The High Court · 2025

3, Smt. Bachu Prameela Occ. Housewife, R/o. Siricilla District. @ Lalitha, Wo. Krishna Murthy, aged about 58 y H:No.2-4-58, Gambiraopet Village and Mandal, R ears, ajanna ...RESPONDENTS lA NO: 1 OF 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 stay the Judgment and Decree dated. 01-07-2019 passed in O.S.No.3712011 on the file of the Senior Civil Judge, at Kamareddy. as confirmed by the Lower Appellate in A. S. No 11 of 2019 on the file of the I Additional District Judge, at Kamareddy. dated . 11-12-2024, pending disposal of the S.A.No. of 2025 in the interest of justice. Counsel for the Appellant(s) : SRl. R RAMA BRAHMMA Counsel for the Respondents: None appeared The Court delivered the following: JUDGMENT HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY APPEAL No.162 of 20125 JUDGMENT: The Second Appeal is fiied aggrieved by the judgment and decree dated 1L.12.2O24 in A.S.No.11 of 2}lg..on the file of the learned I-Additional District Judge, at Kamareddy, whereunder and whereby, the judgment and decree dated Ol.O7.2Ol9 in O.S.No.37 of 2O11, on the file of the learned Senior Civil Judge, at Kamareddy, was confirmed.

2. Appellants herein are defendants No.1 and 2, respondent No.1 is the plaintiff and respondents No.2 and 3 are defendants No.3 and 4 in the suit. For convenience, hereinafter the parties are referred to as they were arrayed before the trial Court.

3. Brief facts of the case, which led to filing of the present second appeal are that plaintiff has filed a suit uide O.S.No.37 of 2011, against the defendants, for partition in respect of the suit schedule property. In the plaint, it is averred that plaintiff is the younger sister of defendants No.1, 3 and 4 and defendant No.2 is their mother and all constitute a joint Hindu family; that their father died intestate in the year 1999, leaving behind plaintiff and defendants as legal heirs; that during his life time he 2 constructed two houses bearing Nos.7-18 and T-lg, with built up area of about 27oo sq.fts and 216 sq.fts respectively, at Bhavanipet village, he also purchased an open plot bearing Nos.1 and 2 and constructed a house bearing No.1-5-g3/lJ, situated at Ncthaji Road, I(amarcddy; that the clefendant No.1 has occtrpiecl the above properties; that plaintiff being the legal heir of their father, she is entitled to l/sth share in the strit properties; that defendants refused to give her share, therefore, the suit for parti[ion.

4. Defendants No.l and 2, filed the written statement denying the averments of the plaint, and contended that the father of the defendant No.1 has already partitionecl the ancestral propcrties at the time of rnarriage of defendant No.3 and the properties fell to the share of plaintiff and defendants No.3 and 4 were given as dou,ry as u'ell as sridhana at the time of their marriages; that schedule-B property fell to the share of defendant No.1 and he is looking after their mother i.e., defendant No.2, and that he constructed a house bearing No. 1-5-201 over plot Nos.l and 2, which fell to his share by obtaining loan from Vrjaya Bank, Kamareddy District; that after marriage, plaintiff is not a member of joint family, therefore, she is rrot entitled for share in the suit schedule properties; that .) their mother i.e., defendant No.2 fell sick and the entire medical expenses were paid by defendant No.l and thus, suit is not maintainable. Hence, prayed to dismiss the suit.

5. Defendants No.3 and 4 liled a separate w..ritten statement in the same lines as that of defendants No.I and2.

6. Basing on the pleadings of both the parties, the following issues were framed by the trial Court for trial: il Whether the ancestral properties of the plaintiff and defendants including suit sclrcdule properties for partition a.mong them long back and that theU haue been in possessioru and enjoyment of their respectiue shares? ii) Whether the 'A' scLtedule property fell to the share of defendant No.1 in the said partition? iii) Whether tLrc 'B' schedule propertg was sold out by Gampa Somaiah during his life time? iu) Whether the plaintiff is entitled for partition of suit schedule properties? u) To what relieJ?

