The High Court · 2025

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE G.RADHA RANI SECOND APPEAL NO: 19 OF 2006 Appeal under section 100 of C.P.C against the Judgment and Decree Dated 27-10-2005 made in A.S. No.7 o'f 2002 on the file of the Court of the Senior Civil Judge at Sircilla preferred against the Judgment and Decree passed in O.S.NO.17 of 1997 dated 25-07-2002 on the file of the Court of the Junior Civil Judge at Sircilla Warangal. Between:

1. Chiluka Dattareya, S/o.Rajanna R/o.Venkampet, Sircilla Proper and Mandal, Karimnagar District.

2. Chiluka Siva Prasad, S/o.Late Dattatreya, aged about 47 years,R/o.H No. 2-2-9211, Sardar Nagar, Sircilla, Rajanna- Sircilla Diskict.

3. Chiluka Gouri Shankar, S/o.Late Dattatreya, aged about 52 years,R/o-H No. 2-2-9211 , Sardar Nagar, Sircilla, Rajanna- Sircilla District. ... Plaintiff/RespondenUAppellant AND 1 Chiluka Siddiram, S/o.Rajanna Rio.Sircilla, Proper and Mandal, Karimnagar District.

2. Chiluka Anjaneyulu, died per LRS R-9 to R - 11 3. Chiluka Lakshmi [died], on 30-11-2005 her only legal representative chiluka Anjaneyulu is already on record and there is no need to take any steps) 4, Chiluka Prameela [died], 5. Chiluka Janardhan, (died as per LRS 12 & 13) 6- Chiluka Ravinder, S/o.Siddiram, R/o.Sircilla Proper and Mandal, Karimnagar District.

7. Myana Padma, Wo.Mohan, R/o.Mustabad Proper and Mandal, Karimnagar District.

8. Kodam Lavanya, Wo.Ashok, R/o.Sircilla Proper and Mandal, Karimnagar District.

9. Chiluka Venugopal (Prasad), S/o. Late Chiluka Anjaneyulu, aged about 45 7

10. Chiluka Venu, S/o. Late Chiluka Anjaneyulu, aged about 3Syears 1 1. Chiluka Praveen, S/o. Late Chiluka Anjaneyulu, aged about 30years (Respondent Nos. 9 to 'l 1 are rlo H.No. -12-g- j 16, Sardrnagar, Sircilla, Karimnagar District.) (Respondent- Nos. 9 to 11 are brought on record as L.Rs of the deceased Respondent No. 2 vide C.o. dated 1o.oa.zorc in SAMF r,ro. ati ;iroi6) - 'l2.Chiluka lasfwant, S/o. Late Chiluka Janardhan, aqed about 24 years, R/o. HNo.12-9-99. Sardarnagar, Sircila. Rajanna Sircill; District.

13. Chiluka QhalaQa, W/o. Late Chiluka Janardhan, aged aboul44 vears. R/o. H No. 1 2-9-99, Sardarnaga r, Sircilla. Rajanna Siicit"ta Oiiirrct (Responde_lt Nos. . 12 g 1_3 a-rg b-rought on record as per LR of the !99^e-1s_gd Respondent No.S, vide Coui order aateA OelOeTid2r'inlA ii; o'U2022) -La1man,

15. Deekonda

14. Kasa.rla Venkqtgslam S/o yeltaiah,aged about 53 years, Occ Business, R/o. HNo.4-2-98, Dhobigaili, Sirciila,'Rijanna Sircrtta Oistrict. -Mgrali,_aged about43 years, Occ Business,R/o. HNo.4-2-98, Rattabavi, Sirciila, Ra]anna Sircitta ijsin'i:t. - -"- - . . "" '16. Mandhadi Dashrathramulu, S/o_ Mallesham, aqed about 45 years, Occ Business, R/o. HNo.5-6-24, Siddutawada, Sircitr, na;anna Siicrifd oiiirict (!9^sp91!-e1t N9s. 14_-to_ 16 are impteded, vide Court order dated 0810612022 in IA No O4t201'7l S/o ...Respondents l.A. NO: 4 OF 2016( SAMP. NO: 476 0F 2016) Petition under section 'l 51 cpc praying that in the circumstances stated rn the affidavit filed in suppo( of the petition, itre Hign court may be preased coirect the survey number 829/8 as g09/B wherever it occurs in the above SAMp No.43l2006 as well as in the order dated 06.01.20d6 issued by this Hon,ble court. Counsel for the Appellants : Sri Kiran Reddy Mallarapu Counsel for the Respondent Nos.1,6,7,g : M/s. p V Narayana Rao Counsel for the Respondent Nos.8,9,1 O,11 ,14,15,16: Sri K Kiran Kumar The Court delivered the following: Judgment THE HONOURABLE DT.JUSTICE G.RADHA RANI SECOND APPEAL No.l9 of 2006 JUDGMENT: This Second Appeal is filed by the appellant No. l-plaintiff aggrieved by the judgment and decree dated,27.10.2005 in A.S. No.7 of 2002 passed by the Senior Civil Judge, Siricilla, reversing the judgment and decree dated25.07.2002 in O.S No.17 of 1997 by the Junior Civil Judge, Siricilla

2. For the sake of convenience, the parties are hereinafter referred as arrayed before the trial court as 'plaintiff and ' defendants' .

