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2025 DIGILAW 341 (AP)

M. Vasantha Lal v. E. Sulochana

2025-02-21

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short ) is filed aggrieved against the Judgment and decree, dated 22.03.2022 in A.S.No.15 of 2016, on the file of Senior Civil Judge, Puttur (“First Appellate Court” for short), confirming the Judgment and decree, dated 25.02.2016 passed in O.S.No.187 of 2007, by the learned Principal Junior Civil Judge, Puttur (“trial Court” for short). 2. The appellants herein are the defendant Nos.4 & 5; 1 st respondent herein is the plaintiff and respondent Nos.2 to 4 herein are defendant Nos.1 to 3 in O.S.No.187 of 2007, on the file of the Principal Junior Civil Judge, Puttur. 3. The plaintiff initiated action in O.S.No.187 of 2007, on the file of the Principal Junior Civil Judge, Puttur, with a prayer for the division of the plaint schedule property into three equal shares and allot one such share to the plaintiff and for costs. 4. The learned Principal Junior Civil Judge, Puttur, decreed the suit with costs. Felt aggrieved of the same, the defendant Nos. 4 and 5 in the above said suit filed A.S.No.15 of 2016, on the file of Senior Civil Judge, Puttur. The learned Senior Civil Judge, Puttur, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the defendant Nos.4 and 5 in the suit 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 plaintiff, in brief, as set out in the plaint averments in O.S.No.187 of 2007, is as follows: The plaint schedule property is joint family property of the plaintiff and defendant Nos.1 and 2 and they are in joint possession and enjoyment of the same. The 1 st defendant is father of plaintiff and 2 nd defendant is brother of plaintiff and all are constituted as Hindu joint family. In the month of February, 2005, there were some misunderstandings in between the plaintiff and defendant Nos.1 and 2. The 1 st defendant is father of plaintiff and 2 nd defendant is brother of plaintiff and all are constituted as Hindu joint family. In the month of February, 2005, there were some misunderstandings in between the plaintiff and defendant Nos.1 and 2. After that the plaintiff came to know that the defendant Nos.1 and 2 created false documents in respect of the plaint schedule property by colluding with the 3 rd defendant only to evade legitimate 1/3 rd share of the plaintiff in the plaint schedule property. The defendant Nos.1 and 2 executed nominal register sale deed in favour of 3 rd defendant in the month of June, 2005 and in that document plaintiff is not a party. The defendant Nos.1 to 3 are trying to create sham and nominal documents in favour of third parties. Defendant Nos.1 and 2 executed a nominal registered sale deeds in favour of 3 rd defendant in the month of June, 2005, in which the plaintiff is not a party. During the course of pendency of the suit, the 3 rd defendant sold the plaint schedule property to defendant Nos.4 and 5. Then, the plaintiff added them as defendant Nos.4 and 5 as per orders in I.A.No.282/2007, dated20.03.2012. Therefore, she is constrained to file the suit for partition. 7. The 1 st defendant filed written statement before the trial Court and the same was adopted by 2 nd defendant and contended as follows:he defendant Nos.1 and 2 admitted the relationship with the plaintiff.They contended that they performed the marriage of plaintiff on 06.04.1986. At the time of marriage, they presented 10 sovereigns of gold ornaments and also cash of Rs.1,00,000/- to the plaintiff and the plaintiff executed a relinquishment deed by relinquishing her right in the plaint schedule property as such the plaintiff has no right to file the suit for the relief of partition. 8. The 3 rd defendant remained ex parte 9. The 4th defendant filed written statement before the trial Court and the same was adopted by 5 th by denying the pleadings in the plaint and contended as follows: They purchased the plaint schedule property on 15.11.2007 under a registered sale deed from 3 rd defendant for valid sale consideration of Rs.4,42,000/- and inducted into possession and since then they are in possession and enjoyment of the same. Therefore, either the plaintiff or the defendant Nos.1 to 3 are not in joint possession and enjoyment of the plaint schedule property. They took all necessary steps and precautions before purchase of the plaint schedule property and therefore, they are bona fide purchasers. 10. On the basis of above pleadings, the learned Principal Junior Civil Judge, Puttur, framed the following issues for trial: (1) Whether the plaintiff is entitled to have partition of the plaint schedule property into three equal shares by taking into bad and good consideration and allotment of one such share to the plaintiff and for separate possession as prayed for? (2) To what relief? The learned Principal Junior Civil Judge, Puttur, framed the following additional issues on 19.12.2014: (1) Whether the plaintiff executed a relinquishment deed, by relinquishing her right in the plaint schedule property as pleaded by defendant No.1 and 2 in their written statement? (2) Whether defendant Nos.4 and 5 are bonafide purchasers as pleaded by them in their written statement? (3) Whether the plaint schedule property is the absolute property of the 1st defendant as pleaded by defendant Nos.4 and 5? (4) Whether the suit is hit by Order 2 Rule 2 of CPC as pleaded by defendant Nos.4 and 5? (5) Whether the plaintiff is required to pay Court fee? (6) Whether the suit is bad for non-joinder of necessary parties as pleaded by defendant Nos.4 and 5? 11. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A.1 and A.2 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.8 were marked. 