Telangana High Court
Chinnannolla Mallaiah Died vs Llolla Ananthamma, on 2 July, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Second Appeal No. 601 OF 2011
Between:
Chinnannolla Mallaiah (Died) per LRs
and others. ... Appellants
And
Llolla Ananthamma ... Respondent
DATE OF JUDGMENT PRONOUNCED: 02.07.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ S.A. No. 601 OF 2011
% Dated 02.07.2024
# Chinnannolla Mallaiah (Died) per LRs
and others. ... Appellants
And
$ Llolla Ananthamma ... Respondent
! Counsel for the Appellants: Sri K.V.Bhanu Prasad
^ Counsel for the Respondent: Mohd.Moin Ahmed Quadri
T.V.Rajeevan
>HEAD NOTE:
? Cases referred
3
THE HON'BLE SRI JUSTICE K.SURENDER
SECOND APPEAL No.601 of 2011
JUDGMENT:
1. The appellants are defendants in the trial Court, who were
unsuccessful in the trial Court and also the appellate Court.
Aggrieved by the concurrent findings, the present Second Appeal is
filed. Hereafter, the parties will be referred to as in the trial Court.
2. The plaintiff filed suit for partition and separate possession of
1/3rd share in Acs.3.33 guntas of agricultural land in Sy.No.345/A
claiming that she is having right on 1/3rd share in the suit schedule
property, which right accrued from her father. The defendants 1
and 2 are brothers of the father of the plaintiff. After filing the suit,
written statements were filed by the 1st and 2nd defendants denying
the share of the plaintiff stating that the father of the plaintiff died
during police action in the year 1949 before Hindu Succession Act,
1956 came into force. Further, the claim of the plaintiff is that her
father and defendants 1 and 2, all three brothers had acquired the
suit schedule property as joint family property. Further, according
to the plaintiff, her father died in the year 1970 and her mother
died prior to that. Since both the parents died, plaintiff was taken
care of by her grandmother Lachamma and thereafter, by the 1st
defendant, who is the paternal uncle.
3. The defendants 1 and 2 claimed that they succeeded the suit
schedule property from their father, who is the grandfather of the
plaintiff, as such, the plaintiff cannot claim her right since Hindu
Succession Act 1956 was not in force at the time of death of the
plaintiff's father in 1949. Accordingly, the real facts were
suppressed by plaintiff and also the suit undervalued.
4. After filing of written statement by the 1st and 2nd defendants,
petition was filed to implead the defendants Nos.3 and 4. The 3rd
defendant is the daughter of 1st defendant in whose favour the 1st
defendant executed a gift deed in respect of Acs1.36 ½ guntas out
of the suit schedule property. Thereafter, the 3rd defendant sold the
property in the name of the 4th defendant, which is M/s.Punnami
Developers Private Limited. The trial Judge by orders dated
11.06.2006 permitted the defendants 3 and 4 to be impleaded.
5. Basing on the pleadings of plaintiff and defendants, the
following issues were framed by the trial Court:
1. Whether the suit schedule land is available for partition?
2. Whether the suit is bad for non-joinder of necessary parties?
3. Whether the gift document No.603/1998 executed by
Defendant No.1 in favour of Defendant No.3 is binding on the
parties?
4. Whether the registered sale deed document No.276/2004
Executed by Defendant No.3 in favour of Defendant No.4 is
sham and void document?
5. Whether the plaintiff is entitled to the partition and separate
possession as prayed for?
6. Whether the plaintiff is entitled for preliminary decree against
the Defendants as prayed for?
7. To what relief?
6. Having considered both the oral and documentary evidence
adduced on either side, the trial Court found that Ex.A1, certified
copy of the khasra pahani for the year 1954-55 reflected name of
the father of the plaintiff Chinnanolla Pentaiah as the pattadar who
was the head of the joint family. Further, under Exs.A2 to A4,
which are the pahanies for the year 1960-61, 70-71 and 75-76, the
name of the plaintiff's father was recorded as the pattadar. Exs.A1
to A4 were not disputed by the defendants. The name of the first
and second defendants were reflected in the pahaies for the year
from 1985-1986. Since the name of the father of the plaintiff was
reflected till 1970-71, the trial Court found that the father of the
plaintiff must have died during 1970 after the Hindu Succession
Act came into force. Since the defendants failed to prove that the
father of the plaintiff died in the year 1949 during police action as
asserted by them, the trial Court found that the plaintiff was
entitled to 1/3rd share in the property. Accordingly, trial Court
decreed the suit finding that the suit schedule property had to be
partitioned by 1/3rd in favour of plaintiff. Further, the Gift
Settlement Deed No.603 of 1998, dated 26.02.1998 executed by the
defendant No.1 in favour of the defendant No.3 was not binding on
the plaintiff in respect of her share in the suit schedule property.
Similarly, the registered sale deed executed by 3rd defendant in
favour of 4th defendant is valid but will not include the share of the
plaintiff.
