Telangana High Court
M. Krishnam Raju vs M. Venkataiah Died Per Lrs. on 12 July, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.395 of 2017
JUDGMENT:
Aggrieved by the judgment and decree, dated
05.08.2015, passed in A.S.No.230 of 2011 on the file of
Special Sessions Judge for Trial of Cases under SC/ST(PoA)
Act 1989-cum-VII Additional District & sessions Judge at
L.B.Nagar, Ranga Reddy district, where under and whereby
the judgment and decree dated 07.04.2009 passed in
O.S.No.420 of 2002 by the V Additional Senior Civil Judge,
Ranga Reddy District at L.B.Nagar, was confirmed, the
present Second Appeal is filed.
2. The appellants are the plaintiffs 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 suit was filed for
partition and separate possession of 1/6th share in the suit
schedule property in Sy.No.193, admeasuring Acs.6.35
guntas situated in Tondupally village, Shamshabad Mandal,
Ranga Reddy district (for short, 'suit schedule property').
LNA, J
3.1. It is averred that plaintiffs are the children of the
defendant no.1 and the suit schedule property originally
belonged to late M.Sailoo, and thus, the plaintiffs are the
coparceners of the Hindu joint family property; that said
M.Sailoo died leaving behind him, the 1st defendant as his
sole son and the plaintiffs, who are the grand sons, as his
legal heirs.
3.2. It is averred that defendant no.1 is habituated to
alcohol and used to harass his wife mentally and physically;
that defendant no.1 having illegal intimacy with one lady and
living with her at Gollapally village, that he deserted his wife
and plaintiffs for the last 10 years; that after death of Sailoor,
the suit schedule property was mutated in the name of the
defendant no.1; that taking undue advantage of the same, he
was trying to alienate the suit schedule property to third
parties; that on 22.04.2002, when the plaintiffs demanded
the 1st defendant before the elders for partition of the
property by metes and bounds, the 1st defendant refused for
partition of the property. Hence, the suit.
4. Defendant no.1 remained ex parte. The suit against the
defendant nos.2 to 4 was dismissed for default.
LNA, J
5. The defendant No.5 filed written statement denying the
plaint averments made in the plaint and contended that
plaintiffs and defendant no.1 colluded together and tried to
obtain a false decree from the Court; that defendant no.2 to 5
purchased the suit schedule property from defendant no.1 in
the year 1998 under a registered agreement of sale-cum-
General Power of Attorney and the 5th defendant has
alienated the same to various third parties, who are now
enjoying the said land as absolute owners and possessors
without any interruption; that as plaintiffs and defendant
no.1 alienated the land in the year 1995 itself under a
registered document to meet the family necessaries as a
kartha of joint family, therefore the plaintiffs cannot seek
partition of the property; that plaintiffs are not in possession
of the property by the time the suit was filed.
6. It is further averred that in pursuance of the registered
agreement of sale-cum-GPA vide document No.1038/98
dated 04.09.1998, executed by defendant no.1 on behalf of
plaintiffs, defendant nos.2 to 5 alienated the land of Ac.1.34
guntas in the schedule property along with other land to
Meena Shah and Bharat Shah under registered document
LNA, J
no.1088/1999 and remaining land was alienated to Puste
Prahlada Rao under two separate sale deeds vide document
nos.436/2001 and 634 of 2001 and their names were also
mutated in the revenue records and they are in possession
and enjoyment of the same; that plaintiffs suppressed the
above material facts and filed the suit for partition.
7. To substantiate the case, on behalf of plaintiffs, P.Ws.1
and 2 were examined and Exs.A1 to A18 were marked. On
behalf of the defendants, defendant No.5 got himself
examined a DW.1 and got marked Ex.B1.
8. Heard Sri A.Keshava Reddy, learned counsel for the
appellants, and Ms. L.Vani, learned counsel for the
respondent Nos.3 to 9. Perused the record.
9. Learned counsel for appellants argued that the trial
Court dismissed 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.
10. Learned counsel for appellants placed reliance on the
following decisions:
LNA, J
i) Collector, Land Acquisition, anantnag and another v.
Mst. Katiji and others 1;
ii) Ramlal and others v. Rewa Coalfields Ltd., 2;
iii) N.Mohan v. R.Madhu 3
11. Learned counsel for the respondents placed reliance on
the following decisions:
i) Commissioner of Wealth Tax, Kanpur and others v.
