The High Court · 2025

HON'BLE SRI JUSTICE LAXMI NARAYANA,\LISHETTY SECOND APPEAL No.13O of 2O2ti JUDGMENT: Challenging the validity and legality .of the judgment a.nd decree dated 10.O1.2025 in A.S.No.08 of 2',r)20 passed by the Principal District Judge at Vikarabad, :cnfirming the judgment da1,ed 03.12.2O19 in O.S.No.29O of 2:,oO7 passed by the Senior Civil Judge at Vikarabad, the pr esent Second Appeal is file<l.

2. Heard Sri K.Venumadhav, learned colLnsel for the appellant

3. The appellant herein is the defendrrnt and the respondent herein is the plaintiff belore trizL Court. For convenience, the parties are arrayed as thev are referred to in the suit.

4. The facts of the case, in brief, are that thr plaintiff filed a suit for partition and separate possession in r:spect of lanci \ adgreasuring Acs. 10.O7 guntas.in Sy.No.2 15, Acs.4.25 guntas in $y.No.216, Ac.1.13 guntas in Sy.No.22O and Acs.5.29 2 LNA,J S.A.No.130 of 2025 guntas 1n Sy.No.222, al1 situated at Chinthalpally Vil1age, Pudur Mandal, Ranga Reddy District (herein after referred as "suit schedule property"). One Kammari Kistamma was the owner and possessor of the suit schedule property, she had three sons namely Kammari Narayana, Kammari Ramr-rlu ald Kammari Laxmaiah. The said Kammari Narayana expired leaving behind his wife Kalarnma and Kammari Laxmaiah expired leaving behind his wife Lalithamma, who also expired. When partition has taken place amongst the children of Kammari Kistamma, the suit schedule property is mutated in the names of Kammari Ramulu, Kammari Kalamma and Kammari La-lithamma uide proceedings No.B1222/2007, dated 31.03.2007. Accordingly, 17 guntas of land 1n Sy.No.220 and in Sy.No.222 of Chinthalpally Village, Pudur Mandal was mutated in the name of Kammari Lalithamma and further pattadar pass books and title deeds were also issued in her name. Kammari Lalithamma expired on

06.07.2OO7, leaving behind the plaintiff and defendant as her legal heirs. 4- i:.-.....*rffiIreBg . :-,'i.::1.;- -:' / 3 LNA,J 5,. \. No.l.30 of 2025

4.1. An extent of Acs.3. 16 guntas 1n Sy.lJr.215 and an extent of A<;.1.21 guntas in Sy.No.216 are nam lands of Kamrnari Kistamma and later, Occupancy Rights Certificate was granterl to the family of late Kistanrrna; Kammari Lalithamma has got two children i.e., plaintifl and defendant and all of them have constituted an Hindu Undivided Joint Family and :hey are governed by MitakasharzL School of iaw; that the defendant tried to alienate the suit sc: edule property to the thit'd parties, without consent or knou,le dgc of plaintiff and thereafter, plaintiff demanded for partitiorL and separate possession of suit schedule property, but deli'ndant refused for partition. Hence, the suit for partition

5. The dt:fendant filed a written stateme r t denying the averments rnade in the plaint and claimed that the land admeasuringl Acs.3.16 guntas tn Sy.No.215 and Ac. 1.21 guntas in 55,.1116.216 are the lands of the deferrdant as such, the Occupa:-rcy Rights Certificate was issue<l in favour of defendant as on 01. 11.1999, on payment of premium to the Government, therefore, plaintiff has no right t,: claim the suit schedule property. It is further averred lJrat Sy.No.220 ( 4 LNA,J S.A. No.130 of 2025 comprises only Ac.O.17 guntas, and Sy.No.222 comprises 'only Ac.5.29 guntas, out of which the plaintiff and the defendant each hold a one-third share; that the plaintiff without consent and knowledge of the -defendant and her mother, obtained proceedings 1n respect of suit schedule property and no enquiry was condr-rcted by the revenue authorities before rssuing proceedings.

5.1. That the defendant has given an extent of Acs.2.2O guntas of land in Sy.No.215 to his first wile K.Bagramma for her maintenance. During the iifetime of Kistamma, she sold an extent of Ac.1.20 guntas to one Rajender Reddy and he is in possession and enjoyment of the said land. That the defendant has given Rs.3,00,0OO/-to the plaintiff towards her share, she openly received the above said amount at the time of construction of the house and other financial needs. Therefore, the plaintiff has no right over the suit schedule property and she is not entitled for ha-lf share out of the suit schedule propertf

5.2. The plaintiff has filed rejoinder and contended that the Occupancy Rights Certificate issued to the Hindu Undivided 5 LNA,J S.r i. No.130 of 2025 Joint F amily was based on the possession of their ancestors as on the notilied date. Therefore, the plaintilf 1nd defendant are in joint possession and enjoyment of th€ suit schedule property. [t i s further contended that the gift J eed executed by the del'endant in favour of his wife is rvithr,ut consent or knowledge of the plaintiff. Therefore, the samo is not binding on her and rlenied that she has received Rs.ll 00,0O0/ ald that she rvill not claim any right towards thc, suit schedule property. 6 . Basing on the above pleadings the trial Court lramed the following issues: (i) Whether the plaintiff is entitled for preli ninary decree for partition and separate possession of r;uit schedule property by rtividing the same and for allotmerLt of one such share to the plaintifP (ii) To u,hat relieP 7 . During the course of trial, on behalf c,1 the plaintiff, PW.l ald PW.2 were examined and Ex.Al was marked. On 6 LNA,J S.A.No.130 of 2025 behalf of defendant DW.1 to DW.3 were examined and Ex.Bl to 86 were marked.

