Thota Lakshmi, Vs Thota Narayana Murthy @ Vishnu Murthy

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[3397]

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APHC010644072023

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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(Special Original Jurisdiction)

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MONDAY,THE SIXTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO

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SECOND APPEAL NO: 181/2024

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Between:

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THOTA LAKSHMI,, WIFE OF LATE THOTA SESHA RAMAKRISHNA, AGED 53 YEARS, HOUSE WIFE, RESIDING AT E.B.C.COLONY, CHEBROLU, GOLLAPROLU MANDALAM, PITHAPURAM

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THOTA SIDDU,, SON OF OF LATE THOTA SESHA RAMAKRISHNA,AGED 27 YEARS. RESIDING AT E.B.C.COLONY, CHEBROLU, GOLLAPROLU MANDALAM, PITHAPURAM

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THOTA CHAITANYA,, SON OF LATE THOTA SESHA RAMAKRISHNA, AGED 23 YEARS. RESIDING AT E.B.C.COLONY, CHEBROLU, GOLLAPROLU MANDALAM, PITHAPURAM

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THOTA SATHEMMA,, WIFE OF SWAMY AGED 78 YEARS. HOUSE WIFE, RESIDING AT E.B.C.COLONY, CHEBROLU, GOLLAPROLU MANDALAM, PITHAPURAM

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...APPELLANT(S)

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AND

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THOTA NARAYANA MURTHY VISHNU MURTHY, SON OF LATE VENKATA RAO, AGED 53 YEARS, RESIDING AT KODAVALI, GOLLAPROLU MANDAL, PITHAPURAM

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THOTA SATYANARAYANA, SON OF LATE VENKATA RAO, AGED 58 YEARS, RESIDING AT KODAVALI, GOLLAPROLU MANDAL, PITHAPURAM

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THOTA SREENU SEETHARAMASWAMY, SON OF LATE VENKATA RAO, AGED 44 YEARS, RESIDING AT KODAVALI, GOLLAPROLU MANDAL, PITHAPURAM

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THOTA RAMAKRISHNA, SON OF LATE VENKATA RAO, AGED 51 YEARS, RESIDING AT KODAVALI, GOLLAPROLU MANDAL, PITHAPURAM

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GAMPALA PRABHAVATHI, WIFE OF CHINABABU, AGED 53 YEARS, NEAR ANJANEYA SWAMY TEMPLE, HANSAVARAM, TUNL MANDALAM

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...RESPONDENT(S):

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Appeal under section ___________ against ordersThe above named Appellants pray to prefer this Memorandum of Grounds of Second Appeal aggrieved by the judgment and decree passed by the Xll Additional District Judge, Pithapuram in A.S.No.72/2016, Dt.31.08.2023 in confirming the judgment and decree passed in O.S.No.239/2010 on the file of the Senior Civil Judge, Pitapuram, Dt. 13.10.2016

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IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to condone the delay of 52 days in representing the S.A. 181/2024 in the interest of justices and to pass

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IA NO: 2 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to stay the operation of judgment and decree passed in O.S.No.239 of 2010 on the file of Senior Civil Judge, Pithapuram, Dt. 13.10.2010 and confirmed by judgment and decree dated:31.08.2023 by the XII Additional District Judge Pithapuram in A.S.No.72 of 2016 pending disposal of the Second Appeal and to pass

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Counsel for the Appellant(S):

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1.POOLLA SRAVANTH

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Counsel for the Respondent(S):

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1.SASANKA BHUVANAGIRI

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The Court made the following:

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Judgment:

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This second appeal is filed aggrieved against the Judgment and decree dated 31.08.2023 in A.S.No.72 of 2016 on the file of learned XII Additional District Judge, Pithapuram, confirming the Judgment and decree dated 13.10.2016 in O.S.No.239 of 2010 on the file of learned Senior Civil Judge, Pithapuram.

