Dismissed

Smt.J.Rajeswari v. J.Sakunthalamamma [Died]

Telangana HC16 Dec 2011SA/1496/2011

Case brief

AI extract

What is this about?

This second appeal was dismissed. The Court held that reappreciation of evidence is impermissible in a second appeal under settled law. It further found no merit in the appellant's contention that a decree in another suit for permanent injunction entitled her to refuse partition, noting she did not file the original will in this case.

What did the court decide?

The second appeal was dismissed; no costs awarded.

Smt.J.Rajeswari Vs J.Sakunthalamamma [Died] — Partition | Telangana HC (2011)

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THE HONOURABLE SRI JUSTICE N.V. RAMANA SECOND APPEAL No. 1496 of 2011

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: Judgment

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This second appeal is directed against the judgment and decree dated 05.08.2011 passed by the IV Additional District Judge, Tirupati, Chittoor District, dismissing the appeal in A.S. No. 20 of 2008, filed by the appellant questioning the judgment and decree dated 17.01.2008, passed by the Principal Senior Civil Judge, Tirupati, Chittoor District, decreeing the suit in O.S. No. 159 of 2003, filed by respondents 1 to 4 for partition of the plaint schedule properties into three equal shares.

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Heard the learned counsel for the appellant and perused the judgments under appeal.

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The learned counsel for the appellant submitted that both the Courts below have misread the evidence and committed a grave error in not taking into consideration the suit filed by the appellant against 1^st plaintiff, 1^st defendant and other respondents in O.S. No. 388 of 1998 on the file of the I Additional Junior Civil Judge, Tirupati, for permanent injunction, wherein she filed the Will executed in her favour, and obtained decree, which has become final, and as such, the evidence has to be re-appreciated.

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This contention of the appellant is misconceived and cannot be accepted. The appellant though, on the basis of the Will, claims that she is the absolute owner of the plaint schedule property and not a cosharer, and that even though she filed the Will in the suit filed by her

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against the respondents in O.S. No. 388 of 1998 seeking permanent injunction, the Courts below did not take the same into consideration, the fact remains, the appellant did not file the said registered Will in the present suit and that she merely filed Ex.B1-copy of the plaint in O.S. No. 388 of 1998.

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No doubt, the appellant must have obtained decree of permanent injunction against the respondents, but that by itself cannot be a ground to refuse partition, particularly when the relief of permanent injunction and partition are different. Though in the first appeal, the appellant sought to file the registered Will as additional evidence, the fact remains, the first appellate Court having perused the same found that the property covered by the Will is different from the plaint schedule property. In that view of the matter, no fault can be found with the judgment under appeal, passed by the first appellate Court, confirming the order of the trial Court, decreeing the suit for partition filed by respondents 1 to 4, particularly when the findings recorded by the Courts below in the judgments under appeal, as noted above, are concurrent and based on proper appreciation of the evidence on record.

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The Courts below, by recording findings, as noted above, cannot be said to have misread the evidence, warranting reappreciation of evidence in second appeal. This apart, the law is well settled that re-appreciation of evidence in second appeal is impermissible. In Dnyanoba Bhaurao Shemade, v. Maroti Bhaurao Marno r^[1] , the apex Court held that whether a finding of fact reached by Courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does

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not project any question of law, much less, any substantial question of law, which can enable the High Court in second appeal to upset such a finding of fact. That being the law, the contention of the appellant that since the Courts below did not appreciate the evidence, this Court in second appeal has to re-appreciate the evidence, and that the said ground constitutes a substantial question of law, cannot be accepted.

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For the foregoing discussion, I find no reasons to interfere with the judgments of the Courts below and no question of law much less substantial question of law is involved in the second appeal.

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The second appeal, being devoid of merit, is accordingly dismissed. No costs.

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_____________ N.V. RAMANA, J

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16^th December, 2011 IBL

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[1] AIR 1999 SC 864

Smt.J.Rajeswari v. J.Sakunthalamamma [Died]

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Smt.J.Rajeswari v. J.Sakunthalamamma [Died]

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