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2025 DIGILAW 126 (AP)

M. Narayanaswamy Naidu v. A. barathamma

2025-01-22

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. This second appeal is filed aggrieved against the Judgment and decree dated 10.04.2023 in A.S.No.58 of 2017, on the file of the Principal District Judge, Chittoor, confirming the Judgment and decree, dated 11.09.2023 in O.S.No.37 of 2001, on the file of the Principal Senior Civil Judge, Chittoor. 2. The appellant herein is the 7 th defendant and the 1 st respondent herein is the plaintiff and the respondents 2 to 6 & 8 to 13 herein are the defendants 1 to 6 and 8 to 13 in O.S.No.37 of 2001, on the file of the Principal Senior Civil Judge, Chittoor. It is to be noted here that during the pendency of the first appeal, the 2 nd respondent therein died and the respondents 14 to 18 are added as legal heirs of the deceased 2 nd respondent. 3. The plaintiffs initiated action in O.S.No.37 of 2001, on the file of the Principal Senior Civil Judge, Chittoor, with a prayer for division of item Nos.1 to 3 of the plaint schedule properties and to allot 1/16 th share to the 1 st plaintiff and 5/16 th share to the 2 nd plaintiff and to put separate possession of the same and for permanent injunction restraining the defendants 5 and 6 from in any way making constructions over item No.1 of the plaint schedule property and for costs. 4. The learned Principal Senior Civil Judge, Chittoor, decreed the suit with costs. Felt aggrieved of the same, the 7 th defendant in the above said suit filed A.S.No.58 of 2017, on the file of the Principal District Judge, Chittoor. The learned Principal District Judge, Chittoor, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful 7 th defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.37 of 2021, is as follows: The 1 st plaintiff is the wife and 2 nd plaintiff is daughter of late A.R.Lakshmaiah Naidu, who died in the year 1979. 6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.37 of 2021, is as follows: The 1 st plaintiff is the wife and 2 nd plaintiff is daughter of late A.R.Lakshmaiah Naidu, who died in the year 1979. The said Lakshmaiah Naidu died intestate leaving behind him, the plaintiffs and his two sons i.e., defendants 1 and 2 as an undivided members of joint family. Lakshmaiah Naid was the son of one Late Ambula Ramaiah Naidu, who died in the year 1934. The Ramaiah Naidu had two daughters, who were married and are not alive now. The said two daughters viz., Narasamma and Rajamma are not entitled to any share in any property as they died in 1934 much before coming into force of Hindu Succession Act , 1956. The said Lakshmaiah Naidu was the manager of the family and he was living with his late father Ramaiah Naidu and was in joint possession and enjoyment of all the property of the family members, who are defendants 1 and 2 and the plaintiffs. The 2 nd plaintiff is an unmarried daughter and she is also entitled to an equal share along with defendants 1 and 2 as per amended Hindu Succession Act . Late Ramaiah Naidu who was the ancestor, purchased item Nos.1 and 2 of the plaint schedule property from one Murugeshan under a registered sale deed, dated 24.05.1927 and was in possession of the same along with his son Lakshmaiah Naidu. The 1 st plaintiff with joint family funds constructed a thatched hut on the eastern side of the above site, which is described as item No.2 of the plaint schedule property. The 7 th defendant approached the 1 st plaintiff to lease out the said thatched hut on a monthly rent of Rs.45/- for running a hotel business in or about the year 1977 or so. Since then the 7 th defendant is running a hotel under the name and style of “Kumari Bhavan” and was regularly paying the rents. Lakshmaiah Naidu, who was manager of joint Hindu Family purchased item No.3 of the plaint schedule property from Munirathnamaiah with joint family funds under a registered sale deed, dated 24.04.1941 and was in possession of the same. After his death, the plaintiffs 1 and 2 were in joint possession and enjoyment of item No.3 of the plaint schedule property. 7. Lakshmaiah Naidu, who was manager of joint Hindu Family purchased item No.3 of the plaint schedule property from Munirathnamaiah with joint family funds under a registered sale deed, dated 24.04.1941 and was in possession of the same. After his death, the plaintiffs 1 and 2 were in joint possession and enjoyment of item No.3 of the plaint schedule property. 7. The 7 th defendant filed written statement before the trial Court contending as follows: The suit is not maintainable since the schedule in plaint is vague for want of survey numbers and details with regard to whether the same is patta land or government Grama kantam land and boundaries are incorrect and hence the suit is liable to be dismissed. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Chittoor, framed the following issues and additional issue for trial: (1) Whether the plaintiffs are entitled for partition and separate possession as prayed for? (2) Whether the plaintiffs are entitled for permanent injunction against the defendants not to make construction in the plaint schedule properties? (3) To what relief? Additional Issue: Whether the gift deed, dated 07.03.1983 executed by defendants 1 and 2 in favour of Rajamma and sale deed, dated 24.09.1985 executed by said Rajamma in favour of 3 rd defendant are bound on the defendants8 to 13 and plaintiffs? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-35 were marked. On behalf of the defendants, D.W.1 to D.W.5 were examined and Ex.B-1 to Ex.B-14 were marked and apart from that Ex.X-1 to Ex.X-12 were marked. 