3. As per the averments in the plaint, the plaintiff and the defendant No. I were natural brothers and the defendant No.2 was the son of their elder brother Narayana, defendant No.3 was the wife of Narayana and defendant No.4 was the wife of defendant No. 1. After the death of their father Raj anna, their elder brother Narayana became the Kartha of the Hindu Joint Family consisting of late Narayana, plaintiff and defendant No.l. The ptaintiff and the defendants were Hindus govemed by Mithakshara School of Hindu Law. Late Narayana, plaintiff and defendant No.l jointty purchased an extent of Acs.2.35 gts., of land in survey 2 \ No.809/B of Siricilla village in the name of late Narayana fiom one Pulluri Rajesham, 40 years ago. After the said purchase, Pulluri Ra.jesham denied the title and possession of late Narayana, plaintiff and defendant No.1 over the suit schedule properry. As such, they fited a suit in the name of late Narayana as he was the Kartha of the joint family vide O.S. No.50 of 1966 on the file of the District Munsiff, Siricilta. Pulluri Rajesham filed written statement admitting the suit claim. The suit was decreed and the name of Narayana was recorded in the revenue records as per the decree. But, late Narayana, plaintiff and defendant No.l were in joint possession with equal shares till the death of late Narayana. They were also having joint family properties i.e. House No.8-4-51 and the suit land. Late Narayana, plaintifl and defendant No.1 orally partitioned the house bearing No.8-4-51, which was in the name of late Rajanna, but kept aside the suit land in their joint possession. Thereafter, late Narayana got entered his name in the possessory column of the pahani. The plaintiff and defendant No.l questioned about the wrong entries in the pahani and got corrected and entered their names in the pahani for the year 1992-93 in respect of the suit land. The plaintiff demanded for partition and for allotment of l/3'd share in the suit land. 3 DLGRR,J SA No.tg oI2N6

3.1. Late Narayana developed ill intention against the plaintiff and in collusion with defendant No.l to deprive the rights of the plaintiff, executed a nominal and ineffective sale deed in favour of the wife of defendant No.l i.e. defendant No.4 without delivering possession to an extent of Ac.l.17 % gts., out of the total suit land in Sy.No.809/B of Siricilla vide document No.1047 of 1994 dated 04.08.1994 in the office of the Sub-Registrar, Siricilla. The same was not binding on the plaintiff. The plaintiff on coming to know about the attitude of the defendant No' I and late Narayana, fited an objection application before the Mandal Revenue Officer, not to implement the nominal and ineffective sa[e deed in the revenue records. On which late Narayana and defendant No' I expressed their intention to partition the suit land and agreed to give 1/3'd share to the ptaintiff in the suit land, but postponed the same. Thereafter, late Narayana felt ill and his mental condition was also effected, due to which no partition was effected. Late Narayana died six months ago' After the death.of late Narayana, defendant Nos.2 and 3 succeeded to the share of late Narayana and were in possession of the suit land along with the plaintiff and defendant No. 1 . The defendant Nos.l and 4 colluded with the defendant Nos.2 and 3 and were trying to sell away the entire suit land. As such, the plaintiff demanded them for partition on 10'01'1997 at Siricilta. The defendants denied the rights of the plaintiff over the suit 4 land. As such, filed the suit seeking the relief of partition and for allotment of 1/3'd share in the suit schedule property.

4. The defendant Nos.l and 4 filed wrinen statement admitting the relationship with the plaintiff and pedigree as shown in the plaint, but contended that Rajanna, their father expired intestate in the year 1973. During the lifetime of Rajanna and Narayana,, in the year i959, a partition took place and in the said partition, a old tiled roof house bearing No.8-4- 5 I (corresponding old No.7-2-39) was allotted to and was given in possession to their elder brother Narayana and the tin roof house bearing No.8-4-52 was allotted and given in possession to the plaintiff and the open land in front of the said two houses was allotted to and given in possession to the defendant No.l. The plaintiff constructed a new RCC Building in place of tin roof house allotted to him. The defendant No.l also constructed a tiled roof house in the land allotted to him and the same was allotted municipal number as 8-4-37. From the time of the said partition, they were all living separately and were divided in every respect After the death of Raj anna and late Narayana, the plaintiff and defendant No.l were not at all joint and never lived as joint family. l,ate Narayana did not act as Kartha. They had been separate in every respect. The suit land was the self acquired property of late Narayana, who alone purchased I I 5 D.GRR,t SA No-Iq ol 2005 it from one Pulluri Rajesham in the year 1966 long after the said partition. Late Narayana obtained a consent decree against the said owner in O.S No.50 of 1966 on 20.03.1966.

4.1. The plaintiff and defendant No. I had no concem whatsoever with the said purchase and decree. Late Narayana applied and got mutated his name in the revenue records for the year 1965-66 by producing the certified copy of the said decree. From the time of the said purchase, Narayana had been in actual and exclusive possession of the suit land. In revenue records also he was shown as the owner ofthe property and was in possession of the same. The ptaintiff by exerting his money and influence over the VAO of Siricilla village, by name, Jalapathi Rao, got his name entered as occupant in the pahani for the year 1992-93. Late Narayana made a complaint in writing against the said wrong entry on 1 I .05. 1993 to the District Collector, Karimnagar. On the order of the District Collector, Karimnagar, the RDO, Jagtial, made a detailed enquiry and suspended the VAO Jalapathi Rao from service for making such wrong entry. Again the name of Chiluka Narayana was being continued as owner and possessor of the suit land. .On 04.08.1994 late Narayana by executing a registered sale deed No.1047 of 1994 sold Ac.l.l7 Yz gts., o:ut of the suit land bearing survey No.809/B of Siricilla village for a consideration ofRs.10,l00/- to defendant No.4 and delivered possession of the said land. The name of the \ defendant No.4 was entered in the revenue records as absolute owner and possessor of the same. The plaintiff had no right over the suit land. After the death of Chiluka Narayarra, his son and widow i.e. defendant Nos.2 and 3 were in possession of land to an extent of Ac.l.l7 % gts., of Chiluka Narayana as co-owners thereof and prayed to dismiss the suit.

