Varala Shobha vs Smt.Ananthamma Vippapoovula Lakshmi
2024 Latest Caselaw 879 Tel

Telangana High Court

Varala Shobha vs Smt.Ananthamma Vippapoovula Lakshmi on 29 February, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
             SECOND APPEAL Nos.393 & 395 of 2023

COMMON JUDGMENT:

The parties and the subject matter of the property involved in

both these Second Appeals are one and the same and hence, they

are being heard together and disposed of by common judgment.

2. Second Appeal No.393 of 2023 is filed questioning the

judgment and decree, dated 13.02.2023, passed by Principal

District Judge, Rajanna Sircilla in AS.No.6 of 2018, whereunder

and whereby the judgment and decree dated 04.01.2012 passed by

the Senior Civil Judge, Sircilla in O.S.No.50 of 2007, which was

filed seeking partition of the suit schedule properties, was

confirmed.

3. Second Appeal No.395 of 2023 is filed questioning the

judgment and decree, dated 13.02.2023, passed by Principal

District Judge, Rajanna Sircilla in AS.No.7 of 2018, whereunder

and whereby the judgment and decree dated 30.10.2012 passed by

the Senior Civil Judge, Sircilla in O.S.No.23 of 2010, which was

filed seeking the relief of perpetual injunction restraining the

defendants, their agents from interfering with the peaceful

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possession and enjoyment of the plaintiff over the suit schedule

properties, was confirmed.

4. The brief facts of the case, shorn off unnecessary details,

which led to filing of Second Appeal No.393 of 2023, are that the

plaintiff is the natural daughter of defendant No.1 through Late

Varala Ramulu. Defendant No.2 is adopted son of defendant No.1.

Late Varala Ramulu acquired the suit schedule property during his

life time and enjoyed the same with absolute rights.

4.1. It was averred that the father of the plaintiff by name

Varala Ramulu died in year 1971, without any male issues, leaving

behind the plaintiff and defendant No.1 as his legal heirs to

succeed the suit schedule property.

4.2. It was further averred that the at the time of marriage of the

plaintiff in the year 1968, during the life time of Varala Ramulu, no

money or articles were given and the plaintiff's father promised

that he would divide the suit schedule property into two parts and

bequeath half share to the plaintiff. After the death of Varala

Ramulu, the said property has become joint family property. The

plaintiff and defendant No.1 are having half share each in the suit

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schedule property. Defendant No.1 used to manage the suit

schedule property as the plaintiff is residing at Hyderabad.

4.3. After death of plaintiff's father, the defendant No.1 took

defendant No.2 in adoption in the year 1978, performed his

marriage and he was blessed with three daughters. The plaintiff's

request to defendant No.1 to settle the property was postponed on

one pretext or the other. The plaintiff used to visit Vemulawada

frequently to look after the welfare of defendant No.1, who became

old and was suffering from ill health and the plaintiff regularly

provided medical treatment to her.

4.4. It was further averred that since the plaintiff did not agree

for marriage alliance to her son, the defendants bore grudge against

her and threatened that defendant No.1 would not settle the

property in favour of plaintiff. While so, on 10.06.2007, the

plaintiff got issued a legal notice to the defendant No.1 for partition

of the suit property, but defendant No.1 gave a reply by attributing

baseless allegations and claimed that she was the absolute owner of

the suit schedule property. Defendant No.1 is making efforts to

transfer the suit schedule property in favour of defendant No.2.

Hence, the suit for partition of the suit schedule properties.

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5. Defendant Nos.1 and 2 filed common written statement

denying the averments of the plaint and further contended that Late

Varala Ramulu and defendant No.1 took defendant No.2 in

adoption in the year 1966 by following the caste and customary

rites, but defendant No.1 executed a registered adoption deed on

16.12.1978, i.e., after the demise of Varala Ramulu.

