Telangana High Court

Mohd Abdul Hadi vs Mohd. Abdul Rasheed on 18 April, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

     THE HONOURABLE DR.JUSTICE G. RADHA RANI

                  SECOND APPEAL No.348 of 2010

JUDGMENT:

This second appeal is filed by the appellants-defendants 1 to 3

aggrieved by the judgment and decree dated 10.02.2010 in A.S.No.76 of 2007

passed by the XI Additional Chief Judge, City Civil Court, Hyderabad,

confirming the judgment and decree dated 06.11.2006 passed in O.S.No.3152

of 2004 by the VII Senior Civil Judge, City Civil Court, Hyderabad.

2. The parties are hereinafter referred as arrayed before the trial court.

3. The respondent No.1 - plaintiff filed the suit for partition against the

appellants herein, who were his younger brothers and against respondents 2

and 3, who were his elder sisters seeking partition of the house bearing No.18-

7-316/33. As per the plaintiff, the father of the parties purchased the suit

schedule house during his life time in the name of the mother of the parties.

The father of the parties died in the year 1967 and the mother of the parties,

by name, Zahra Bee died on 13.07.1987. The respondents 2 and 3-defendants

4 and 5 were already married during the life time of the mother of the parties.

The plaintiff and defendants 1 to 3 i.e., the petitioners herein resided in the

suit schedule property. Thereafter, differences cropped up between the Dr.GRR,J SA_348_2010

plaintiff and defendants 1 to 3, as such, the plaintiff demanded for partition

and separate possession, but the defendants dragged the matter, as such, filed

the suit.

4. The respondents 1 to 3 filed common written statement admitting the

relationship between them and also admitted that the property was purchased

by their father in the name of their mother, but they contended that the

plaintiff relinquished his share to the extent of 15 Sq. yards in favour of his

younger brother Mohd. Abdul Hannan, who was defendant No.3 in the

presence of elders, but no document was executed. The plaintiff being elder

brother looked after the retirement benefits of their father and taking

advantage of their illiteracy, the plaintiff received death benefits and

retirement benefits of their late father and purchased the property in the name

of his sons and daughters to deprive the shares of the defendants and prayed to

dismiss the suit.

5. Basing on the said pleadings, the trial court framed the issues as

follows:

i. Whether the suit schedule property is joint Matruka property of plaintiff and defendants?

ii. Whether the plaintiff is entitled to partition and separate possession?

Dr.GRR,J SA_348_2010

iii. To what relief?

6. The plaintiff examined himself as PW.1 and got examined another

witness as PW.2 and got marked Exs.A1 to A6. The defendants 1 to 4 were

examined as DWs.1 to 4 and they also got examined two other witnesses on

their behalf. No documents were marked on behalf of the defendants.

7. The trial court, on considering the oral and documentary evidence on

record observed that as there was no dispute with regard to Ex.A1, the

certified copy of sale deed dated 09.01.1964 that the suit schedule house was

purchased by the father of the plaintiff and defendants during his life time,

held that the suit schedule property was joint matruka property of plaintiff and

defendants. Considering the evidence of plaintiff and defendants, as the

defendants contended that there was an earlier partition, the trial court

observed that the burden would lie upon the defendants to prove the same.

But there was inconsistency in the evidence of the defendants wherein DW.1

stated that the partition took place in the year 1963, but the other witnesses

stated that the partition took place in the year 1992 and also there was

inconsistency in the statements of DWs, wherein DW.1 stated that their sisters

defendants 4 and 5 were not given share in the suit schedule property, but

DW.2 stated that the defendants 4 and 5 were also given share in the suit Dr.GRR,J SA_348_2010

schedule property and defendant No.4 examined as DW.4 stated that she was

not aware of the shares that fell to the parties and no document was filed to the

effect that partition took place and that the plaintiff relinquished his right in

favour of DW.3 by receiving Rs.5,000/- and admittedly the property was still

in the name of the mother of the parties and no application was made by the

defendants before the municipal authorities to mutate their names in the

municipal records with regard to their respective portions held that the

defendants failed to prove that there was any partition that took place earlier

and passed preliminary decree holding that the plaintiff was entitled for 2/10th

share in the suit schedule property.

8. Aggrieved by the said judgment and decree, the defendants 1 to 3

preferred an appeal. The appeal was heard by the XI Additional Chief Judge,

City Civil Court, Hyderabad. Vide judgment and decree dated 10.02.2010,

the first appellate court dismissed the appeal, confirming the judgment and

decree passed in O.S.No.3152 of 2004 by the VII Senior Civil Judge, City

Civil Court, Hyderabad.