10. The learned Principal Senior Civil Judge, Chittoor, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit without costs. Felt aggrieved thereby, the 7 th defendant filed the appeal suit in A.S.No.58 of 2017, on the file of the Principal District Judge, Chittoor, wherein, the following points came up for consideration. (1) Whether the petition filed by the petitioner/appellant before this Court in I.A.No.63 of 2020 is maintainable or not? (2) Whether the plaintiffs in O.S.No.37 of 2001 on the file of Principal Senior Civil Judge, Chittoor are entitled for the relief of partition and separate possession in respect of the plaint schedule properties as prayed in the plaint? (1) Whether the petition filed by the petitioner/appellant before this Court in I.A.No.63 of 2020 is maintainable or not? (2) Whether the plaintiffs in O.S.No.37 of 2001 on the file of Principal Senior Civil Judge, Chittoor are entitled for the relief of partition and separate possession in respect of the plaint schedule properties as prayed in the plaint? (3) Whether the trial Court has committed any error in decreeing the suit and whether the decree and judgment of the trial Court requires any interference of this appellate Court in such finding? (4) To what relief? 11. The learned Principal District Judge, Chittoor i.e., the learned first appellate Judge, after hearing the arguments, answered the points, as above, against the 7 th defendant/appellant and in favour of the plaintiffs and dismissed the appeal filed by the 7 th defendant. Felt aggrieved of the same, the unsuccessful 7 th defendant in O.S.No.37 of 2001 filed the present second appeal before this Court. 12. Heard Sri K.V.L. Narasimha Rao, learned counsel for the appellant and heard Sri V. Nitesh, learned counsel for the respondents/plaintiffs. 13. Learned counsel for the appellant would contend that the decree and judgment passed by the learned trial Judge as well as learned First Appellate Judge are contrary to law. He would further contend that the description of the property more particularly item No.2 of the plaint schedule property should be specific with metes and bounds and survey numbers, but the plaintiffs failed to mention the said particulars in the suit schedule property, therefore, suit is liable to be dismissed. He would further contend that the second appeal may be allowed by setting aside the decree and judgment passed by both the Courts below. 14. Learned counsel for the respondents/plaintiffs would contend that on appreciation of the entire evidence on record, the learned trial Judge decreed the suit and on re-appreciation of the entire evidence on record, the learned First Appellate Judge dismissed the appeal filed by the 7 th defendant and there is no need to interfere with the findings given by both the Courts below and the second appeal may be dismissed. 15. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. 15. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial questions of law between the parties arise in this case. A proper test for determining whether a questions of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 ], the Apex Court held that; “it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial questions of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising substantial questions of law. 16. The defendant No.1 having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code , it is for him to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 17. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial questions of law. 17. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial questions of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 18. The plaintiff approached the Court for seeking the relief of partition of the plaint schedule properties. The undisputed facts are the 1 st plaintiff was wife, the 2 nd plaintiff was daughter and the defendants 1 and 2 are sons of one late A.R. Lakshmaiah Naidu. The plaintiffs filed a suit for partition and separate possession of plaint schedule property. On appreciation of the entire evidence on record, the learned trial Judge decreed the suit against which no appeal was filed by the other defendants except 7 th defendant. The 7 th defendant is claiming item No.2 of the plaint schedule property. It is also made it clear that except the appellant i.e., 7 th defendant, none of the defendants preferred the first appeal against the decree and judgment passed by the learned trial Judge. 19. In order to prove the case of the plaintiffs, the 2 nd plaintiff examined herself as P.W.1 and also relied on the documentary evidence Ex.A.1 to Ex.A.35. The case of the plaintiffs is that the 7 th defendant i.e., appellant herein is a tenant in respect of item No.2 of the plaint schedule property and he was not having any ownership rights in item No.2 of the plaint schedule property. 20. The contention of the appellant/7 th defendant is that one Doraswamy Naidu executed a will, dated 15.01.1988 in favour of his wife by bequeathing item No.2 of the plaint schedule property, since then his wife has been in possession and enjoyment of the same. Admittedly, the will is not at all produced by the appellant before the trial Court and the attestors to the alleged will are also not examined by the defendants. Furthermore, the appellant/7 th defendant did not enter into the witness box to speak about his case. Admittedly, the will is not at all produced by the appellant before the trial Court and the attestors to the alleged will are also not examined by the defendants. Furthermore, the appellant/7 th defendant did not enter into the witness box to speak about his case. Admittedly, no oral or no documentary evidence adduced by the appellant either before the trial Court or before the First Appellate Court. The law is well settled by the Hon’ble Apex Court in a case of Vidhyadhar vs. Manikrao and others, [ AIR 1999 SC 1441 ] where the Hon’ble Apex Court