5. Defendant No.2 filed a separate written statement on the same lines as that of defendant Nos.l and 4, which was adopted by defendant No.3.

6. Basing on the above said pleadings, the trial court fiamed the issues as follows: I 2 3 Whether the plaintiff and the Dl to D4 do constitute the un-divided joint Hindu family and the suit schedule property is their joint family property? Whether the plaintiff is entitled for the partition of his l/3'd share out ofthe suit schedule property? To what relief?

7. The plaintiff examined himself as PW. I and got examined a village elder, who conducted the panchayat, as PW.2 and got marked Exs.A-l to A-l 1. The defendant No.1 examined himsetf as DW. I and got examined the witness before whom the terms of the partition were reduced ,I 7 DLCRR J SA Na 19 of 2006 into writing as DW.2. Exs.B-l to B-13 were marked on behalf of defendants

8. The trial court, on considering the oral and documentary evidence on record, held that the suit schedule property was the joint family property of the plaintiff and defendants and that the same was kept aside without partitioning earlier observed that and the plaintiff was entitled to 1/3'd share out of the suit schedule land on par with defendant No. 1 and their late brother Narayana and passed a preliminary decree accordingly.

9. Aggrieved by the said judgment and decree passed by the trial court, the defendants preferred an appeal. The appeal was heard by the leamed Senior Civil Judge, Siricilla as A.S. No.7 of 2002 and vide judgment and decree dated 27.10.2005, allowed the appeal reversing the judgment and decree of the Junior Civit Judge, Siricitla in O.S. No.17 of 1997 holding that the suit schedule land was the selfacquired property of Narayana and the plaintiff was not entitled to claim any share therein.

10. Aggrieved by the said judgment of the leamed Senior Civil Judge, Siricilla, the plaintiff preferred this second appeal. As no substantial questions of law were framed earlier, the second appeal was 8 admitted on 12.09.2024 by formulating the following substantial questions of law: I 2 J 4 5 Whether the judgment of the lower appellate court is vitiated as contrary to Order 4I Rule 31 of CPC and whether the lower appellate courl ad.iudicated the appeal on all questions of fact and [aw? Whether the findings of the first appellate courl are peruerse contrary to the pleadings of the parties and the evidence on record? Whether the property in the name of a coparcener prtor to partition can be considered as a joint family property? Whether the lower appellate court can make out a nerv case which was not pleaded by the party or wi(hout any issue or evidence with regard to the adverse possession? Whether the lower appellate court committed an error in interpreting Exs.A-10 and A-l I documents and their effect? 1 I . Heard Sri Kiran Reddy Mallarapu, learned counsel for the plaintiff and Sri K. Kiran Kumar, leamed counsel for the defendants

12. Leamed counsel for the appellant-plaintiff contended that late Narayana had filed O.S. No.50 of 1966 earlier in the court of the District Munsiff at Siricilla against his vendor Pulluri Rajesham and in the plaint filed by him in the said suit, Narayana contended that he was the owner and occupant of the suit land for a period of more than 12 years prior to his J I 9 Dr-CRR,J filing the suit, the family was living jointly at that time as such, it could be inferred that the suit schedule property was a joint family property. The respondents-defendants could not now go beyond the admitted facts pleaded by late Narayana in O.S. No.50 of 1966. Admittedly, partition took place between them in the year 1959. The judicial admissions made by the parties or their agents before the Court would stand on a higher footing than evidentiary admissions and relied upon the judgments of the Hon'ble Apex Court in Nagindar Ramdas v. Dalpatram Locharam @ Brijram and othersr and Basant Singh v. Janaki Singh and others2 on the aspect that, "admission by a party in plaint signed and verified by him can be used against him in other suits." l2.l He further contended that no evidence was produced by the respondents-defendants to show that the suit schedule land was purchased after the partition in the year 1959 and no evidence was led by the defendants to show when and where the property was purchased by Narayana and the consideration passed or whether it was through simple sale deed or registered sale deed. The burden would lie upon the defendants to prove that late Narayana purchased the suit land from his vendor with his own funds. Late Narayana failed to plead in O.S. No.50 of I ata t97+ sc +z I 2 ntR t96t sc i+t t0 Dt.GRR,t SA No. 19 oI 2006 1966 that he purchased the suit land from his vendor Pulluri Rajesham. If late Narayana actually purchased with his own funds, certainly he would have pleaded the said fact in his plaint in O.S. No.50 of 1966. The said circumstance would clearly visualize that late Narayana did not purchase the suit land and the suit land was purchased in the name of late Narayana with the funds of joint family 12 years prior to filing of the suit in O.S.No.50 of 1966. He further contended that Exs.A-lO and A-ll documents would show that Narayana undertook to give certain portion of the land to defendant No.l and the defendant No.l in tum to the plaintiff. If the suit land was not a joint family property, there was no need for late Narayana to give certain portion of the land to defendant No.l fiee of cost. Thus, Exs.A-10 and A-11 were strengthening the contention of the plaintiff that the suit schedule property was a joint family property. He further contended that as the suit land was covered with Mango and Tamarind trees, it was kept aside at the time of partition of other properties in the year 1959. The evidence of DW.2 also would prove that both the parties had wantonly kept the suit land aside out of partition.

12.2 He further contended that in a suit for partition, the burden would lie upon the person claiming the property to be the self acquired property to prove the same and that the appellate court wrongly cast the --- -==:.:r-=.t:Brr.r:-=r-::s:**-e-,Ji 7 SA No. t9 oJ 2006 burden upon the plaintiff and relied upon the judgments of the Hon'ble Apex Court in the State Bank of Travancore v. Aravindan Kunju Panicker and others3 and Shankarrao Dejisaheb Shinde (Since deceased) by Heirs v. Vithalrao Ganpatrao Shinde and Ors.a on the aspect that, "a Hindu family was presumed to be joint unless the contrary was proved."

