Telangana High Court
Merugu Prabhakar Reddy vs Merugu Renuka on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.177 of 2022
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 14.12.2021, passed by V Additional District
Judge, Bhongir in AS.No.102 of 2016, whereunder and whereby
the judgment and decree dated 21.01.2013 passed by the Junior
Civil Judge, Ramannapet in O.S.No.148 of 2004 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. Succinctly stated, the facts of the case, which led to filing of
the present Second Appeal, are that the plaintiff and defendant
No.2 are the children of one Merugu Linga Reddy. Defendant No.1
is wife of one Merugu Vema Reddy, who is the brother of the
plaintiff. The said Linga Reddy was the absolute owner and
exclusive possessor of the suit schedule property having acquired
the same from his ancestors. While so, the said Linga Reddy settled
the suit land in favour of defendant No.2 through a registered gift
settlement deed in the month of May 2003 without the knowledge
and consent of the plaintiff and his brother Vema Reddy,
LNA, J
fraudulently. As such, the plaintiff and his brother-Vema Reddy
filed O.S.No.31 of 2004 for partition and cancellation of the said
registered gift deed on the file of Junior Civil Judge, Ramannapet.
During the pendency of the said suit, defendant No.2 herein and the
first plaintiff therein-Vema Reddy, who is the husband of
defendant No.1 herein, colluded with each other and transferred the
schedule property in favour of defendant No.1 under a registered
sale deed dated 10-09-2004. Hence, the plaintiff filed the suit
seeking cancellation of the said registered sale deed.
4. Defendant No.1 remained set ex parte.
5. Defendant No.2 filed her written statement denying the
averments of the plaint. She stated that the suit land and non-suit
lands were divided among the plaintiff, his brother Vema Reddy,
who is husband of defendant No.2 and their father-M.Linga Reddy
in an oral partition and the same was implemented in the revenue
records. Further, since the plaintiff and his brother Vema Reddy
were not looking after their father-Linga Reddy, he gifted the suit
land to defendant No.2 as she is his only daughter and was looking
after him and that, defendant No.2 sold the schedule property to
defendant No.1 and delivered vacant possession of the suit lands
LNA, J
and that, since then defendant No.1 has been in possession and
enjoyment of the same.
5.1. It was further stated that the plaintiff is not a party to the
said sale deed and as such, he cannot challenge the same and that
O.S.No.31 of 2004 was dismissed for default and therefore, the
principle of lis pendency is not applicable to the said suit. Hence,
she prayed to dismiss the suit.
6. Basing on the above pleadings, the trial court framed the
following issues:-
"(1)Whether the appellant herein is entitled for the relief
of cancellation of the sale document No.1045 of 2004
dated 10-09-2004 marked as Ex.B1/Ex.A1 as prayed in
the plaint?
(2) Whether the impugned judgment of the Junior Civil
Judge, Ramannapet in O.S.No.148 of 2004,
dated 21-01-2013 to be sustained, modified or set
aside?"
7. In support of his case, the plaintiff examined PWs.1 to
PW4 and got marked Exs.A1 to A6. The defendants got examined
DWs.1 to 3 and got marked Exs.B1 to B-5.
8. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
LNA, J
observed that the plaintiff was aware of dismissal of O.S.No.31 of
2004, which was filed seeking cancellation of registered gift
settlement deed in favour of defendant No.2 herein by his father-
Linga Reddy, however, he did not take any step in that regard and
filed the present suit. Therefore, when the donor under the said
deed i.e., defendant No.2 executed registered sale deed under
Ex.A-1, the right of the donor ceases to exist and unless the said
gift deed is cancelled, the plaintiff cannot question Ex.A-1/B-1.
8.1. The trial Court further observed that admittedly, the
plaintiff is not a party to the said registered sale deed and that too,
he did not question the gift deed executed by his father in favour of
defendant No.2 and therefore, he is not entitled to seek cancellation
of the said document and accordingly, dismissed the suit, vide
judgment dated 21.01.2013.
9. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record and observed that in pursuance of the gift deed,
defendant No.2 has got exclusive rights over the suit property and
therefore, the sale deed-Ex.A-1 executed by her in favour of
defendant No.1 is a genuine and a bona fide deed.
LNA, J
9.1. The first Appellate Court further held as under:-
"As per the settled law, the appellant is not a party to
Ex.B1/ A-1. As such, he ought to seek the specific relief
of declaration of the registered document as null and
void and not the relief of cancellation, who is meant
for the parties to the document The appellant is not
party to Ex.B1/Ex.A1, as such the relief of cancellation
is not available to the appellant herein."
10. By the aforesaid observations, the first Appellate Court
upheld the judgment of the trial Court, vide judgment dated
14.12.2021.
11. Heard Sri Manda Adam, learned counsel for the appellant.
Perused the record.
12. A perusal of the record discloses that both the Courts below,
on appreciating the oral and documentary evidence adduced by
both the parties, concurrently held that the plaintiff, who is not a
party to Ex.A-1/B-1, is not entitled to seek the relief of cancellation
of registered sale deed and accordingly, it declined to grant the
relief claimed by the plaintiff.
13. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
LNA, J
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
where a substantial question of law is raised and fell for
consideration.
(2007) 1 Supreme Court Cases 546
LNA, J
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.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: .02.2024
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