Telangana High Court
Jonnalagadda Ranga Reddy , vs Jonnalagadda Anji Reddy on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.270 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the
judgment and decree, dated 13.12.2022, passed by the
V Additional District Judge at Miryalaguda, Nalgonda District, in
AS.No.9 of 2018, whereunder and whereby the judgment and
decree dated 13.11.2017 passed by the Additional Junior Civil
Judge, Miryalaguda, in O.S.No.248 of 2011, was confirmed.
2. The appellant is the plaintiff No.1, respondent Nos.1 to 3
are plaintiff Nos.2 to 4 and respondent Nos.4 to 6 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 plaintiff Nos.1 to 4, defendant No.2 and
husband of defendant No.3 by name Narasimha Reddy (since
died) are the sons and defendant No.1 is the daughter of
Jonnalagadda Kanthamma and Koti Reddy. It is averred that
Jonnalagadda Kanthamma was the owner of the land to an extent
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of Acs.4.23 guntas in Survey No.24/e situated at Kistapuram
Village, Miryalaguda Mandal, Nalgonda District. Out of the said
land, the said Jonnalagadda Kanthamma gifted Acs.4.00 guntas to
defendant No.1 vide registered Gift Settlement Deed dated
21.08.2001 and kept the suit schedule land i.e., Ac.0.23 guntas of
land with her till her death. It is further averred that the said
Jonnalagadda Kanthamma died on 24.12.2008 and her husband
Koti Reddy predeceased her.
3.1. It is averred that on 24.12.2008 at about 9:00 a.m., the said
Jonnalagadda Kanthamma executed a Will deed bequeathing the
suit schedule land and another non-patta land of Ac.1.20 guntas
in the same survey number in favour of the plaintiffs and
defendant Nos.2 and 3. On the same day i.e., on 24.12.2008 the
said Jonnalagadda Kanthamma died. Consequently, the plaintiffs
and defendant Nos.2 and 3 became the owners and possessors of
the suit schedule land. Thereafter, they approached the Tahsildar,
Miryalguda, for mutation of their names against the suit schedule
land in the revenue records in pursuance of the said Will deed.
The defendant No.1 also produced a Will deed stated to have
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been executed by Jonnalagadda Kanthamma and claimed that she
is the owner and possessor of the suit schedule land. Therefore,
the Revenue Authorities issued proceedings dated 06.02.2010
directing them to approach the Civil Court for adjudication of the
Will deeds propounded by them. Hence, the plaintiffs filed the
suit for declaration of Will Deed dated 24.12.2008 as true and
valid and binding on defendant No.1 and for consequential relief
of perpetual injunction.
4. The defendant No.2 remained ex parte and the suit against
defendant No.3 was dismissed for default for not taking steps to
serve summons on her by the plaintiffs.
5. The defendant No.1 filed written statement denying the
plaint averments and inter alia stating that plaintiff No.1 harassed
his parents during their life time seeking more share in their joint
family properties. The Plaintiff No.1 got filed a case under
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act, 1989, against his father through his tractor driver Palla
Narasimha. Due to the said act, his father felt humiliated and
died. Thereafter, the plaintiffs, defendant No.2 and the husband
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of defendant No.3 did not look after their mother and therefore,
she came to the house of defendant No.1 and she looked after her
mother with love and affection.
5.1. It is stated that as per the records, Jonnalagadda
Kanthamma was the owner of agricultural land to an extent of
As.4.23 guntas, but, physically, the extent of the said land was
Acs.6.00 guntas. Out of the said land, Jonnalagadda Kanthamma
gifted an extent of Acs.4.00 guntas of land to defendant No.1
through registered gift settlement deed dated 21.08.2001.
Thereafter, on 23.12.2008, Jonnalagadda Kanthamma executed a
Will deed bequeathing the remaining extent of Acs.2.00 guntas of
land, which includes the suit schedule land, in favour of
defendant No.1 and she died on 24.12.2008 i.e., on the next day of
execution of the said Will deed. It is further stated that there was
no occasion for Jonnalagadda Kanthamma for executing the Will
deed on 24.12.2008 bequeathing the suit schedule land in favour
of her sons and that the plaintiffs have created and fabricated the
alleged Will deed after the death of Jonnalagadda Kanthamma by
forging her thumb impression. It is further stated that the
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plaintiffs are not in possession of any extent of the land in the suit
Survey No.24/e.
6. On the strength of the above pleadings, the trial court
framed the following issues:-
1. Whether the Will deed, dated 24.12.2008 said to have executed
in favour of the plaintiffs and the defendant Nos.2 and 3 by late
Jonnalagadda Kanthamma in respect of the suit schedule
property is true and valid ? If so, the plaintiffs are entitled for
declaration of their title over the schedule property?
2. Whether the plaintiffs are entitled for grant of perpetual
injunction in respect of the suit schedule property against the
defendant No.1 as prayed for?
3. To what relief?"
7. During the trial, on behalf of the plaintiff, PWs.1 to 4 were
examined and Ex.A-1 to A-5 were marked and on behalf of the
defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-3 were
marked.
8. After the full-fledged trial and upon considering the oral
and documentary evidence and the contentions of both the
parties, the trial Court vide judgment and decree dated 13.11.2017
dismissed the suit.
