Telangana High Court
Rudroji Alias Kammari Bramaiah vs Padakanti Sukunavva on 31 January, 2025
HON'BLE SRI.JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.42 of 2025
JUDGMENT:
Aggrieved by the judgment and decree, dated 30.08.2024,
passed in A.S.No.16 of 2022 on the file of the Court of I
Additional District Judge at Jagitial, whereunder and whereby the
judgment and decree dated 22.06.2022 passed by Principal
Junior Civil Judge, Jagitial, in O.S.No.32 of 2016, was confirmed,
the present Second Appeal is filed.
2. The appellant is plaintiff 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 plaintiff filed suit before the trial
Court vide O.S.No.32 of 2016 under Section 25 r/w Order IV and
VII of CPC, 1908 against the defendants for partition and
separate possession of land to an extent of Ac.0.16 guntas
bearing Survey No.944/B situated at Mallial village by allotting
1/18th share in favour of plaintiff, the plaintiff is the son of late
Rudroji @ Kammarin Laxmipathi and grandson of late Rudroji @
Kammari Chinna Lingaiah and defendant Nos.1 to 11 are the
coparcenars of Hindu Joint Family members governed by
Mithakshara School of Law. It is averred that grandfather of
plaintiff i.e., Kammari Chinna Lingaiah was the owner of land
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bearing survey No.944/B to an extent of Ac.0.16 guntas situated
at Mallial village and his name is appearing as pattedar in
revenue records and he died log ago leaving behind him, his three
sons viz., Rudroji @ KammariBrahmaiah, Rudroji @ Kammari
Ramaiah and Rudroji @ KammariLaxmipathi and one daughter
i.e, Rudroji @ KammariRathavva; that 1st son of Kammari
Chinna Lingaiah, KammariBrahmaiah died about 30 years back
leaving behind the defendant No.1, 2nd son Kammari Ramaiah
also died about 30 years back leaving behind one son Kammari
Laxmi Rajam and defendant No.2, further the said Kammari
Laxmi Rajam died leaving behind defendant Nos.3 and 4 and 3rd
son KammariLaxmipathi died about 14 years ago leaving behind
two sons plaintiff herein and defendant No.5 and four daughters
i.e., one UngarlaSuravva and defendant Nos.6 to 8, further the
said UngarlaSuravva died leaving behind defendant Nos.9 and 10
and husband of defendant No.11, who also died.
4. It is further contended that defendant No.1 being legal heir
of late Rudroji @ KammariBrahmaiah having 1/3rd share,
defendant Nos.2 to 4 being legal heir of Rudroji @ Kammari
Ramaiah having 1/3rd share and the plaintiff, defendant Nos.5 to
11 being legal heirs of late Rudroji @ Kammari Laxmipathi are
having 1/3rd share together in the suit schedule land; that after
death of his grandfather Rudroji @ Kammari Chinna Lingaiah,
father of plaintiff and his paternal uncle gave the suit land to
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defendant Nos.12 and 13 on crop share lease basis for two years,
then after the father of plaintiff and his paternal uncle use to
cultivate the suit land till their death and taking advantage of
their name in pahani patrikas, the defendant Nos.12 and 13
illegally cultivating the suit land without obtaining further lease.
In the month of December, 2014 the plaintiff demanded
defendant Nos.12 and 13 to give crop share but they refused the
same and denied the title of plaintiff as such the plaintiff
approached defendant Nos.1 to 4 in the month of June, 2015 and
demanded for partition and separate possession of suit land and
ton allot 1/3rd share to the plaintiff and defendant Nos.5 to 11
being share of late Rudrojin @ Kammari Laxmipathi, but
defendant Nos.1 to 4 refused the same and hence plaintiff
approached elders of village on 15.01.2016 and requested to
conduct a panchayath to settle the issue but they suggested to
approach the Court. Hence, the suit.
5. In the written statement filed by the defendant No.12 the
averments made in the plaint are denied and contended that he is
the owner and possessor of suit schedule property bearing survey
No.944/B to an extent of Ac.0.16 guntas situated at Mallialshivar
and the same was purchased by defendant No.12 from Kammari
Rajaiah, Kammari Laxmirajam and Kammari Ramalaxmi through
a registered sale deed bearing Document No.3069/1979 dated
03.09.1979 for a valid consideration and since then he is in
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peaceful possession and enjoyment over the same. He also
submits that the documents are clearly showing that he is in
peaceful possession and enjoyment over the same and at the time
of purchasing the suit land, the suit land stands in the name of
Late Kammari Chinna Lingaiah who died leaving behind his sons
KammariRajaiah, Kammari Laxmi Rajam and his wife Kammari
Rama Laxmi as legal heirs. Defendant No.12 further submits
that vendors of defendant No.12 sold the suit land to him for their
legal necessities for a valid consideration on 03.09.1979 and
since then he is in peaceful possession and enjoyment over the
same, as such the plaintiff and defendant Nos.1 to 11 are having
no right over the suit schedule property. Hence, prayed to
dismiss the suit with costs.
