The High Court · 2025

HON'BLE SRI JUSTICE LAXMI NARAYANTI ,A,LISHETTY SECOND APPEAL No.227 of 202',5 JUDGMENT: This Second Appeal is hled challenging tJ-re judgment and decree daled 19.12.2024 in A.S.No.B7 of 2022 or-r the h1e of the X Additional chief Judge, City Civil Courts, Hyderai rair, whereby and w,here un der the judgment and decree dati:r-l 06.05 .2022 in O.S.No.2517 of 2O2O on the file of the XX Junior Civil Judge, City Civil Courts, Hyderabad was conhrmed

2. Hea:rd Sri Mohammed Abdul Quadeer, lezrmed counsel for the appellant

3. The appellant herein is piaintiff and respo r<lents herein are defendants. For convenience, the parties are he'i-einafter referred to as they u,ere arrayed before the trial court

4. The brief facts of the case as averred in r.l-re plaint are that the plaintiff hled suit for partition and sepi;.rate possession, declaration and perpetual injunction against lkLe defendants. Plaintiff and defendant No.l are the real brothe r:s and defendant No.2 is the sister of plaintiff and defendant No.I . lt is averred that plaintiff and defendant No.1 have jointly purch,,rsed the property 2 LNA, J 5.A.No.227 of 2025 bearing Municipal No.18-13 6/5212, admeasuring 239 square yards situated at Hashamabad, Chandrayanagutta, Hyderabad from its original owner one Mohammed Bin Saleh Abeas under a notarized agreement of sale deed dated 12.lO.l9a9; that originally one Mohan Reddy sold the suit premises to the vendor of piaintiff and defendant No.1 herein in the year 1988; that plaintiff and defendant No.1 purchased the suit premises with the joint funds; that the relations betu,een the plaintiff and defendant No.1 have strained and that piaintiff started residing in a separate house; that on 25.70.2019, the plaintiff requested defendant No.1 to partition the suit premises into two equal halves, one of rvhich is to be given to the plaintiff, being joint owner of the same, however, the defendant No. 1 refused to divide the suit premises and further stated that he had purchased the suit premises from his sister/ defendant No.2.

5. It is further averred that the plaintiff upon enquiry found that one absolute agreement of sale was executed by defendant No. 1 in favour of defendant No.2 on 17.05.2017 rvithout the knowledge of the plaintiff herein; that the defendant No.2 had also executed a registered gift settlement deed vide document bearing No.2728 of 2OO7 dated 22.05.2O07 in favour of defendant No.l; !{x3iryz// !n-. .r .,.4 .1 \ LNA, J 5.A.No.227 of 2025 that defenclant No.1 in collusion with defendant No 2 created false 3 and fabrice.ted documents only with an intention to grab the share of the plai ntilf herein; that the plaintiff had cor.r e to know that defendar-rt No. 1 is nou, trying to alienate the suit I ,rolnises to third parties. Hirving r-r o other alternative, the plaintift lited the present suit seekin g pa-rtition of the suit premises into lrvo equal parts and to de,:lare the agreement of sale deed da ed 17.O5.2OI7, registered gift settlement deed bearing No.26(;:) of 2007 and registered r-ectification deed bearing No.2728 of 2'.)(.)'7 as null and void and pt:rpetual injunction against the defendar,ts

6. Though summons were served on defendant Nos. I and 2 they have not appeared before the trial Court imd therefore, remained ex parte. 7 . The trial Court based on the above pl,ractings framed following issue "(i) Whether the plaintiff ts entitled ft' the relief sought Jor? B. To sr,rbstantiate the case, plaintiff examiLr,::rl himself as P.W. 1 and marked Exs.A. 1 to A.9. I ) ) 4 LNA, J 5.A.No.227 of 2025

9. The trial Court on due consideration of oral arrd documentar5r evidence dismissed the suit ulde judgment and decree dated 06.O5.2O22 with the following observations: "(, Platntiff filed Ex.A.9 tuhich is the copy of agreement of sale dated 12.10.1989 but there is no explanation bg the plaintiff as to uthg the photo stat copy of the said agreement of sale pertaining to the year 1989 hn-s, been filed. Section 6O of Indian Euidence Act lags doun explanation for secondary euidence and lags doutn conditions toere secondary euidence may be constdered in the absence of primary euidence. Hotteuer, the plainttJf herein had not complied uith the any of the conditiorLs lays dou.tn under Section 63 of Indian Euidence Act. Therefore, the Photostat copg of the said agreement of sale pertaining to the gear 1989 cannot be con-sidered in the euidence and further obtaining the certified copA of tLrc agreement of sale dated 12.10.1989 should not be dfficult for the ptaintiff. (ii) FurTher, Order 13, Rule 3 CPC, lays doutn that at ang stage of the suit, the Court mag reject any document uhich tt considers ireleuant on other side and in T. Basauaroju Vs. T. Nagaratnam 2006 (1) ALT 135, IT WAS HELD THAT "Mere marking of the doanment itself i-s not sufficient for its admissibility unless there is judiciot determination os to nature of document 'and. its admis sibility before marking". (iii) The pbintiff Lnd not fiIed euen a single document on record to sla ut that he along uith defendont No.l had purcha-sed tle suit premises t :! 5 s.AN".rrr:flkls uith joint funds and Exs.A.7 to A.7 do not s .tpport the contention of the plainttff that lrc had purchased the suit premises along with deJi:ndttnt No.1 tuith joint funds."

