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2025 DIGILAW 584 (TS)

Mogula Komuraiah v. Mogula Ailaiah

2025-05-02

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : LAXMI NARAYANA ALISHETTY, J. This Second Appeal is filed challenging the judgment and decree, dated 17.08.2023, passed by the I Additional District Judge, Karimnagar, in A.S.No.108 of 2019 whereunder and whereby the judgment and decree, dated 11.07.2019, passed by the Principal Junior Civil Judge, Karimnagar, in O.S.No.123 of 2013 was confirmed. 2. The appellant herein is defendant and respondent herein is plaintiff, 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 are that plaintiff filed the suit in O.S.No.123 of 2013, seeking partition of the properties. In the plaint, it is averred that the defendant and plaintiff are sons of Late Mogula Ashalu, who constitute a Hindu Joint undivided Family, governed by Mitakshara School; that Schedule ‘A’ property is house bearing H.No.2-99, admeasuring 363 Sq.yards, situated at Valichal Village, Ramadugu Mandal, Karimnagar District and Schedule ‘B’ property is land bearing No.210, situated at Valichal Village, Ramadugu Mandal, to an extent of Ac.0-08 gts, which are in the name of Mogula Ashalu; that the plaintiff and defendant are in joint possession of the suit schedule property and after the death of their father, defendant dismantled the house only to deprive his share from the property; that plaintiff gave complaint to the Grampanchayath and a legal notice dated 14.12.2012 was issued to the defendant to stop construction and defendant issued reply notice dated 26.12.2012 denying all the facts. Therefore, plaintiff filed suit for partition of schedule properties into two equal shares. 4. Defendant filed written statement denying the allegation made in the plaint, however, admitted the relationship that they are brothers; that schedule A property is self acquired property of his father and schedule B property does not belong to their father; that their father gave all the properties to plaintiff and defendant and schedule A property is held for himself with the explicit purpose of giving it to the person who would provide services to him, take care of his well being and his medical expenses. Defendant further averred that as he performed the above duties including funeral to his father, schedule A property belongs to him and plaintiff is not entitled to any share of the same. Hence, prayed to dismiss the suit. 5. Defendant further averred that as he performed the above duties including funeral to his father, schedule A property belongs to him and plaintiff is not entitled to any share of the same. Hence, prayed to dismiss the suit. 5. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:- “(1) Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule properties as prayed for? (2)) To what relief?” 6. During the course of the Trial, plaintiff got examined as PW.1 and PW2 and Exs.A1 to A4 were marked. On behalf of the defendant, DW.1 and DW.2 were examined and Ex.B1 was marked. 7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court decreed the suit, vide judgment and decree dated 11.07.2019. 8. The trial Court categorically observed as hereunder:- “11. With regard to the suit Schedule A property, it is pleaded by the plaintiff that the defendant is residing in the suit schedule A house and after the demise of their father the defendant has dismantled the house. With regard to this averment, the plaintiff has got marked Ex.A2 letter, dt: 10.01.2013 addressed by the Grampanchayath Secretary, Valichal village to the plaintiff herein stating that house No.2- 99 is in the name of Mogula Ailalah and Mogula Komuraiah, i.e., the plaintiff and defendant herein. Ex.A3 is the letter addressed by the plaintiff to the Grampanchayath Secretary to stop the construction under taken by his brother Mogula Komuraiah, as he is also having a share in the suit schedule A property. Ex.A4 is legal notice, dt: 14.12.2012 given by the plaintiff to the defendant thereby asking the defendant not to proceed with the constriction of the house in schedule-A property, which is their ancestral property. However, there is no dispute with regard to the dismantling of house by the defendant and construction of a new house. 12. PW.2/A. Lingaiah, whose house is opposite to suit schedule A house was examined to support the case of the plaintiff. The evidence of PW.2 is to the effect that plaintiff and defendant constitute Hindu joint family and that suit schedule properties are in the name of their father. 