The High Court · 2025

HON'BLE SRIJUSTICE LAXMI NARAYANA ALTSHETTY SECOND AP PEAL No.33 of 2025 ruDGMENT The present Second Appeal is filed questioning the judgment and decree, dated 14.l 1.2024, passed by the I Additional Chief Judge, City Civil Courr, at Secunderabad in AS. No.1 of 2021, whereunder and whereby thc judgment and decree dated

12.03.2020 passed by the Senior Civil Judge, City Civil Courr ar Secunderabad in O.S. No.254 of 201 3 was confimed. 2. The appellants are the ptaintiffs and the respondents are the def'endants in the suit. For convcnience, hereinafter the parties are rel'erred to as they are arrayed in the suit. 3. Heard Sri K. Vinod Kumar, learned counscl lor. the appellants. 4, The bricl'facts of the case, which led to filing ol the present Second Appeal, are that one late venkaiah was the absorute owner of H.Nol-11-272, admeasuring 105 sq. yards, Bawanthapur, Begumpet, Secunderabad (hereinafter referred to suit schedure property) and his name was rnutated in the municipal records; that the said venkaiah died intestate in the year 1966 andhis wife late Smt. Laxmamrna died in the year 19gg leaving behind three sons 2 LNA, J S.A.No.33 oJ 2025 i.e. 1. N. Ganesh, 2. Shankaraiah and 3. N. Sathyanalayana (plaintiff No. t herein); that Plaintiff No.2 and defendants are grandsons of late Venkaiah. It is averrcd that suit schedule property is self-acquired properly ol late Venkaiah and therefore, plaintiff No.l and father of defendants are entitled to share in the suit schedule propefty; that after demise of father of delendant Nos.4 and 5, the ptaintiff's requested defendant Nos.l to 5 for partition and for allotment of their shares and the dcf'endant Nos. i to 5 orally agreed and divided the property into three shares and subsequently, plaintiff No.1 constructed a house in southern porlion and also got electricity connection in his name; that contrary to the understanding, defendant Nos.l and 2 at the instance of defendant No.4 fraudulently got mutated the suit schedule property in their narne; that thc plaintilf No 1 and defendant No.3 made representation dated 26.06.2008 before the municipal authorities to enter his name in municipal records and the defendants are not exclusive owners of suit schedule propefty however, as there was no response, the plaintiff Nos.l to 5 got issued legal notice dated 26.09.2012 to dcfendants for parlition and as there is no response from defendants O.S. No.254 of 2013 is // J LNA, J ,1.A.No.33 of 2025 filed on the file of XIX Additional Senior Civil Judge, City Civil Court. Secunderabad lor paflition.

5. Defendant Nos.4 and 5 remained ex parte. 6, Defendant Nos. 1 to 3 filed written staternent denying tl.re avements nrade in the plaint and staLed that the suit schedule propefty is only 98 sq. yards as per rnunicipal r.ecords and is not the self-acquirecl property of late yenkaiah @ Venkaiah and the same is "sarkary ubadi lands " and the same was given to landlcss poor people and fathel of Venkaiah had pai<1 tax to Nizam Sarkar after the abolition of the Nizam Sarkar Government, the said plots were mutated in the name of owners and possessors. It is further. contended that the delendant Nos.l to 3 are the absolute owners and possessors of the suit property since past g0 years and hacl been enjoying the same without interference; that plaintifls are not entitlcd to any shar-e in the suit schedule propcrty and lurther contended that the father of the plaintiffs executed the Gift Deed on

23.01.1976 in the name of N. Susheela, Wo. N. Satyanarayana and the suit schedule property was handed over with possession to late Ganesh and late N. Shanakaraiah and father of defendant Nos. I to 5; that after execution of Gift Deed by Laxrnamma, Wo. Venkaiah \ 4 LNA, J S.A.No.33 of 2025 the property was divided equally between three sons of late Venkaiah and from the date of partition, the defendants are enjoying their respective shares. It is fuither stated that plaintiffs have sold their share of property situated at Medchal Mandal to third party on 17.08.2002 and the sale consideration was taken by them and suppressing the same the present suit is filed and prayed to dismiss the suit 7 Basing on the above pleadings, the follo*'ing issues rvere settled by trial Courl: " ( l) Whether the plaintiffs I and 2 are etttitled for t /3'd share in the suit schedule proper1l? (2) Whether the defewlants I to 3 are entitLed to l/3'd share each? (j) To what relieJ?

