The High Court · 2025

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 to grant stay all further proceeding in E.P.No.27 of 2019 in O S.No.23 of 2012 on the file of the Serior Civil Judge, Bodhan, pending disposat of the Second Appeal before this l-lon'ble cOurt. Counsel for the Appellants: Sri Challa Srinivasa Reddy Counsel for the Re:;pondents: Sri G. Dinesh Patil The Court deliverecl the following: JUDGMENT HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL NO.65 OF 2025 TUDGMENT: Challenging the validity and legality of the iudgment and decree dated,26.12.2024 passed by the V Additibnal District Judge, Bodhan, Nizamabad district, confirming the order dated

29.01.2024 in E.A.No.72 of 2019 in E.P.No.27 of 2019 in O.S.No.23 of 2012 passed by the Senior Civil Judge, Bodhan, the present Second Appeal is filed.

2. The appellants herein are the petitioners/claim petitioners, respondent No.1 herein is the 1* respondent/DHr and respondent No.2 herein is the 2'd respondent/JDr before the first Appellant Court

3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the appellants are the sons of respondent No.2/JDr; that the mother of the appellants had orally gifted the petition schedule property in their favour on 01.01.2008 and they accepted the same and they are in possession and later, their mother/JDr executed a gift deed oide document l i 2 LNA, J 3.A.No,65 of202S Nos.2358/2012 and 2359/2012, dated 03.04.2012 in their favour in respect of the petition scheduie property; that thereafter the relationship between the appellants and their mother: was strained due to interna I disputes.

4. It is further averred that on 23.08.2019 the respondent No.1/DHr came to the schedule property and tlrreatened the appellants to dispossess them claiming that he filed a suit in O.S.No.23 ol 20\2 for specific performance of agreement of sale dated 29.01,.2010 and obtained a decree on 26.06.201,9 and obtained a sale deed from the Cout aide document No.7326/2019 dated

24.06.2019 and l-re filed E.P.No.27 of 20L9 dated 26.07.2019 for issuance of warrant of possession of schedule property mentioned in the decree in O.S.No.23 of 2012. It is further avel:red that prior to entering into an agreement of sale dated 29.01 .2010, their mother had orally gifted the petition schedule property to them and their mother never executed any agreement of sale dated

29.01.2010 in favour of respondenr no.L/Dth, which is a created to grab the schedule property. In those citcumstances, t \ \ 3 INA, J petitioners conshained to file E.A.No.72 ol 2019 in E.P.No.27 of

5. Respondent No.1/DHr filed counter affidavit before the lower Court denying the averments made in the application and contended that he purchased the schedule property from the respondent No.2/JDr under an agreement of sale and as she failed to execute a sale deed, he had filed the suit and it was decreed and later, he filed E.P.No.719 of 2024 and obtained a registered sale deed in respect of the schedule property. It is further averred that respondent No.2/JDr contested the suit and filed her written statement and in the written statement, she did not plead that the schedule property was orally gifted to her sons; that he filed I.A.No.92 of 2012 under order XXXIX Rules 1 and 2 CPC, seeking temporary injunction not to alienate the schedule properly and obtained injunction order and the same was served on the respondent No.2/JDr on 28.03.2012; that immediately thereafter, respondent No.2/JDr executed two gift deeds dated 03.04.2012in favour of their sons showing wrong boundaries intentionally to I 4 SA.No.65 of 2025 protract the suit proceedings and the said gift deeds are not binding on the respondent/DHr

6. During the course of enquiry, on behalf of petitioners, Pws.1 to 5 were examined, Ex.A1 to A8 were marked. On behalf of respondent No.2/JDR, Dws.1 and 2 were examined and Ex.R1 & R2 were marked. On behalf of respondent no.3/DHr, he himself was examined as RW.3 and marked Exs.R3 to R7