12. PW.2/A. Lingaiah, whose house is opposite to suit schedule A house was examined to support the case of the plaintiff. The evidence of PW.2 is to the effect that plaintiff and defendant constitute Hindu joint family and that suit schedule properties are in the name of their father. His evidence is further to the effect that plaintiff's father is having land in an extent of 1-15 gts at Beeraiali Temple and Ac.0-24 gts at Chincheruvu and Ac.1-00 gts in the outskirts of Valichal village. His evidence is further to the effect that plaintiff is having a house in an extent of Ac.0-03 guntas. It is suggested to PW.2 that the plaintiff, defendant and their father have entered into an agreement on 20.04.1986 wherein it is mentioned that who ever takes care of Mogula Ashalu in his old age, they are entitled for the house and as per the agreement, the defendant agreed to look after his father and accordingly, the house was given to the defendant. It is pertinent to mention that the defendant has pleaded in his written statement that his father had kept the house which is in an extent of 18 X 18 with him and he expressed his intention to give the house to the son, who will look after his welfare and as defendant has rendered services to his father and house scheduled A house was allotted to him. No reference is made in the written statement about the agreement that was said to be entered into between plaintiff, defendant and their father. Without taking such a plea in his written statement and without suggesting the same to the plaintiff/PW.1, the same was suggested PW.2 who is not member of the their family. The remaining part of his cross-examination went in formal lines and nothing significant could be elicited from his testimony. There are no infirmities in the evidence of PW.2 to discredit his testimony.” 8.1. The Trial Court has further observed as hereunder:- “14. It is recited in Ex.B1 settlement deed that the house in an extent of Ac.0-03 guntas, Ac.0-08 guntas of land in Sy.No.210/B, amount of Rs.2,500/- which is the sale proceeds shall be divided into three parts, and one share each shall be given to Mogalu Ashalu and his sons. The Trial Court has further observed as hereunder:- “14. It is recited in Ex.B1 settlement deed that the house in an extent of Ac.0-03 guntas, Ac.0-08 guntas of land in Sy.No.210/B, amount of Rs.2,500/- which is the sale proceeds shall be divided into three parts, and one share each shall be given to Mogalu Ashalu and his sons. It is further mentioned that the share of Mogalu Ashalu will be kept with Mogula Komuraiah, who has to look after the welfare of his father and after the demise of his father, his father's share will devolve on him. Apart from these properties, sheeps and other gold ornaments were agreed to be given to the sons after the demise of Mogula Ashalu. It is apparent from Ex.B1 Family settlement deed that the land in an extent of Ac.0-08 guntas in Sy.No.210/B was shown to be in the name of Mogula Ashalu herein. Though the defendant has denied that suit schedule B property does not belong to their family, reference has been made in respect of Ex.B1 Settlement deed about the suit schedule B property which shows that defendant has pleaded falsely. 15. Further with regard to the Ex.B1 Family settlement deed, when DW.1 was cross-examined, he stated that the plaintiff did not put his signature on Ex.B1 settlement deed. This shows that the plaintiff did not agree to the terms mentioned in Ex.B1 document. … If assuming for a moment that suit schedule A property i.e., House in an extent of Ac.0-03 guntas was given to the defendant by his father for rendering services in his old age, when Mogula Ashalu died in the year 2008, the defendant did not take any steps for mutation of his name in the Grampanchayath records relating to Schedule-A house till filing of this suit in the year 2013. Even, Ex.A2 information furnished by the Grampanchayath Secretary of Velichala village, dt: 10.01.2013 shows that the suit Schedule-A house bearing 2-99 is in the name of plaintiff and defendant herein respectively. Therefore, it can be culled out that the suit schedule-A is in the joint possession of plaintiff and defendant and in order to deprive the plaintiff of his share, the defendant has dismantled the old house and he has undertaken the construction.” 9. Therefore, it can be culled out that the suit schedule-A is in the joint possession of plaintiff and defendant and in order to deprive the plaintiff of his share, the defendant has dismantled the old house and he has undertaken the construction.” 9. Aggrieved by the judgment dated 11.07.2019, the plaintiff preferred appeal vide A.S.No.108 of 2013 and 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 17.08.2019, thereby, confirming the judgment of the trial Court. 