Smt P v Meenakshi Vs Smt Mastamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 10.07.2023 PASSED IN R.A.NO.10/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT PERIYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 26.02.2021 PASSED IN OS NO.259/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC AT PERIYAPATNA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant.

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There is a concurrent finding in respect of rejection of the claim in respect of item No.1 of the property and the Trial Court granted the relief in respect of item No.2. The Trial Court while partly decreeing the suit, comes to the conclusion

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that the father of the plaintiff has celebrated the marriage of the plaintiff on 15.04.1993 and since then she is residing in the house of her husband and also held that she cannot be a member of the joint family of defendant No.1. The Trial Court also taken note of Ex.D.1 is the sale deed executed by the father and mother of the plaintiff and also as minor guardians to defendant No.2 on 02.12.1993. Ex.D.5 is the sale deed executed by defendant No.2 in favour of defendant No.4 on 17.06.1999. Ex.D.6 is the sale deed executed by one Nagaraju in favour of defendant No.4 on 20.01.2004. The said Nagaraju is a purchaser from defendant No.2. Ex.D.7 is the sale deed executed by Manjula and others in favour of defendant No.4 on 29.07.2011. They are the purchasers from defendant No.2. Ex.D.8 is the sale deed executed by one P.D.Lingaraju in favour of defendant No.4 on 29.05.2002. Exs.D.9 to 20 are the RTCs standing in the name of defendant No.4 with regard to suit item No.1 and Ex.D.21 is the RTC standing in the name of defendant No.3. The Trial Court having taken note of all these material on record, comes to the conclusion that suit item No.1 has been sold for legal necessity and benefit of defendant No.2

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before 20.12.2004. Hence, the plaintiff cannot claim her share and rejected the same.

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The First Appellate Court having re-assessed the material available on record and considering the grounds which have been urged in the first appeal, taken note of all the transactions which were taken place and confirmed the judgment of the Trial Court. The First Appellate Court also taken note of the sale deed is of the year 1993 and the suit is filed on 27.10.2010 after lapse of 17 years and also taken note of the age of the plaintiff as 45 years in 2010 and she attained majority in the year 1995 itself and the suit is belatedly filed in 2010. Having considered all these material on record, confirmed the judgment of the Trial Court.

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Being aggrieved by the said order, the present

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second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant in this second appeal is that both the Courts below committed an error in dismissing the suit in respect of item No.1 of the suit schedule property without considering the

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material on record and the same amounts of perversity and not justified in framing the points for consideration.

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Having heard the learned counsel for the appellant and considering the material available on record, it is not in dispute that sale was made in the year 1993 and also it is not in dispute that the plaintiff has attained the majority in the year 1995. The appellant also not disputes the fact that her marriage was solemnized in the year 1993 when she was a minor and sale was also made in the very same year. The present suit is filed when she was aged about 45 years i.e., after 17 years of the sale made by the father and mother. All these materials were taken note of by the Trial Court as well as the First Appellate Court. The First Appellate Court also even taken note of sale transaction between the parties subsequent to the sale made in the year 1993 while answering the issue with regard to the entitlement of the appellant/plaintiff in respect of item No.1 of the suit schedule property. When such discussions are made, I do not find any ground to admit and frame any substantial question of law. The suit is belatedly filed and not filed the same within 3 years from the date of sale

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of the property and also from the date of attaining the majority. Hence, not a case for invoking Section 100 of CPC to admit the appeal and to frame any substantial question of law.

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