Telangana High Court

Maganti Narsimha Reddy vs Maganti Vanikala on 9 February, 2024

  THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

                         SA NO.159 OF 2019

JUDGMENT:

The unsuccessful defendants in OS.No.159 of 2005

having filed an appeal against the judgment and decree of the

trial Court in the above said original suit, where under, the

request of the respondent/plaintiff for partition of the suit

schedule properties was decreed, and having lost the appeal

in the lower appellate Court, filed this Second Appeal under

Section 100 of Civil Procedure Code (for short 'C.P.C.') on the

ground that there are substantial questions of law which

requires consideration and sought for admission of the appeal

as well as its disposal on merits.

2. As could be seen from the impugned judgment

and also on a perusal of the judgment and decree of the trial

Court in OS.No.159 of 2005, it shows that the

respondent/plaintiff filed the original suit for partition of the

suit schedule properties on the ground that she is one of the

co-sharers. According to the plaint averments, it was her

claim that she is the daughter of one Anji Reddy, who is no

more now through his second wife by name Laxmamma, who 2 SSRN, J

was shown as defendant No.7 and that the said Laxmamma

was second wife of Anji Reddy.

3. The respondent has claimed that Anji Reddy has

got three sons and three daughters through his first wife

Lalitha. After her death, Anji Reddy married her mother and

gave birth to her, thereby, she has got right over the

properties of Anji Reddy and as the defendants denied her

share, she sought for a preliminary decree. The defendants

No.1 to 3 are sons, defendants No.4 to 6 are daughters of Anji

Reddy through his first wife.

4. However, defendants No.1 to 3 denied the

contention. They disputed the second marriage and birth of

plaintiff to defendant No.7 through Anji Reddy and sought for

dismissal of the suit. However, defendants No.4 to 6, who are

daughters of Anji Reddy through his first wife and whom the

respondent/plaintiff claimed to be her sisters supported the

claim of respondent/plaintiff.

5. The record further shows prior to filing OS.No.159

of 2005, defendant No.7 and plaintiff therein have filed

OS.No.478 of 1987 against the above said defendants seeking

partition of the properties based on sale deed. However, the

said suit was dismissed by the trial Court in spite of a finding 3 SSRN, J

that the plaintiff and defendant No.7 are daughter and second

wife of Anji Reddy.

6. The defendants No.1 to 3 resisted the claim of the

plaintiff and subsequent to the decree of the trial Court,

in view of the death of second defendant, defendants No.1

and 3 and legal representatives of defendant No.2 have filed

AS.No.20 of 2010 which was also dismissed by the first

appellate Court. This Second Appeal has been filed by the

appellants by showing the following as substantial questions

of law for admission of the appeal.

1. Whether both the Courts are rightly considered that A to C schedule properties are the ancestral and joint family properties in present suit filed for partition basing on the findings in suit filed by the respondents No.1 and 5 vide OS.No.478/1987 dated 31-12-1993 on the file of District Munsiff, Bhongir for the partition of A and B schedule properties without any evidence?

2. Whether both the Courts below rightly consider that the suit filed by the respondents No.1 and 5 for partition in the year 1987 for the lands in Sy.No.84, 85, 86, 87 as A schedule and house situated at Bheemanapally as B schedule property and District Munsiff Bhongir dismissed the suit and further confirmed in AS.No.8/1994, and filing the present suit for partition for A schedule properties Sy.No.37/A extent Ac.1.00, in Sy.No.38/A extent Ac.0.29 gts, in Sy.No.84/AA extent Ac.6.24 gts, in Sy.No.85/E Ac.7.27 gts, in Sy.No.86/AA extent Ac.2.13 gts and in Sy.No.87/AA, ac.3.15 gts, situated at Bheemanapally 4 SSRN, J

village, Pochampally Mandal, B schedule properties in Sy.No.15/E, 21/A, 46/AA, 47/A, 48/A, 49/A, 50/A, 54/A, 54/E, 55/E, extent Ac.21.17 gts situated at Mehar Nagar Village, Pochampally Mandal, C schedule property of house bearing No.1-1 siutated at Bheemanapally Village, Pochampally Mandal, Nalgonda District comes under the perview resjudicata.

3. Whether both the Courts below came to the right conclusion that the A to C schedule properties are joint family properties and the respondent No.1 proved through evidence except the decree and judgment in OS.No.478/1987?

4. Whether the suit filed by the respondent No.1 is maintainable basing on the observation made in decree and judgment in OS.No.478/1987 dated 31-12- 1993 after lapse of 12 years?

5. Whether the appellate Court rightly dismissed the IA.No.203/2014 on 19-11-2018 which filed to receive the additional evidence such as partition list dated 10- 05-1984, pahanies from 1954-55 to 1994-95 and registered sale deed vide No.1805/1977 dated 22-08- 1977 wherein mother of the appellants purchased the properties in Sy.No.54 extent 1.29 gts and in Sy.No.55 extent Ac.2.02 gts without giving the opportunity of hearing after lapse of 5 years?

6. Whether the findings of fact recorded by the trial Court as well as the 1st appellate Court suffer from the vice of legal perversity as all the findings are based on no legal and admissible evidence because while reaching to such findings the relevant admissible evidence has not been taken into consideration in as much as settled legal principles have not been applied in appreciating the evidence link as much as the evidence has been misread and mis-appreciated and this in itself give rise to a substantial question of law?

5 SSRN, J

7. Whether concurrent findings of the two Courts below call for the interference from this Hon'ble Court, as all the findings suffer from the re-cognised exceptions and the said rule is not an absolute one when the present case falls in the exceptions which is the trite law that a findings of fact may give rise to a substantial question of law?

8. Whether the inclusion of the self acquired properties in Sy.No.54 and 55 of the mother of the appellants in present suit by the respondent No.1 and whether the plaintiff proved that the land in Sy.No.54 and 55 are the properties of Anji Reddy?

9. Whether the decision in Original Suit No.478/1987 filed by the respondents No.1 and 5 operates as res judicata, if yes to what extent?

10. Whether both the Courts rightly held that "on elaborate discussions it was found by the learned Judge that, the plaint A to C schedule properties herein are the joint family properties. There is no deviation with regard to the said conclusion arrived by the learned trial Judge while pronouncing Judgment in OS.No.478/87 without framing any issue?

7. Therefore, this Second Appeal is filed against

concurrent finding of the trial Court as well as the first

appellate Court by formulating different questions according

to the appellant as substantial questions of law. However, a

perusal of the grounds on which this appeal is filed as well as

the above referred questions clearly indicates that they are

not substantial questions of law but questions of fact which

were already discussed and decided by the trial Court as well 6 SSRN, J

as the first appellate Court. While entertaining the Second

Appeal, the High Court is expected to see whether there are

any substantial questions of law for admission of the appeal.

The appreciation of the evidence and contentions of the