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The appellants herein are the defendants 5 to 8, the 1^st respondent herein is the plaintiff and respondents 2 to 5 herein are the defendants 2 to 4 and 9 in O.S.No.239 of 2010 on the file of learned Senior Civil Judge, Pithapuram.

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The plaintiff initiated action in O.S.No.239 of 2010 on the file of learned Senior Civil Judge, Pithapuram, with a prayer for seeking partition of plaint schedule property into four equal and equitable shares according to good and bad qualities and for allotment of one such share to the plaintiff and to direct 1^st defendant to give vacant possession of such share to the plaintiff with future profits and to direct defendants 5 to 8 to pay an amount of Rs.3,000/- to the plaintiff towards value of 1/4^th share of net proceeds for the year 2009-10 within the time fixed by the Court.

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During the pendency of the suit proceedings, 1^st defendant died and defendants 5 to 8 were brought on record as legal representatives of deceased 1^st defendant. The 9^th defendant was also added as per orders in I.A.No.288 of 2016, dated 13.06.2016.

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The learned Senior Civil Judge, Pithapuram, partly decreed the suit with costs and preliminary decree was passed. Felt aggrieved of the same, the defendants 5 to 8 in the above said suit filed the aforesaid appeal before the first appellate Court. The learned XII Additional District Judge, Pithapuram, dismissed the first appeal by confirming the judgment and decree

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passed by the trial Court. Aggrieved thereby, the defendants 5 to 8 / appellants approached this Court by way of second appeal.

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For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.

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The case of the plaintiff, in brief, as set out in the plaint averments in

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O.S.No.239 of 2010, is as follows:

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(i) The plaintiff and his brothers i.e., defendants 2 to 4 inherited the plaint schedule property from their father Thota Venkata Rao under registered settlement deed dated 24.9.1977 vide document No.2035/1977. During the life time of settler himself, the settler and settlies jointly have disposed of Ac.6.82 cents of land out of Ac.7.82 cents of schedule land covered by settlement deed dated 24.9.1977. The settler were left with Ac.1.00 cents of land alone. After the demise of said Thota Venkatarao, who is father of plaintiff and defendants 2 to 4, the said Ac.1.00 of land is the plaint schedule property herein.

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(ii) The plaint schedule property is the joint family property of plaintiff and defendants 2 to 4 and the defendants 2 to 4 are paying some amount every year to the plaintiff which amount represents the value of the undivided 1/4^th share of net proceeds from the plaint schedule property, since the defendants 2 to 4 promised to effect partition of the plaint schedule property into 4 equal and equitable shares and to allot one share to the plaintiff. On 30.3.1998, the defendants 2 to 4 in collusion with the 1^st defendant without the knowledge of the plaintiff, have executed a sale deed and informed the plaintiff that the 1^st defendant had purchased their undivided 3/4^th share and since then the 1^st defendant stepped into shoes of defendants 2 to 4. Inspite of repeated demands, the 1^st defendant fails to pay the net proceeds to the plaintiff for 2009-2010.

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(iii) The registration extract of the sale deed dated 30.3.1998 got executed by defendants 2 to 4 in favour of 1^st defendant in collusion among themselves was for the entire extent of Ac.1.00 of plaint schedule property, over which the defendants 2 to 4 are having title only to the extent of 3/4^th share out of Ac.1.00 of plaint schedule property and thus, the said sale deed is not valid and binding to the extent of plaintiff's undivided 1/4^th share. Hence, the plaintiff constrained to file the suit.

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The 1^st defendant filed written statement denying the contents of

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plaint averments and further contended as follows:

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The entire Ac.1.00 of land is in S.No.214/19 and 214/20 is on land and there are two items. The defendant is in possession of the schedule property more than 12 years. As per the recitals of the document dated 30.03.1998, this defendant is in adverse possession of the said land more than 12 years. If really, the plaintiff is having any right in the schedule property, the plaintiff filed a suit immediately after registration of sale deed dated 30.03.1998. The plaintiff is resident of Kodavali. The distance between Kodavali and Chebrolu is 15 kilometers. Even though he knows the facts, but the plaintiff and other defendants colluded with each other and filed the present false suit. This defendant has also constructed terraced building in the said land six years back and he also paid taxes to the Gram Panchayat, Chebrolu. Hence, sought for dismissal of the suit.

