Telangana High Court

Bathini Laxmi vs K.Sivarama Prasad on 20 January, 2025

Author: P.Sree Sudha

Bench: P.Sree Sudha

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

           SECOND APPEAL No. 351 of 2023

JUDGMENT:

This second appeal is filed aggrieved by the judgment

and decree dated 13.10.2022 passed in A.S.No.20 of 2018 by

the learned Principal District and Sessions Judge, at

Sangareddy in which the judgment and decree passed in

O.S.No.632 of 2007 dated 03.01.2018 by the learned

Principal Junior Civil Judge, at Sangareddy was reversed.

2. O.S.No.632 of 2007 was filed by the appellant/plaintiff

against respondents/defendants for partition and separate

possession. The trial court preliminarily decreed the suit on

03.01.2018. Aggrieved by the judgment of the trial court the

respondents herein preferred an appeal in A.S.No.20 of 2018.

The first appellate court reversed the judgment and decree of

the trial court. Aggrieved by the said judgment, the appellant

herein filed the present second appeal on the following

substantial questions of law:

(1) Whether the appellate court committed material illegality and irregularity in reversing partly the well considered judgment of the trial Court who had an opportunity to see the demeanor of the witnesses,

without looking into the joint possession over the suit schedule properties.

(2) Whether the appellant entitlement partition over the Item No.1 of suit schedule property and mere denial of partition of the appellant share in item No.1 of suit property by the respondent No.3 without discharging their onus in asserting the title is valid and permissible under the law.

(3) Whether the trial Court below is right in granting the relief of partition against the respondents, respondents admitted that the appellant will have right over the ancestral property and the appellant and respondent No.2 to be legal heirs and joint possession of suit properties?

(4) Whether the trial Court below is right view of sec 8 of Hindu Succession Act, as such the alienation made by the respondents 1 & 2 in favour of the respondent No.3 in respect of item No.1 of property need to be treated as bad in law is permissible under the law?

(5) Whether the well reasoned fining of facts arrived by the appellate Court below which has an opportunity to see the demeanor of the witnesses can be misinterpreted on assumptions and presumptions by the appellate Court?

(6) Whether oral evidence can be prevailed upon the documentary evidence which has been filed and proved by examining the appropriate witnesses?

(7) Whether the appellate Court can consider the evidence of the parties without any pleading in their support?

(8) Whether the judgment of the appellate Court below holds good in view of non consideration of Exhibits A1 to A7?

(9) Whether an adverse inference can be drawn against the persons who deliberately suppress the material documents which are relevant in deciding the material issues?

(10) Whether the learned trial Court rightly held that in the 1/3 share of the plaintiff and respondent Nos.1 & 2 constituted a coparcener and therefore each of them had 1/3rd share, and therefore the share of each coparcener should have been 1/3 share?

(11) Whether the Lower Appellate Court is right in holding that the plaintiff is not entitled to partition in respect item No.1 of the suit property overlooking the pleadings and the documents of title in the instant case and as per Apex Court Vineet Sharma Vs Rakesh Sharma (AIR 2020 (SC) 337(17)?

3. Heard both sides. Perused the record.

4. The parties herein are referred as plaintiff and

defendants as arrayed before the trial Court for the sake of

convenience.

5. The brief facts of the case are that the plaintiff filed

O.S.No.632 of 2007 for partition and separate possession of

agricultural land bearing Sy.No.770/A, admeasuring Ac.1.21

guntas, Sy.Nop.194, 195, 376, 381, 431 and 438

admeasuring Ac.0.13 ½ guntas, Ac.0.13 ½ guntas, Ac.0.06

guntas, ac.0.08 guntas, aC.0.17 guntas and Ac.0.04 guntas

and house bearing No.3-83 situated at Rudraram Village,

Patancheru Mandal, Medak District. Plaintiff stated that she

along with defendant Nos.1 and 2 constitute a joint undivided

Hindu Family. They are having equal rights over the property

and it is ancestral property of plaintiff and defendant Nos.1

and 2. Defendant No.1 tried to deprive the legitimate share of

plaintiff and negotiating with some third parties tried to sell

the property on 04.11.2007. Defendant No.1 used to give

plaintiff's legitimate share in shape of money till 2006 and

later he stopped to pay the same, as such plaintiff demanded

for her share on 11.11.2007. Defendant No.1 did not give

any reply and not paid her share amount. Plaintiff suspected

the defendant No.1, as such she approached the Revenue

Office and made enquiries and came to know that suit

schedule property was transferred in the name of defendant

No.3 behind the back of plaintiff. Plaintiff is having 4/9th

share in the suit schedule property but the defendants tried

to grab the property. Defendant No.1 abused plaintiff and

refused to give her share, as such she approached the Court

and sought for her 4/9th share in the suit schedule property.