12.3 He further contended that the appellate Court had gone beyond the pleadings in observing that late Narayana acquired title by adverse possession. There were no pleadings by parties in the said regard, no issue was framed nor any evidence was let in by the parties. The court could not make out a new case which was wholly inconsistent with the pleadings of the parties and relied upon the judgments of the Hon'ble Apex Court in Sheodhari Rai and others v. Suraj Prasad Singh and otherss and in Mohammad Mustafa v. Sri Abu Bakar and Others6 on the aspect that, "the finding without proper pleadings and necessary issues was not binding on the parties to'the suit.

12.4. He relied upon the judgment of the Hon'ble Apex Court in Chevalier I.I. Iyyappan and another v. The Dharmodayam Co., 3 ltn tqtt sc gg6 ' etn t989 sc tzg t ntn r95a sc zs8 6 etn I9u t sc a6l t2 Dr.GRR,l Trichu/ on the aspect that, "party cannot change its case at appellate stage."

12.5 He further relied upon the judgment of the Hon'ble Apex Court in Karpagathachi and others v' Nagarathinathachi8 on the aspect that, "a plea which would depend upon further investigation of facts could not be allowed for the first time in the appeal'"

13. Leamed counsel for the respondents' on the other hand'' contended that whether the suit schedule proPerty was a joint family property of the plaintiff, defendant No'l and late Narayana or it was the self acquired property of late Narayana was the issue belore the court' The contention of the plaintiff was that the suit schedule propefty was purchased in the name of Narayana, 40 years prior to the institution of the suit in the year 1997. The burden would lie upon the ptaintiff to prove that the suit schedute property was a joint family property to claim a share in it or else he had to prove that the same was purchased with the income from the nucleus of the joint family and the same was kept in the name of Narayana, being the Kartha of the family' But, admittedly the father of the plaintiff, defendant No.l and Narayana i'e' late Rajanna was alive till 1973 and during the lifetime of their father, Narayana could not be the Kartha of 'AIR I966 sc lolT 8 AIR 1965 sc 1752 13 Df,GRR,l SA No.Ig of2006 the family. Narayana died in the year 1996. The suit schedule property was in the name of Narayana in all the revenue records. Only in the year 1992-93, the names of the plaintiff and defendant No. 1 were entered in the revenue records as possessors in the pahani. On the complaint given by late Narayana, the said entries were rectified as per the orders in Exs.B-12 and B-13. When Narayana denied the title of the plaintiff and objected his name being entered in revenue records in 1992-1993 itself l{o steps were

14.a taken by the plaintiff to file the suit immediately. The suit was filed by the plaintiff in the year 1997 only a{ter the death of Narayana. The plaintiff had not challenged the nature of the suit schedule property during the lifetime of Narayana. No explanation was offered by the plaintiff as to why the suit schedule property was left over when there was an earlier partition in the year 1959. There were several inconsistencies in the case of the plaintiff. No substantial questions of law would arise, as there was no perversity in the findings of the first appellate court. The finding with regard to adversd possession given by the first appellant court also would not need to be set aside as the suit was not for declaration of title, but for partition. The observation of the first appellate court as to the acquisition of title by way of adverse possession was not gefinane for consideration. The nature of the property was required to be considered to consider the aspect as to who was the owner of the propcrty. The findings of the hrst appellate court were against the plaintiff and no interference of this court \ was required in the said judgment and decree and prayed to dismiss the second appeal.

14. Substanti alq uestions of law No.l and 2: I 2 Whether the judgment of the lower appellate court is vitiated as contrary to Order 4l Rule 3l of CPC and whether the lower appellate court ad.iudicated the appeal on all questions of fact and law? Whether the findings of the tlrst appellate court are perverse contrary to the pleadings of the parties and the evidence on record? It is well settled that a second appeal under Section 100 of the Civil Procedure Code can only be entertained on substantial questions of law. Under Section 100 of CPC (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference on findings on fact is not warranted if it involves re-appreciation of evidence. The Hon'ble Apex Court in Hero Vinoth v. Seshammale, held that: "The phrase "substantial question of law", as occurring in the amended Section 100 of CPC is not defined in the Code. The word substantial, as qualifuing "question of law", means of having substance, essential, real, of sound worth, important or oonsiderable. It is to be understood as something in contradistinction with technical ofno substance or consequence, or academic merely. Howeler, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general ' izoooy s scc s+s I 7 t5 DLGRR.I S4 NL lc of 2006 importance" as has been done in many other provisions such as Section 109 of the Code or Arlicle 133(l)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Rarn Difta (AIR 1928 PC 112) , the phrase 'substantial question of [aw' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a subs0antial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in fummalapudi Subba Rao v. Noony Veeraju (AIR 195 I Mad.969): "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand ifthe question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case, it would not be a substantial question of law."

15. The Hon'ble Apex Court in Chandrabhan (deceased) through LRs. & Others v. Saraswati & Ors.,ro held that: "3 l. The proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law. 'o etR 2022 sc 460l l6 D..CR&,J

32. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concemed. To be a question of law "involving in the case" there must be first, a foundation for il laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root 01'the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (Santosh llazari v- Purushottam Tiwari [(2001) 3 SCC 179]).

