Telangana High Court
Smt. Ramagiri Aruna vs Sri Madishetti Narsaiah on 10 March, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.68 of 2024
JUDGMENT:
This Second Appeal is filed questioning the judgment and
decree, dated 04.09.2023, passed by the Principal District Judge,
Jagtial, in A.S.No.11 of 2019, whereunder and whereby appeal
dismissed confirming the judgment and decree, dated 09.07.2019,
passed by the Senior Civil Judge, Jagtial, in O.S.No.83 of 2011.
2. The appellant is plaintiff and respondent Nos.1 to 3 are
defendants, 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, which led to filing of the present
Second Appeal are that plaintiff filed the suit seeking partition and
separate possession of 1/4th share in the property. Plaintiff and
defendant Nos.2 and 3 are children of defendant No.1. Item No.1 and
2 houses bearing Nos.2-2-220 and 2-2-160 respectively, situated at
Jagtial proper (hereafter referred as 'schedule property') are owned
and possessed by the defendant No.1 which was acquired by way of
succession and the same are joint family properties. Plaintiff got
married in 1980 and at that time, the defendant No.1 did not give any
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dowry or share in schedule properties. When the plaintiff came to
know that defendant No.1 is intending to make partition of his
properties only among defendant Nos. 2 and 3, plaintiff approached
defendant No.1 for her share, but defendant No.1 denied to give her
share. Hence, plaintiff filed O.S.No.83 of 2011 seeking 1/4th share in
the schedule properties.
4. Defendant Nos.1 and 3 filed written statement denying the
claim of the plaintiff that the mother of plaintiff and defendant Nos. 2
and 3 during her lifetime purchased Item No.1 of the schedule
property in the name of the defendant No.2, who was minor at that
time under sale deed document No.489/1984, dated 14.03.1984.
Thereafter, as old construction was in dilapidated condition, the
defendant No.2, constructed a house by obtaining permission from
the Municipality and the said property was mutated in his name.
Hence, Item No.1 of the schedule property is self acquired property of
the defendant No.2. With regard to Item No.2 of the schedule
property, it is stated that the said property was purchased by the
defendant No.1 under registered sale deed document No.2/1962 on
03.01.1962, hence, the same is self acquired property of the defendant
No.1. Thus, the contention of the plaintiff that she is entitled a share in
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the schedule property is incorrect. Therefore, the suit is not
maintainable and the same is liable to be dismissed.
5. On the basis of the above pleadings of both the parties, the trial
Court framed the following issues for trial:-
"(1) Whether the plaint schedule properties are succeeded by
defendant NO.1 from his father? If so, whether is ancestral
property?
(2) Whether the plaintiff is entitled for partition as prayed
for?
(3) To what relief?"
6. To substantiate her case, plaintiff examined herself as PW1 and
got marked as Exs.A1 to A5. The defendants No.1 and 2 examined
themselves as DW1 and DW2 and got marked as Exs.B1 to Ex.B36.
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 09.07.2019,
with the following observations:
"11. Though the claim of plaintiff is that the suit schedule
properties are ancestral properties succeeded by
defendant No.1 from his father, she has not filed even a
single document to show that items No.1 and 2 were
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acquired by the father of defendant No.1 Rajaiah and that
they were succeeded by defendant No.1. On the other
hand, Exs.B1 and B13 disprove the contention of plaintiff
that the schedule properties were acquired by defendant
No.1's father and that they are ancestral joint family
properties. The defendant No.1 is a tailor by profession
and he worked as such, as per his occupation in Ex.B1
and as per his evidence as DW1. He admitted that he has
purchased item No.1 of schedule property in the name of
his son. The plaintiff could not produce any evidence to
show that the defendant No.1 had any other joint family
properties acquired from his father, from the income of
which he could have purchased item Nos.1 and 2.
Therefore, issue No.1 is decided against the plaintiff."
8. Aggrieved by the judgment and decree dated 09.07.2019,
plaintiff preferred A.S.No.11 of 2019 on the file of the Principal
District Judge, Jagtial.
9. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and material
available on record and dismissed the Appeal, vide its judgment dated
04.09.2023, thereby, confirming the judgment of the trial Court by
with the observations hereunder:
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"15. PW1 in her cross-examination admitted that item No.1
house was purchased by her mother Venkamma from Gatla
Gangaram and G.Lakshmi vide registered sale deed
document No.489/1984 dated 14.3.1984 for a
consideration of Rs.17000/- in the name of second
defendant and it is in possession of second defendant and
second defendant obtained permission from Municipality
and constructed house and also obtained water connection
in his name. PW2 stated that first defendant acquired item
No.2 from his father and item No.2 from his mother-in-
law."
10. The first Appellate Court further observed as hereunder:-
"17. Ex.B1 and Ex.B13 copy of sale deeds prove that item
No.1 was purchased in the name of second defendant and
item No.2 was purchased by the first defendant. Ex.B2 to
B12, B16 to B35 proves that item No.1 and 2 are standing
in the name of defendants 1 and 2 and they are in the
possession and enjoyment of properties as absolute
owners. Plaintiff did not produce any evidence for proving
the nature of the suit properties. Failure on the part of the
plaintiff is lending support to the version of DW1 and 2 on
the other hand, Defendants 1 and 2 successfully proved
through Ex.B1 to B36 that suit schedule properties are
their own properties and they do not belong to joint
family."
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11. Heard Sri M.Gangadhar, learned counsel for the appellant and
Sri P. Giri Krishna, learned counsel for the respondents. Perused the
entire material available on record.
12. Learned counsel for the appellant contended that the trial Court
as well as first appellate Court erroneously dismissed the suit that
without considering the crucial aspect that the said properties are
purchased by defendant No.1 from the funds of the joint family.
Learned counsel further contended that trial court as well as First
Appellate Court failed to consider the Exs.A1 to A5 which clearly
shows that the suit properties are the ancestral properties of the
appellant and the respondents. Learned counsel further contended that
judgment passed by both the courts are perverse and same is liable to
be interfered.
13. A perusal of record would disclose that the trial Court as well
as the first Appellate Court are concurrently held that the schedule
properties are not ancestral properties and are self acquired properties
of defendant Nos. 1 and 2 and therefore plaintiff cannot claim any
share.
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14. 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
C.P.C. is very limited and it can be exercised only where a substantial
question of law is raised and falls for consideration.
15. 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.
16. Hence, the Second Appeal fails and the same is accordingly
dismissed . No costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:10.03.2025
tssb
(2007) 1 Supreme Court Cases 546