7. Subsequently, plaintiff Iiled an application for amendment of the plaint uide I.A.No.429 of 2012, and the same was allowed by Order dated 3l.lO.2OI2, and schedule-C propert5r was included as one of the properties to the suit. Consequently, additional issue was framed as under:- ui) Whet?rcr the 'C' sclrcdule property is purchased bg tle defendant No.l out of the funds kept by tlrc plaintiff s father during his life time with the defendant No.1? \&"i 4

8. During the course of trial, on behalf of the plaintiff, p.W.1 was examined and Exs.Al to Ex.A11, vi,ere marked. on behalf of - the defendants, D.ws.1 to 3 were examined and Exs.B1 and 82, were marked.

9. The trial Court, on due consideration of oral and documentary evidence placed on record, uide judgment and decree dated or.o7.2019, partly decreed the suit granting l/str, share to plaintiff only in respect of schedule-A property and suit in so far as in rcspect of 'B' and 'c' schedule properties was dismissed. 'I'he trial court while partly dccreeing the suit made the following observations: - "According to the defendant No.l at the time of marriage of defendant /Vo.3 all the properties were partitioned during life time of the defend"ants /Vo. j,s father. It is came on the record that marriage of the defendant No.3 utas performed in the Aear 1960. The defendartt No.7 case is that at the time of the marriage of his elder sisfer the properties are partitioned.. If the properties are partitioned a.mong the plaintiff and defendant No.l to 4, immediately the ,8, schedule propertg utill be mutated in the name of defendant No.l, but it is appearing that after d"eath of the plaintilfs father it utas mutated in the name of the d"efend.ant No.l and house number from 1-5-83/ lJ to 1-05-201 u)as allotted by tLrc municipality, Kamared.dg, which is strcuing that the properttes were not partitioned. among th.e panties when the defend.ant No.3 marriage u)as performed. The defend"ant No.7 claiming that after the house utas mutated in his name he obtained. bank loan and constructed first and. second. floors, therefore, the ,A' 5 sctedule property is the exclusiue propertg of the defendant No.l. Tlte 'A' schedule property was deuolued after death of the plaintiffs father upon his class-I legal heirs by uirtue of Section 8 of Hindu Succession Act as the father of the plaintiff was died intestate. When the 'A' schedule property tuas deuolued upon the legal heirs of the plaintiff s fathe1 the plaintiff, defendants No.l to 4 being class-I legal heirs theg will haue'equal right along with the defendant No.l. The defendant No.1 failed to brought on the record any mateial euidence on record to proue that at the time of his elder sis/er marriage tlrc properties were partitioned and the 'A' schedule property was fell to tLrc share of the defendant No.l. The defendant No.l failed to proue ttrc alleged partition, therefore the plaintiff, defendant No.l to 4 hauing equal share in respect of the 'A' schedule property being class-I legal heirs of the late Gampa Somaiah."

10. Aggrieved by the judgment and decree passed by the trial Court, the defendants No.1 and 2 preferred A.S.No.11 of 2Ol9 on the file of the learned I-Additional District Judge, Kamareddy. The first Appellatc Court, being Iinal Court on facts re-appreciated the entire evidence and dismissed the appeal, uide judgment and decree dated 11.L2.2O24. ln the impugned judgment, the first Appellate Court made the following observations:- "On proper appraisal and analgsi.s of ttrc oral and documentary euidence auailable on record, no doubt the pleadings of both panties, crystal clearly appears that the suit 'A' schedule propertg open plot utas purchased bg the late Gampa Somaiah during his lik time at Kamareddg. Therefore, this Court do not haue dnA \d:i 6 susptcious doubt that the suit ,A, schedule property is - self-acquired properta of late Gampa Somaiah, and. he corstructed the grourud floor, after hrs d.eath, the defendant No.1 constntcted first and second. ftoor. The appellants/ dekndants No.l and. 2 haue utterly and miserably failed to proue that there was a partition took placed among the parties. Further, there is a concrete and ample euidence auailable on record" that late Gampa Sornaiah did not exeanted. anA lcind of instrument in fauour of his tegal heirs in respect of the 'A' schedule propertg, therefore, ,A' schedule property was deueloped to plaintiff and. tle d,efend.ant No.l to 4 being c/ass-/ heirs of tate Gampa somaiah bg uirtue of Sectiorz B of Hindtr Success ion Act.', I 1. challenging the aforesaid judgment and clecree passed by the first Appellate court, the present second Appeal is filed by the defendants No.1 and 2.

