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2025 DIGILAW 527 (AP)

Vottimi Venkata Reddy v. Vottimi Nagalakshmi

2025-03-24

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J This second appeal is filed aggrieved against the Judgment and decree, dated 31.07.2023 in A.S.No.8 of 2020, on the file of the IV Additional District and Sessions Judge-cum-Spl. Judge for Trial of Offences against Women, Ananthapuramu (“First Appellate Court” for short), confirming the Judgment and decree, dated 30.11.2016 in O.S.No.254 of 2012, on the file of the Additional Senior Civil Judge, Anantapuramu (“trial Court” for short). 2. The appellants herein are the defendants and the respondent herein is the plaintiff in O.S.No.254 of 2012 on the file of the Additional Senior Civil Judge, Anantapuramu. 3. The plaintiff initiated action in O.S.No.254 of 2012 on the file of the Additional Senior Civil Judge, Anantapuramu, with a prayer for partition and separate possession of plaintiff’s 1/5 th share in the plaint schedule properties and for costs of the suit. 4. The learned Additional Senior Civil Judge, Anantapuramu, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendants in the above said suit filed the aforesaid appeal before the First Appellate Court. The learned IV Additional District and Sessions Judge-cum-Spl. Judge for Trial of Offences against Women, Ananthapuramu, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful appellants/defendants 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.254 of 2012, is as follows: The suit schedule properties are joint family properties, which were devolved upon the plaintiff and defendants from their ancestors. The plaintiff is the daughter and the defendants 2 to 4 are sons of 1 st defendant, they constituted under Hindu undivided joint family and enjoying the suit properties with absolute rights. Due to some disputes between plaintiff and defendants, all the defendants are acting adverse to the interest of the plaintiff and defendants 3 and 4 are making efforts to alienate some of the items in the schedule properties to third parties without any manner of right. The plaintiff made several demands for amicable partition, but the defendants are postponing the same on one pretext or the other. The plaintiff made several demands for amicable partition, but the defendants are postponing the same on one pretext or the other. Hence, the plaintiff got issued legal notice on 27.03.2012 for partition and separate possession of her 1/5 th legitimate share. Hence, the suit. 7. The 2 nd defendant filed written statement denying the contents of plaint averments which was adopted by the 1 st defendant, and further contended as follows: The suit is not maintainable either in law or on facts. The suit schedule properties are partitioned by way of registered partition deed between defendants on 02.05.2011 vide document No.537/2011, the 1 st defendant has given one house site in Plot No.313 in Sy.No.8-18-29/1 to an extent of 161 .33 sq. yards worth about Rs.10,00,000/- on 09.05.2011 to the plaintiff towards her share and registered the site. Even after receiving the said plot, the plaintiff again filed the suit for her share in the property which is not maintainable. 8. On the basis of above pleadings, the learned Additional Senior Civil Judge, Anantapuramu, framed the following issues for trial: (1) Whether there is prior partition, dated 02.05.2011? (2) Whether the plaintiff is already given her share? (3) Whether the plaintiff is entitled for 1/5 th share in the suit schedule property? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-5 were marked. On behalf of the defendants, no witnesses were examined and no documents were marked. 10. The learned Additional Senior Civil Judge, Anantapuramu, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendants in the suit filed the appeal suit in A.S.No.8 of 2020 on the file of the IV Additional District and Sessions Judge-cum-Spl. Judge for Trial of Offences against Women, Ananthapuramu, wherein, the following points came up for consideration. (1) Whether the plaintiff is entitled for partition and separate possession of 1/5 th share in the plaint schedule properties? (2) Whether the plaint schedule properties have already been partitioned under registered partition deed, dated 02.05.2011 as pleaded by the 2 nd defendant? (3) Whether there are any grounds to interfere in the judgment of trial Court? (4) To what relief? 11. (2) Whether the plaint schedule properties have already been partitioned under registered partition deed, dated 02.05.2011 as pleaded by the 2 nd defendant? (3) Whether there are any grounds to interfere in the judgment of trial Court? (4) To what relief? 11. The learned IV Additional District and Sessions Judge-cum-Spl. Judge for Trial of Offences against Women, Ananthapuramu, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants/appellants and in favour of the plaintiff/respondent and dismissed the appeal filed by the defendants. Felt aggrieved of the same, the unsuccessful defendants in O.S.No.254 of 2012 filed the present second appeal before this Court. 12. Heard Sri P. Rajesh Babu, learned counsel for the appellants and heard Sri O. Udaya Kumar, learned counsel for the respondent. 13. 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 question of law between the parties arise in this case. A proper test for determining whether a question 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 , [ 1 (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 first 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 question of law in 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 question 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 a substantial question of law. 14. The defendants having chosen to invoke the jurisdiction of this 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 question of law. 15. 