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2025 DIGILAW 618 (AP)

Yezerla Lakshmi v. Vadapalli Saraswathi

2025-04-22

KRISHNA RAO, VENUTHURUMALLI GOPALA

body2025
JUDGMENT : This second appeal is filed aggrieved against the Judgment and decree dated 22.08.2022 in A.S.No.6 of 2014, on the file of the Senior Civil Judge, Yellamanchili (“First Appellate Court” for short), confirming the Judgment and decree, dated 13.03.2014 in O.S.No.170 of 2006, on the file of the Principal Junior Civil Judge, Yellamanchili (“Trial Court” for short). 2. The appellant herein is the defendant and the respondents herein are the plaintiffs in O.S.No.170 of 2006, on the file of the Principal Junior Civil Judge, Yellamanchili. 3. The plaintiffs initiated action in O.S.No.170 of 2006, on the file of the Principal Junior Civil Judge, Yellamanchili, with a prayer for partition of the plaint schedule property into 3 equal shares and for allotment of 2/3 rd share i.e., 1/3 rd share to the 1 st plaintiff and 1/3 rd share to the 2 nd plaintiff in the plaint schedule property and for possession of the separate share to the plaintiffs after due division and for making provision in the decree for ascertaining of future profits on a separate petition and for costs. 4. The learned Principal Junior Civil Judge, Yellamanchili, decreed the suit preliminarily with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed A.S.No.6 of 2014, on the file of the Senior Civil Judge, Yellamanchili. The learned First Appellate Judge dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant 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.170 of 2006, is as follows: The 1 st plaintiff is younger sister to the 2 nd plaintiff and the defendant is elder sister to the plaintiffs. The plaint schedule property is dry land for an extent of Ac.2-05 cents situated at Pedagummaluru village of S. Rayavaram Mandal, which is self-acquired property of mother of the plaintiffs and defendant by name Sagiraju Venkata Ramanamma. The mother of plaintiffs and defendant purchased the plaint schedule property under a registered sale deed, dated 24.02.1982 from Yezarla Buchi Venkatapathi Raju and others for valuable consideration. The mother of plaintiffs and defendant purchased the plaint schedule property under a registered sale deed, dated 24.02.1982 from Yezarla Buchi Venkatapathi Raju and others for valuable consideration. Ever since from the date of purchase, the mother of the plaintiffs and defendant has been in possession and enjoyment of the same with absolute rights by raising cashew nut tope in it. The mother of plaintiffs and defendant died in the year 2000 leaving behind the plaintiffs and defendant as her legal heirs. The father of plaintiffs and defendant died prior to the death of their mother. Since the 2 nd plaintiff is being residing in different states on his job and the 1 st plaintiff is being residing at Tuni, the defendant is being residing in Pedagummuluru Village, where the plaint schedule property is situated and also as the defendant is elder sister used to manage the plaint schedule property on behalf of the plaintiffs and also used to give usufruct derived from the plaint schedule property to the plaintiffs till 2005 of their respective shares. The 2 nd plaintiff when asked the defendant for payment of usufruct of the plaint schedule property for the year 2006, the defendant did not pay the same and went on quarrel with the 2 nd plaintiff. Due to the said quarrel, the plaintiffs are not willing to keep the plaint schedule property jointly with the defendant. The plaintiffs when asked the defendant for partition of the suit schedule property into three equal shares for which the 1 st plaintiff is entitled 1/3 rd share; 2 nd defendant is entitled 1/3 rd share and the defendant is entitled 1/3 rd share, the defendant without partitioning the schedule property, postponing the same on one pretext or the other. Then the plaintiffs got issued a legal notice, dated 21.06.2006 to the defendant demanding for partition of the plaint schedule property. The defendant having received the said notice neither issued any reply nor partitioned the plaint schedule property. Therefore, the plaintiffs are constrained to file the suit. 7. The defendant filed written statement before the trial Court denying the contents of plaint averments. The defendant having received the said notice neither issued any reply nor partitioned the plaint schedule property. Therefore, the plaintiffs are constrained to file the suit. 7. The defendant filed written statement before the trial Court denying the contents of plaint averments. The brief averments in the written statement are as follows: Mother of plaintiffs and defendant took her last breath in the house of the husband of defendant by name Rajan Raju and the last rites ceremony was performed by Rajan Raju by himself but not by anybody. In earlier period, Rajan Raju was addicted to bad vices and during the said days i.e., 24.02.1982 the said Rajan Raju purchased the suit schedule land in favour of Venkata Ramanamma, who is his mother-in-law and mother of plaintiffs and defendant on the advice of elders by believing that as and when situation raised, the same would be returned to his family. Later course, the mother of the plaintiffs as well as defendant executed an unregistered gift settlement deed, dated 20.03.1983 in favour of the defendant in the presence of elders and also returned the original sale deed, dated 24.02.1982 to Rajan Raju. The husband of the defendant Rajan Raju cultivated the said suit land for about 10 years for sharing system under his present vendors i.e., earlier to the date of his purchase in the name of late Venkata Ramanamma. The said Venkata Ramanamma never purchased the suit schedule property under any registered sale deed as but as nominal as discussed above. The said Venkata Ramanamma never has such financial status to purchase the suit schedule land. The defendant and her husband put investment on the education of the 2 nd plaintiff. The revenue authorities also recognized rights of the defendant over the schedule land and got entered her name in the revenue records and issued pattadar passbook and title deed in the name of defendant. There is no bonafide ground to file the suit and the plaint schedule is not correct and suit is liable to be dismissed. 