Telangana High Court
Sirigiri Narayana, vs Sirigiri Nampelli on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.532 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 30.10.2023, passed in A.S.No.3 of 2019 on the file of
the Court of Principal District Judge, Rajanna Sircilla, confirming
the judgment and decree dated 04.12.2018 passed by the Senior
Civil Judge, Sircilla in O.S.No.35 of 2014, the present Second
Appeal is filed.
2. The appellant is the plaintiff and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff filed the suit for
partition and separate possession of the suit schedule property and
also to declare the ROR proceedings, vide File
No.R.O.R/1910/1989, dated 27.08.1994, of Tahasildar, Sircilla,
who is defendant No.3, as null and void and not binding on the
plaintiff to the extent of his share and for costs.
LNA, J
3.1. In the plaint, it was averred that the plaintiff and defendant
No.1 are the natural brothers and sons of late Sirigiri Narsaiah who
was the owner and possessor of the suit schedule property and he
died in the year 1994, leaving his wife namely Yellavva and his
two sons. Thereafter, on the death of the said Yellavva in the year
2002, the plaintiff and his brother-defendant No.1 succeeded to the
suit schedule lands from their father Sirigiri Narsaiah as Class -I
legal heirs and are in joint possession, occupation and enjoyment of
the same having half (½) share each. While so, the plaintiff came to
know that the defendant No.2 in collusion with his father i.e.,
defendant No.1 and by managing the revenue officials/defendant
No.3, got created the R.O.R proceedings vide file
No.ROR/1910/1989 dated 27-8-1994 and got his name mutated in
respect of the suit schedule lands.
3.2. It was further averred that even though the plaintiff
approached defendant No.3 several times with an application for
cancellation of the said R.O.R proceedings, the latter refused to
even receive the said application.
3.3. It was also averred that defendant Nos.5 and 6 and one
Puli Anjali, who are the natural sisters of the plaintiff, were got
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married by giving sufficient cash and gold ornaments and as such,
the said persons relinquished their rights over the suit schedule
property. Even defendants Nos.7 to 11-legal heirs of the said Puli
Anjali have no right whatsoever on the suit schedule property.
4. Before the trial Court, defendant Nos.3 and 4 forfeited their
right to file written statement and defendant Nos.5 to 11 remained
ex parte.
5. The only contesting defendants i.e., defendant Nos. 1 and 2
filed written statement inter alia denying the allegations made in
the plaint and stated that the plaintiff was aware that defendant
No.2 is the owner and possessor of the suit schedule lands having
purchased the same on 16-8-1982 from one Sirigiri Narsaiah, who
was the grandfather of defendant No.2 and that during the life time
of Sirigiri Narsaiah itself, defendant No.2 applied for validating his
purchase and on due enquiry, the Mandal Revenue Officer, Sircilla,
issued the Forms-13-8 and 13-C validating the purchase of
defendant No. 2 and got mutated his name in the revenue records.
However, the plaintiff did not take any legal steps for cancellation
of the same and therefore, the question of depriving the rights of
the plaintiff over the suit schedule lands does not arise.
LNA, J
6. It was further averred that the suit schedule lands are the
self acquired properties of late Sirigiri Narsaiah who sold the same
in favour of defendant No.2 for valid consideration and the said
purchase was also validated and hence, prayed the court to dismiss
the suit.
7. On the basis of the above pleadings, the trial Court framed
the following issues for trial:-
"1. Whether the suit schedule properties are joint family
properties as pleaded by the plaintiff?
2. Whether the plaintiff is entitled for partition and separate
possession?
3. Whether the R.O.R proceedings vide file No.R.O.R/
1910/1989 dt:27-8-84 of defendant No.3 are liable to be
declared as null and void and not binding on the plaintiff?
4. To what relief?"
8. On behalf of plaintiff, PWs.1 and 2 were examined and
Exs.A1 to A7 are marked. On behalf of the defendants, DWs.1 to 4
were examined and Exs.B1 to B6 were marked.
9. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, dismissed the suit,
vide judgment dated 04.12.2018. The trial Court observed that the
admission of the plaintiff as P.W-1 that his grandfather was not
having any agricultural lands, itself shows that the suit schedule
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property is the self-acquired property of his father-Sirigiri
Narsaiah. The trial Court further observed that the admissions of
P.W-1 in his cross-examination and further a scrutiny of Ex.B-1-
certified copy of ROR proceedings, goes to show that the suit
schedule land was sold by the said Narsaiah to defendant No.2
through a simple sale deed for consideration of Rs.4,500/-.
Accordingly, the trial Court held that the plaintiff failed to prove
his claim for partition and separate possession of the suit schedule
property.
10. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record and dismissed the appeal, vide judgment dated
30.10.2023. The first Appellate Court categorically observed that
the plaintiff admitted that the suit schedule lands are the self-
acquired properties of his father-Sirigiri Narsaiah. It also observed
that P.W-1 admitted that during the life time of his father, i.e., by
the year 1982, defendant No.1 was living separately and since then
defendant Nos.1 and 2 are in possession and enjoyment of the same
and cultivating the said lands. In the light of the said observations,
LNA, J
the first Appellate Court held that the suit schedule lands were not
in joint possession of the parties.
10.1. The first Appellate Court further observed that Exs.B-1 to
B-6 support the version of the defendants that the suit schedule
lands were sold in favour of defendant No.2 in the year 1982 and a
perusal of Exs.A-2 and A-3 shows that after conducting due
enquiry, the suit schedule property was mutated in the name of
defendant No.2. Having observed thus, the first Appellate Court
held that the plaintiff is not entitled to the relief of partition of the
suit schedule property.
11. Heard Sri J.Venkateshwar Reddy, learned counsel for the
appellant. Perused the record.
12. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
by both the parties goes to show that the suit schedule lands are the
self-acquired properties of one Sirigiri Narsaiah, who sold the same
for a consideration to defendant No.2 and hence, the said lands are
not the joint family properties which can be partitioned, as claimed
by the plaintiff.
LNA, J
13. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
14. However, learned counsel for appellant 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.
15. 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 on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
16. 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
(2007) 1 Supreme Court Cases 546
LNA, J
where a substantial question of law is raised and fell for
consideration.
17. 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.
18. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
19. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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