9. Aggrieved further, the defendants 1 to 3 preferred this second appeal

contending that the courts below came to a wrong conclusion that no partition

took place. DW.1 was an illiterate working as a watchman. He stated that Dr.GRR,J SA_348_2010

partition took place in the year 1963 under illiteracy and he was unable to give

correct English date, though DWs.2 to 6 clearly stated that the partition took

place between the plaintiff and defendants in the year 1992 and each of them

were allotted separate possession. The courts below failed to consider the said

evidence and that the plaintiff relinquished his share of 15 Sq. yards to the

defendant No.3. Both the courts below failed to consider that the plaintiff

filed the suit 15 years after the death of their mother in the year 1987. If no

partition took place, he would not have waited for such a long time and further

contended that the plaintiff rented a portion of the suit schedule property to

the tenants and was enjoying the rents out of it. As such, he was entitled to

distribute the rents between the plaintiff and defendants, then only he could

seek for a fresh share of 2/10th from the suit schedule property.

10. This Court admitted the second appeal on 08.09.2010, basing on the

questions raised in ground Nos.2 to 7, which are as follows:

2. That the Court below fail to consider the fact and came to wrong conclusion that there is no partition took place as the suit schedule property is the joint matruka property of the Plaintiff and Defendant on the only ground that DW1 who is an illiterate working as watchman stated that Partition took place in the year 1963 under illiteracy unable to give correct English Dr.GRR,J SA_348_2010

date, though the DWs.1 to 6 stated clearly about the partition took place between the Plaintiff and Defendants in the year 1992 and allotment of separate possession.

3. That the Court below fail to consider the most important fact that DWs.1 to 6 are illiterates age old person fail to give the exact date of partition and extent of the shares allotted to Plaintiff and Defendants though stated clearly about the Partition and selling of 15 Square Yards by the Plaintiff to Defendant No.3.

4. That the Court below fail to consider the most important fact though the Mother of the Plaintiff and Defendants expires in the year 1987 why did not the Plaintiff claim his share since long 15 years also fail to adduce any evidence on his side to prove that no partition took place.

5. That the Court below failed to consider the fact that if no partition took place then how the Plaintiff rented out the portion of the Suit schedule property to the tenants under what capacity.

6. That the court below fail to consider the fact that partition already took place in year 1992 and Plaintiff and Defendants 1 to 3 are residing and enjoying their Dr.GRR,J SA_348_2010

respective shares and Plaintiff is enjoying the same by letting out the same to his tenants and earning rents out of it and only to harass the Defendants taking advantage of their illiteracy under which they fail to execute the Partition deed believing the close blood relationship.

7. That the court below fail to consider the fact that if the Partition had not took place between the Plaintiff and Defendants then the rents earned by the Plaintiff in respect of his share from 1992 till now had to distributed as per Shariat law between the Plaintiff and Defendants then only the Plaintiff shall be entitle to get again the fresh share of 2/10th from the suit schedule property."

11. Heard the learned counsel for the appellants.

12. Learned counsel for the appellants reported to decide the matter on

merits basing on the grounds raised in the grounds of appeal. There was no

representation for the respondents 1 and 2.

13. As seen from the grounds raised by the defendants 1 to 3 in this

second appeal, none of them were related to any question of law. All the

grounds were raised contending that the courts below failed to appreciate the

evidence of the witnesses in a proper perspective and came to a wrong Dr.GRR,J SA_348_2010

conclusion that no partition took place earlier, though DWs.2 to 6 stated about

the partition and the extent of shares allotted to the plaintiff and defendants.

14. The general rule is, that High Court will not interfere with the

concurrent findings of the Courts below except when (i) the courts below have

ignored material evidence or acted on no evidence;(ii) the courts have drawn

wrong inferences from proved facts by applying the law erroneously; or (iii)

the courts have wrongly cast the burden of proof on the parties.

15. The Hon'ble Apex Court in Sir Chunilal V. Mehta and Sons, Ltd.

Vs. The Century Spinning and Manufacturing Co., Ltd. 1 held that:

"The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under Section 100 of C.P.C., 1908. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general. principles to be applied in determining the

AIR 1962 SC 1314 Dr.GRR,J SA_348_2010

question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

15. The Hon'ble Apex Court in Boodireddy Chandraiah And Ors Vs.

Arigela Laxmi And Anr 2 held that:

"6. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

AIR 2008 SC 380 Dr.GRR,J SA_348_2010

7. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and Others (1999(3) SCC 722)].

8. The phrase "substantial question of law", as occurring in the amended Section 100 of the CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the Dr.GRR,J SA_348_2010

legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the CPC or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172) , the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case, the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad. 969):

"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to be particular facts of the case it would not be a substantial question of law."

Dr.GRR,J SA_348_2010

16. Considering the observations of the Hon'ble Apex Court in this

regard, as no substantial questions of law or even a question of law was raised

by the appellants-defendants 1 to 3 and all the points raised by them are only

based on the facts and as the first appellate court is the final court insofar as

the question of facts are concerned, this Court does not find any necessity to

interfere with the judgments of the courts below.

17. In the result, the Second Appeal is dismissed, confirming the

judgment and decree dated 10.02.2010 passed in A.S.No.76 of 2007 by the

XI Additional Chief Judge, City Civil Court, Hyderabad, confirming the

judgment and decree dated 06.11.2006 passed in O.S.No.3152 of 2004 by the

VII Senior Civil Judge, City Civil Court, Hyderabad.