Pendota Ashok vs Pendota Srinivas
2025 Latest Caselaw 4372 Tel

Telangana High Court

Pendota Ashok vs Pendota Srinivas on 30 June, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               SECOND APPEAL No.334 of 2024

JUDGMENT:

The Second Appeal is filed against the judgment and

decree dated 27.02.2023 in A.S.No.01 of 2019 on the file of the

learned Principal District Judge, Karimnagar, wherein the

judgment and decree dated 15.11.2018 in O.S.No.209 of 2013

on the file of the learned Principal Senior Civil Judge,

Karimnagar, was confirmed.

2. Appellants herein are defendants and respondent herein

is plaintiff in the suit. For convenience, the parties hereinafter

are referred to as they were arrayed before the trial Court.

3. Brief facts of the case, which led to filing of the present

second appeal as averred in the plaint are that plaintiff is the

first wife's son of one late Kishtaiah, and defendant No.1 is the

second wife's son of Kishtaiah. Defendant No.2 is the wife of

defendant No.1. Plaintiff's mother P.Amruthamma along with

her brother's wife E.Kamala Bai, purchased plot Nos.1 and 2

total measuring an extent of 144 Sq.yrds, with their own funds,

through a registered sale deed bearing document No.3297 of

1971, dated 09.11.1971; that plaintiff's mother in her share of

land i.e., in plot No.1 constructed a RCC building bearing

H.No.1-5-326, consisting of Ground Floor and First Floor,

described as Item Nos.1 to 3 (herein after referred to as 'suit

schedule property') and residing with the plaintiff. As the father

of the plaintiff at fag end of his life requested the plaintiff and

his mother, to permit defendant No.1 to stay along with them,

they permitted the defendant No.1 to stay temporarily in the

First Floor of the suit schedule property i.e., Item No.3, till the

death of his father; that plaintiff is having seven sisters and all

are married and residing with their families, however, after the

death of Kishtaiah, plaintiff's mother gifted the suit schedule

property in favour of the plaintiff vide Gift Settlement Deed

dated 28.11.2012, bearing document No.12607 of 2012, and he

got mutated the suit property in his name; that on 27.08.2013,

when the plaintiff requested defendants to vacate the suit

property, they refused to vacate the property and raised quarrel

against him, and further on 31.08.2013, defendants interfered

with the peaceful possession of the plaintiff over Item Nos.1 and

2 of the suit schedule property and tried to grab the property.

Hence, the plaintiff filed suit for declaration, recovery of

possession and injunction.

4. Defendant No.1 filed the written statement denying the

averments of the plaint, and contended that the mother of the

plaintiff has no capacity to purchase the suit land and construct

a house; that the father of the plaintiff and defendant No.1

purchased the plot in the name of plaintiff's mother and

constructed the house with his own funds and his name was

also mutated in the Municipal records, and thus the suit

property is a joint family property and it is not the exclusive

property of the mother of the plaintiff; that when defendant No.1

demanded the plaintiff to partition the suit property into two

equal shares, plaintiff filed a false suit. The defendants have

also sought for partition by way of counter claim. Hence, prayed

to dismiss the suit and allow counter claim.

5. Basing on the pleadings of both the parties, the following

issues were framed by the trial Court for trial:

i) Whether the plaintiff is entitled to relief that he is owner of suit schedule property?

ii) Whether the plaintiff is entitled to the relief of recovery of possession.

iii) Whether the plaintiff is entitled to relief of perpetual injunction?

iv) To what relief?

v) Whether the plaintiff is entitled for recovery of item No.2 of suit schedule property?

6. During the course of trial, on behalf of the plaintiff,

P.Ws.1 and 2 were examined and Exs.A1 to Ex.A19, were

marked. On behalf of the defendants, D.Ws.1 and 2 were

examined and Exs.B1 to B12, were marked.

7. The trial Court, on due consideration of oral and

documentary evidence placed on record, decreed the suit vide

judgment and decree dated 15.11.2018. The trial Court while

decreeing the suit made the following observations:-

"Admitted fact, is that the open place for the suit house was purchased in the name of Amruthamma under registered sale deed Ex.A4. Ex.A4 establishes that she is the owner of open place. Ex.A5 construction permission shows at the time of construction of house permission was obtained from Municipality in the name of Amruthamma. Thereafter, Exs.A6 and A7 shows that the municipality issued demand notice to Amruthamma to pay the property tax for suit house. Ex.A1 shows said Amruthamma gifted the suit property to the plaintiff. Under Ex.A3 the house was mutated in the name of plaintiff. Exs.A9 to A19 shows that the plaintiff herein paid property tax and water tax for the suit house.