5.1. It was further contended that after the death of Varala

Ramulu, defendant No.1 purchased the suit schedule property for a

consideration of Rs.210/- from its original owner Chitlabotla

Venkataiah through a simple sale deed dated 06.04.1976 and thus,

she became absolute owner therefor. The plaintiff and defendant

No.2 did not succeed to any property as Varala Ramulu did not

acquire any property during his life time. The plaintiff never

looked after the welfare of defendant No.1. Defendant No.2 has

been looking after the defendant No.1. Defendant No.1 being the

actual owner, has every right to deal with the suit schedule

property according to her wish and will. The plaintiff has no right

or interest in the suit schedule property and she is not in joint

possession along with defendant No.1. Hence, prayed to dismiss

the suit.

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5.2. Defendant No.3 filed a memo adopting the written

statement of defendants Nos.1 and 2.

6. On the basis of the above pleadings, the trial Court framed

the following issues and additional issues for trial:-

"(1) Whether the suit property belonged to late Vara Ramulu? If so, is the plaintiff and D.1 inherited the same?

(2) Whether D.1 purchased the suit open plot for valuable consideration from Ch.Venkataiah, S/o Chandraiah under simple sale deed date 06.04.1976? If so, is she exclusive owner of the same? (3) Whether the plaintiff is entitled for partition and separate possession as prayed for? (4) To what relief?

(5) Whether late Varala Ramulu and D.1 took D.2 in adoption in the year 1966 as pleaded in the written statement and whether adoption deed dated 16.12.1978 is true and valid?

(6) Whether the Will deed dated 07.03.2007 was executed by D.1 in favour of D.2? If so, whether it is valid and binding on the plaintiff?"

7. On behalf of the plaintiff, P.Ws.1 to 4 were examined and

Exs.A.1 to A.16 were marked. The evidence of P.W.3 was

eschewed as he failed to appear before the Court to face cross-

examination. On behalf of the defendants, D.Ws.1 to 7 were

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examined and Exs.B.1 to B.39 were marked. The evidence of

D.W.3 was eschewed as he expired.

8. The trial Court after perusing the material on record and

after hearing both sides, vide its judgment dated 04.01.2012, while

answering issues Nos.1 and 2, observed as under:-

"None of the attesting witnesses to the document Ex.B-1-simple sale deed, through which defendant No.1 claims title over the suit schedule property, were examined and hence, the said document which was impounded is not proved according to law. Therefore, title over the suit schedule property is not vested in defendant No.1 under Ex.B-1.

It appears from Exs.A-3 and A-4 that by the date of Ex.A-1 i.e., 15.01.1977, the property stood recorded in the name of late Varala Ramulu and as such the property tax was received from him and accordingly, Exs.A-3 and A-4 were issued in his name.

It can be gathered from the evidence of P.W-4, Exs.A-1 to A-4, A-12 and A-13 that till 1974-75 the name of Varala Ramulu stood recorded in the Gram Panchayat records and since he died in 1971, the name of defendant No.1 has been mutated."

8.1. Further, the trial Court while answering the issue as regards

the validity of the Adoption deed, dated 16.12.1978, observed as

hereunder:-

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"It is an admitted fact that Ex.B2 is registered in accordance with the provisions of the Indian Registration Act and though it is a compulsorily attestable document, it shall not be necessary to call an attesting witness to prove its execution for the reason that D1 had never disputed its execution. Moreover, the present litigation between the plaintiff and the defendants was never in contemplation as on the date of execution of Ex.B2 and as such, there was no occasion for D1 to execute Ex.B2 with an evil intention of extending a helping hand to D2 to the detriment of the plaintiff and similarly, there was no occasion for defendant No.2 to get Ex.B2 executed through defendant No.1 for the reason that he was just 14 years as on the date of Ex.B2.

While answering additional issue No.2 i.e., with regard to validity of the Will- Ex.B-3, the trial Court observed that it was not necessary to deal with the new and different case set up by the defendants as regards the execution of Ex.B-3 by defendant No.1 and accordingly, did not answer the said issue.

