5

were examined and Ex.B-1 is marked.

9. On considering the entire oral and documentary evidence

available on record, the trial Court decreed the suit in favour of the

plaintiff.

10. Being aggrieved by the same, defendants 1 to 3 filed the first

appeal vide A.S.No.32 of 2002 before the Senior Civil Judge at

Peddapalli, in which, the first appellate Court has framed the

following points for consideration:

"1. Whether the plaint schedule properties are the ancestral joint family properties of plaintiff, defendants No.1 and 3 and whether the plaintiff is a coparcenery member of her father's joint family ? If so, entitled for partition of the suit schedule properties ?

2. Whether the plaintiff is entitled for declaration that the Exs.A3 to A6, registered sale deeds, rectification deed are null and void and not binding on her ?

3. To what relief ?"

11. On considering the entire material on record, the first

appellate Court has dismissed the appeal confirming the judgment

GAC, J S.A.No.395 of 2007

of the trial Court with a finding that the plaintiff is co-parcenery

member along with Late Bhoom Reddy and the 1st defendant, and

as such, the plaintiff is entitled for 4/9th share in the plaint 'A' to

'C' scheduled properties and the 1st defendant is also entitled to

4/9th share of plaint 'A' scheduled properties, whereas defendant

No.3 is entitled only to 1/9th share of the plaint 'A' scheduled

properties, and further, the plaintiff is entitled for a preliminary

decree for partition of the suit scheduled properties.

12. Being aggrieved by the same, the present second appeal is

filed by defendants 1 to 3 with the following substantial questions

of law:

"(a) Whether the courts below are justified in decreeing the suit when the mother of the defendant No.1 i.e. the Defendant No.3 is admitting that the defendant No.2 as being taken in illutom ?

(b) Whether the Courts below are justified in decreeing the suit when the sale was effected in favour of the defendant No.1 on payment of sale consideration ?

(c) Whether the judgments of the courts below suffer from perverse finding of facts ?"

13. On perusal of the substantial questions of law as raised by

the appellants herein, this Court is of the considered view that the

GAC, J S.A.No.395 of 2007

same relate to the concurrent findings of fact by both the Courts

below but not on law. The scope under Section 100 of CPC is very

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

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

can interfere with the orders of the Courts below. In the present

case, it is not proper to interfere with the concurrent fact findings

of the Courts below in the absence of substantial question of law.

Therefore, the Second Appeal deserves to be dismissed.

14. Accordingly, the second appeal is dismissed at the stage of

admission as devoid of merit, confirming the judgment dated

22.02.2006 in A.S.No.32 of 2002 on the file of Senior Civil Judge,

Peddapalli. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 19.09.2022

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