Telangana High Court
Smtrachuri Mallamma vs Gopala Nagaraju on 12 June, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.489 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree, dated 28.06.2024, passed by the Principal District Judge,
Nagarkurnool, in A.S.No.15 of 2021, whereunder and whereby the
judgment and decree, dated 11.08.2021, passed by the Senior Civil
Judge, Nagarkurnool, in O.S.No.33 of 2015 was confirmed.
2. The appellants herein are plaintiffs and respondents herein are
defendants, in the suit before the trial Court. For convenience,
hereinafter the parties are referred to as they are arrayed in the suit.
3. The brief facts of the case are that plaintiff filed the suit in
O.S.No.33 of 2015 before Senior Civil Judge, Nagarkurnool, for
specific performance of contract in respect of open site bearing
Sy.No.119 admeasuring 98ft length, 60ft width total admeasuring 653
sq.yards, situated in the limits of Peddakothapally village and mandal
(hereinafter referred to as 'schedule property'). In the plaint, it is
averred that the schedule property was originally purchased by Gopala
Balaiah, the father of plaintiffs and defendant No.1, in the name of his
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wife Gopala Laxmamma and the said property is the joint family
property; that in a family settlement made in the year 2009, the said
property was given to the plaintiffs, but on 01.06.2009 the defendant
obtained a registered gift settlement deed bearing document
No.2364/2009 in his favour from his mother Gopala Laxmamma in
respect of the schedule property and took possession of the same; that
in this regard panchayath was held on 17.04.2012, and defendant No.1
executed an agreement of sale in favour of plaintiffs agreeing to
execute registered sale deed within 3 months without taking any
consideration and despite repeated requests of plaintiff, defendant
No.1, did not execute the sale deed ; that on 01.12.2012 defendant
No.1 executed registered sale deed bearing document No.4286/2012,
in favour of defendant No.2 in respect of 86.66 sq.yards of the
schedule property and on the same day, the defendant No.1 executed
another registered sale deed bearing document No.4285/2012, in
favour of defendant No.3 in respect of 86.66 sq.yards of the schedule
property and also executed one more registered sale deed bearing
document No.4287/2012 in favour of defendant No.4 in respect of
83.33 sq.yards of the schedule property; that defendants Nos.2 to 4
have purchased part of the suit property having knowledge of the
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agreement between the plaintiffs and defendant Nos.1, thus,
defendants No.2 to 4 have to execute the registered sale deed along
with defendant No.1. Hence, the suit.
4. Defendant No.1 remained ex-parte and Defendant Nos. 2 to 4
filed common written statement, wherein they admitted that the
mother of defendant No.1, Gopala Laxmamma, gifted the schedule
property on 01.06.2009 to defendant No.1 under registered gift deed
document No.2364/2009 and subsequently defendant No.1 executed
three separate registered sale deeds dated 01.12.2012 in favour of
defendants No.2 to 4 vide doc.Nos.4286/2012, 4285/2012 and
4287/2012 respectively, however, denied the remaining averments of
the plaint. It is further averred that Gopala Laxmamma, w/o Gopala
Balaiah, was the exclusive owner of the schedule property and neither
the plaintiffs nor their husbands have any right or authority over the
suit property, and by virtue of the registered gift deed document
No.2364/2009, defendant No.1 is the owner and possessor of the
schedule property; that defendant No.1 executed three registered sale
deeds in favour of defendant Nos.2 to 4, and delivered possession and
since then they have been in possession and enjoyment of their
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respective lands. At this stage, the defendant No.1 by colluding with
the plaintiffs and his parents got filed this false suit through plaintiffs
by creating a false agreement before filing of the suit by taking false
pleas in order to harass defendants No.2 to 4. Hence, prayed to
dismiss the suit.
5. On the basis of the above pleadings of both the parties, the trial
Court framed the following issues for trial:-
"(1) Whether the plaintiffs are entitled to specific
performance of agreement dt.17.04.2012 against the
defendants in respect of the suit schedule property as prayed
for?
(2) To what relief?"
6. To substantiate their case, plaintiff No.1 got hereby examined
himself as PW1 and Pw.2 was also examined and Exs.A1 to A5 were
marked. On behalf of the defendants, DWs.1 and 2 were examined
and Exs.B1 to B3 were marked.
7. After full-fledged trial and upon considering the oral and
documentary evidence and the contentions of both the parties, the trial
Court dismissed the suit, vide judgment and decree dated 11.08.2021.
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8. The trial Court in its judgment categorically observed as
hereunder:-
"....on one hand it is contended by the plaintiffs that the defendant
No.1 vide Ex.A1 agreed to execute a registered sale deed in favour
of plaintiffs whereas the learned counsel for plaintiffs suggested to
DW1 in his cross examination that the defendant No.1 agreed to
execute gift deed (as against registered sale deed pleaded in favour
of plaintiffs in respect of the suit property. The above mentioned
discrepancy in the pleadings and cross examination by the learned
counsel for plaintiffs to DW1, is also one of the factors and grounds
for to draw an interference that the plaintiffs themselves are not
aware of the case facts or the nature of the document and the
contents of the document i.e., Ex.A1 allegedly executed by
defendant No.1 in their favour...