9. By observing so, the trial Court held that the suit schedule

property originally belonged to late Vemula Ramulu and on his

death, plaintiff and defendant No.2 succeeded to the suit schedule

property and accordingly, passed a preliminary decree allotting half

share each to the plaintiff and defendant No.2.

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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 observed as hereunder:-

"It is evident from the documents-Exs.A-1 to A-4 and A-13 that the suit property stood in the name of Varala Ramulu till 1977 and thereafter, the name of defendant No.1 started reflecting in the Grampanchayat records. Thus, the plaintiff proved that the suit property is the property of her father Varala Ramulu and she is entitled for her share in the suit property.

10.1. The first appellate Court vide its judgment dated

13.02.2023 confirmed the judgment dated 04.01.2012 of the trial

Court by observing as under:-

"The defendants failed to prove that defendant No.1 is the exclusive owner of the suit property and as already decided supra the suit property stood in the name of Varala Ramulu during his left time and the name of defendant No.1 was mutated only after his death, the question of exclusive ownership of defendant No.1 over the suit property does not arise. When defendant No.1 has no exclusive right over the suit property, she has no right to execute Ex.B-3-Will Deed.

It is held proved that the suit property is the property of Varala Ramulu and the plaintiff being the

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legal heir of Varala Ramulu is entitled to a share in the suit property. Further, as defendant No.1 died during the pendency of the suit, the plaintiff and defendant No.2 who are the legal heirs of Varala Ramulu and defendant No.1 are entitled for equal share in the suit property."

11. The brief facts of the case, shorn off unnecessary details,

which led to filing of Second Appeal No.395 of 2023, are that the

plaintiff is the owner and possessor of suit schedule property

having purchased the same from her mother-in-law i.e., one Varala

Devamma for a valid consideration under a registered sale deed

bearing document No.814 of 2007 dated 14.03.2007. Since the date

of purchase, the plaintiff is in peaceful possession and enjoyment

of the suit schedule land by paying the house taxes to the

Grampanchayath concerned. The name of the plaintiff has been

mutated in the Grampanchayath records in respect of the suit

schedule land.

11.1. It was averred that the defendants who have no right or

interest over the suit schedule property developed ill-intention

against the plaintiff and are trying to occupy the same by

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dispossessing the plaintiff from the suit schedule land. Hence, the

suit seeking the relief of perpetual injunction.

12. The defendants filed common written statement inter alia

denying the averments of the plaint and further contended that the

suit is filed with a malafide intention to have a wrongful gain and

by suppressing the facts. The vendor of the plaintiff by name

Varala Devamma is none other than the natural mother of

defendant No.1 and adoptive mother of Varala Ravinder, who is

the husband of the plaintiff. Defendant No.2 is the husband of

defendant No.1. Varala Devamma being the mother-in-law of the

plaintiff, the plaintiff could not purchase the suit schedule property

and the said registered sale deed is created and not supported by

consideration and delivery of possession.

12.1. It was further averred that during his life time, the said

Ramulu acquired the suit schedule property and enjoyed the same

with absolute rights and he died in the year 1971 leaving behind his

wife Varala Devamma and his daughter, i.e., defendant No.1 as his

only legal heirs to succeed to the suit schedule property. After the

death of Varala Ramulu, Varala Devamma took the husband of the

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plaintiff by name Ravinder in adoption, performed their marriage

and they were blessed with three daughters.

12.2. It was further averred that about one year ago, there was

a proposal from the plaintiff, her husband, and Varala Devamma

requesting defendant No.1 to have marriage alliance to her son

with the daughter of the plaintiff, but the defendants did not agree

for it. Since then, the plaintiff, her husband and Varala Devamma

bore grudge against the defendants and threatened that Varala

Devamma would not settle the property in favour of defendant

No.1 unless she agrees to the said proposal of marriage. After

seeing the indifferent attitude of Varala Devamma, defendant No.1

got issued a legal notice dated 10.06.2007 to her demanding

partition of the suit schedule property. Varala Devamma in her

reply notice, claimed that she was the absolute owner of the suit

schedule property.