12. The learned Principal Junior Civil Judge, Puttur, 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 defendant Nos.4 and 5 filed the appeal suit in A.S.No.15 of 2016, on the file of Senior Civil Judge, Puttur, wherein, the following points came up for consideration. (1) Whether the plaintiff executed a relinquishment deed, by relinquishing her right in the plaint schedule properties as pleaded by defendant Nos.1 and 2 in their written statement? (2) Whether defendant Nos.4 and 5 are bonafide purchasers as pleaded by them in their written statement? (1) Whether the plaintiff executed a relinquishment deed, by relinquishing her right in the plaint schedule properties as pleaded by defendant Nos.1 and 2 in their written statement? (2) Whether defendant Nos.4 and 5 are bonafide purchasers as pleaded by them in their written statement? (3) Whether the plaint schedule properties are the absolute properties of the 1 st defendant as pleaded by defendant Nos.4 and 5? (4) Whether the suit is hit by Order 2 Rule 2 of CPC as pleaded by the defendant Nos.4 and 5? (5) Whether the plaintiff is required to pay court fee? (6) Whether the suit is bad for non-joinder of necessary parties as pleaded by defendant Nos.4 and 5? (7) Whether the plaintiff is entitled to have partition of the plaint schedule properties into three equal shares by taking into bad and good consideration and allotment of one such share to the plaintiff and for separate possession as prayed for? (8) Whether there are any valid grounds to intervene with the judgment and decree passed by the trial Court? 13. The learned Senior Civil Judge, Puttur i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant Nos.4 and 5/appellants and in favour of the plaintiff/1 st respondent and dismissed the first appeal. Felt aggrieved of the same, the unsuccessful defendant Nos.4 and 5 in O.S.No.187 of 2007 filed the present second appeal before this Court. 14. Heard Sri Raja Reddy Koneti, learned counsel appearing for the appellants and heard Sri V. Sudhakar Reddy, learned counsel appearing for the 1 st respondent. 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 appellants/defendant Nos.4 and 5 having chosen to invoke the jurisdiction of the Second Appellate Court under Section 100 of Civil Procedure Code, it is for them 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 appellants have shown any substantial questions of law. The contention of the appellants 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 trial Court for seeking partition of the plaint schedule property into three equal shares and allot one such share to the plaintiff. The appellants contended that the 1 st defendant is father of plaintiff and 2 nd defendant is elder brother of plaintiff and that the defendant Nos.1 and 2 and plaintiff are constituted Hindu joint family and in joint possession and the enjoyment of the plaint schedule property. The relationship of the plaintiff with defendant Nos.1 and 2 is not at all in dispute. It is also not in dispute that the plaint schedule property is undivided ancestral property. The relationship of the plaintiff with defendant Nos.1 and 2 is not at all in dispute. It is also not in dispute that the plaint schedule property is undivided ancestral property. The material on record reveals 1 st defendant who is no other than the father of plaintiff and 2 nd defendant categorically admitted in his evidence in cross examination that the plaint schedule property is ancestral and joint family property of plaintiff and defendant Nos.1 and 2. 19. The plaintiff is examined as P.W.1 before the trial Court. It was suggested to P.W.1 in cross examination by the learned counsel for defendant Nos.1 and 2 that at the time of marriage of P.W.1, an amount of Rs.1,00,000/- and 10 sovereigns of gold were presented to the plaintiff and plaintiff executed unregistered relinquishment deed by relinquishing her right over the plaint schedule property. The said suggestion is denied by the plaintiff. The said alleged relinquishment deed did not come into light. Admittedly, no such alleged relinquishment deed is produced by the defendant Nos.1 and 2. There is no evidence on record about the alleged unregistered relinquishment deed as pleaded by the defendant Nos.1 and 2 in the written statement. The 1 st defendant admitted in written statement itself that plaint schedule property is ancestral property and undivided joint family property. 20. The material on record reveals that defendant Nos.1 and 2 executed sale deeds in favour of 3 rd defendant in the month of June, 2005 in which the plaintiff is not a party and during pendency of the suit for partition filed by the plaintiff, the 3 rd defendant alienated the plaint schedule property to the defendant Nos.4 and 5, the same is not in dispute. On appreciation of entire evidence on record, the trial Court came to a conclusion that the plaint schedule property is ancestral property of plaintiff and defendant Nos.1 and 2. At best, defendant Nos.1 and 2 can alienate their share in the plaint schedule property in favour of third parties and they cannot alienate undivided share of the plaintiff in the plaint schedule property in favour of third parties. It is not at all the case of the appellants that the schedule property is not belongs to the ancestors of the plaintiff and defendant Nos.1 and 2. It is not at all the case of the appellants that the schedule property is not belongs to the ancestors of the plaintiff and defendant Nos.1 and 2. As stated supra, it is admitted case of all the co-sharers, plaintiff i.e., defendant Nos.1 and 2 that plaint schedule property is their ancestral undivided joint family property. As stated supra, it is not the case of the appellants the schedule property is not belongs to the ancestors of plaintiff, defendant Nos.1 and 2. On appreciation of the entire evidence on record, the learned trial Judge came to a right conclusion that the plaintiff is entitled 1/3 rd share in the plaint schedule property. On re-appreciation of the entire evidence on record, the learned First Appellate Judge confirmed the finding arrived by the learned trial Judge and dismissed the first appeal filed by the appellants/defendant Nos.4 and 5. 21. 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. 22. 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 ]. 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 of the pleadings, evidence and contentions that 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. 23. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below.There shall be no order as to costs.As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.