Telangana High Court
Gujjula Rajani vs Singareddy Venkatrami Reddy on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.36 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 12.10.2021, passed by Principal District Judge,
Suryapet in AS.No.02 of 2018, whereunder and whereby the
judgment and decree dated 05.01.2018 passed by the Principal
Junior Civil Judge, Kodad in O.S.No.185 of 2009 was confirmed.
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 brief facts of the case, which led to filing of the present
Second Appeal, are that the suit was filed for partition and separate
possession of the suit schedule properties. It was averred that the
plaintiff, defendant Nos.1 and 2 are joint family members governed
by Hindu Mithakshara School of Law They are the joint owners
and possessors of the suit schedule properties having acquired the
same from their ancestors and they have equal rights in the
properties having 1/3 share each.
3.1. It was further averred that the plaintiff demanded
defendant Nos.1 and 2 for partition of the suit schedule properties,
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but they did not come forward for the division and they sold away
the lands in suit Survey No.247 to defendant Nos.3 and 4 through
registered sale deeds without her knowledge. She came to know
about the said alienation in the month of December, 2008 and
immediately, she got issued a legal notice to defendant Nos.1 and 2
demanding them for partition of the suit schedule properties and
cancellation of the said registered sale deeds. Further, defendant
Nos.1 and 2 are trying to alienate the other suit schedule properties
also and hence, she filed the present suit.
4. Defendant Nos.1 to 4 filed their common written statement
before the trial court inter alia denying the plaint averments. It was
stated that the plaintiff is not the daughter of defendant No.1, but
she is daughter of brother of defendant No.1 by name Singareddy
and as such, she is not a member of the joint family of defendant
No.s.1 and 2. Therefore, the plaintiff does not have any share in the
suit schedule properties. The sale deeds executed by defendant
Nos.1 and 2 in favour of defendant Nos.3 and 4 are valid
documents. Keeping in mind some financial disputes between the
husband of the plaintiff and defendant No.2, only to harass
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defendant Nos.1 and 2, the present suit is filed and prayed to
dismiss the suit
5. Basing on the pleadings of both the parties, the trial Court
framed the following issues for trial:-
"1. Whether the suit is barred by limitation?
2. Whether the Court fee paid by the plaintiff is
Insufficient?
3. Whether the plaintiff is entitled to a preliminary
decree of partition as prayed for?
4. Whether the plaintiff is entitled to the declaration that
the registered sale deed No. 8847-2008 and 8848/2008
executed by defendant not in favour of defendant Nos.3
and 4 are collusive and fraudulent and are not binding
on the plaintiff?"
6. In support of his claim, the plaintiff examined PWs.1 and 2
on his behalf and marked Exs.A-1 to A-13. On behalf of the
defendants, D.Ws-1 to 8 were examined and Exs.B-1 to B-9 were
marked.
7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
dismissed the suit vide judgment dated 05.01.2018, by observing as
hereunder:-
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"The admissions of PW-2, who is said to be the father
of the plaintiff, also supports the version of the
defendant Nos.1 and 2 that the plaintiff is not the
daughter of the defendant No.1. If at all the plaintiff is
the daughter of the defendant No.1, definitely his
name would be reflected in all his educational
certificates and other certificates of P.W.1. However,
except mee-seva generated birth certificate of PW.1
under Ex-A15, there is no scrap of paper before this
Court to come to a conclusion that the plaintiff is the
natural daughter of the defendant No.1 and the natural
sister of the defendant No.2."
7.1. The trial Court has further observed as under:-
"The evidence of DW.7 is very crucial. Because this
court has to give a great sanctity to the evidence of
DW.7, who is said to be the alleged mother of the
plaintiff herein. Except the oral contention of the
plaintiff and Ex.A.13-mee-seva generated birth
certificate, there is no evidence before this Court to
come to a conclusion that the plaintiff is the joint
family member of the defendants Nos.1 and 2 as per
the Mithakshara School of Hindu Law."
8. The first Appellate Court, being the final fact-finding
Court, re-appreciated the entire evidence and the material available
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on record, vide its judgment dated 12.10.2021 confirmed the
judgment of the trial court by observing as hereunder:-
"A perusal of the record shows that the appellant did
not take any steps to subject herself and respondent
No.1 and his wife for DNA test to ascertain her
paternity and to show that she is the natural daughter
of respondent No.1.
In view of the above discussion, it can be safely
held that the appellant is not the daughter of
respondent No.1 and sister of respondent No.2 and
also not a joint family member of respondents Nos.1
and 2. Therefore, she is not entitled to seek partition
and separate possession of the plaint schedule
properties."
9. Heard Sri S.V.S.Chowdary, learned counsel for the
appellant and Sri K.Muralidhar Reddy, learned counsel for the
respondents. Perused the record.
10. 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.
11. Learned counsel for the defendants seriously disputed the
genuineness of Ex.A-13 stating that it was issued basing on the
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Birth certificate issued by a hospital and the notarized affidavit of
the plaintiff herself and therefore, the same cannot be considered.
12. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
categorically proves that the plaintiff is not the daughter of
defendant No.1 and as such, she is not a joint family member of
respondent Nos.1 and 2. Consequently, she is not entitled to seek
partition and separate possession of the suit schedule properties.
13. The record discloses that the plaintiff has marked Ex.A-13-
Birth Certificate to show that she is the daughter of defendant
No.1. The said Certificate reveals that the same was issued by mee
seva on 25.10.2017.
14. As per the information furnished by the Public Information
Officer, obtained under the Right to Information Act, the plaintiff
submitted Birth certificate issued by St. Ann's Maternity Hospital,
Jaggayyapet and a notarized affidavit and basing on the said
documents, Birth certificate was issued to the plaintiff through
mee-seva. A close scrutiny of the Birth Certificate alleged to be
issued by St. Ann's Maternity Hospital reveals that it does not bear
the date of its issuance and therefore, there is a cloud of suspicion
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with regard to the genuineness of the same. Hence, due credence
cannot be given to Ex.A-13.
15. It is to be noted that except Ex.A-13, the plaintiff has not
filed any document issued by any competent authority/officer,
which creates a shadow of suspicion on her case.
16. Further, 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.
17. 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.
18. 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
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where a substantial question of law is raised and fell for
consideration.
19. 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.
20. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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