8. During the course of trial, on behalf of the plaintiffs, plaintiff No.1 himself is examined as P.W. 1, and Exs.Al to A10 were marked. On behalf of the defendants, defendant No.l IS examined as D.W.I and got marked Exs.B 1 Lo 822. 9 The trial Court, upon considering the oral and documentary evidence and the contentions of botl-r the parties, w 5 LNA, J S.A. No.33 of2025 dismissed the suit vide the Judgment and Decree dated l2_03_2013 by observing as under: - "DW-l admitted that his granclparents clied inteslttte and also admitted thot his younger brothcr is residing in the hou.se allotted b), the Government to his mofher ancl lh.at lte lrus not filed any suit on the w ife of ['. W.. I ro cancel the Sale Deed vide Doc.No.47g3/19g6,,. " [1 is seuled law that the purtition cannot be done in sr.t u presuntption can be raised that after oral partitbn Gift Deed has been executed by the ntother of the ptuinti/./.to tlte wife of the P.I( 1,, . 10' Aggrieved by the judgment dated 12.03.2020 the plaintiff pret-erred appeal A.S. No. I of 2021 befote the I'r Actditional Chiel Judge, City Civil Court, at Secunderabad. On appeal, the first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and dismissed the appeal by its Judgment and Decree dated 14. Ir.2024 confirming the judgment and decree passed by the trial court. The first appellate Court while dismissing the appeal made the observations hereunder: - "The plaintffi are claiming thal the suir .cc.hedule propert.v is not partitioned and lhe cleferulant.s are 6 LNA, J S.A.No.33 oJ 2025 claiming that the mother of the plaintffi-Laxmamma portitioned the properries and executcd gift decd in favour of w ife of PWI PHrl in his cross-examinalion admitled that his mother executed gift deed for ! acre agricultural land in Sy No 22 Gosalgudci; Medchal under registered giJi deed dated 21.7.1986 and himsell and his wife sold the said agricultural land in the year 2002 in favour of Smt. Neerada. PWI denied lhe 3 suggestion that under oral partilion in the year 1986, rhe property was given in the name rtf hb wife ktuards his share and suit property was F;iven to Shankaraialr and Ganesh. PWI in his cross-examination admitted that G+ 2 1\oors building was constructed by defendants No.4 and 5, who are sons of Ganesh ancl ground floor building vlas construcled by defendants No.l ond 2, who are sons of Shankaraih itt lhe suil property He admitted that the buitdings showing in Ex.B I to Ex.B4 were in existence by the date offiling of the suit and he dicl not get any idea to stop them from conslructing the said buildings. As per the version of plaint{fs, plaintifi's father died in the year 1966 and mother Laxmamma died in the year 1988. From the year l98B till 2012, the plaintiff not demanded the defendants for partition Moreover the brothers of the plointiff No- I died and the plaintiffs filed suit against the sons of his late brothers ' Therefore, the evidence of DW I that there was oral partttion is believable. Hence, there is no need for this r--reiE7 -"t' ./ / 7 LNA, J S.A.No.33 of 2025 Court to interfere w ith the Judgment of the rrial and the appeal is liable to be dismissed. "

11. Aggrieved by the Judgment and Decree dated, 14.11.2024 the present Second Appeal is filed. Learned counsel 1br the appellants would submit that the trial Court as well as first appellate Court failed to appreciate the oral and documentary evidence placed on record by the appellants in proper perspective arrd dismisscd the suit with erroneous observatio,s. The rearned counsel fbr the appellants would further submit that both the Courts have lailed to appreciate the fact that the entries in the municipal records do not confer any right or title in lavour of the respondents/deflendants and further the possession of one of [he co_ or,vners is possession of other. co-owners. This aspect was not properly appr.eciated by both the Courts and have to come to erroneous conclusion that the appellants/piaintiffs are not entitled l'or sharc in the suit schedule propefty. He would fufther submit that the Gift Deed executed in lavour of the wife of appellant/ piaintiff No.1 and construction of building under Exs.B.2 to B.4 w\erroneously interpreted as if partition has taken place between the pa(ies. \ 8 LNA, J S.A.No.33 of 2025

12. Perusal of the record would disciose that both the Courts concurrently held that plaintiffs admitted that defendants have constructed building under Exs.B.2 to B.4 and Exs.B.5 to 8.22 are remained unchallenged which establish the contention of defendants that partition has taken place and thereafter, Gift Deed was executed. Both the Courls further observcd that admittedly tlie name of defendants have been mutated in the municipal records and plaintil'fs have not taken any steps to correct the entries in the municipal records and also the construction made by defendant Nos.4 and 5 which was existing as on the date of filing of the suit. The appeltate Courl obsenued that the father of the plaintiffs died in the year 1966 and mother Laxmamma died in the year 1988 and delendants did not raise any detnand from 1988 to till 2012 and thus, came to conclusion that there was partition of the ploperties in the light of evidence placed on record.

