Telangana High Court
Gorre Ramulu vs Dumala Mallarao on 2 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.455 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 12.07.2023 passed in A.S.No.84 of 2022 on the
file of the I Additional District & Sessions Judge, Siddipet,
wherein the judgment and decree dated 13.04.2018 passed in
O.S.No.318 of 2014 on the file of the Additional Junior Civil
Judge, Husnabad, was confirmed.
2. The appellant is the plaintiff and the respondent is the
defendant in the suit. For convenience, the parties hereinafter
are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the suit schedule property was owned and possessed
by his wife namely Gorra @ Gorla Rukkamma and she got the
same through Will dated 07.07.1993, which was executed by
her mother-Deekonda Lingamma. It is stated that after her
death on 04.04.1997, plaintiff inherited the suit property as the
legal heir and since then, he has been in exclusive possession
and enjoyment of the same. Defendant Nos.1 and 2, who have
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no right, interest and title over the property, forcefully occupied
the suit houses. On 03.08.2011 the plaintiff demanded the
defendants to vacate the houses but they refused to do so.
Hence, the present suit seeking to declare the plaintiff as owner
of the suit schedule property and to deliver possession of the
same to him.
4. Defendant No.2 did not make his appearance before the
trial Court and he was set-exparte. The defendant No.1 filed
written statement denying the averments of the plaint and inter
alia contended that suit is not maintainable in law or on facts.
Suit schedule property was owned and possessed by Deekonda
Narayana and after his death, it devolved upon his two sons
namely Deekonda Chakrapani and Deekonda Damodhar, who
are his legal heirs. During his life time Deekonda Narayana
performed the marriage of his daughter Rukkamma with
Chandraiah and the couple were blessed with a son namely V.
Satyanarayana. The husband of Rukkamma died intestate.
Defendant No.1 denied that plaintiff is the husband of
Rukkamma. It is further contended that Defendant No.1
purchased the suit houses from the legal representatives of
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Deekonda Narayana under a sale deed for valid consideration in
the year 2007 and from the date of purchase, he was in
possession and enjoyment of the suit houses and got renovated
them and his name was also mutated in Gram Panchayath
records and he is paying taxes to the Gram Panchayath and his
name is also shown in electricity service connection. It is
further contended that he never tried to forcibly occupy the suit
property. It is further contended that the plaintiff initiated
criminal proceedings against defendant No.1, his vendors and
after thorough investigation the complaint was closed for lack of
evidence. He further contended that the Will is a fabricated
document and the suit is barred by limitation and hence,
prayed the Court to dismiss the suit with exemplary costs.
5. Before the trial Court, on behalf of the plaintiff,
PW1 to PW4 were examined and Exs.A1 to A4 were marked.
On behalf of the defendant, DW1 and DW2 were examined and
Exs.B1 to B11 were marked.
6. The trial Court, after considering the entire material
available on record, vide judgment and decree dated
13.04.2018 dismissed the suit by observing as under:
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"(i). The plaintiff has not brought on record any
evidence to show that the wife of Deekonda Narayana got the suit
schedule property after the death of the said Deekonda Narayana
and no document was filed to show any partition took place or
any gift or will deed executed in the name of Deekonda Lingamma
for her to accrue the rights over the suit schedule property to gift
the same to her daughter Lingamına neither and the P.W.1 in his
cross examination also admitted that in Ex.A.1 the suit schedule
properties are mentioned as self acquired properties of Lingamma,
W/o Narayana which is contradicting his own claim through
Ex.A2 & A3 wherein it is shown that the original owner of the suit
schedule properties is Deekonda Narayana.
(ii). Another notable point is that the plaintiff in his
cross examination stated that he does not know whether Gorre @
Gorla Rukkamma was married previously or that she has a son
from the previous marriage which is utterly unbelievable when he
claim that he has been living with the said Rukkamma as man
and wife till her death that is for a duration of 12 years.