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The 5^th defendant also filed written statement, which was adopted by the defendants 6 to 8, they denied the averments of the plaint and submitted that the husband of 5^th defendant i.e., 1^st defendant was in exclusive possession and enjoyment of the plaint schedule property ever since from the date of purchase i.e., 30.3.1998 and thus, the 1^st defendant had in adverse possession of the said property as per the plaint pleadings prior to issuance of notice dated 14.9.2010 itself. Further, the 1^st defendant constructed a terraced building in the said land in or about the year 2006 itself and used to reside in

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the said building and the said fact was known to each and every person in the village including the plaintiff and the defendants 2 to 4. Hence, sought for dismissal of the suit.

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On the basis of above pleadings, the learned Senior Civil Judge, Pithapuram, framed the following issues for trial:

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(1) Whether the plaintiff is entitled for partition of plaint schedule property into 4 equal and equitable shares according to good and bad qualities and for allotment of one such share to the plaintiff as prayed for?

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(2) Whether the plaintiff is entitled for 1/4^th share in usufruct towards past profits for the year 2009-2010?

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(3) Whether the schedule filed by the plaintiff is not correct as contended by the defendant?

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(4) Whether the suit is bad for non-joinder of necessary parties i.e. Gampala Prabhavathi, the sister of defendants 2 to 4?

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(5) To what relief?

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During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A.1 to A.5 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Ex.B.1 was marked.

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The learned Senior Civil Judge, Pithapuram, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, partly decreed the suit preliminarily with costs. Felt aggrieved thereby, the defendants 5 to 8 filed the appeal suit in A.S.No.72 of 2016 before the learned XII Additional District Judge, Pithapuram, wherein, the following points came up for consideration.

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(1) Whether the appellants / defendants 5 to 8 have established any ground for interfering with the decree and judgment dated 13.10.2016 in O.S.No.239 of 2010 on the file of Senior Civil Judge, Pithapuram?

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(2) Result of the Appeal?

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The learned XII Additional District Judge, Pithapuram, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants 5 to 8 / appellants and in favour of the plaintiff / 1^st respondent and dismissed the appeal filed by the defendants 5 to 8. Felt aggrieved of the same, the defendants 5 to 8 in O.S.No.239 of 2010 filed the present second appeal before this Court.

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After institution of the second appeal by the defendants 5 to 8 in the suit, this Court ordered notice to the respondents before admission and the said notice was served on the 1^st respondent / plaintiff. Heard Sri Poolla Sravanth, learned counsel for the appellants / defendants 5 to 8 and Sri Sasanka Bhuvanagiri, learned counsel for the 1^st respondent / plaintiff.

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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 Civil Procedure Code (hereinafter referred to as ‘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 Laxmi¹ , 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

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1(2007) 8 SCC 155

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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.

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The defendants 5 to 8 having chosen to invoke the jurisdiction of this Court under Section 100 of CPC, it is for them to meet the above principles and satisfy the Court whether there exists any substantial question of law.

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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.

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The undisputed case of the plaintiff and defendants 2 to 4 is that the plaintiff and defendants 2 to 4 are brothers and their father executed a registered settlement deed dated 24.09.1977 in favour of the plaintiff and defendants 2 to 4. It is also undisputed that during the lifetime of settlor, the settlor and settlies jointly disposed of Ac.6.82 cents of land out of Ac.7.82 cents of schedule land covered by the settlement deed dated 24.09.1977 as stated supra. The registration extract of settlement deed is filed and marked as Ex.A.1 by the plaintiff. It is also undisputed that the settlor was left with Ac.1.00 of land and the said Ac.1.00 land was inherited by the plaintiff and his three brothers i.e. defendants 2 to 4 under a registered settlement deed dated 24.09.1977 under Ex.A.1. Therefore, in pursuance of the settlement deed executed by the father of the plaintiff and defendants 2 to 4, the plaintiff is having 1/4^th undivided interest in the plaint schedule property.