33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the [ega[ effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of [aw, is also a question of law. Therefore, when therc is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (hat is, a question, answet to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or seftled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of llw will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, L 17 Dr.GRR,l sA No- 19 012006 but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts anived at by the courts below. But it is not an absolutc rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth ofevidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

16. In the present case it cannot be said that the first appellate court acted on no evidence. The appellants could not show that any material evidence was ignored by the first appellate court or any wrong inference had been drawn by it from the proved facts by applying the law erroneously. Evidence had been adduced by the appellant-plaintiff as well as the respondents-defendants. The first appellate court analyzed the evidence carefully and found that the trial court had erred in its analysis of evidence. The first appellate court rightly laid the burden ofproofon the plaintiff. After considering the various citations relied by both parties, the first appellate court held that: - "After going tlrough the citations relied upon by the both sides. I am ofthe emphatic view that. in a Suit for partition initial burden is there on the Plaintiff to establish that all the properties which are subiect matter of the suit are the ancestral properties or to prove that a particular property was acquired rvitl.r the nucleus of the joint tbmily income. The moment the same is established. burden shifts on the other side to prove that l8 SA of 2006 ^o.19 the particular property acquired by him with his own monies etc. In the case on hand though PW-l stated that the suit land was purchased by all the brothers for a consideration of Rs.3000i-. nothing was placed befbre the Court to show what was his contribution out of the said amount. It is also not explained ho'q, Mr. Narayana becamc Kartha of the family, when their father Sri Rajanna was alive till 1973. No evidence is placed to the effect that under particular circumstances Mr. Narayana managed the joint family for a certain period. Therefore, it is very difficult to believe the version of PW-1 tha! Mr. Narayana was the Kartha of the joint family on the date of the purchase of the suit land i.e. in the year 1956-57. Even if the joint farnily was in existence by the year 1956-57, it cannot be presumed that Mr. Narayana was the Kartha ol' thc Joint family and due to that capacity only. the suit land was purchased in his name, on behalf of PW- I and DW- I also."

17. Thus, the first appellate court, on considering the oral and documentary evidence on record and the law on this aspect, observed that the trial court committed mistake in coming to the conclusion that the suit land was the property of the joint family and that it was liable for partition. No infirmity was found in the reasoning of the first appellate court, which calls for interference by this Court. The judgment of the lower appellate court is in accordance with the principles laid down under Order 41 Rule 31 of CPC and.it adjudicated the appeal on all questions of fact and law and no perversity is observed in the judgment of the first appellate court. As such, the substantial questions of law formulated in question Nos.1 and 2 are answered against the appellant.

18. Substantial Ouestion of Law No.3: 19 Whether the property in the name of a coparcener prtor to partition can be considered as a joint family property? As seen from the pleadings, the plaintiff contended that he along rvith his brothers late Narayana and defendant No.l jointly purchased the suit schedule property to an extent of Acs.2.35 gts., in Sy. No.809/B in Siricilla village in the name of late Narayana from one Pulluri Rajesham 40 years ago. Thus, as seen from the averments in the plaint also, the plaintiff is contending that the suit schedule property was not an ancestral property but was a joint property purchased by hirn along with his brothers. As such, it was not an ancestral property but was only a joint property. In such a case, whether the same was purchased prior to partition in the year 1959 or subsequent to the partition would not matter much. The plaintiff has to establish and prove that he also contributed to pay the amount to the vendor out of the consideration passed. But, no sale deed or agreement to sale was tiled by the plaintiff to show that the property was purchased by all the three brothets in the name of Narayana, the elder brother. It was further averred in the plaint that late Narayana was the Kartha and elder member of the joint family and when Pulluri Rajesham, the vendor, denied the title and possession of late Narayana, all the three of them filed the suit in the name of Narayana. The plaintiff admitted in his evidence that a 20 D..GRR,J SA No- 19 oI2006 partition took place between the brothers and the house properties vvere divided between them. A document evidencing the partition was also filed by the defendants marked as Ex.B I . The said document was dated

27.12.1959. The three brothers partitioned all the movable and immovable properties including gold and silver and the house propefties and also recolded as to how the uraintenance of their parents to be decided. They had not stated about the existence ofthe suit schedule property in the said partition deed and why it was left over. If the suit schedule property was a joint property or a joint family property they would have partitioned the same also in 1959 itself. when the contention of the ptaintiff was that the same was purchased in and around 1954, 12 years prior to the filing of the suit O.S. No.50 of 1966 in the name of his brother late Narayana. The leamed counsel for the appellant placed much reliance upon the averments in the plaint in O.S. No.50 of 1966 wherein late Narayana averred that he was the legal occupant and owner of the suit land having been in possession over 'it for more than 12 years. The contention of the leamed counsel for the appellant-plaintiff was that as the suit was filed in the year 1966 and as the plaintiff therein (Narayana) averred that he was in possession for more than 12 years, the suit schedule property was purchased in the year 1954 prior to their partition in the year I 959, as such, the suit schedule property was a joint fglnily property. t. 2t Dt CRR,J SA No19 oJ2646

19. There is no presumption that a particular propefty is a joint family property even though the family is living jointly at that time. The presurnption is only with regard to rhe existence of a family living in joint, but not with regard to the property being in joint, which was acquired during the existence of a joint family. The Hon,ble Apex Court in D.S. Lakshmaiah & Anr. v. L. Balasubramanyam & Anr.,r, held that: "There is no presumption of a property being joint family property only on account of existenc. of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, howevei, the person so asserting proves that there was nucleus with which ttre joint famil! property could be acquired, there would be presumption of thl property beingjoint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus." 20' The leamed counsel for the apperant-plaintiff relied upon rhe judgments of the Hon,ble Apex Court in Basant Singh v. Janki Singh and others (2 supra) on the aspect that, ,.an adrnission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of Section 17 of the Indian Evidence Act, 1g72, and may be proved against him in other litigations.,, l i l l II AIR 2003 SC 3800 22 Dt-GRR,J

21. He also relied upon the judgment of the Hon'ble Apex Court in Nagindas Ramdas v. Dalpatram Locharam @ Brijram and others (l supra) on the aspect that, "Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver ol proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the time of evidence, are by themselves, not conclusive. They can be shown to be wrong."

