Maddelabanda Niranjan vs Meddelabanda Chandramma
2022 Latest Caselaw 4789 Tel

     HON'BLE SMT.JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.694 of 2013

JUDGMENT:

The present Second Appeal is arising out of the judgment

and decree in A.S.No.1 of 2006 dated 13.03.2006 on the file of

Senior Civil Judge, Nagarkurnool.

2. For the sake of convenience, the parties are arrayed as in the

suit. Plaintiff is the appellant.

3. The plaintiff filed O.S.No.26 of 2001 on the file of Junior

Civil Judge, Achampet for partition and separate possession with

metes and bounds, of the suit schedule property i.e. the land in

Sy.No.32/1-10 to an extent of Ac.1-21 gts and Sy.No.32/1-11 to an

extent of Ac.0-17 gts including the 'Well' in the land situated in

Sy.No.66 to an extent of Ac.0.13 gts of dry land and two houses

including open places, situated at Marripally Village,

Uppununthala Mandal, Mahbubnagar District, claiming 1/5th share

in the above mentioned suit schedule properties.

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4. The brief contents of the plaint are that the suit schedule

property is the joint family property of the plaintiff. The

relationship between the defendants and the plaintiff is that

defendant Nos.2 to 4 are brothers of plaintiff and the 1st defendant

is their mother. Subsequently, after the death of Chinna Galvaiah

i.e. the father of the plaintiff and defendant Nos.2 to 4, the property

devolved upon them, since then, they are enjoying the plaint

schedule property, though living separately with their own families.

It is the further case of the plaintiff that the Revenue officials

recorded the names of defendant Nos.2 to 4 alone, as pattadars but

not recorded his name inspite of repeated requests. Therefore, the

plaintiff is constrained to file the suit for partition seeking 1/5th

share in the suit schedule property and prayed to decree the suit.

5. A detailed written statement was filed by the defendants

admitting their relationships, but denied as to the fact of devolving

the property upon the plaintiff. It is the specific plea in the written

statement that one Pedda Galvaiah, elder brother of the plaintiff

and defendant Nos.2 to 4, died issueless and subsequently, during

the liftetime of the father of the plaintiff, defendant Nos.2 to 4

GAC,J S.A.No.694 of 2013

partitioned their properties and as such the plaintiff has no right or

interest over the plaint schedule properties. Accordingly, they

prayed to dismiss the suit.

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

the following issues for trial :-

1. Whether the suit schedule properties are joint family properties of the suit ?

2. Whether all the joint family properties of the parties are included in suit or not ?

3. Whether all necessary parties to the suit are impleaded or not ?

4. Whether the joint properties of parties are already partitioned or not ?

5. Whether the plaintiff is entitled for 1/5th share in the suit schedule properties as prayed for against the defendants ?

6. To what relief ?

7. On behalf of the plaintiff, PWs.1 to 4 were examined and got

marked Exs.A-1 to A-6 and on behalf of defendants, DWs.1 to 4

were examined, but no documents were marked.

GAC,J S.A.No.694 of 2013

8. The trial Court, after considering the oral and documentary

evidence on record, dismissed the suit with costs with a finding that

the plaintiff himself has admitted about partition which took before

elders on 31.06.1992, in which, the property of Pedda Galvaiah fell

to his share. Therefore, the question of further partition will not

arise. Being aggrieved by the same, the plaintiff preferred an

Appeal vide A.S.No.1 of 2006 on the file of Senior Civil Judge,

Nagarkurnool. After hearing rival contentions, the 1st appellate

Court had framed the following points for determination :

"1. Whether the plaintiff is entitled to 1/5th share of the suit schedule property ?

2. To what relief ?"

On hearing the rival contentions of both the parties, the 1st

appellate Court dismissed the appeal without costs. Being

aggrieved by the same, the present Second Appeal is filed raising

the following substantial questions of law :-

"1. Whether property gifted by senior father can be excluded for making the claim of the partition from the properties of his own father ?

2. Whether the courts below has erred in coming to the conclusion in the partition suit is a presumption

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that there is no partition unless until contrary is proved ?

3. Whether the courts below erred in applying the law to the facts and circumstances of the case ?"

9. Heard learned counsel for the appellant and perused the

record.

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

the appellant, it is evident that those are on the facts, in respect of

which, concurrent findings were given by both the Courts below

and no substantial question of law is involved in it. It is the

contention of the learned counsel for the appellant that the evidence

of PW.3 clearly discloses that a WILL was executed in favour of

the plaintiff by Pedda Galvaiah for the suit schedule property and

PW.3 acted as one of the attestors of the WILL. Admittedly, the

pleadings of the plaint would not disclose about the WILL alleged

to have been executed by Pedda Galvaiah in favour of the plaintiff.

Moreover, the alleged WILL was also not marked before the trial

Court. In the absence of proper pleadings and documentary

evidence about the WILL, the plaintiff cannot establish his right

over the suit schedule property in order to seek for partition. First

GAC,J S.A.No.694 of 2013

of all, it is for the plaintiff to establish his right over the property,

for which, he is seeking right for partition. Except oral evidence of

the plaintiff, there is no documentary evidence before the Court to

prove that the plaintiff has acquired right over the property by

virtue of testamentary WILL, which is alleged to have been

executed in his favour by Pedda Galvaiah. No Court can frame

issues beyond pleadings, and therefore, the trial Court has not

framed any issue with regard to the WILL as there is no recital in

the plaint. Though the evidence of PW.3 discloses about the

WILL, in the absence of pleading and production of WILL before

the Court, no finding can be given on that aspect.

11. Therefore, there is no error or irregularity in the judgments

of the Court below so as to interfere with the same. Further, under

Section 100 of CPC, this Court can interfere with the orders of the

Courts below, only if any substantial question of law is involved.

As there is no substantial question of law, this Second Appeal

deserves to be dismissed.

12. Accordingly, the Second Appeal is dismissed as it is devoid

of merits. No order as to costs.

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Pending miscellaneous applications, if any, shall stand closed.

________________________________ G.ANUPAMA CHAKRAVARTHY,J 21.09.2022 dv