8. The trial Court on due consideration of oral and 'documentar5r evidence as r'vell as pleadings, dismissed the suit uide Judgment and Decree dated 03.I2.2O19- The trial Court in its' judgment made the following observations: "As can be sccn from the present case facts also the lands are in the name of grandmother of plaintiff and defendar.rt' No doubt thc defendant was issued certihcate under Ex.B-l as an occupant o[ the Inarn land. Since the plaintiff is the legal heir of Lakshmaiah and she also entitlcd for share in the property fcll to thc sharc of her father. The dcfendant filed b*.b-Z to establish that he executed document in favour of his wife Kummari Lakshmi and her nalne was mutated in the revenue records and detcndant atso fi1ed Ex. B-3 to show that he executed another document in favor of his first wife Bhagramma by settling an extent of Ac:2-2O gts in Sy.No.215. As discussed above the lands in Sy.No.215. 216 and 22O & 222 arc the lands of grand mother of plaintiff arrd after the death of their father plaintiff and defendant will have equa-I rights over thc property, and the defendant carnot execute any documcnt in favour of any person by ignoring the share of plaintiff. The defendant carl exccute any document to the extent of his share but not the share of plaintiff. Though the defendant conLended that he gave amount to the plaintiff and the plaintiff relinquished her right, no evidence was educcd by him to establish Lhe same " "{15] It is settled law that "the possession ol co-heir is rn law tieated as possession of all the co-heirs. If one co-heir has become in possession of thc properties, it is presumed to be .on, the basis of.joint . title.- A cq-heir in, possessio-n-.cannp.t possession, merely by arty secret hostile alimus on his part, in derogation of title on his ottrer co-heirs' Though the plaintiff has not filed any other document, the only document trled by her establishes that her graldmother is original owner of the suit schedule properties' No document is hled by the defendant lo establish that he purchased the lands in Sy'No'220 & 222' ln view o[ above \ \ -.*.-i;...--...-{r;,-;Lrird.i 1 LNA,J :i A. No.130 0f 2025 decision rurd in vrcw of the above discussion tl-ris court has no hesitarion to lrold that on mere ground that posscssion certificatc u,as issued in favor of defendant in respcct of anccstral property he cannot deny the right of plr ntiff to get rt share irL the property."

9. Aggr-ievcd by the judgment and decree dated O.3.l2.2Olg, the defendant preferred appeal uKte A.S.No.O&of i 2O2O on the file of the Principal District Judge Vikarabad.

10. The fi:-st appellate Court being final ( tourt on facts reappreciated the evidence and the material pl rced on record and dismissed the appeal by confirming the ludgment and decree uirle O.S.No.29O of 2OO7, dated O3.l?.2019. In the impugned judgment the first appellate ccr rrt made the following obs;ervation s: "23. ()n a careful perusal of the aforesaid oral and doclrmcnlary evidcnce on rccord and the testimr ny of pWI r:ouplcd r,.,ith the recitals under Ex.Al and thc aC mission o[ I)W3 in Iris cross-examination that the suit l:rnds are :rncestral lirnds o[ the plaintiff and defendant, in r.lre absence r.rf anl contrary material adduced by the de.l:ndnnt to rlisprovc thc cor.ltcnts of Ex.At in which thr: name of Iiist:rmma is shown as the Pattedhar and posse s sor o[ the petition s:hcdule lalds and as the defendant h a s failed to answcr a question as to who was the owner of thr: suit lands l)rior lo hc vcar 1999, this Court has no hr:;itatron to qrnclude that the suit schedule lands owned an<l posscssed by Kamnrari Kistamma who is the grandmotF er o[ the plaintilT and the dcfendant and thus they are th t arnccstral properties of the plaintiff and the defendant. Ft rther, the claim of ',he defendant that he gave Rs.3,00,0()()/- to the plaintilT f:lr relinquishing her share in the su L1 schcdule properries in his favour has not been substantia.l ed by'any plausitrle evidence, muchless any registered relin luishmcnt deed in rcspect of the immovable property pertair ing to the share o[ t''rc plaintiff and this unsubstantiated co-r tention on 8 LNA,J S.A.No.130 of 2025 his behalf also reinforces the fact that the defendant has admitted *re share of the plaintiff in the suit schedule properties." ;ttrougfr the defendant as DWI claimed that he has obtarned ORC in his name under Ex.B I in respcct of the suit schedule properties but in view of the decision rehed upon by the learned counsel for the plainttff in N. Padmamma's case (cited supra) when the plarntiff is also one of.the legal heirs of late Kammari Kistamma, and as such granting of ORC under Ex.Bl in favour of the appcllant/ defendant shall be trcated for the benefrt of all the legal hcirs left bchind by late Kistamma and hence the defendant alone cannot claim exclusive right over the suit schedule properties to the exclusion of the Plaintiff." "Thus, Exs.B2 and 83 which are executed by the appellalt/ defendant in favour of his wife and also in favour oi his first wife Bagramma respectively cannot bc held to be binding on the plaintiff when Ex.B I itself cannot confer any right oi title over the defendant exclusively in respect of the suit lands to the exclusion of the plaintitf."