6. Defendant No.3 in his written statement stated that

after detailed enquiry, the MRO issued mutation proceedings

No.193 dated 17.03.1994 and the land in Sy.No.770

admeasuring Ac.3.02 guntas was mutated in the name of

defendant No.3 as per registered sale deed dated 22.01.1994

executed by defendant No.1 and Bathini Chennaiah.

Defendant No.3 became the absolute owner and possessor of

the property in the year 1994. Plaintiff never objected the

same. Defendant No.3 leveled the land and fixed the

boundaries with fencing wire and kadis, dug bore well and

fixed the electric motor with electricity consumer No.SC 524,

Rudraram Village, and from then onwards defendant No.3 is

in peaceful possession of the property and also cultivating the

land and doing agriculture for more than 12 years. Plaintiff,

in collusion with defendant Nos.1 and 2 to extract more

money filed this case for claiming 4/9th share without

mentioning the other properties held by the father of plaintiff.

Defendant Nos.1 and 2 are having other lands in Rudraram

Village. Defendant No.1 already sold the property to

defendant No.3 by way of registered sale deed dated

22.01.1994. Defendant No.3 is cultivating the land from

1994 by fixing the boundaries and thus plaintiff knew about

the sale in 2007 is incorrect. Defendant No.3 is bonafide

purchaser and he purchased the property from lawful owner.

Therefore, requested the Court to dismiss the suit.

7. Plaintiff examined P.Ws.1 and 2 and got marked Exs.A1

to A7 and defendant No.3 examined D.Ws.1 and 2 and got

marked Exs.B1 to B19. The trial Court considering the oral

and documentary evidence decreed the suit and held that

plaintiff, defendant Nos.1 and 2 are entitled for 1/3rd share

each over the suit schedule property. Aggrieved by the said

judgment, defendant No.3 preferred A.S.No.20 of 2018 and

the first appellate Court allowed the appeal by setting aside

the judgment of the trial Court. The first appellate Court

stated that plaintiff was aged 30 years at the time of filing of

the suit and at the time of sale, she would have been 17 years

old and she would have attained majority in the year 1995

but she did not attempt to file the suit till the year 2007.

Defendant No.3 was in possession of the suit schedule

property for the past 12 years and plaintiff has knowledge

about the sale of the property and she also admitted that she

is not having good terms with defendant Nos.1 and 2 since

the property was sold in favour of defendant No.3. Plaintiff

has not filed pahanies for the years 1994 to 2004. Though

she has knowledge of the proceedings, she did not file the

suit immediately and accordingly the first appellate Court

allowed the appeal.

8. Learned counsel for respondents contended that there

is no substantial question of law and the appellant did not

sought for the cancellation of the document and the appeal

has to be filed within three year after attaining majority as

per Article 15 of the Limitation Act. Though she has

knowledge of the sale transaction in the year 1997, she kept

quiet till 2007. In this case, defendant No.1 sold the property

to defendant No.3. Though plaintiff has knowledge of the

proceedings, she kept quiet for 12 years and filed the suit for

partition in the said property. Defendant No.3 purchased

the property under Ex.B1 and also filed Ex.B2 to substantiate

his version. It is clear that plaintiff filed the suit in collusion

with defendant Nos.1and 2 to grab the property from

defendant No.3. The first appellate Court rightly considered

all the facts and rightly allowed the appeal by setting aside

the judgment of the trial Court. Therefore, this Court finds

no reason to interfere with the judgment of the fist appellate

Court.

9. In the result, this Second Appeal is dismissed with

costs confirming the judgment and decree of the first

appellate Court dated 13.10.2022 passed in A.S.No.20 of

2018.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA DATE: 20.01.2025 CHS