12.3. It was further averred that Varala Devamma in collusion

with her adopted son and the plaintiff, dismantled the old structures

in the suit schedule property. Defendant No.1 filed suit in

O.S.No.50 of 2007 on the file of this Court for partition and

separate possession against Varala Devamma and the husband of

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the plaintiff by name Ravinder and during the pendency of the said

suit, the plaintiff was also impleaded as defendant No.3 therein.

After full-fledged trial, the said suit was decreed. Thus, the

judgment and decree dated 04.01.2012 passed in O.S.No.50 of

2007 would operate as res-judicata against the plaintiff in this suit.

The registered sale deed in favour of the plaintiff is illegal, invalid

and sham and has no legal sanctity in the eye of law. Hence, prayed

to dismiss the suit with costs.

13. Based on the above pleadings, the trial Court framed the

following issues for trial:-

"(1) Whether the plaintiff is the owner in possession of the plaint schedule property?

(2) Whether the plaintiff is entitled for permanent injunction as prayed for?

(3) To what relief?

(4) Whether the judgment and decree in O.S.No.50/2007 on the file of this Court operates as res judicata against the plaintiff?"

14. On behalf of the plaintiff, P.Ws.1 to 3 were examined and

Exs.A.1 to A.5 were marked. On behalf of the defendants, D.W-1

was examined and Exs.B.1 to B.15 were marked.

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15. The trial Court, after perusing the material on record and

on hearing both sides, observed as hereunder:-

"The documentary evidence filed by the plaintiff is not sufficient to answer the issues in her favour in the light of the specific case of the defendants that a total extent of 561 square yards of property originally belonged to late Varala Ramulu and that Varala Devamma had no competency to alienate a part of it to the exclusion of defendant No.1, who is admittedly legal heir of Varala Ramulu.

It is only from the year 1987-88 the name of Varala Devamma has been recorded in Revision Register as is evident from Exs.B-6 to B-8. Thus, Exs.B-1 to B-5 strengthen the case of the defendants that the property originally belonged to Varala Ramulu only."

16. The trial Court accordingly answered issue Nos.1 and 2

against the plaintiff holding that Ex.A-1 does not confer title on the

plaintiff and that the plaintiff is deemed to be out of possession

unless the suit schedule property is divided by metes and bounds.

16.1. Further, the trial Court observed that O.S.No.50 of 2007

was filed before the Court on 21.09.2007 for partition, whereas, the

present suit was originally instituted on 21.01.2008; that the parties

in both the suits are one and the same and the issues settled in

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O.S.No.50 of 2007 are akin to issue No.1 of the present suit and

hence, the judgment in O.S.No.50 of 2007 operates as res judicata

in the present suit.

17. Thus, in the light of the above findings, the trial Court

dismissed the suit-O.S.No.23 of 2010 vide its judgment

30.10.2012.

18. 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 as hereunder:-

"As already held above, the plaintiff filed this suit equitable relief of perpetual injunction and she has approached the Court with unclean hands. However, the attitude of the plaintiff not disclosing the true facts in O.S.No.50 of 2007 gives an inference that the plaintiff has not approached the Court with clean hands. Further, as already discussed, the alleged vendor of the plaintiff by name Varala Devamma has no exclusive right to alienate the property in favour of the plaintiff, as such, the plaintiff will not get valid title over the suit property through Ex.A.1. When once Ex.A-1 is not proved, the judgment and decree in O.S.No.50 of 2007 comes into operation and as per the said judgment, defendant No.1 and the husband of the plaintiff namely Varala Ravinder are entitled for half share each in the entire suit schedule property

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and the plaintiff becomes stranger of the suit property. As such, the suit filed by the plaintiff is not maintainable."

19. Heard Ms. Rachana Reddy, learned senior counsel,

representing Sri Mohd. Basheer Riyaz, learned counsel on record

for the appellants and Sri Rakesh Sanghi, learned counsel for the

respondents. Perused the record.