8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Yellamanchili, framed the following issues for trial: (1) Whether the description of the suit schedule is correct? (2) Whether the plaintiffs are entitled for partition of the plaint schedule property into three equal shares and allotment of 2/3 share as prayed for? (3) To what relief? 8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Yellamanchili, framed the following issues for trial: (1) Whether the description of the suit schedule is correct? (2) Whether the plaintiffs are entitled for partition of the plaint schedule property into three equal shares and allotment of 2/3 share as prayed for? (3) To what relief? (4) Whether the plaintiffs are entitled for possession of the separate shares to the plaintiffs after due division? (5) Whether the plaintiffs are entitled for future profits by ascertaining the same on a separate application under Order XX Rule 12 of the Code of Civil Procedure? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendant, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.6 were marked. 10. The learned Principal Junior Civil Judge, Yellamanchili, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit preliminarily with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.6 of 2014, on the file of the Senior Civil Judge, Yellamanchili, wherein, the following point came up for consideration. Whether the impugned judgment and decree, dated 13.03.2014 made in O.S.No.170 of 2006 suffers from any infirmities and if so whether the interference of this Court is warranted? 11. The learned Senior Civil Judge, Yellamanchili i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiffs/respondents and dismissed the appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.170 of 2006 filed the present second appeal before this Court. 12. Heard Sri S.V.R. Subramanyam, learned counsel for the appellant and heard Sri A.S.C. Bose, learned counsel for the respondents. 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 questions of law between the parties arise in this case. 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.” 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for her to meet the above principles and satisfy the Court whether there exist any substantial questions 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 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. 16. 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. 16. The case of the plaintiffs is that the suit schedule property is purchased by the mother of plaintiffs and defendant by name Sagiraju Venkata Ramanamma under a registered sale deed, dated 24.02.1982 and later she died intestate in the year 2000 by leaving the plaintiffs and defendant as her legal representatives. Prior to the death of the mother of plaintiffs and defendant, the father of both parties died. The relationship of both parties is not in dispute. It is also undisputed that the 2 nd plaintiff used to work in Army and used to stay in different places in different states. The contention of the plaintiffs is that the 1 st plaintiff being a resident of Tuni and 2 nd plaintiff being residing in different states, since he is working in Army and the defendant, who is elder sister of both the plaintiffs being residing at the village, where the suit schedule property is situated, as the defendant is elder sister of the plaintiffs used to manage the suit schedule property on behalf of the plaintiffs and defendant used to give usufruct derived from the suit schedule property to the plaintiffs. The plaintiffs pleaded that when the 2 nd plaintiff asked the defendant for payment of usufruct of the suit schedule property for the year 2006, the defendant did not pay the same and went on quarrel with the 2 nd plaintiff and the suit schedule property is absolute property of mother of both the parties and she died intestate and that both the parties are entitled equal shares. The specific case of the plaintiffs is that the plaintiffs got issued a legal notice on 21.06.2006 by demanding the defendant for partition of the suit schedule property into 3 equal shares and allot one such share to the 1 st plaintiff and to allot another share to the 2 nd plaintiff and allot remaining one share to the defendant and the defendant having received the said notice, did not choose to partition the suit schedule property. 17. 17. The case of the defendant is that her husband Rajan Raju purchased the suit schedule property in the name of her mother under a registered sale deed with the own funds of Rajan Raju. There is no explanation on behalf of the defendant for what necessity and for what reason her husband purchased the property in the name of her mother instead of purchasing the same either in favour of him or in her favour. As per the own case of the defendant, her husband Rajan Raju was addicted to bad vices. If really, the husband of the defendant addicted to bad vices, it is highly absurd to believe that the husband of the defendant purchased the suit schedule property with his own funds in the name of mother of the defendant by leaving the defendant. It is not the case of the defendant that there are no cordial terms in between the defendant and her husband. In fact, her husband is examined as D.W.2 on behalf of the defendant. Ex.A.1 goes to show that after paying sale consideration by the mother of both the parties, the mother of both the parties purchased suit schedule property under Ex.A.1 registered sale deed. Ex.A.1 is in the name of mother of defendant. Moreover, a clear admission made by the defendant in her evidence in cross examination itself that her mother executed an unregistered gift settlement deed in her favour after purchase of the suit schedule property. The aforesaid own admission of the defendant clearly goes to show that the mother of defendant purchased the suit schedule property under a registered sale deed with her own funds. 