9. The trial Court categorically observed as under:-
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"It is an admitted fact that the plaintiffs and D2 and D3 are
not in possession of the suit schedule property and the same is
under the possession and enjoyment of the 1st defendant as a
legatee under Ex.B.1 will dt:23.12.2008 and her name was
mutated in revenue records and as such without seeking the
relief for recovery of possession of the suit schedule land from
the 1st defendant, the plaintiffs are not entitled to seek for
declaration of their title over the suit schedule land on the basis
of Ex.A.1 will dt. 24.12.2008. The above conclusion arrived by
me is fortified by the Hon'ble Apex Court in Vinaya Krishna
Vs. Kesavachary reported in AIR 1993 SC 957 while dealing
with the proviso to section 34 of the Specific Relief Act, 1963
the Hon'ble Supreme Court categorically held " in a suit for
declaration of the share in the property, where the plaintiff was
in no exclusive possession of the property, failure to claim
relief of possession will bass the discretion of the court to grant
decree for declaration. So, irrespective of the evidence adduced
on behalf of both parties in the suit either by oral or
documentary, I have no hesitation in holding that the present
suit for mere declaration of the title of the plaintiffs by virtue of
Ex.A.1 will dated 24.12.2008, is not maintainable and is liable
to be dismissed."
9.1. The trial Court further observed as under
"PW.1 and PW.4 who are the plaintiffs 1 & 2 in the
suit during their cross examination have categorically deposed
that the suit schedule land is never in their possession and the
same is under the possession and enjoyment of the 1st
defendant and her name is also mutated in revenue records as
per the orders of the Tahsildar as legatee under Ex.B.1, will
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dated 23.12.2008 and so the plaintiffs who are not in
possession of the schedule land as on the date of filing of the
suit on 23.08.2011 are not entitled to seek for an equitable
relief of permanent injunction against the defendants."
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 dismissed the appeal confirming the
judgment and decree of the trial Court, dated 13.11.2017.
10.1. The first Appellate Court observed as hereunder:-
"The plaintiff No.2/P.W.4, in his cross-examination, has
stated that his mother died on 24.12.2008 at his sister's house
at Hyderabad. He has admitted that the obsequies of his
mother were performed at his sister's house.
As admitted by the plaintiff No.1/P.W.1, which is noted
above, the relations between him and his parents were not
cordial and criminal cases were registered against him on the
complaint lodged by his father with regard to land disputes.
When the relations between the plaintiff No.1/PW.1 and his
parents were strained to the extent of getting registered
criminal cases against each other, it would be improbable to
believe the case of the plaintiffs that their mother has executed
Ex.A.1/Will deed in their favour. As stated by the plaintiff
No.1/P.W.1 himself, on the night of 23.12.2008, his mother,
due to the harassment of the defendant No.1 and her husband,
took some pills and at the time of execution of Ex Al, she was
under the shock of the said incident and she died one hour
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after the execution of Ex.A1. If that be so, the case of the
plaintiffs that their mother i.e., Jonnalagadda Kanthamma
was in a sound and disposing state of mind at the time of
alleged execution of Ex.A1 becomes improbable."
10.2. The first Appellate Court further observed as under:-
"The plaintiffs failed to prove that Jonnalagadda Kanthamma
has executed Ex.A.1/Will deed bequeathing the suit
schedule land in their favour and also in favour of the
defendant Nos.2 and 3. So, the said Will cannot be said to
be the last Will of Jonnalagadda Kanthamma and if that be
so, the plaintiffs would not be entitled for the relief of
declaration sought in that regard."
10.3. The first Appellate Court further observed as under:-
"The plaintiff No.1/PW.1, in his cross-examination,
admitted that the defendant No.1 got mutated her name as
owner and possessor of the suit schedule land in the revenue
records and the MRO has issued proceedings (Ex.B3) in
favour of the defendant No.1 and that the defendant No.1 is
in possession of the suit schedule land and she has been
cultivating the said land. The plaintiff No.2/PW4 also, in
his cross-examination, has admitted that the suit schedule
land is in possession of the defendant No.1 and she has been
cultivating the same. So, there would be no hesitation to
hold that the plaintiffs are not in possession and enjoyment
of the suit schedule land. If that be so, they would not be
entitled to seek any injunction the defendant No.1, who is,
admittedly, in possession of the said land."
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11. Heard Sri S. Chandar Mohan Reddy, learned counsel for
the appellants and Sri M. Venkat Ram Reddy, learned counsel for
the respondent No.4. Perused the entire material available on
record.
12. A perusal of the record discloses that the trial Court held
that the plaintiffs and defendant Nos.2 and 3 were not in
possession of the suit schedule property and the same is under
the possession and enjoyment of the defendant No.1 as a legatee
under Ex.B.1 Will dated 23.12.2008 and her name was also
mutated in the revue records and as such without seeking the
relief of recovery of possession of the suit schedule land from the
defendant No.1, the plaintiffs are not entitled to seek declaration
of their title over the suit schedule land on the basis of Ex.A.1
Will dated 24.12.2008. On appeal, the first appellate Court
confirmed the judgment of the trial Court holding that the
plaintiffs were not in possession and enjoyment of the suit
schedule land, and therefore, they are not entitled to seek any
injunction against the defendant No.1, who is in possession of the
suit land.
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13. The 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.
14. 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.
15. 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
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16. 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.
17. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. There shall be no order as to
costs.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 11.03.2024
va