21. Learned counsel for appellants argued that the trial Court

rendered the judgments impugned herein without proper

appreciation of the evidence and the first Appellate Court also

committed an error in confirming the judgments passed by the trial

Court.

22. Learned counsel for the appellants relied upon the

following decisions of the Hon'ble Apex Court:-

(1) Rashmi Kumar v. Mahesh Kumar Bhada 1

(2) Govindbhai Chhotabai Patel & Ors. v. Patel Ramanbhai

Mathurbhai 2

(3) Prabhagiya Van Adhikari, Awadh Van Prabhag v. Arun

Kumar Bharadwaj (dead) thr. L.Rs & Ors 3

(1997) 2 SCC 397

AIR 2019 SC 4822

AIR 2021 SC 4739

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(4) Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors 4,

(5) S.Kaladevi v. V.R. Somasundaram & Ors 5

(6) Prakash Sahu v. Saulal & Ors. 6

(7) Gurmail Singh v. Amarjit Singh 7

(8) Venkalakshmi Ammal & Ors. v. Jagannathan & Ors. 8

(9) Gurunath v. Kamalabai & Ors 9

(10) R. Hemalatha v. Kasthuri 10,

(11) M/s Paul Rubber Industries Private v. Amit Chand

Mitra 11

(12) Vidyadhar v. Manik Rao & Ors. 12

(13) Eruka Builders & Ors. v. Gulabchand & LRs. 13

(14) P. Kishore Kumar v. Vittal K. Patkar 14

22.1. Learned counsel for the appellants also relied upon the

decision of the High Court of Delhi at New Delhi in Anita Anand

v. Gauri Kapur & Ors 15.

AIR 2019 SC 3827

2010 (89) AIC 97

MANU/SC/1530/2019

1963 MAD 316

AIR 1955 SC 206

C.A. No.7210 SC 2011

2023 SC 304

1999 (3) SCC 573

2018 (8) SCC 67

2018 SCC Del 11372

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23. In Rashmi Kumar's case (1st cited supra), the Hon'ble

Apex Court in Para 11 held that properties gifted to the wife either

during, at the time or after the marriage are called Sthridhan

properties and the said properties are her absolute properties which

the husband may use during the time of distress, but has the moral

obligation to restore the same or of its value to the wife. It was

further held that therefore the said Sthridhan property does not

become a joint property of the wife and the husband, and the

husband has neither any title or independent dominion over the

property is given to the husband.

24. In Govindbhai Chhotabai Patel's case (2nd cited supra),

the Hon'ble Apex Court at para 21 of its judgment held that the

burden of proof that the property was ancestral is on the plaintiff/s

alone. It was for the plaintiff/s to prove that the Will intended to

convey the property for the benefit of the family so as to be treated

as ancestral property. In the absence of any such averment or proof,

the property in the hands of donor has to be treated as self-acquired

property. Once the property in the hands of donor is held to be self-

acquired property, he was competent to deal with his property in

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such a manner he considers as proper including by executing a gift

deed in favour of a stranger to the family.

25. In Prabhagiya Van Adhikari's case (3rd cited supra), the

Hon'ble Apex Court at Para 26 of the judgment relied on the

judgment rendered in Prahlad Pradhan & Ors. v. Sonu Kumhar

& Ors reported in {(2019) 10 SCC 259}, in which it was held that

the revenue record neither confers title to the property nor do they

have any presumptive value on the title.

26. In Ravinder Kaur Grewal's case (4th cited supra), the

Supreme Court case dealt with the issue as to whether Article 65

and Section 27 of Limitation Act only enables a person to set up

adverse possession as a shield and such plea cannot be used to

protect the possession of immovable property or to recover it in

case of dispossession.

27. In S.Kaladevi's case (5th cited supra), the Hon'ble Apex

Court, while dealing with regard to admissibility of an unregistered

sale deed in suit for specific performance of contract, at Para 12

held that document required to be registered, if unregistered is not

admissible into evidence under Section 49 of the Registration Act

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and such unregistered document can be used as evidence of

collateral purpose. Further, it was held that admission of an

unregistered sale deed in evidence in suit for specific performance

as evidence of contract does not affect the provisions of the

Registration Act, 1908; and rather courts act in consonance with

provision under Section 49 of the Registration Act, 1908.

