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2007 DIGILAW 1245 (AP)

Yerabati Ravinder v. Vaddiraju Rambai

2007-12-28

G.ROHINI

body2007
ORDER :- The plaintiff is the appellant in this second appeal. He filed OS No.151 of 1997 in the Court of the I-Additional Senior Civil Judge, Warangal seeking partition of the suit schedule properties and for allotment of 1/6th share. The suit was dismissed by judgment dated 18.1.2005. The appeal preferred by the plaintiff being AS No.18 of 2005 on the file of the Court of the IV-Additional District Judge, Warangal was also dismissed by judgment dated 4.12.2006. Hence, this second appeal. 2. The facts, in brief, are as under : The plaintiff and the defendants are the children of late Yerabati Venkata Ranga Rao and Lakshmi Narsu Bai. During her lifetime Smt. Lakshmi Narsu Bai purchased the suit land, measuring 300 Sq. yards, situated in Nakkalagutta, Hanamkonda along with a small tiled house. She died intestate on 3.9.1966 and her husband died in the year 1970. Thereafter, the plaintiff demanded for partition of suit schedule property and to give him his 1I6th share. However, the defendants did not respond. Hence, the suit. 3. The defendants 2, 3 and 5 remained ex parte and the suit against defendant No.4 was dismissed for the failure of the plaintiff to take steps for service of summons. Thus, the suit was contested by the 1st defendant alone. In her written statement, the 1st defendant pleaded that after the death of their mother Lakshmi Narsu Bai, there was an oral family settlement in which the suit property was allotted to the defendants 1, 4 and 5 jointly who are the daughters as per the last wish of their mother. Thus, it was contended that the plaintiff has no right or interest in the said property. It was further pleaded that since the. suit plot was not convenient for partition, the defendants 4 and 5 agreed to receive Rs.5,000/: each and give up their joint interest in the suit plot in favour of the 1st defendant. The defendants 4 and 5 were paid the amount on 13.1.1975 and 17.12.1976 respectively and accordingly the 1st defendant continued in exclusive possession and enjoyment of the suit property with absolute rights. 4. The trial Court, on the basis of the above pleadings, settled the following issues for trial. 1. Whether as alleged in the written statement of first defendant was there family settlement on 13.10.1975 at which the suit property was allotted to D.1, D.4 and D.5 ? 4. The trial Court, on the basis of the above pleadings, settled the following issues for trial. 1. Whether as alleged in the written statement of first defendant was there family settlement on 13.10.1975 at which the suit property was allotted to D.1, D.4 and D.5 ? 2. Whether, as alleged in the written statement of D.l the defendants 4 and 5 gave up their joint interest in the suit property in favour of 0.1 after receiving "amount from her? 3. Whether, D.1 became full owner of the suit property ? 4. Whether, the plaintiff is not in joint possession of the suit property ? 5. Whether, the Court fee paid IS insufficient ? 6. Whether, the suit IS barred by limitation ? 7. Whether, the plaintiff is entitled to partition ? 8. To what relief? 5. The plaintiff got himself as P.W.I. However no documents were marked on his behalf. 6. On behalf of the defendants, two witnesses were examined and Exs. B 1 to B4 documents were marked to substantiate the plea of the family settlements. 7. On appreciation of the evidence both oral and documentary, die trial Court while accepting the plea of the 1st defendant that there was a family settlement after the death of Lakshmi Narsu' Bai in which the defendants 1,4 and 5 were allotted the suit property and that' subsequently defendants 4 and 5 relinquished their rights in favour of the 1st defendant, dismissed the suit. 8. The lower appellate Court, on re-appreciation of the evidence while confirming the findings recorded by the trial Court dismissed the appeal. 9. Having heard the learned Counsel for both the parties and having perused the material on record, I do not find any justifiable reason to interfere 'With the concurrent findings of fact recorded by the Courts below which are based on proper appreciation of the evidence on record. 10. However, the learned Counsel for the appellant/plaintiff strenuously contended that since EX. B.l Agreement dated 13.10.1975 allegedly executed between the 1st defendant and the defendants 4 and 5 was inadmissible in evidence both the Courts below committed a grave error in relying upon the same while recording a finding in favour of the 1st defendant. 11. 10. However, the learned Counsel for the appellant/plaintiff strenuously contended that since EX. B.l Agreement dated 13.10.1975 allegedly executed between the 1st defendant and the defendants 4 and 5 was inadmissible in evidence both the Courts below committed a grave error in relying upon the same while recording a finding in favour of the 1st defendant. 11. The learned Counsel for the appellant while pointing out that whereas the agreement was claimed to have been executed on 13.10.1975, the stamp paper on which the agreement was executed was purchased on 18.10.1975 i.e., after 5 days of the alleged execution of the agreement, contended that on the face of it EX.B.I document was improbable and the Courts below ought to have held that the same was brought into existence for the purpose of contesting the suit claim. 12. It is to be noted that during the trial when the 1st defendant sought to produce EX.A-I in evidence, describing the same as an agreement, the Court below held that it was a relinquishment deed but not an agreement and therefore required registration under Section 17(1) of the Registration Act, 1908. Aggrieved by the same, the 1st defendant filed CRP No.13 10 of2002. This Court by order dated 23.7.2003 while allowing the Revision held that the document was only an agreement under which the parties agreed to execute a regular relinquishment deed and since it did not create or extinguish any right, it was exempted from registration under Section 17(2)(v) of the Registration Act. Admittedly, the said order has become final and consequently the document was received in evidence and was relied upon by both the Courts below. 13. The contention that the document was improbable because the same was executed on a stamp paper dated 18.10.1975 was not raised either before the trial Court or before the lower appellate Court, though the matter came up to this Court on the question of admissibility of the document. Hence, it is not open to the appellant to raise the said objection at this stage particularly since the said issue requires opportunity to both parties to adduce fresh evidence. 14. Hence, it is not open to the appellant to raise the said objection at this stage particularly since the said issue requires opportunity to both parties to adduce fresh evidence. 14. The learned Counsel for the appellant further contended that the lower appellate Court having directed all the parties to be present before the Legal Services Authority on 22.11.2006 was not justified in directing to return the appeal for hearing without granting sufficient time for the parties to settle the dispute under Section 89 of the Code of Civil Procedure. 15. The order passed by the lower appellate Court, dated 1.12.2006 shows that it was reported by the Counsel for the respondent that his parties were not willing for any compromise. As such, the learned Appellate Judge cannot be held to have committed any error in hearing and deciding the matter on merits. 16. Viewed from any angle, the second appeal is devoid of any merit. Absolutely no question of law much less substantial question of law is involved which requires consideration under Section 100 of the Code of Civil Procedure. Hence, the second appeal is dismissed. No costs.