11. Learned counsel for the appellant contended that though respondent/ plaintiff has not filed any documentary evidence, except liling certified copies of pahanies for the year 1995-96 to substantiate her claim, the trial Court as well as first appellate Court erroneously decreed the suit' He further contended that the suit filed by the respondent/ palntiff is not maintainable for non-joinder of necessary parties as plaintiff herself has contended that the property belongs to the grandmother of plaintiff and defendant and has failed to join the iegal heirs of late Kistamma and this aspect was- not properly appreciated by the both the Courts. He further ,/ w ,/ 9 LNA,J S.A No.130 of 2025 contended that the Occupancy Rights Certifica,e was issued in favour of t1-re appellant b1, the authorities an([ therefore, the appellant alc,ne succeeded to the suit proper')'. However, both the Cortrts have erroneously held thal tlre Occupancy Rights Certificate issued in favour of the appelli rnt/ defendant shall be treated as the certificate issued for the lrenefit of legal heirs of la1.e Kammari Kistamma.

12. A peruserl of the record would disclose thiLt the plaintiff filed a suit, fcr partition and separate possessiotr in respect of suit schedule properties and both the Courts have categorically held that the properties in the suit are ancestral properties and that the appellant/def:ndant and responden t/ plaintiff are equally entitled to ;uit schedule property. The trial Court as well as first appelle te Court have held that the Occupancy Rights Certificate r,'ers issued in favour of a::pellant/ defendant cannot be tr-r'ated for the benefit of an individual and the same has to bt: construed, as issued lor the benefit of the legal heirs of la te Kistamma, therefore, th.e appellant/defendant cannot clum exclusive right over tht: suit schedule property. - I t! -- ' -.4F?- .*.r,. 10 LNA,J S.A.No.130 of 2025

13. It is apt to mention that the trial Court while deciding the Judgment, referred to and relied upon the judgment passed by the Hon,ble Apex Court in Shivappa Tammannappa Kuraban v. Parasappa Hanamappa al.d other reported in [1995 Supp (1) SCC 162], wherein the Hon,ble Apex Court held that merely because the Occupancy rights Certificate was issued in favour of one individual, the properties cannot loose character of joint family properties ald the same shall be treated as for the benefit of the legal heirs of the said property.

14. In view of the above discussion, this Court is of the considered opinion that the appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, a-11 the grounds raised in this appeal are factual in nature and do not qualify as substantial questions of iaw in terms of Section 1OO C.p.C. 15. It is well settled principle supported by a catena of decisions of the Apex Court that, in the Second Appeai filed under Section 1OO C.P.C., this Court cannot interfere rn ith the concurrent findings on facts arrived at by the Courts below, \ -/ 11 !,.: LNA,I ; A.No.130 of 2025 which are based on proper appreciation of the oral and documentary evidence on record.

16. Furthe r, in Gurdea Kqur o, Ka,kil, the ,lpex Court held that the H igh Court sitting on a Second {ppea1 cannot examine the: evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercise<l only vr,here a substantial question of law is raised and fi:Il for consideration. 17 . Havinp; considered the entire materiztj available on record and r-he findings of the trial Court as ir,eil as the first Appellate C ourt, this Court finds no grou nd or reason warralting interference with the said concu:rent findings, under Section 1OO C.P.C. Moreover, the groun,l raised by the Appellant is factual in nature and no questiorr of 1aw, much less a substantial question of law, arises for r:, rnsideration'in this Second Appeal.

18. Hence, the Second Appeal fails and the same is accordingly, dismissed at the stage of admissic,tr. No costs. t 12OO71 l supreme Court Cases 546 L2 LNA,] 5.A.No.130 of 2025 .-;;i*s As a sequel, the miscellaneous petitions pending, if any, shall stand closed. //TRUE COPY// SD/.P.GOWRI SHANKAR DEPUW REGISTRAR @ SECTION OFFICER To, '1 . The Principal District Judge, Vikarabad District at Vikarabad. 2 The Senior Civil Judge at Vikarabad, Ranga Reddy District. 3. One CC to SRI K. VENUMADHAV, Advocate [OPUCI 4. Two CD Copies Pcsd/PSL Yx f I I I I i I i i I I i I I i : I i i i I , HIGH COURT DATED:01 10412025 JUDGMENT SA.No.130 of 2025 ',., l [4 i I02[ DISMISSING THE SECOND APPEAL A'T THE STAGE OF ADMISSION 6""d'A tr{-