18. The date of Ex.A.1 sale deed is 24.02.1982, the mother of the plaintiffs and defendant died in the year 2000. According to the defendant, her mother was hale and healthy since 1982 onwards till one month prior to her death. It is the specific case of the defendant that her husband purchased the suit schedule property in the name of her mother. Ex.A.1 goes to show that the husband of defendant is also one of the attestors in the said sale deed. It clearly goes to show that at the time of purchase of the suit schedule property by the mother of the plaintiffs and defendant, the husband of defendant present and he signed as one of the attestors in the said sale deed. It clearly goes to show that at the time of purchase of the suit schedule property by the mother of the plaintiffs and defendant, the husband of defendant present and he signed as one of the attestors in the said sale deed. As stated supra, one of the explanations offered by the defendant is that since her husband addicted to bad vices, he himself purchased the suit schedule property with his own funds in the name of her mother. The aforesaid statement of the defendant is unbelievable. In fact, there is no explanation on the part of the defendant what prevented the defendant to obtain sale deed in her name. 19. Another defence put forth by the defendant is that her mother gifted the suit schedule property in favour of the defendant under an unregistered gift deed on 20.03.1983. The law is very clear that an unregistered gift deed does not create any right in favour of the settlee. Section 17 of the Indian Evidence Act, 1908 deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non- registration of the documents which require to be registered by Section 17 or by any provision of Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for collateral purpose i.e., for entirely different and independent matter. Here, suit schedule property is immovable property. The gift deed is compulsorily registerable document. Therefore, the alleged un-registered gift deed will not create right or title in favour of the defendant. 20. Another contention put forth by the defendant is that her name is mutated in the revenue records and she also obtained pattadar passbook and title deed. The law is well settled the revenue records did not confer any title. Moreover, the defendant admitted in her evidence in cross examination itself that she handed over the unregistered gift deed to the revenue officials and they have issued pattadar passbook and title deed in her favour. The law is well settled the revenue records did not confer any title. Moreover, the defendant admitted in her evidence in cross examination itself that she handed over the unregistered gift deed to the revenue officials and they have issued pattadar passbook and title deed in her favour. The law is well settled that even if the entries in revenue records of rights carry evidentiary value, that itself would not confer any title on the defendant on the said land in question. On perusal of the unregistered gift settlement deed alleged to have been handed over by the defendant, the revenue authorities might have issued pattadar passbook and title deed in the name of the defendant. The said pattadar passbook and title deed does not confer any title in favour of the defendant. The mere issuance of pattadar passbook and title deed in favour of the defendant does not mean that the defendant is having right and title in the suit schedule property. 21. In order to discharge their burden, the plaintiffs relied on Ex.A.1 registered sale deed under which the mother of the plaintiffs and defendant purchased the suit schedule property on her own name. The contention of the defendant is that her husband purchased the suit schedule property in the name of her mother and that it is not the self-acquired property of her mother. In order to discharge their burden, the plaintiffs produced Ex.A.1 sale deed and also relied on the admissions made by the defendant in her evidence in cross examination itself. Furthermore, the husband of the defendant is one of the attestors in the said registered sale deed. To discharge her burden, the defendant failed to prove that with the own funds of her husband, he purchased the suit schedule property in the name of mother of the defendant. Ex.A.1 goes to show that the suit schedule property was self-acquired property of the mother of plaintiffs and defendant and mother of both parties died intestate, therefore, the plaintiffs 1 and 2 are entitled 1/3 rd share each and defendant is entitled 1/3 rd share in the suit schedule property. 22. Ex.A.1 goes to show that the suit schedule property was self-acquired property of the mother of plaintiffs and defendant and mother of both parties died intestate, therefore, the plaintiffs 1 and 2 are entitled 1/3 rd share each and defendant is entitled 1/3 rd share in the suit schedule property. 22. 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 plaintiffs and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiffs. 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. 23. 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 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. 24. 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 in the second appeal. 24. 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 in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.