12. Heard Sri R.Rama Brahmma, lear.ed counsel for the appellants. Perused the record.

13. Learned counsel for the appellants would submit that the trial court as well as the first Appellate court have failed to appreciate the plea of the appellants that respondent No.1/plaintiff is not entitled for partition as the suit schedule properties are not ancestral properties and the trial court as well as the first Appellate court have failed to appreciate the oral and dticumentary evidence placed on record by the 7 appellants and partly decreed the suit on erroneous findings. He further submitted that both the courts have committed gross error in not appreciating the admission made by the plaintiff in the cross-examination that he has not filed any documentary evidence to show that the suit schedule. properties are coparcenary and joint family properties. He also submitted that the trial court committed error in partly decreeing the suit only on assumptions and presumptions without their being any evidence to show that the suit schedule properties are ancestral properties and the first appellate Court has also erred in dismissing the appeal and therefore, the Judgment and decree passed by the trial court as well as the first appellate court is perverse and require interference by this Court under Section 100 of CPC. Hence, he prayed to allow the Second Appeal.

14. Perusal of the record would disclose that both the Courts have categorically held that schedule-A property belongs to the father of appellants and respondents and the same was devolved to the legal heirs after his demise and respondent No.1/plaintiff being class-1 legal heir is entitled to share in the propert5r under Section 8 of the Hindu Succession Act. The trial court hetd that appellant No.1 failed to substantiate his claim that the propert5r was partitioned during the life time of their tr-',. } ": 8 father and that schedule-A property fell to the exclusive share of - defendant No.1 and thus, decreed the suit in respect of schedule-A property and suit against schedule-B and c property u,as dismissed. The first appellate court has concurred with the observation of the trial court that schedule-A property $/as purchased by the father of plaintiff and defendants during his Iife timc, thus, the same devolvecl to plaintiff and defendants No.1 and 2 after the death of their father being class-l legal heirs. Though, the learned counsel for appellants contended that observations and conclusions of the trial court as well as the first appellate court are perverse, failed to point out any perversity in the Judgment and decree passed by the trial court as well as the first appellate Court.

15. In the light of facts and circurnstances of the case and the observations of trial court as well as the first appellate court, this court is of the view that the appellants have lailed to make out any ground to interfere with the impugned Judgment and decree.

16. In considered opinion of this court, learned counsel for appellants failed to raise any substantial question of law to be decided by this court in this second appeal. In fact, alt the 9 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.

17. It is well settled principle by a catena of-decisions of the Apex court that in the Second Appeal liled under Section 1o0 c.P.c., this court cannot interfere with the concurrent findings arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.

18. Further, in Gurdea Kqur v. Kakil, the Apex Court held that the High court sitting in Second Appeal cannot examine the evidence once again as a third trial court and the power under section 1oo c.P.c. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.

19. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 10O C.P.C. Moreover, the grounds raised by the t (2oo7l 1 scc 546 10 appellants are factual in nature ancl no question of law, much less, a substantial question of law arises for consideration in this Second APPeal.

20. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. Pending miscellaneous applications, if any, shall stand closed Sd/. T. VIJAY KUMAR EPUTY REGISTRAR /TRUE COPY// ON OFFICER To,

1. The I Additional District Judge, Kamareddy (with records' if any) 2.oneCCtoSRl.RRAfuABRAHfutVlAAdvocateIoPUC] 3. Two CD CoPies PSi- Cil? i/ A Ij I i i"t i:. .., r,'.i -) o t) 2 0 Etr ?ilfr * iii.1p.1-p;',- i1, .' _-t HIGH COURT DATED ;23t0712025 ORDER SA.No.162 of 2025 DISMTSSTNG THE APPEAL Qctte alt'ilU