28. In Prakash Sahu's case (6th cited supra), the Hon'ble

Apex Court in Para 4 reiterated the principles laid down in S.

Kaladevi's case (cited supra) and held that unregistered document

could be taken into consideration for collateral purposes under

proviso to Section 49 of Registration Act, 1908.

29. In Gurmail Singh's case (7th cited supra), the Hon'ble

High Court of Punjab and Haryana held that a sale deed being

more than thirty years old document and having come from proper

custody, has presumption of correctness u/s 90 of Evidence Act,

1872. It was further held that onus of proving the document is

discharged once the document was produced and the attesting

witness of the said document was examined and thereby, the other

party is expected to lead the evidence.

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30. In Venkalakshmi Ammal's case (8th cited supra), the

High Court of Madras at Para 48 of its judgment held that it is well

settled that proof of the existence of a joint family does not lead to

the presumption that property held by any member is joint and the

burden rests upon anyone asserting that any item of property was

joint to establish the fact, but where it is established that the family

possessed some joint property which from its nature and value may

have formed the nucleus from which the property in question may

have been acquired, burden shifts to the party alleging self-

acquisition to establish affirmatively that the property was

acquired without the aid of the joint family property.

31. In Gurunath's case (9th cited supra), the Hon'ble Apex

Court at Para 23 of its judgment held that it is well known that in

the absence of any clear Shastric text the courts authority to decide

cases on principles of justice, equity and good conscience and it is

not possible to hold that the reasons stated in support of the rule are

not consistent with these principles. Hindu law generally and in

particular in matters of inheritance, alienation and adoption gives

to the widow powers of a limited character and there is nothing in

the limitations laid down by the course of decisions above referred

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to repugnant to that law. For the reasons given above, we are

unable to depart from the rule that a widow's power to make an

adoption comes to an end by the interposition of a grandson or the

son's widow competent to continue the line by adoption.

32. In R. Hemalatha's case (10th cited supra), the Hon'ble

Apex Court at Para 13 of its judgment held that as per proviso to

Section 49 of the Registration Act, an unregistered document

affecting immovable property and required to be registered by the

Registration Act or Transfer of Property Act, may be received as

evidence of a contract in suit for specific performance or as

evidence of any collateral transaction not required to be effected by

registered instrument subject to Section 17(1A) of Registration

Act.

33. In M/s Paul Rubber Industries Private's case (11th cited

supra), the Hon'ble Apex Court at Para 13 of its judgment placed

reliance on the judgment rendered in Rai Chand Jain v. Miss

Chandra Kanta Koshla {(1991) 1 SCC 422}, in which it was held

that a lease deed even though unregistered, could be considered for

collateral purposes to show the purpose for which the premises was

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leased out and held that nature and character of possession

contained in a flawed document (being unregistered) can form

collateral purpose when the character and nature of possession are

not the main terms of the lease and does not constitute the main

dispute for the adjudication by the court. Furthermore, at Para 15 of

its judgment, the Hon'ble Apex Court placed reliance on the

judgment rendered in Park Street Properties Pvt. Ltf. v. Dipak

Kumar Singh & Anr. {(2016) 9 SCC 268} in which it was held

that in the absence of a registered document, courts are not

precluded from determining the factum of tenancy from other

evidence on record as well as for the purpose of tenancy.

34. In Vidyadhar's case (12th cited supra), the Hon'ble Apex

Court at Para 36 of its judgment observed that the words "price

paid or promised or part-paid and part-promised" indicate that

actual payment of the whole of the price at the time of the

execution of sale deed is not a sine qua non to the completion of

the sale. Even if the whole of the price is not paid, but the

document is executed and thereafter registered, if the property is of

the value of Rs.100, the sale would be complete. Further, at Para

37, the Hon'ble Apex Court, placing reliance on catena of

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judgments, held that even if the whole of the price is not paid, the

transaction of sale will take effect and the title would pass under

that transaction and that non-payment of a portion of the sale price

would not affect validity of sale. It was further observed that part-

payment of consideration by the vendee itself proved the intention

to pay the remaining amount of the sale price.