held that ; “Where a party to the suit does not appear into witness box and states his own case on Oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not at all correct”. Admittedly, in the case on hand, the 7 th defendant/appellant did not enter into witness box and he also did not adduce any oral or documentary evidence to prove ownership rights of his wife in item No.2 of the plaint schedule property. Another crucial important circumstance to disbelieve the case of the appellant is that the said alleged will is not at all produced either before the trial Court or before the First Appellate Court and it was also not pleaded by the appellant in the written statement itself before the trial Court. In the written statement the 7 th defendant pleaded that his wife got the item No.2 of the plaint schedule property by virtue of a will executed by Doraswamy Naidu, who is no other than her paternal uncle. 21. It is well settled that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, [ (2008)15 SCC 365 ]. The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, [ (2008)15 SCC 365 ]. In the aforesaid case the Apex Court held “it is trite law that execution of will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances when such evidences are brought on record, the Court may take aid of the presumptive evidences also”. 22. It is a well settled principle that in every case the burden lies on the propounder of the will and it is the duty of the propounder of the will, he has to satisfy the conscious of the Court that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously that the testator at the time when he subscribed his signature on a will in a sound and disposing state of mind and memory and ordinarily however, the onus is discharged as regards the due execution of the will, if the propounder leads evidence to show that the will bears the signature and mark of the testator and the will is duly attested. This attestation however shall have to be in accordance with Section 68 of Indian Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until atleast one attesting witness has been called for the purpose of proving its execution and the same is so however in the event of there being an attesting witness alive and capable of giving evidence. The law is also equally settled that in the event of there, being circumstances surrounding the execution of will, surrounded in suspicion, it is the paramount duty on the part of the propounder to remove the suspicion by leading satisfactory evidence. As stated supra, in the case on hand, no satisfactory evidence is produced by the plaintiff to prove the title of her vendors. 23. For the aforesaid reasons, I am of the considered view that the alleged will is not proved by the appellant/7 th defendant in accordance with law. 24. As stated supra, in the case on hand, no satisfactory evidence is produced by the plaintiff to prove the title of her vendors. 23. For the aforesaid reasons, I am of the considered view that the alleged will is not proved by the appellant/7 th defendant in accordance with law. 24. Another contention taken by the appellant is that one Lingaiah Naidu was granted a patta in respect of item No.2 of the plaint schedule property and Lingaiah Naidu handed over the possession to Doraswamy Naidu and Doraswamy Naidu constructed a hotel covering both plots and item No.2 of the plaint schedule property is a Government poramboke land. In order to prove the same, no evidence is produced by the appellant either before the trial Court or before the First Appellate Court and he did not enter into the witness box. Furthermore, the alleged issuance of DKT patta is not at all pleaded by the appellant in the written statement. In the absence of any pleading in the written statement, the oral contentions taken by the appellant before the appellate Court cannot be accepted. 25. Learned counsel for the appellant placed reliance of G.N.R. Babu @ S.N. Babu vs. Dr. B.C. Muthappa and others in Civil Appeal No.6228 of 2022. The aforesaid case law relates to suit for declaration of title of the property and in the aforesaid case the appellant did not appear before the Court after receipt of summons. Admittedly, in the case on hand, the appellant/7 th defendant received summons and engaged an Advocate and filed a written statement, therefore, the facts and circumstances in the cited decision are different to the instant case. 26. On appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and on re-appreciation of the entire evidence on record, the learned First Appellate Judge dismissed the first appeal by confirming the finding given by the learned trial Judge. The law is well settled the High Court cannot substitute its own opinion contrary to the opinion of the First Appellate Court unless it is found that the conclusions drawn by the First Appellate Court are erroneous being contrary to the mandatory provision of law applicable or its settled possession on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. 27. 27. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendants do not brook interference and that both the Courts below are justified in allowing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of substantial questions of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 28. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial questions of law arise for consideration and when no substantial questions of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki, [ AIR 2006 SC 1975 ]. In the case on hand, as stated supra, this Court finds after careful examination ofthe pleadings and evidence, no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code . 29. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. No costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.