Dismissed

Smt Tirumani DhanaLakshmi, v. Penumasta Subbaraju

Telangana HC17 Jun 2015CMSA/1/2015

Case brief

AI extract

What is this about?

Appeal dismissed. The court rejected the appellant's challenge to the dismissal of her claim petition under Order XXI Rule 58 CPC. Finding no substantial question of law due to concurrent factual findings distinguishing the attached property from the claimed property based on survey numbers, boundaries, and extent. Appeal filed against an order confirming a decree in a suit. Property rights and at

What did the court decide?

Appeal dismissed without costs. Redress claimed elsewhere as permitted by law. Pending misc. petitions dismissed.

Smt Tirumani DhanaLakshmi, Vs Penumasta Subbaraju — Partition | Telangana HC (2015)

¶1

HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY C.M.S.A.NO.1 OF 2015

¶2

JUDGMENT:

¶3

At the stage of admission I heard both Advocates Mr.S.R.Sanku and V.V.N.Narsimham, counsel for the petitioner and the respondents.

¶4

The present appeal is filed aggrieved by the judgment and decree in A.S.No.22 of 2012, dated 20-10-2014, on the file of Additional District Judge, Narsapur. Whereunder the order passed by the Senior Civil Judge, Narsapur in E.A.No.539 of 2008 in E.P.No.65 of 2008 in O.S.No.84 of 2005 was confirmed.

¶5

The appellant herein filed petition before Senior Civil Judge, Narsapur under Order XXI Rule-58 C.P.C. in E.A.No.539 of 2008 in E.P.No.65 of 2008 claiming that she is the owner of the property by virtue of Ex.A.1 dated 24-05-2004 and her mother was the owner of the property who purchased the same on 14-06-1993 from Katakamsetti Ramanjaneyulu and she was in possession till she executed gift settlement deed in favour of the petitioner. She herself constructed the house bearing d.No.1-149 before execution of gift deed. Therefore, she became absolute owner of the property. The 1^st respondent filed above E.P.for recovery of amount due by 2^nd respondent in O.S.No.84 of 2005 and got attached the property under Order XXXVIII Rule-5 C.P.C. before the original Court and later, he filed E.P. and proceeded to realize the amount by sale of the property. While the matter stood, the present appellant filed petition before the trial Court under Order XXI Rule-58 C.P.C. and after full pledged enquiry, the trial Court came to conclusion that E.P.schedule property and claim petition schedule property are distinct, basing on the admissions in the crossexamination of PW.1 concluded that the property brought to sale is totally different from the property which is being claimed by the claim petitioner and dismissed the petition.

¶6

Aggrieved by the order of the trial Court, the present appellant preferred the appeal before the Additional District Judge, Narsapur in A.S.No.22 of 2012 and the same was dismissed confirming the order passed by the trial Court. Thus, there is concurrent finding of fact by the trial Court and the appellate Court with regard to identity of the property.

¶7

Even after going through the record, the EP schedule property is as follows:

¶8

“ West Godavari District, Narsapur Mandal, Narsapur S.R.,Linganaboyinacherla Panchayath area, Linganaboyinacherla village, house bearing Door No.1-149, and assessment No.138 an extent of 250 sq.yards of site within the following boundaries:

¶9

East: Land of Tirumani Dhanalakshmi South: Road West: House of Koyyalagadda Swarajyam North: Land of Koyyalagadda swarajyam”.

¶10

Whereas, the schedule of the property in the claim petition is as

¶11

follows:

¶12

“ An extent of Ac.0-21 ½ cents in R.S.No.254/6 and a house therein bearing Door NO.1-49 of L.B.Cherla village within the following boundaries:

¶13

East: Land of Katakamsetti Ramadasu Naidu and

¶14

others (wrong boundary mentioned in E.P.schedule is land of Tirumani Dhanalakshmi)

¶15

South: Puntha (Road) West: Land of Koyyalagadda Swarajyam North: Land of Jalli Venkateswara Rao (wrong boundary mentioned in E.P. schedule is land of Koyyalagadda Swarajyam)

¶16

With all fixers, furniture, fruit bearing trees and easementary rights.”

¶17

Except the survey number and door number all other details are

¶18

not correlating with the schedule, boundaries are different, extent is different. Even otherwise in Ex.A.1 the mother of the appellant only gifted Ac.0-21 ½ cents of agricultural land under Ex.A.1. There is nothing on record to show that the appellant or her mother constructed the house. If really mother of the appellant constructed the house, that should have been mentioned in the schedule of Ex.A.1. Apart from that the counsel for the appellant drawn my attention to the observations of the trial Court and the appellate Court about the admissions of PW.1 regarding the identity of the property. There are clear admissions that she is not claiming right in the house property and she does not know about EP schedule property. As observed by the trial Court, the appellate Court in para No.13 of the judgment and para No.15 of the trial Court and there is any amount of discrepancy in the identity of the property. Even other wise, identity of the property is based on fact. At best, it is a substantial question of fact, not a substantial question of law. But the remedy of the petitioner is elsewhere.

¶19

During argument, Mr.S.R.Sanku clearly submitted that the petitioner is ready to deposit Rs.1.00 lakh but the same is opposed by the counsel for the respondent Sri V.V.N.Narasimham raising several contentions with regard to participation in the auction by the husband of the appellant but they are not relevant for consideration at this stage. On overall consideration of entire material on record, I find no substantial question of law in view of concurrent finding recorded by the trial Court based on identity of the property.

¶20

Therefore, it is left open to the petitioner to redress his claim in appropriate forum as permitted by law. The observations made in this appeal are limited for the purpose of deciding this appeal and they will have no bearing on the other matters if any filed.

¶21

Accordingly, the appeal is dismissed, as I find no substantial question of law, but without costs in the circumstances. Miscellaneous

¶22

petitions pending, if any, shall stand dismissed.

¶23

_____________________________ M. SATYANARAYANA MURTHY, J 17-06-2015 nvl

Smt Tirumani DhanaLakshmi, v. Penumasta Subbaraju

Case brief

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What did the court decide?

Smt Tirumani DhanaLakshmi, v. Penumasta Subbaraju

Case brief

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