35. In Eureka Builders's case (13th cited supra), the Hon'ble

Apex Court at Para 35 of its judgment observed that it is a settled

principle of law that a person can only transfer to other person a

right, title or interest in any tangible property which he is possessed

of to transfer it for consideration or otherwise. In other words,

whatever interest a person is possessed of in any tangible property,

he can transfer only that interest to the other person and no other

interest, which he himself does not possess in the tangible property,

so once it is proved that on the date of transfer of any tangible

property, the seller of the property did not have any subsisting

right, title or interest over it, then a buyer of such property would

not get any right, title and interest in the property purchased by him

for consideration or otherwise. Such transfer would be an illegal

and void transfer.

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36. In P. Kishore Kumar's case (14th cited supra), the

Hon'ble Apex Court at Para 18 observed it is a settled law that a

vendor cannot transfer a title to the vendee better than what he

possesses, the principle arising from the maxim nemo dat quad non

habet i.e., no one can transfer better title than what he himself has.

It was further held at Para 22 that in a suit filed for declaration of

title, merely pointing out the lacunae in the defendant's title does

not suffice and the burden of proof lies on the plaintiff to

reasonably establish the probability of better title.

37. In Anita Anand's case (15th cited supra), the Hon'ble High

Court of Delhi Court at Para 29 of its judgment held that in order to

succeed in prayer for partition, it has to be proved that the property

is capable of being partitioned; that the plaintiff has a share in the

property; that such share can be ascertained and granted either by

metes and bounds or by sale of property.

38. This Court has carefully gone through the aforesaid citations

relied upon by the learned counsel for the appellants. The facts and

circumstances in the aforesaid cases are entirely distinct to that of

the instant case and are delivered in different factual context. The

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nature of the suits and the reliefs sought in those suits are

predominantly for declaration of title, recovery of possession etc.

The present suit is filed for partition. In a suit for partition, the

plaintiff has to prove that the subject property is ancestral/joint

family property and the same is amenable to partition and that the

plaintiff is entitled for share in the said property.

39. A perusal of the record discloses that both the trial Court as

well as the first Appellate Court concurrently held that the oral and

documentary evidence adduced by both the parties categorically

proves that the suit schedule property originally belongs to one

Varala Ramulu and on his death, his natural daughter-

Anantahamma and his adopted son by name Varala Ravinder,

succeeded to the suit schedule property. Varala Devamma, wife of

Varala Ramulu, has not proved her contention of purchase of the

suit schedule property from one Chitlabotala Venkataiah and as

such, she has no exclusive right to alienate the property in favour

of Varala Shobha. Therefore, the said Varala Shobha is not entitled

for a decree of perpetual injunction in her favour in respect of the

suit schedule property.

LNA, J S.A.Nos.393 & 395 of 2023

40. Thus, in the light of the above, the decisions relied upon by

the learned counsel for the appellants cannot be made applicable to

the facts of the present case and they are of no aid to the appellants.

41. Learned counsel for appellants failed to raise any substantial

question of law to be decided by this Court in these Second

Appeals. In fact, all the grounds raised in these appeals are factual

in nature and do not qualify as the substantial questions of law in

terms of Section 100 C.P.C.

42. It is well settled principle by 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.

43. Further, in Gurdev Kaur v. Kaki 16, 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 S.A.Nos.393 & 395 of 2023

where a substantial question of law is raised and fell for

consideration.

44. 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 appellants are factual

in nature and no question of law much less a substantial question of

law arises for consideration in these Second Appeals.

45. Hence, both the Second Appeals fail and the same are

accordingly dismissed at the stage of admission. No costs.

46. Pending miscellaneous applications, if any, shall stand

closed.

__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:29.02.2024 dr