7. The trial Court, on due consideration of oral and documentarl' et'idence and the contentions of both the parties, zride order dated 29.01.2024 dismissed the claim petition and observed as under "22. ... The conditions required for oral gift are not fulfilled. There are several circumstances which has come on record to infer the said fact, which are as follows: i) the JDr never referred about the oral gift in the suit proceedings, ii) Ex.R1 which is the judgment and decree in OS No.23/2012 is silent on this aspect; iii) Exs.Pl and P2 do not have recital about the oral gift and the necessity to execute these documents. In Mohammedan Law, oral gift is valid, i{ conditions met'rtioned in Sections 149 and 150 are fulfilled. In the instant matter, petitioners claim that for their legal necessities they have tbtained Exs.P1 and P2. They failed to explain what was the l \ \ I I 5 S-A-No.6t oJ202s legal necessities. In my view these documents were brought into existence only to defeat the right of DHr in the petition schedule property... The claim petitioners did not produce documents to prove that even prior to execution of Exs.P1 and?2 they were in possession of the petition schedule proPerty.

23. The petitioners claim that after declaring oral gift in their favour, there arose disputes betlveen them and their mother and since then they are residing separately, but even this statement is found incorrect. The material elicited from the cross-examination of P.W.4 shows that both the claim petitioners and the JDr are residing in Ward No.12, which suggest that they are ail residing together. The evidence elicited from cross-examination of P.W.2 shows that both P.Ws.2 and 3 are friends of the 1't claim petitioner. The evidence of P.W.4 shows that he is native of Mangalpahad village and was at Saudi Arabia for ten years. The petition schedule property is situated at Yedapally village and whereas P.W.4 is resident of Mangalpahad viilage. There is no evidence on record to show that as on the date of oral gift he was Present in India. Generally, oral gifts are made in the presence of elders and close relatives and P.Ws.2 to 4 are not related to the claim petitioners and the JDr and they are not the caste elders. This is a strong circumstance to doubt the existence of oral gift. Apart from this the evidence on record does not show about the delivery of possession of the property when oral gift was made.

24. According to the DHr, temPorary injunction was granted not to alienate the petition schedule ProPerty and after / 6 SA.No.65 of2025 receipt of said notice, Exs.P1 and P2 were brought into existence. Record shows that on 22.03.2012 temporary irriunction was granted in favour of the DHr restraining the JDr from alienating the petition schedule property rillr29.03.2012. " 8 Aggrieved by the order dated 29.01.2024,. the appellants filed the A.S.No.3 of 2024 before the V Additional District Judge at Bodhan, Nizamabad district, (first Appellate Court). 9 The first Appellate Cour! being the final fact-finding Court, re-appreciatecl the entire evidence and the material available on record and clismissed the appeal oide judgrnent dated 26.12.2024 with the follorving observations: "(k) Further, though the JDr contested the suit in OS No.23 of 2012, she nevcr asserted that she gifted the schedule property to her sons r:ithcr orally or documentary under Exs.P1 and P2. Thc suit was filed on 22.03.2012 and the same was decreed on 26.06.2014, whereas the JDr state that she orally gifted the schedule property to her sons in the year 2008 itself, but it is not disclosed, evcn pendency of the suit, she did not disclose the executior,. of the gift deeds under Exs.Pl and P2. Certainiy, the JDr and petitioners having knowledge only on 03.04.2012 they brought the gift settlement deed under Exs.P1 and P2 to defeat the judgment and decree to be passed in favour of the DHr/ plaintiff. Having knowledge of pendencyof the suit against the JDr, the petitioners intentionally avoided to implead in the suit and put their ciaim, this conduct of petitioners and JDr shows that they intentionally created the gift settlement deed under Exs.Pl and P2 i.e., the transfer of the EP schedule property to the petitioners under Exs.P1 and P2/ gitt settlement deed are fraudulent transfer, as such it does not bind the respondent/ DHr, it is rather to say that the document under Exs.PI and P2 are fraudulent documents. Therefore, the ) ) \ I 7 LNA, J execution court rightly dismissed the claim of the petitioners and it does not call for any inference of this Court.,,

10. Heard Sri Challa Srinivasa Reddy,, learned counsel for the appellants. Perused the record.

11. Leamed counsel for appellants argued that the trial Court decreed the suit without proper appreciation of the oral and documentary evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court. Learned counsel further contended that the first Appellate Court ought to have seen that oral gift was made in the presence of elders and close relatives and p.Ws.2 to 4 and under the provisions of the Mohammandian Law, oral gift is valid and as the same was consented and accepted by the appellants and that it needs no regisfration.