(iii). Basing on the foregoing discussion and also relying
on the settled proposition of law, this court feels that the plaintiff
is not able to convincingly put forward the evidence to prove that
he is the husband of Rukkamma and that he is the only existing
legal heir to claim the properties of the said Rukkamma and that
the Rukkamma has got the properties from her mother as his
contention was negated by the evidence of P.W.2 & 3.
(iv). Hence this court is not inclined to grant the relief of
declaration of title and recovery of possession in favour of the
plaintiff as prayed for and this point is answered against the
plaintiff."
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7. On appeal, the first appellate Court on re-appreciation of
the entire evidence and the material available on record vide
judgment and decree dated 12.07.2023 dismissed the appeal by
observing as under:
"(i). When the defendant has set up a rival claim stating
that he purchased the suit property from Chakrapani and
Damodar, it is for the plaintiff to prove that the said transaction
never took place. In his cross-examination the plaintiff clearly
admitted that out of 3 sons, 2 sons of Deekonda Narayana are
alive. If that be so, the initial burden is on the plaintiff to prove
and place cogent evidence which establishes that Deekonda
Lingamma has bequeathed the suit property in favour of her
daughter in the year 1993. In view of the suspicion expressed by
the defendant No.1 in his written statement and as PWs.1 to 4
clearly admitted that the document Ex.A2 exhibited by plaintiff
himself, shows Deekonda Narayana as the owner of the property
how the will was executed must be placed before the Court. The
plaintiff did not choose to explain before the Court how his wife
succeeded the property except contending that she got the
property by virtue of will.
(ii). It is also on record that Rukkamma died in the year 1997.
From then till 2007 the record shows that neither the name of
plaintiff nor Rukkamma's name was entered in the records of
Grama Panchayath or in the electricity department record. Ex.A2
clearly reveals the name of Narayana and plaintiff also admitted
that the electricity bills and house tax receipts show the name of
defendant No.1 for the suit houses. The initial burden was not
discharged by the plaintiff to prove his right, title over the
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property. The evidence and his admission also shows that the
defendant No.1 is in the suit property. Therefore, the trial court
has rightly dismissed the suit, stating that the plaintiff not proved
his case and expressed its suspicion against the will. There was
no irregularity or illegality committed by the trial court."
8. Heard Sri N. Hari Prasad, learned counsel for the
appellant/plaintiff and Sri B. Sheshu Kumar, learned counsel
for the respondent/defendant. Perused the record.
9. A perusal of the record discloses that the trial Court as
well as first appellate Court concurrently held that Rukkamma
died in the year 1997 and from then till 2007 the records shows
that neither the name of the plaintiff nor Rukkamma's name
was entered in the records of Gram Panchayath or in the
Electricity Department record. It was further held that the
plaintiff admitted that electricity bills and house tax receipts for
the suit houses stand in the name of D1. The initial burden was
not discharged by the plaintiff to prove his right, title over the
suit schedule property.
10. Learned counsel for the respondent/defendant argued
that the trial Court has rightly dismissed the suit after
appreciation of the oral and documentary evidence on record
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and the first appellate Court also rightly confirmed the
judgment and decree passed by the trial Court.
11. However, learned counsel for the appellant/plaintiff failed
to raise any substantial question of law to be decided by this
Court in this second appeal. In fact, all the grounds raised in
this appeal are factual in nature and do not qualify as the
substantial questions of law in terms of Section 100 C.P.C.
12. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings
arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
13. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held
that the High Court sitting in Second Appeal cannot examine
the evidence once again as a third trial Court and the power
under Section 100 C.P.C. is very limited and it can be exercised
only where a substantial question of law is raised and fell for
consideration.
1 (2007) 1 Supreme Court Cases 546
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14. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason
warranting interference with the said concurrent findings,
under Section 100 C.P.C. Moreover, the grounds raised by the
appellant are factual in nature and no question of law, much
less, a substantial question of law arises for consideration in
this Second Appeal.
15. Hence, the Second Appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 02.04.2024.
krl/Dua
