Telangana High Court
Smt. Sarojamma vs Smt. Roshamma Died on 13 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.487 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 18.08.2023, passed in A.S.No.36 of 2018 on the file
of the Court of Principal District Judge, Jogulamba Gadwal,
confirming the judgment and decree dated 12.10.2018 passed by
the Senior Civil Judge, Gadwal in O.S.No.72 of 2010, 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 shorn off unnecessary details, which led
to filing of the present Second Appeal, are that one Late Golla
Beesanna, S/o Sonjanna was absolute owner of the suit schedule
property. Defendant No.1 is the first wife of Golla Beesanna,
defendant No.2 is his son, defendant Nos.3 and 4 are daughters of
defendant No.1 born through Golla Beesanna. Plaintiff No.1 is
second wife of Golla Beesanna and Plaintiff No.2 is daughter,
Plaintiff Nos.3 to 5 are sons of plaintiff No.1 born through Golla
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Beesanna. The property devolved upon the plaintiffs and
defendants under Section 8 of Hindu Succession Act. The plaintiffs
and defendants are members of Hindu undivided family and in
joint possession of suit land. As such, the plaintiffs demanded for
partition of suit schedule property, but the defendants were evading
the same. Hence the suit for partition of the suit schedule property.
4. Defendant No.2 filed his written statement contending that
38 years ago, before birth of plaintiff Nos.2 to 5, one Golla
Sanjanna and Golla Beesanna executed agreement on 24-05-1973
and transferred rights in favour of defendant Nos.1 and 2 by
relinquishing their rights over the suit schedule property and since
then, they are in peaceful possession and enjoyment of the
property. As such, the plaintiffs are no way concerned and have no
right over with suit schedule property and prayed to dismiss the
suit.
5. Defendant Nos.1, 3 and 4 are set ex parte.
6. Basing on the above pleadings, the following issues were
settled for trial:-
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"(1)Whether the suit scheduled property to belongs to
late Golla Beesanna?
(2) Whether the plaintiffs are entitled for share in the
plaint scheduled property?
(3)Whether the court fee paid is proper?
(4) To what relief?
7. On behalf of the plaintiffs, plaintiff No.4 himself got
examined as PW-1 and one Golla Bajaranna was examined as PW2
and marked Exs.Al to A9. On behalf of the defendants, defendant
No.2 got himself examined as DW-1 and one Golla Bandlaiah was
examined as D.W-2 and Exs.B1 to 51 were marked.
8. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 12.10.2018, observed as hereunder:-
"On a perusal of Exs.A-1 to A-5, it shows that Golla
Sanjanna was pattadar of land in Sy.No.334.
Therefore, the suit schedule property does not belong
to Golla Beesanna. Further a perusal of Ex.B-1, it
shows that both Golla Beesanna and Sanjanna
executed settlement deed dated 24.05.1973 in favour of
Roshamma. Therefore, Sanjanna who is original
owner gave property to Roshamma and her son i.e.,
defendant Nos.1 and 2. Therefore, when the suit
schedule property does not belong to Beesanna, the
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plaintiffs are not entitled for share in the said
property."
9. The first Appellate Court, being the final fact-finding Court,
re-appreciated the entire evidence and the material available on
record dismissed the appeal vide judgment dated 18.08.2023. The
first Appellate Court observed that the evidence of D.Ws.1 to 3 is
that during the life time of G.Sanjanna, he along with his son-Golla
Beesanna has parted the suit schedule property in favour of
defendant No.1 towards her maintenance under Ex.B-1-family
settlement deed dated 24.5.1973. It further observed that even the
admission made by P.W-1 that the suit schedule properties are
owned and possessed by late G.Sanjanna, but not by late
G.Beesanna, has to be taken into consideration.
9.1. The first Appellate court further observed that the plaintiffs
did not produce any other evidence to show that Ex.B-1 was
brought into existence by the defendants after death of G.Sanjanna
and G.Beesanna and the plaintiffs also did not object while Ex.B-1
was marked. Thus, the first Appellate Court upheld the conclusion
of the trial Court that the suit schedule property is not ancestral and
joint family property and hence, the same is not liable for partition.
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10. Heard Sri Akkam Eshwar, learned counsel for the appellants,
and Sri Ajgal Ravi Babu, learned counsel for the respondents.
Perused the record.
11. A perusal of the record discloses that both the trial Court as
well as first Appellate Court concurrently held that the oral and
documentary evidence adduced by both the parties goes to show
that the suit schedule properties are the self-acquired properties of
Golla Sanjanna, who executed Ex.B-1-Gift Settlement deed in
respect of the said properties in favour of defendant No.1 towards
her maintenance and hence, the request of the plaintiffs for
partition of the suit schedule properties was declined.
12. Learned counsel for appellant argued that the trial Court
decreed 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.
13. 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
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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.
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 appellant are factual in
(2007) 1 Supreme Court Cases 546
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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. No costs.
18. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:13.03.2024
dr