72. A perusal of the record discloses that both the Courts beiow concurrently held that the oral and documentary evidence adduced by the respondent No.2/DHR is cogent and thus, he has proved his suit claim. t ! I 8 LNA, J S.A.No.6s of 2025

13. Perusal of the record would also disclose that the respondent No.1/DHr filr:d the suit in O.S.No.23 of 2012 on 22.03.2012 for specific performance of agreement of sale dated 29.0.t.2010 against the respondent/JDr and the same was contestecl by the respondent No.2/IDu that respondent/DHr also filed I.A.No.92 of 2012 in the said suit under Order XXXX Rules 1 and 2 seeking temporary injunction not to alienate the schedule property and obtained ex parte injunction and the same was served on the respondent/JDr on 28.03.201.2; that later suit was decreed on 26,06.201,4, and he filed E.P.No.119 o{ 20'1.4 and obtained a registered sale deed. It is further disclosed that respondent/DHr filed EP No.27 of 2019 dated 26.07.2019 for issuance of warrant of possession of schedule property mentioned in the decree in OS No.23 of 2012. Whereas the contentiorr of the respondent No.2/JDr is that she orally gifted the schedule property to her sons in the year 2008 itself, however, she did not disclose execution of the gift deeds under Ex.P1-gift deed dated 03.04.2012 and Ex.P2-gift deed dated 03.04.2012 in the t *Jn"., statenlent filed in the suit nor during the pendency of the 9 sA.N0.65 of2025 suit. Therefore, the same are not binding on the respondent No.1/DHr.

14. It is also relevant to note that the respondent No.1/DHr had obtained interim injunction resfraining the respondent No.2/JDr from alienating the schedule property on 22.03.201,2 and the same was served on the respondent/]Dr on 28.03.2012, that in clear violation of interim orders, the respondent/lDr executed two registered gift deeds i.e., Exs.P1 and P2, both dated 03.04.2072 in favour of her sons in respect of schedule property, which ciearly shows the conduct of the respondent/JDr and, therefore, it has to be inferred that respondent/JDr executed the gift deeds only to defeat the judgment and decree to be passed in favour of the respondent/DHr.

15. In view of above discussiory this Court is of the considered opinion that the appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 c.P.c. 1 l0 S.A.No.65 of 2025 L6. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.

17. Further, in Gurdeo Kaur a. Kaki1, the Apex Court held that the Fligh Court sitting in Second Appeat cannot examine the evidence once again as a third trial Court and the power under I Section 100 C.P.C. is very limited and it can be exercised only where a sulrstarrtial question of law IS raised and fell for consideration.

18. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature an<l no question of law much less a substantial question of law arises frtr consideration in this Second Appeal. 1 q"7) 1 Supreme Court Cases 546 \ \ S.A.Na.65 ol 202 s

19. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. There shall be no order as to I I Pending miscellaneous applications, lf any, shall stand closed. SD/.I.NAGALAKSHMI JOINT REGISTRAR //TRUE COPY' ECTION OFFICER I The V Additional District Judge at Bodhan Nizama The Senior Civil Judge, Bodhan. One CC to Sri Challa Srinivasa Reddy, Advocate [OPUC] One CC to Sri G. Dinesh Patil, Advocate IOPUC] Two CD Copies District. To, 1 ) 3 4 5 klnr,i I)S I- HIGH COURT DATED:13t0212025 JUDGMENT SA.No.65 o12025 s14 15 J o o 1$ Jtlr M O6 ^. -, ',r-f"' 6 ( , ? a '7 i) THE SECOND APPEAL IS DISMISSED AT THE STAGE OF ADMISSION