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 question 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. 16. The contention of the respondent/plaintiff is that the suit schedule properties are joint family properties, which were devolved upon the plaintiff and the defendants from their ancestors and the plaintiff is the daughter and the defendants 2 to 4 are the sons of 1 st defendant and they constituted under Hindu undivided joint family. The relationship of the plaintiff with the defendants is not in dispute. The plaintiff in the suit is seeking a relief of partition of the suit schedule properties and to allot 1/5 th share to her. The contention of the appellants/defendants is that the suit schedule properties are partitioned by way of registered partition deed between the defendants on 02.05.2011 under a registered document No.537/2011. They further pleaded that the 1 st defendant has given one house site in Plot No.313 to an extent of 161.33 sq. yards worth about Rs.10,00,000/-, dated 09.05.2011 to the plaintiff towards her share and registered the same. 17. As stated supra, the relationship of the plaintiff with the defendants is not in dispute. They further pleaded that the 1 st defendant has given one house site in Plot No.313 to an extent of 161.33 sq. yards worth about Rs.10,00,000/-, dated 09.05.2011 to the plaintiff towards her share and registered the same. 17. As stated supra, the relationship of the plaintiff with the defendants is not in dispute. The case of the plaintiff is that she is no other than the daughter and the defendants 2 to 4 are the sons of the 1 st defendant. The specific contention of the respondent/plaintiff is that she and defendants 2 to 4 are sons of 1 st defendant and they constituted under Hindu undivided joint family by enjoying the suit schedule properties with absolute rights. The contention of the defendants is that they are partitioned the suit schedule properties by way of registered partition deed between the defendants on 02.05.2011. To prove the same, no single document is produced by the defendant. Another contention put forth by the appellants/defendants is that the 1 st defendant has given one house site in Plot No.313 worth of Rs.10,00,000/- to the plaintiff towards her share and registered the same. In order to prove the same, no documentary evidence is produced by the appellants/defendants. Furthermore, the appellants/defendants did not choose to cross examine the respondent/plaintiff. The plaintiff herself is examined as P.W.1 and got exhibited Ex.A.1 to Ex.A.5. As noticed supra, the defendants did not choose to cross examine P.W.1. The unchallenged evidence of P.W.1 clearly supports the case of the plaintiff. The plaintiff also relied on Ex.A.1 to Ex.A.5. Ex.A.1 is the genealogical tree issued by the Village Revenue Officer, Akuledu Cluster, Ex.A.2 is the office copy of legal notice and Ex.A.3 to Ex.A.5 are the un-served registered post acknowledgement covers of defendant Nos.1, 3 and 4. 18. The defendants pleaded in their written statement that they have partitioned the suit schedule properties under a registered partition deed, dated 02.05.2011 and 1 st defendant had given one house site under a separate registered document to the plaintiff. In order to prove the same, no prima facie evidence is produced by the defendants. The defendants did not enter into the witness box to prove their defence. In order to prove the same, no prima facie evidence is produced by the defendants. The defendants did not enter into the witness box to prove their defence. 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 as follows: “Where the party to the suit does not appear into witness box and states his own case on oral and does not offer himself to the cross examination by the other side, a presumption would arose that the case set up by him is not correct”. 19. The learned counsel for the appellants placed a reliance of Prakash Chander Manchanda and another vs. Smt. Janki Manchanda , [ AIR 1987 Supreme Court 42 ] The ratio laid down in the aforesaid case law has no application to the present case on hand. Admittedly, during the pendency of the suit before the trial Court, no application has been filed by the appellants/defendants under Order 9 Rule 13 of the Code of Civil Procedure. The defendants also did not avail the said opportunity of filing of the petition under Order 9 Rule 13 of the Code of Civil Procedure subsequent to passing of the decree. In the second appeal, the learned counsel for the appellants fairly contended that the appellants have not filed any application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the decree. The decree passed by the learned trial Judge clearly goes to show that the defendants filed a written statement before the trial Court, but they did not contest the matter and they did not choose to cross examine P.W.1 and no defence evidence is adduced by the defendants before the trial Court. No additional evidence is adduced by the defendants before the learned First Appellate Judge. 20. 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 decreeing the suit of the plaintiff. 20. 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 decreeing 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 a substantial question 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. 21. 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 question of law arises for consideration and when no substantial question 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 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. 22. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. Considering the facts and circumstances, there shall be no order as to costs. Pending applications, if any, shall stand closed.