13. Learrred counsel for the appellants relied upon the decision of the erstwhile High Coufi of Andhra Pradesh in Pittala Kistaiah 9 I-NA, J S.A.No33 of 2025 Vs. Ganta Lcrmi and anothert.ln the said decision, at para-16, it was observed as under:- .The "It is true tlutt the present second appeal is preferred as against o reversing judgment and decree. appellate Court is tlrc fin.al fact-finding, Court. It is neetlless to say Ihot as Jbr as the /aclum of possession is concerned, it appear.\ to some extent concurrent findings had been rccorded, but tlte Court offir.st instance was nol itt.clinetl to gra/1t th.e relief of perpetlrul injunction on the gromtl of inoclrnis.sibilitl,of Ex.At7 ond also ort the grountl of rlte porties being co-ottners of the prctperly. As already re_ferred to supra, in the light of the specific stan(j taken by th.e lst de./bndant claiming exclusive right, tltis defence Jbr the present plLry)ose may not be available to the lst defendont. It is no doubt true that inciclentally the title mav httve to be gone into in a suit for perpetual injunction.. This Court is not inclined to express any further opinion relating to th.e valictily or admissibility and the other a.\pects of Ex.A I 7. However, in the ti,qht of ctmple oral and documenlarv evidence available on record in relotion to the faclum ofpossession, this Court i.s of the considered opinion that the limited relief granted by th.e oppellate Court cannot be found fault with. [!oy,;eyer, the parties are at liberty to agitate their rtghts by: pursuirtg tl'Le otlrcr proper legal remedies, if they are so advised. '' 1 leoozy z elo er 10 LNA, J S.A.No.33 of 2025 {i, '

14. The facts ofthe aforesaidjudgment are distinct and different with that of the present case and hence, it cannot be applied to the instant case and is of no help to the appellants.

15. Learned counsel for the appellants argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the j udgment and decree passed by the trial Court

16. However, in considered opinion of this Court, learned counsel for the appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. [n fact, all the grounds raised in this appeal are factual in nature and do not qualiff as the substantial questions of law in terms of Section 100 C.P.C.

17. It is well settled principle by a catena of decisions of the Apex Courl that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on lacts arr'ived at by the Coufts below, which are based on proper appreciation of the oral and documentary evidence on record. / ,// w..,Y Jl. /' 1I LNA, J S.A.No.33 of 2025

18. Furlher, in Gurdev Kaur v. Kaki2, the Apex Court held that thc High Court sitting in Second Appeal cannot examine the evidence oncc again as a third trial Courl and the power under Section 100 C.P.C. is very limited and it can be exercised only where a subsrantial cluestion of law is raised and fell for cor-rsidera tio n.

19. IJavir-rg corside.ed the entire rnaterial available on record and the findings recordcd by the trial Courl as well as the t-rrst Appeilatc Courr. this Court finds Lro ground or reason warranting interference u,ith the said concurent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law rnuch less a substantial question of law arises fbr consideratior.r in this Second Appeal.

20. Flence, the Second Appeal fails and the sanre is accordingly dismisscd at the stage of admission. No costs. Pending rniscellaneous applications, if any, shall stand closed ./ e(aooz) l- s\,FrcaL ur { G$ct 5qb / /TRUEC]PY/ / D \ SD/. V.KAVITHA PUTY REGISTRAR j SECTION OFFICER To, W Secunderabad.

1. The I Additional Chief Judge, City Civil Court at Secunderabad 2. The XIX Additional Senior Civil ludge, City Civil Court at 3. One CC to Sd Mcesala Vinod Kumar, Advocate [OPUC] 4. Two CD Copies lcK/sh l;'e)-e{tswl HIGHCOURT DATED:\2/05/2025 JUDGMENT: SA.No.33 of 2025 l /,; /'. i: \- _..)"4 f.+ o^ ) j i ).. 01 sEP 206 o :"t'r iilt; ,/ Dismissing the S.A. at the stage of admission, h,ithout costs b