Chander Sen and others 4;
ii) Daka Audemma vs. Inaganti Venkateswara Reddy and
others 5;
iii) Govindan and others vs. Revathi and others 6; and
iv) Kuppusamy Gounder and others vs. Mohanraj 7
12. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties
in its judgment dated 07.04.2009 made the following
observations:
"(i) that since the plaintiffs have approached the Court for
partition and separate possession of suit schedule property,
they have to establish their legal right for such partition and to
prove that the suit schedule property is the ancestral property
and joint family property by placing cogent and convincing
evidence and they cannot depend on the weakness in the
defence or failure of the defendants to prove their case;
1 AIR 1987 SC 1353
2 AIR 1962 SC 361
3 AIR 2020 SC 41
4 (1986) 3 SCC 567
5 MANU/AP/0768/2016
6 MANU/TN/8125/2019
7 MANU/TN/2324/2022
LNA, J
(ii) that Exs.A1 to A10-pahanies filed by plaintiffs shows that
suit schedule property originally belonged to M.Sailoo, who is
registered as pattadar, and the defendant no.1 was shown to
be the possessor-cum-enjoyer of the suit schedule property in
the revenue records; that the evidence of P.Ws.1 and 2 does
not disclose that said Sailoo has executed any testamentary
deed bequeathing the property in favor of any person; that
after the death of Sailoo, 1st defendant being his son and
Class-I heir, has succeeded to the suit schedule property as
said Sailoo died intestate; that he became the absolute owner
of the suit schedule property and as such, he is entitled to
dispose of the property as per his will and pleasure and
therefore, the plaintiffs have no legal right to seek partition of
the same during the life time of defendant no.1.
(iii) that plaintiffs did not adduce any oral or documentary
evidence that suit schedule property, which stand in the name
of their grandfather, was acquired by said Sailoo from his
ancestors; that if the property is passed on from three degrees
higher than the plaintiffs, then the said property can be held to
be ancestral property; that in view of the above, the plaintiffs
have miserably failed to prove that the suit schedule property
is ancestral property acquired by their grandfather Sailoor
from his ancestors.
(iv) that in view of Ex.B1-agreement of sale-cum-General Power
of Attorney, executed by 1st defendant in favour of defendant
Nos.2 to 4, 1st defendant has authorized them to sell the
property; that the said document also would show that the
possession of the property was also delivered to Defendant
Nos.2 to 5.
(v) that the suit is bad for non-joinder of purchasers of
defendant Nos.2 to 4 who are proper and necessary parties;
that the alienations made by defendant no.1 through
defendant nos.2 to 5 pursuant to Ex.B1 are legal as he
absolute owner and possessor of the property in view of
succession of same under Section 8 of the Hindu Succession
Act. In view of the above observations, dismissed the suit."
13. On appeal being filed, the first Appellate Court, being
the final fact-finding Court, re-appreciated the entire evidence
and the material available on record and observed as under:
"(i) that except the pahani for the year 1979-80, the other
documents shows that the defendant no.1 is the pattadar;
that even the pahani for the year 1979-80, defendant no.1 is
in possession of the property; that the plaintiffs who are the
LNA, J
children defendant no.1 cannot be termed as coparceners
and they cannot claim the property as coparcenary property;
that defendant no.1 had executed an agreement of sale-cum-
GPA in favour of defendant nos.2 to 5 on 04.09.1998.
(ii) that plaintiffs having knowledge that the defendant no.1
being absolute owner of the property has sold the same to
defendant nos.2 to 5, for which they filed the suit to defeat
the claim of defendant nos.2 to 5; that defendant no.1 being
the owner has sold the property to third parties and
therefore, the plaintiffs are not entitled to seek any partition
of the property; that plaintiffs miserably failed to prove that
the suit schedule property is coparcenary property and it is
liable for partition; that trial Court had correctly appreciated
the evidence on record and held that the suit schedule
property is not coparcenary property and hence, there is no
need to interfere with the judgment of trial Court and
accordingly dismissed the appeal".
14. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiffs failed to prove that
the suit schedule property is coparcenary property and
therefore, they are not entitled to the reliefs of partition and
separate possession of the suit schedule property.
15. Learned counsel for appellants/plaintiffs relied upon
the judgments of Mst. Katiji, Ramlal and N.Mohan (supra)
to substantiate his contention that subject property is
ancestral property and therefore, alienation made by the
defendant No.1 is not binding on the plaintiffs, therefore, the
appellants/plaintiffs are entitled to a share in the property.
There is no quarrel with the settled principles of law that
grandsons are entitled to share in ancestral property.
LNA, J
However, in the present case, the trial Court as well as first
Appellate Court has categorically held that the appellants/
plaintiffs failed to establish and prove that subject property is
ancestral property/Hindu joint family property. Therefore, the
citations relied upon by the learned counsel for appellants/
plaintiffs will not come to the aid of appellants.
16. The learned counsel for appellants 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 8, the Apex Court held
that the High Court sitting in Second Appeal cannot examine
(2007) 1 Supreme Court Cases 546
LNA, J
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.
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 appellants 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. There shall
be no order as to costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 12.07.2024
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