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The plaintiff approached the civil Court for seeking the relief of partition of the plaint schedule property. The trial Court partly decreed the suit by awarding 1/4^th share in the plaint schedule property and the relief of mesne profits sought by the plaintiff was dismissed by the learned trial Judge. The defendants 5 to 8 filed the first appeal. Learned first appellate Judge also confirmed the findings given by the learned trial Judge and dismissed the first appeal filed by the appellants. In order to prove the case of the plaintiff, the plaintiff relied on the evidence of P.Ws.1 to 4 and also relied on Exs.A.1 to A.5. Per contra, the defendants in order to prove their defence, examined the 5^th defendant as D.W.1 and also examined one Mulukuri Sita Ramakrishna as D.W.2.

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The evidence on record clearly indicates that the father of the plaintiff and defendants 2 to 4 executed a registered settlement deed in favour of the plaintiff and defendants 2 to 4 and by virtue of the said settlement deed, the plaintiff is having 1/4^th undivided share in the plaint schedule property. The fact remains that the defendants 2 to 4 alienated the schedule property to the 1^st defendant under a registered sale deed dated 30.03.1998 under original of Ex.A.2. Admittedly, the vendors i.e. defendants 2 to 4 did not enter into the witness box. For the reasons best known to the defendants 2 to 4, they remained set ex parte . The documentary evidence Ex.A.1 clearly goes to show that the plaintiff is having 1/4^th undivided share in the plaint schedule property by virtue of Ex.A.1 registered settlement deed said to have been executed by his father in favour of the plaintiff and defendants 2 to 4. But, for the reasons best known to the defendants 2 to 4, they have alienated the total schedule property in favour of the 1^st defendant. The 1^st defendant also without verifying the title of the defendants 2 to 4, purchased the total plaint schedule property i.e. total Ac.1.00 of land. It is evident that defendants 2 to 4 are having 3/4^th undivided share and interest only in the total plaint schedule property. At best, the defendants 2 to 4 can alienate their undivided 3/4^th share to the 1^st defendant and they cannot alienate the undivided 1/4^th share

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of the plaintiff to the 1^st defendant. Therefore, the said sale deed dated 30.03.1998 is not valid to the extent of 1/4^th undivided share of the plaintiff and the plaintiff is entitled 1/4^th share in the plaint schedule property.

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The material on record also clearly goes to show that prior to filing of the suit, the plaintiff got issued a legal notice to the 1^st defendant dated 14.09.2010. After receipt of the legal notice under Ex.A.4, the 1^st defendant kept quiet and that the plaintiff was constrained to file the present suit. As stated supra, the defendants 2 to 4 are having 3/4^th undivided share in the plaint schedule property by virtue of registered settlement deed dated 24.09.1977 said to have been executed by their father in favour of the plaintiff and defendants 2 to 4. But, knowingly that they are not having any title or rights in the total plaint schedule property, they have alienated the total plaint schedule property including 1/4^th share of the plaintiff. Therefore, the plaintiff is entitled 1/4^th undivided share in the plaint schedule property. Learned trial Judge rightly awarded 1/4^th share to the plaintiff in the plaint schedule property. The first appellate Judge also on re-appreciation of the entire evidence on record, rightly dismissed the first appeal filed by the appellants / defendants 5 to 8.

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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 CPC. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law.

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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. Kaki² . 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 CPC.

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In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. Pending applications, if any, shall stand closed. No costs.

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//TRUE COPY//

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VENUTHURUMALLI GOPALA KRISHNA RAO,J

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To,

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