6. To substantiate the case, plaintiff himself examined as
P.W.1 and Exs.A.1 to A.22 are marked. On behalf of defendants,
defendant No.12 examined as D.W.1 and got marked Exs.B.1 to
B.19.
7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
dismissed the suit vide its judgment dated 22.06.2022 by
observing that Ex.B.1 which clearly establishes that defendant
No.12 purchased the suit schedule property through registered
sale deed and the sale deed stands good until the same is
challenged and declared as invalid by any competent Court of law
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and also held that the plaintiff in this case did not take any steps
to challenge Ex.B.1 sale deed in favour of defendant No.12 and
thus, held that plaintiff is not entitled for the relief of partition
since the plaintiff failed to prove the suit schedule property is
joint family property of plaintiff and defendant Nos.1 to 11 and
that they are in joint possession of the suit property.
8. The trial Court further observed as under:
i. In the case in hand initial burden lies
on the plaintiff to establish that suit property
is joint family property. The plaintiff in this
case though led evidence is not sufficient to
prove his case that suit property is joint
family property as his evidence during cross
examination is quiet contrary to his pleadings
in the plaint. From the mere assertion of
plaintiff that himself and defendant Nos.1 to
11 constitute Joint Hindu Family cannot be
established when defendant denies the said
fact and the evidence led by plaintiff is not
sufficient to prove the aforestated fact of joint
family property. Thus in view of aforesaid
discussion, plaintiff failed to prove that suit
schedule property is joint family property of
himself along with defendant Nos.1 to 11.
ii. Plaintiff in this case failed to show
constitute coparcenary Hindu Joint Family
and further plaintiff also failed to prove that
suit schedule property is their joint family
property. As defendant No.12 is successful
in rebutting the case of the plaintiff by
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submitting oral and documentary evidence in
support of the defence taken by defendant
No.12 by showing Ex.B.1 sale deed that suit
schedule property was purchased by him
long back in the year 1979. Further
pahanies Ex.B.2 to B.19 also show the
possession of defendant No.12 over the suit
schedule property. From this it is clear that
suit schedule property is purchased by
defendant No.12 vide Ex.B.1 registered sale
deed Document No.3069/1979. The plaintiff
filed the present suit in the year 2016 but
however, plaintiff di not take any steps
challenging Ex.B.1 registered sale deed
standing in the name of defendant No.12,
which was executed in the year 1979."
9. 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 dismissed the appeal, vide
judgment dated 30.08.2024 and observed as under:
"It is overwhelmingly clear that, plaintiff
failed to prove establish seeking partition
and separate possession of the suit schedule
property, on the other hand defendant is able
to prove under Exs.B.1 to B.19 placed by all
the relevant documents as he purchased
from his grandfather. The appellant-plaintiff
has failed to prove his sought for partition
and separate possession over suit schedule
property cannot claimed relief. It is rightly
pointed out by the trial Court in the impugned
judgment that the appellant-plaintiff has not
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explained anywhere in his evidence to show
that as on date of the filing of the suit, the
suit property is undivided and coparcenars of
Hindu Joint Family members governed by
Mitakshara School of Law."
10. The first appellate Court further observed that the claim of
plaintiff seems to be hypothetical and speculative and without
establishing the share of the plaintiff. Though the father of the
plaintiff sold the suit schedule property to defendant No.12,
knowingly the plaintiff approached the Court with unclean hands,
claiming to be grandson of Kammari Chinna Lingaiah.
11. The first appellate Court further observed that the trial
Court, has dealt with all the issues in detail by giving sound
reasoning for its conclusions and also observed that there is
absolutely no need to interfere with the impugned judgment of
the trial Court, as the same is on correct lines and accordingly,
confirmed the order of the trial Court. Hence the Second Appeal.
12. Heard Sri A.Mallesham, learned counsel for the appellant.
13. Learned counsel for the appellant 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 order passed by the trial Court.
14. A perusal of the record disclose that the suit property
belonged to Kammari Chinna Lingaiah (grand father of plaintiff)
and after his death, his legal heir alienated the suit property in
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favour of defendant No.12 vide registered sale deed bearing
Document No.3069 of 1979 dated 03.09.1979, whereas, the suit
for partition was filed by the plaintiff in the year 2016. Further,
the first appellate Court specifically observed that the plaintiff
failed to prove that the plaintiff and defendant Nos.1 to 11 are
coparcenars and they constitute Hindu Joint Family and that the
suit property is joint family property. The trial Court as well as
first appellate Court have held that defendant No.12 has been in
continuous possession from the date of purchase i.e., from
03.09.1979 and that the plaintiff failed to prove his claim and
that plaintiff is not entitled for partition of suit land.
15. 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 question of
law in terms of Section 100 C.P.C.
16. 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 by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
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17. 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.
18. 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 respondents are
factual in nature and no question of law arises for consideration
in this Second Appeal.
19. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. There shall be no order as
to costs.
As a sequel, miscellaneous petitions, pending if any, shall
stand closed.
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LAXMI NARAYANA ALISHETTY, J
Date:31.01.2025
Bw
(2007) Supreme Court Cases 546