22. ln the tight of the these principles when the averments in the plaint in O.S. No.50 of 1966 is looked into, the plaintiff therein had not stated that it was a joint property or purchased by him along with his brothers or that he was filing the suit on behalf of his brothers also. He only stated that he was in exclusive possession and enjoyment of the suit land adversely to the knowledge of the defendant therein (Pulturi Rajesham). The suit land was a mango garden having tamarind trees and mango trees and other trees also and that the plaintiff was enjoying the t I I i , L l I 23 D.,GRR,J fruits of the trees having been in possession over the suit land and that he perfected his title long back by prescription of time. He further contended that the defendant intentionally caused wrong entries in the record of rights in his name as such, he filed the suit for alteration of wrong entries in the record of rights of Khasra Pahani for the year 1954-55 of the village of Siricilla with regard to Sy.No.809/B to an extent of Acs.2.35 gts., for deleting the name of the defendant and substituting his name.

23. Thus, the plaintiff therein i.e. Narayana had not even stated that he purchased the suit land but filed the suit stating that he perfeited his title by prescription and claimed it by way of adverse possession. In the said suit, the defendant-Pulluri Raj esham accepted the title of the ptaintiff therein in his written statement stating that the plaintiff therein was in possession and enjoyment of the suit land since more than 12 years and that he had no rights whatsoever upon the suit land at any time and reported no objection for decreeing the suit in favour of the plaintiff therein. As such, the said suit was decreed and basing on the said decree, the name of Narayana was incorporated in the revenue records'

24. The lower appellate court, on considering all these aspects observed that: 24 Df,GfrR,I 34 No- 19 of 2005 f ',t# 'No evidence is placed !1 eW-f to the effect tliat, the joinr ^ family possessed income yiitding properties; ,o *nf, ,n" said incomc the Suit land *^ p*"hurid by Mr. Narayana. tn 'ol the absence of any cultivable lands lor the joint r:*if , rn" 'rra..,ng " l-1':.1.:. :i,l-,icutar proot.rhat the joini iu_iLf *rs rncome yletdtng properties, it is difficult to presume that, the Suit land *,as purchased with the n c["u, oi.tfr";.i"i"irrlfy income. ,,\s the pW-l failed to p.ou. ,boui it"'r."r"r* "f incorne yielding properties to the joint fr_ify, ifr"" i*a* carurot be thrown on Mr. Naralana to est;blish how he purchascd thc suit land. lt is importart lo note that. no *f,"r" in Ex.A5 (plainr in O.S. No.50 of tOOe; lt ir -"ntio*a if,,n,,fr. suit land ras purchased jointly by ,ti tt" Urott ".r. f" er. e.O wntten statement also, there is no mention to the effect that. alt the three brothers are in adverse pors"ssion it" ,ri, "r,* property as against the Defendanl. There is no evidence befbre -i the Couft ro the effecr rhat, the pW_l and OW_ i*" uf.o -i, contribured amounts for the filing of O.S. S0ll 966 ,r. Narayana- Il really, all the tf,ree brothers tou""i,intty purchased the suir land there is no ditficulty f"; "li;i,n"rn ,o. file the suit by figuring as plaintiffs. aft"i g"irg tfrr"rgi tn. Ex A.6.and A.8 it is verv clear that, the a"f"iauriyV"rJ3. " u c_onsenting party to the Suit and it is a consent frac_"nt dt -ri;;r.r" [)ecree. Ex.A.9 goes ro shorv that the name was mutated in the Khasra pahaai in pursuance of tn" e, a.S Decree obtained in OS.50/1966. As per pw_1, utt-ttr" U".otfr..s nere in amicahle terms by the date oi Ex.A.s ,rJ 11 ,rr" date oi Ex.A.g. In such circumstances there cannot be any difficult-v to enter the narnes of a the U.otto. i, ff,or.u Pahani. As already stated by me when Mr, Narayana rvas prol,ed ro be not the Kartha of the famity by the d;;;iEx.A.9 ard it' all the brothers jointty filed Suit i, tne ,"r""- #'n .. r\arayana. r.r har prompted the pW_ | and DW_ | nol to insist tnerr t)ames ro be included in the Khasra pahani is not :Jplalneq Itere. the Appellant "orn."t .ui.iu"J ttu"t. ,, arread) ohsened in the Citation reported in AIR l97g eombay ,..1l;,jl:..1::nr1' acquired.by one of the member or,r,"';oir, ramuy cannot be considered as ancestral property and it is io be as the self acquired properry. ff,e pi.a.S go", to ,no* lJeatei .Mr. Naravana claimed ihe iitl" ou". ,il iltr- r""j u, pleading adverse possession. So, this is a strong ;i;r;;;r." to presurnc that, the Suit land was acquired by M; Nar;y; fbr himself onr1. but not on behalf oi ,h. ;ih";';;';ffi.... Added to. rhis, during his lif-e time M. N^r"t;;;;, O_ii, (as.can be obsened in Ex.B.l2) ."n o- ffi"r"nr"ti", i". rectificrrion of rhe u,rone. esrv in t'he p"n-i f"".'tf" 1"". iiSZ 9i showins PW-l and UW-f ,, the joint possessors alons. uith Mr. Naravana. The Ex.B.l2 & B.lt;;;;"=rr.*,i,?,,n" "iM;. "r,=. 25 Dr-CRR,l SA No 19 oJ 2006 wrong entry was rectified after an inquiry in which notices were also ordered on PW-1. ln spite of the same. the PW-l not filed any suit till the death of Mr. Narayana claiming that hc is also one of the joint oumers of the suit land. Ex.A.1 and B.2 are one and the same r.urder which Mr. Narayana executed the registered sale deed in favor of D.4 for a consideration ofRs.10,l00/- with regard to half of the suit land. The Ex. A l0 and A.l I are Dt. l8-5-1993. lfreally, the PW-l is lighting for his rights over rhe suit property, there is every possibility for him to knorv about the Ex.B.2. For the reasons better known to the pw-l, this Suit i,i'as filed only after the death of Mr. Narayana. It shows that, thc PW-l is not fair enough in liling the Suit, Admittedly, when all the joint family properties are partitioned between the brothers even though in the life time of their parents and there is an agreement to maintain the parents, no reason was given for leaving out the suit land from the partition. The existence of tamarind trees in the suit land r.r,as adrnilted. So it can be considered as an income yielding property. Therefore, the argument of the Respondent counsel that. as the suit land is an income yielding property. it was left out from the partition cannot be appreciated for the reason that even if the partition is done, stil[ the person who gets the share out of the same can also enjoy the income liom the pa(icular share. "