7. Aggrieved by the said Judgment and Decree in O.S.No.550 of
2003 dated 28.12.2007, the defendant Nos.1 to 3 appealed before
the District Court vide A.S.No.32 of 2008 dated 07.12.2011. The
District Court framed the following points for consideration in
appeal:
i) Whether this Court is having jurisdiction to entertain the
appeal.
ii) Whether is there any interference required in the
judgment of the lower Court?
8. Learned Sessions Judge found that the 1st appellate Court was
having jurisdiction to entertain the appeal and correctly valued the
property for the purpose of Court fee. Further on facts, the first
appellate Court found that the findings of the trial Court are correct
and needs no interference.
9. Being unsuccessful in both the Courts below, the present
Second Appeal was filed.
10. This Court on 13.06.2011 while admitting the appeal passed
the following order:
"Subject to the petitioners herein/the appellants depositing a
sum of Rs.50,000/- (rupees fifty thousand only) to the credit of
suit OS No.550 of 2003 on the file of Principal Junior Civil
Judge, Sanga Reddy, Medak, let there be stay of passing of
final decree.
Six weeks time is granted for making the said payment and
upon such deposit of the amount, the plaintiff-decree holder is
entitled to withdraw the same without furnishing any security."
11. It is apparent that no substantial question of law was framed
at the time of admission, which runs contrary to the scope of
Second Appeal, which mandates framing of substantial question of
law at the time of admission and then direct issuance of notice to
the respondents. Alternatively, notice before admission also could
have been ordered to the respondents, which was not done in the
present case. However, since this Court had already admitted the
appeal, both the counsel are heard.
12. The following substantial questions of law are urged by the
appellant.
i) Whether the courts below are right in granting preliminary
decree in favour of the respondent when the partition was
opened admittedly about 50 years back soon after the death of
the father of the respondent.
ii) Whether the courts below are correct in rejecting the plea of
pecuniary jurisdiction by holding that the value of the court fee
stated by the plaintiff is of primary importance instead of
holding that the valuation of the suit furnished in the plaint is
essential to determine the jurisdiction.
iii) Whether the courts below are right in misreading the
evidence and coming to a wrong conclusion to grant
preliminary decree in favour of the respondent.
iv) Admittedly when the 4th respondent is in possession of the
suit land, whether appellate court is justified in believing that
the 1st respondent is in joint possession and satisfying that, the
court fee of Rs.200/- paid there on is correct?
13. Thereafter, during the course of arguments, memo was filed to
consider the following additional substantial questions of law:
i) Whether the courts below are right in decreeing the suit, when
suit as framed and filed for partition is not maintainable as the
documents filed by the plaintiff are not supporting her case?
ii) Whether it is open to the courts below to ignore, by reason of
delay in instituting the suit, the right if any for the plaintiff is
extinguished?
14. Learned Senior Counsel appearing for the appellants would
submit that the plaintiff did not claim partition in respect of all the
ancestral properties, for the said reason, her claim selectively in the
suit schedule property cannot be considered by the Court. The
plaintiff ought to have filed a separate suit for cancellation of the
gift deed executed by the 1st defendant in favour of the
3rd defendant. Further, when the plaintiff admitted that there is a
gift deed in favour of 3rd defendant and subsequent sale deed in
favour of 4th defendant, that in itself would reflect that the plaintiff
was not in joint possession of the subject property.
15. Learned Senior counsel appearing for appellants further
argued that under Ex.A1. The father of the plaintiff is shown as
purchaser, as such, the question of the property being ancestral
property does not arise. Finally, the suit filed before the Court below
is hopelessly barred by limitation under Article 58 of the Limitation
Act.
16. It is well settled law that the High Court in Second Appeal
cannot examine the correctness of finding on facts by the Court
below unless the said findings are inherently improbable or
perverse.
17. It is the case of the appellants that the suit property was not
ancestral property, but self-acquired. The said argument cannot be
accepted since it is not the case of the defendants in the main suit.
The contention raised was that the father of the plaintiff died even
before the Hindu Succession Act came into force. As such, the
plaintiff was not entitled, even though the suit schedule property
was ancestral land. The ground of the plaintiff not seeking partition
of the properties was not raised by the defendants in the main suit,
as such, it cannot be urged before this Court. As rightly found by
the Courts below, Exs.A1 to A3 when collectively considered, the
father of the plaintiff died around 1970, as such, the plaintiff's
entitlement to 1/3rd share of the property, cannot be found fault
with.
18. There is no necessity of seeking cancellation of the gift deed in
favour of the 3rd defendant and subsequent alleged sale deed in
favour of the 4th defendant, as argued by the appellants' counsel. A
coparcener has no right to execute gift deed without the consent of
the other coparcener.
19. Factual issues and legality of the claims made by either of the
parties to the suit, when correctly decided by the trial Court and the
first appellate Court, the very same issues cannot be raised in
Second Appeal, unless the findings are inherently improbable,
contrary to law or perverse. In view of the foregoing discussion,
there are no substantial questions involved to be decided in the
present appeal. The substantial questions formulated by the
appellants are mixed questions of fact and law, which have already
been decided correctly by the Courts below.
20. Accordingly, the Second Appeal stands dismissed.
__________________
K.SURENDER, J
Date : 02.07.2024
Note: LR copy to be marked.
B/o.kvs