The defendant sought the relief of partition by filing counter claim. The plaintiff has not filed rejoinder to the counter claim but in the evidence they resisted the claim of defendant. For a moment we treat this counter claim as ex-parte suit, even though, the court has to decide the matter on merits. The careful scrutiny evidence of D.W.1 shows that plaintiff is having 7 sisters and he is having four sisters. He did not add the sisters of him and the sisters of plaintiff as party to the suit. When the defendant claims it as joint family property then the daughters of Kishtaiah are proper party to the

suit. He did not add them as party to the suit. So, the counter claim is bad for non-joinder of necessary parties."

8. Aggrieved by the judgment and decree passed by the trial

Court, the defendants preferred A.S.No.01 of 2019 on the file of

the learned Principal District Judge, Karimnagar. The first

Appellate Court re-appreciated the entire evidence and

dismissed the appeal, vide judgment and decree dated

27.02.2023. In the impugned judgment, the first Appellate

Court made the following observations:-

"From the above oral and documentary evidence discussed, it is established that the land on which the suit building was constructed was purchased under registered sale deed in the year 1971 in the name of Amruthamma, that Amruthamma applied for permission for construction of building, the same was granted by the Municipal authorities vide proceedings No.1461/G1/1975, dated 02.07.1975, that house was constructed andby the year 1980 there was house bearing No.1-5-326, that initially ground floor was constructed and in the ground floor plaintiff's father and mother were running a hotel and they were also residing in the ground floor along with their children. There is no evidence to show that the suit house was intended to be used as property of joint family and not as absolute property of Amruthamma.

As a matter of fact, the discussion above also establishes that even if it is to be held that there was joint family, the joint family was consisting only of plaintiff, his father and mother and his seven sisters and not the family of defendant No.1's mother and defendant No.1's family and in the first place, defendant No.1 and his mother were not residing with plaintiff's father and

mother and they were never part of the joint family. Hence, it is established that the joint family consisted of only plaintiff and his parents and his seven sisters.

It is the case of the defendants that late Kishtaiah purchased the land and constructed ground floor and first floor. The discussion above established that the property was purchased by Amruthamma and there is no evidence to show that funds were contributed by her husband Kishtaiah. There is also no evidence to show that Kishtaiah alone constructed the ground floor building. As late Kishtaiah and his wife Amruthamma were running a hotel business, at the most, it can be said that they together constructed the ground floor. As the land was the own property of Amruthamma and as permission was also obtained in the name of Amruthamma, it is to be held that it was intended to be the property of Amruthamma. Further, Amruthamma as absolute owner of the property gifted the same to her son plaintiff under Ex.A1 registered gift deed and the same is legally valid and binding on the defendants."

9. Challenging the aforesaid judgment and decree passed by

the first Appellate Court, the present Second Appeal is filed by

the defendants.

10. Heard Mr.P.Ravi Kiran, learned counsel for the

appellants. Perused the record.

11. Learned counsel for the appellant submitted that the trial

Court as well as the first Appellate Court have not considered

the oral and documentary evidence placed on record in proper

perspective and came to erroneous conclusions. He further

submitted that the appellant No.1 was residing in the suit

schedule property from the beginning along with his father and

the address of his daughter has also been shown as suit

schedule house. He further submitted that the ration card,

Aadhar card and other address proofs depict the address of the

appellants as suit house. He also submitted that in order to

cause loss to appellants, respondent created a fictitious gift

deed in his favour with a view to knock away the property, and

the trial Court as well as the first Appellate Court failed to

appreciate the said fact and decreed the suit erroneously.

Hence, he prayed to allow the Second Appeal.

12. Perusal of the record would disclose that both the Courts

concurrently held that suit schedule property was purchased in

the name of Amruthamma, through a registered sale deed

marked under Ex.A4, construction permission was obtained in

the name of Amruthamma and Property Tax demand notices

were also issued in the name of Amruthamma. Therefore, it is

established that Amruthamma, was the owner of the suit

schedule property. Thereafter, a Gift Settlement Deed was

executed by Amruthamma, in favour of the plaintiff and the

plaintiff became the owner of the suit schedule property and

also got mutated his name in the revenue records. Both the

Courts further held that defendants failed to establish that the

property was nominally purchased in the name of Amruthamma

and the suit property is the joint family property and that

defendants are having share in the property. The first appellant

Court has also held that even if the suit schedule property is a

joint family property, the joint family consist only plaintiff, his

parents and his sisters, and defendant No.1 and his mother are

not the part of the said joint family.

13. In the light of facts and circumstances of the case and the

observations of trial Court as well as the first appellate Court,

this Court is of the view that the appellants have failed to make

out any ground to interfere with the impugned Judgment and

decree.

14. In considered opinion of this Court, 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

Apex Court that in the Second Appeal filed under Section 100

C.P.C., this Court cannot interfere with the concurrent findings

arrived at by the Courts below, which are based on proper

appreciation of the oral and documentary evidence on record.

16. 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.

17. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the

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.

1 (2007) 1 SCC 546

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.

___________________________________ LAXMI NARAYANA ALISHETTY, J

Date: 30.06.2025 TRI