10. The first Appellate Court in its judgment observed as hereunder:- “16. Though the defendant has pleaded that his father has transferred 'A' schedule property in his name but no such document was placed by the defendant to show that 'A' schedule property was transferred in the name of defendant by his father Ashalu. Therefore, it is clear that there is no document to show that "A" schedule property is transferred in the name of defendant by Ashalu. Hence, the defendant cannot claim any exclusive right over 'A' schedule property and being children of Ashalu the plaintiff and defendant are having equal share over 'A' schedule property. 17. According to the plaintiff, his father is also owner of 'B' schedule property. On perusing the written statement the defendant has simply mentioned that 'B' schedule property not belongs to their family at all and they were no way concerned with 'B' schedule property. However, on perusing Ex.A1, B schedule property was in the name of father of plaintiff and defendant. Further more on perusing the cross examination of Dw.2 who scribed Ex.B1 has deposed that Ex.B1 was executed for A and B schedule properties. 10.1. The First Appellate Court has further observed as hereunder:- ….At the time of cross examination Dw.2 deposed that he do not know to whom 'B' schedule property was sold by Ashalu during his life time. No document was filed by the defendant to show that 'B' schedule property was sold by his father during his life time. By filing written statement, the defendant has taken a plea that 'B' schedule property is not at all belongs to their family, but the cross examination of Dw.2 shows that Ashalu himself has sold 'B' schedule property during his life time. No steps were taken by the defendant to fill-up the latches on his part. By filing written statement, the defendant has taken a plea that 'B' schedule property is not at all belongs to their family, but the cross examination of Dw.2 shows that Ashalu himself has sold 'B' schedule property during his life time. No steps were taken by the defendant to fill-up the latches on his part. On the contrary Ex.A1 clearly establishing that Ashalu was original owner and possessor of 'B' schedule property. Therefore, it can safely held that B schedule property belongs to the father of the plaintiff and defendant and the plaintiff and defendant being the children of Ashalu are having equal share in 'B' schedule property” 11. Heard Sri N. Janardhan Reddy, learned counsel for the appellant. 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 decreed the suit without properly appreciating the contentions raised and adduced on behalf of the appellant. Learned counsel further contended that both the Courts failed to consider Ex.B1 i.e., family settlement deed which was entered into between the appellant and respondent in consultation with elders and discarded the same only on the ground that the same was not signed by the respondent. Therefore, impugned judgment is unsustainable and is liable to be set aside. 13. A perusal of record would disclose that the trial Court as well as the first Appellate Court concurrently held that schedule A and B properties are joint family properties and therefore, appellant as well as respondent are entitled to share the said properties equally. Both the Courts have rejected the contention of the appellant that schedule A property was allotted to him as per family settlement deed i.e., Ex.B1, as the same was not proved and was not signed by respondent/ plaintiff. Both the Courts further held that appellant failed to prove his contention that the properties are given to him by his father for the services rendered by him and in fact no evidence was placed on record to prove his contention and no steps have been taken by the appellant to mutate his name in the revenue records in pursuance of the said endorsement. Therefore, both the Courts rejected the contentions of the appellant. 14. Therefore, both the Courts rejected the contentions of the appellant. 14. In considered view of this Court, the learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C. 15. It is well settled principle by a catena of decisions of the Hon’ble Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the findings on facts arrived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. 16. Further, in Gurdev Kaur v. Kaki , [(2007) 1 Supreme Court Cases 546] , 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. 17. 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. 18. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. Pending miscellaneous applications, if any, shall stand closed.