...the document on the strength of which the plaintiffs have
approached this court seeking the relief of specific performance, is
itself not proved in evidence. Further, the inconsistent of pleas
taken by the plaintiffs in their pleadings and during the course of
their evidence, makes this case devoid of merits and hence it is
liable to be dismissed. Therefore, the plaintiffs are not entitled to
the relief of specific performance of agreement dt.17.04.2012
against the defendants in respect of suit schedule property and as
such the question of recovery of possession of the suit property from
the defendants does not arise..."
9. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and material
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available on record and dismissed the Appeal, vide its judgment dated
28.06.2024, thereby, confirming the judgment of the trial Court.
10. The first Appellate Court in its judgment observed as
hereunder:-
"...that admittedly the mother executed Ex.A2 registered gift
settlement deed dt.01-06-2009 vide doc. No. 2364/2009 in favour of
defendant No.1. The said document is un-challenged so far.
However, as per the case of the plaintiffs the defendant No.1
misrepresented and by playing fraud on the mother Laxmamma got
executed Ex.A2 registered gift settlement deed. The same is not
proved to be true and correct since the defendant No.1 is not
examined in this case. The plaintiffs cannot take advantage of the
fact that the defendant No.1 is set exparte in the suit more
particularly because it is the specific defence of the defendants and
evidence of DW1 and DW2 that the defendant No.1 executed Ex. A3
to A4 registered documents, which are copies of Ex.B1 to B3
documents dt.01-12-2012 in respect of part of the suit plots. Further,
PW1 admitted in her cross examination that Exs.B1 to B3 documents
were executed by defendant No.1 in favour of defendant Nos.2 to 4
and delivered possession of the same to them."
10.1. The first Appellate Court has further observed as hereunder:-
"...As per the pleadings registered document is to be executed in
favour of the plaintiffs within 3 months from the date of execution,
but from the evidence it is seen that the defendant No.1 was asked to
execute a gift deed which is contrary to the pleadings. Yet another
aspect which assumes importance is that as per the agreement of
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sale there is no consideration passed from the plaintiffs to the
defendant No.1. In such circumstances, the agreement of sale under
Ex.A1 becomes a void document and cannot be executed as prayed.
Section 54 of the Transfer of Property Act mandates that
consideration must be there in one form or the other either in part or
on whole. Further there is no admitted promise to pay the same in
future also. There is no such pleading in the plaint in this regard and
as such Ex Al is not a valid document for consideration.
... the defendants established that the defendant No.1 was the
original owner and possessor of the part of the suit plot covered by
Ex.B1 to B3 by virtue of Ex.Al registered gift settlement deed and
that having sold away the same by virtue of the said three registered
sale deeds, neither the plaintiffs nor the defendant No.1 have any
right over the said extent of suit plot. On the other hand, the
evidence of PW1 and PW2 is contrary to the pleadings and contents
of Ex.A1 to A5. The evidence of DW1 and DW2 is in accordance
with the contents of the written statement and Ex.B1 to B3."
11. Heard Sri D. Damodar Reddy, learned counsel for the
appellants and Sri D.L. Pandu, learned counsel for the respondents.
Perused the entire material available on record.
12. Learned counsel for the appellants contended that the trial
Court as well as first appellate Court misinterpreted the documents
placed on record and came to erroneous conclusion and thus
dismissed the suit. Learned counsel further contended that both the
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Courts have considered the agreement dated 17.04.2012 agreement of
sale and erroneously refused to grant the relief of specific
performance, which requires interference of this Court. Learned
counsel further contended that both the Courts failed to consider the
fact that schedule property was purchased by the father of the
appellants and defendant No.1, in the name of their mother and
therefore, their mother has no exclusive rights over the schedule
property and thus gift deed executed by her is invalid. Hence, prayed
to allow the Second Appeal.
13. A perusal of record would disclose that the trial Court as well
as the first Appellate Court concurrently held that plaintiffs failed to
substantiate their claim of specific performance and have not placed
evidence in support of their contention. The First Appellate Court
categorically held that gift deed dated 01.06.2009 (Ex.A2), executed
by mother of plaintiff in favour of defendant No.1, has not been
challenged, therefore the same is binding on them. First appellate
Court observed that defendant executed three sale deeds in favour of
defendants Nos.2 to 4 in the month of December 2012, whereas suit
was filed in the month of April, 2015 and plaintiffs have not explained
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the said delay. First appellate Court further observed that as per
agreement of sale, no consideration is paid by the plaintiffs to
defendant No.1, therefore, the same becomes invalid as per Section 54
of Transfer of Property Act.
14. In considered view of this Court, 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.
15. It is well settled principle by a catena of decisions of the
Hon'ble Apex Court that in the Second Appeal filed under Section
100 C.P.C., this Court cannot interfere with the findings on facts
arrived at by the first Appellate Court, which are based on proper
appreciation of the oral and documentary evidence on record.
16. Further, in Gurdev Kaur v. Kaki1, 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
(2007) 1 Supreme Court Cases 546
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C.P.C. is very limited and it can be exercised only where a substantial
question of law is raised and falls for consideration.
17. Having considered the entire material available on record and
the findings recorded by the first Appellate Court, this Court finds no
ground or reason warranting interference with the said findings, under
Section 100 C.P.C. Moreover, the grounds raised by the appellant are
factual in nature and no question of law, much less a substantial
question of law arises, for consideration in this Second Appeal.
18. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:12.06.2025
tssb