25. As the appellant-plaintiff failed to discharge the burden laid upon him in showing that the family has any income yielding propefiies and that the suit schedule property is purch2rsed with the nucleus of the joint lamity propefties to consider it as a joint family property or that it was purchased jointly by him along with his other brothers, the same cannot be considered as a joint family property or joint property which was liable lor partition. This Court does not find any illegality in the judgment of the lower appellate court to consider it as perverse or based on no evidence or any substantial question of.law arising out of it. As such, the 26 Dr-GRR,l property in the name of Narayana even acquired by him prior to partition in the year 1959 cannot be considered as a joint family property.

26. Substantial question of law No.4: Whether the lower appellate couft can make out a new case which was not pleaded by the parties or without any issue or evidence with regard to the adverse possession? The learned counsel for the appellanlplaintiff submitted his arguments at great length pointing out that the lower appellate court committed a mistake by framing an issue on the aspect "whether Mr. Narayana acquired title by adverse possession over the suit property in pursuance ofdecree in O.S. No.50 of 1966, if so it cannot be considered as joint property and not liable tbr partition?", contending that there were no pleadings to the effect of acquiring title by adverse possession by Narayana and that the lower appellate Court without pleadings liamed an issue in this regard and relied upon several judgments of the Hon'ble Apex Courl on this aspect.

27. He relied upon the judgment of the Hon'ble Apex Court in Siddhu Venkappa Devadiga v. Smt. Rangu S. Devadiga & Ors.r2, on the aspect that, "the decision of a case cannot be based on grounds outside '' AIR 1977 sc 890 _r#-,-ire!&',,, % d 27 the plea of the parties and that it is the case pleaded which has to be tbund." He relied upon the judgment of the Hon'ble Apex Court in Chevalier I.I. Iyyappan & Anr. v. The Dharmodayam Co., Trichur (6 supra), on the aspect that, "party cannot change its case at the appellate stage. The ptea of irrevocability of licence not raised in trial court nor adjudicated upon, cannot be raised for the first time in the appeal." He further placed reliance upon the judgment of the Hon'ble Apex Court in Ishwar Dutt v. Land Acquisition Collector & Anr.r3, on the aspect that, "High Court could not have gone outside the pleadings and make out a new case." He relied upon the judgment of the Hon'ble Apex Court in Mohammad Mustafa v. Sri Abu Bakar & Ors. (5 supra) on the aspect that, "a finding without proper pleadings and necessary issues was not binding on the parties to the suit."

27.1 He further placed reliance upon the judgment of Hon'ble Apex Court in Patel Kantilal Parshottamdas v. Jitender Kumar Nanjibhai Mistryra on the aspect that, "the High Court could not of its o\,vn set up a new case which was not pleaded by any of the parties." He further relied upon the j udgment of the Hon'ble Apex Court in Shyam rr etn 2oos sc : t6s 'o 1zo tz.y ts scc sze 28 D. GRR.J SA No.19 of 2006 Narayan Prasad v. Krishna Prasad & Ors.rs on the aspect that, "no relief can be granted to a party without the pleadings." He fui1her relied upon the judgment of the Hon'ble Apex Court in Ratanlal @ Babulal Chunilal Samsuka v. Sunderbai Govardhandas Samsukar6 on the aspect that, "any amount ofevidence or proof adduced without there being proper pleading is of no consequence and will not come to rescue of the parties." He relied upon the judgment of the Hon'ble Apex Court in Annasahed Bapusaheb Patil & Ors. v. Balwant @ Balasaheb Babusaheb PatilrT on the aspect that, "Where possession could be ref'erred to a lawful title it will not be considered to be adverse. One rvho holds possession on behalfof another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation."

27.2 He also relied upon the judgment of the Hon'ble Apex Court in Sheodhari Rai'and others v. Sura.i Prasad Singh and others (4 supra) on the aspect that, "The possession of the defendants being pennissive, it must be regarded as having been in possession until the later assefted an adverse possession. [t was not open to the trial court to make a case which was not set up by the parties." '5 aln 2ot8 sc 3 tsz '61zot8; tt scc tt9 " nIR 1995 sc t9s 29 D^GRR,J sA No.l9 oJ2006

27.3 He further relied upon the judgment of the Hon'ble Apex Court in Boppana Venkata Rao (died) per LRs and others v. Sunkara Krishna Murthyr8 on the aspect that, "It is nothing but making out a third case and reversing the hndings of the trial court which is in accordance with the pleadings and evidence on record. The findings recorded by the leamed first appellate couft thus are contuary to the pleadings of the parties and the evidence forthcoming in this case."

28. As discussed above, it was the contention of the plaintiff that he purchased the property along with his brothers Narayana and defendant No. l, but failed to prove the same. He, however, placed reliance upon the pleadings of Narayana in O.S. No.50 of 1966 wherein he contended that the property was acquired by him 12 years ago and claimed the same perfecting his title by way of prescription of time. When the plaintiff hirnself got marked the said document as Ex.A5 which shows that Narayana had tited O.S. No.50 of 1966 claiming his right and title by way of adverse possession, frarning the same as the point for consideration by the lower appellate Cour-t and deciding it, considering the same as not a joint property and not liable for partition, need not be found fault with. This Court considers that there is no substantial question of law arising '' 20 t t 1a1 nuo ooe 30 Dt.GRR,l SA No-19of20N from out of the observation of the lower appellate court in this regard and any illegality committed by it in framing such a point for consideration and answering the same against the plaintiff, as it was the ptaintiff who placed reliance upon on it. The plaintilf cannot ask the court to consider the document only upon his view point but not upon the other points raised in it or on the relief claimed in it. As such, this Courl considers that the lower appellate Court had not made out any new case which was not pleaded by the parties or that there was no evidence in coming to the conclusion with regard to the adverse possession of Mr. Narayana over the suit'schedule property.

29. Substantial question of law No.5: Whether the lower appellate courl committed an error in interpreting Exs.A-10 and A-ll documents and their effect? The contention of the leamed counsel for the appellant was that the lower appellate Court committed an error in interpreting Exs.A-I0 and A- I 1 documents as the said documents would go to show that late Narayana undertook that he would give certain portion of the land to the plaintiff, if the suit land was not joint family property, there was no need for late Narayana to undertake to give certain portion of land to defendant No.l free of cost and that Exs.AlO and A1l were strengthening the 31 DrGRR.l SA ]ro.19 of2006 contention of the ptaintiff on the aspect that the suit schedule property was a joint family property.

30. This aspect was also discussed by the lower appellate court at length by framing a point for consideration as to whether Exs.A-10 and A- I I were void documents under Section 29 of the Contract Act and inadmissible for want of stamp duty, registration and consideration. The lower appellate court observed that Exs.A-10 and A-11 are the documents executed on white papers and that they were not registered documents. Both the documents were addressed to the SI of Police, Siricilla and there was no explanation as to why they were addressed to the SI of Police. Ex.A-10 would disclose that Narayana gave an undertaking that he would give half share to his other brother DW.l on southern side, in case DW.l would bear registration expenses for the same. It was further observed that the details of the property were not mentioned and there is no acceptance by the other party on Ex.Al0. lt was also observed that Ex.Al1 was a similar document like Ex.Al0 in which it was mentioned that, "ln case, late Narayana registered the properry in Sy.No.809/B to DW.l, DW.l agreed to register the same to PW.l, if he would bear the expenses for the registration of 58.75 gts. 32 :i D.ARR.J

31. The lower appellate Court observed that there was discrepancy in addressing the person. Though the document appeared to be addressed by DW.l, on perusal of the same, it would go to show that somebody prepared it. No consideration aspect was mentioned in both the documents. There was no reference in the said documents that the property in question was a joint property and all the brothers out of love and affection to each other had agreed to transfer the same in the names of others. The lower appellate Court also considering the judgments on the said aspect observed that the unregistered and unstamped document under which no consideration had been passed were not admissible in evidence and the document extinguishing or limiting rights in immovable property was a compulsorily registerable document, as such, no value could be attached to the said documents and observed that they wcre void and inadmissible documents. 32- This Court does not find any error in the observation of the lower appellate court in interpreting the documents marked under Exs.Al0 and Al I as void and inadmissible documents for the reasons mentioned therein in the above judgment. This Court does not find any substantial questions of law arising in it or that the lower appellate Court committed any mistake in interpreting Exs.fiO)nd Al l. Thus, this Court does not l3 DT.GRR,J S1 No 19 oI 2Ut6 find any infirmity in the reasoning of the first appellate Court in aralyzing the evidence or the documents marked, which calls for any interference by this Court. The questions raised would not meet the test holding that they were substantial questions of [aw. As such, the second appeal is liable to be dismissed.

33. Accordingly, the Second Appeal is dismissed confirming the judgment and decree dated 27.10.2005 passed in A.S. No.7 of 2002 on the file of the leamed Senior Civil Judge, Siricilla, reversing the judgment and decree dated 25.07.2002 in O.S No.l7 of 1997 on the file of the Junior Civil Judge, Siricilla. No costs Miscellaneous Applications pending, if any, shall stand closed. //TRUE COPY// Sd/. M. RAMANA KRISHNA EPUTY REGISTRAR SECTION OFFICER To,

1. The Senior Civil Judge at Sircilla 2. The Junior Civil Judge at Sircilla Warangal 3. One CC to Sri Kiran Reddy Mallarapu, Advocate [OPUC] 4. One CC to Sri P V Narayana Rao, Advocate [OPUC] 5. One CC to M/s. K Kiran Kumar, Advocate [OPUC] 6. Two CD Copies ADK HIGH COURT DATED:0710212025 JUDGMENT+DECREE SA.No.19 of 2006 IHg SL.r 'j .. ,9x RC ( i zr APH tffi 11 \, ?, \ 'r':. l\ ,/ 2 DRAFTS DISMISSING THE SECOND APPEAL WITHOUT COSTS ?,{,