10. Aggrieved by the judgment of the _trizr I Court dated

06.O5.2022:,, plaintiff filed appeal in A.S.No.87 of 2').)l) before the X Additional Chief Judge, City Civil Courts, at Hyderr,rbad. 1 1. The {irst appellate Court re-appreciated the ':rttire evidence of trial Court on record and dismissed the r'rplteal vide its judgment arrd decree dated 19.12.2024 witl t the following observations: \. Under Ex.A.8 disclose that alleged uendor ti,e p,lainttff antd dekndant No.1 purchased from his alle.gcd uendor Mchan Reddg under agreement of saLe- Bul Lit:re is no siTnature of the uendor of the plaintiff oncl r.l,:{zndant No. I under Ex.A-8. On the other hand, tt.e.e is no siTnature of the plaintiff ond defendant No.1 in llx.A.9. ii. Wheneuer the agreement of sale bettueen lir,:' .pafties executed, then, there shall be the signatur e:; of the uettdor as uLelL os uendee on the said doanme'nt ,\r;.t there Luere no signature of the plaintiff and defendott IIo.1 on E:t.A.9 and the plaintifJ failed to adduce euiden';e' iiz order to prouen the contents of the document under 8.t..4.9. iii. Plaintiff failed to proue that he him.selr and the de-fendant No.1 purchased jointty the suit schedule propertA and thus he i.s not entitled to claim p,=t;:.tion of the suit schedule propertg tlrcn he is not enlit'e to ctoim partition of the suit schedule propertg. I ) 6 LNA, J S.A.No.227 of 2025 ,irl

12. Aggrieved by the judgment and decree dated 19.12.2024, the present second appeal is filed by the plaintiff.

13. Learned counsel for the appellant submitted that the trial Court did not consider the agreement of sale dated 12.10.1989 which is marked as Ex.A.g only on the ground that there is no explanation by the appellant/plaintiff as to why photostat copy of the agreement of sale pertaining to the year 1989 has been frled without considering the fact that appellant frled applic ation uide I.A.No.314 of 2027 that original of Ex.A.9 was in the custody of respondent and therefore submits that the trial Court committed error in not considering Ex.A.9/agreement of sa-le. He would further submits that trial Court also carne to erroneous conclusion that photostat copy of the agreement of sale under Ex.A.9 has to be impounded, which is improper. He would further submit that the first appellate Court also committed al error in conltrming the judgment and decree passed by the trial Court without proper appreciation of evidence placed on record and thus, prayed to allow the second appeal.

14. A perusal of the record would disclose that both the Courts have concurrently held that appellant/plaintiff failed to prove that ) . ,/, 1 LNA, J 5.A.No.227 of 2025 he and the defendant No. 1 jointly purchased th t s;uit schedule property a1d also held that appellant/plaintiff I'rixl not filed a single docttmcnt on record to shorv that he along .'vrth defendart No.1 had purchased the suit premises with joint r-rnds. Both the Courts als,r observed that agreement of sale dzL'-:rd 12.10.1989 (Ex.A.9) cajlnot be considered and that the ripr,e llant/ plaintiff failed to prove execution of said document and als,r held that the said docurnent does not contain signature oi aopeliant and respondenl . lt is further observed by both the Cou rls, that trxs.A. 1 to A.7 do not support the contention of the app,,:ltant/plaintiff. Thus, the lria-l Court as well as appellate Court [r:r.r'e passed the judgment zmd decree on proper appreciation of 1as zurd facts and this Court does not find any reason or ground to itl'.erfere with the impugned;udgment.

15. In considered opinion of this Court, the learned counsel for the appellant failed to raise any substantial questi:)n of law to be decided b1, this Court in this second appeal. Jr-r fact, all the grounds rzrised in this appeal are factual in nzr ur,: and do not qualiff as t-he substantial questions of law in terr.s c,f Section 100 c.P.c. \ -) .--"" i i I I 1 LNA, J 5.A.No.227 of2025 16. It is well settled principle by a catena of decisions of the 8 Apex Court that in the Second Appeal filed under Section 1OO C.P.C., this Court cannot interfere with the concurrent hndings arrived at by the first appellate Court, which are based on proper appreciation of the oral and documentar5r evidence on record.

17. Further, in Gurdeu Kaur a. Kakil, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court arrd the power under Section 100 C.P.C. is very iimited and it can be exercised only where a substantial 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 Appellate Court, this Court hnds no ground or reason warranting interference with the said concurrent findings of first appellate Court, under Section 1OO C.P.C. Moreover, the grounds raised by the respondents are factual in nature and no question of law, much less, a substantial question of law arises for consideration in this Second Appeal. t (2007) 1 Supreme Court Cases 546 9 LNA, J 5.A.No.227 of 2025

19. Hen(re, the Second Appeal faiis and the sarLc is accordingly dismissed at the stage of admission. No costs. Pending miscellaneous applications, if an1,. r,Lrall stand closed SD/. P.C..{ NAHABHUSHAMBA DEPUTY REGISTRAR o //TRUE COPY// SECTION OFFICER To,

1. The X Additional Chief Judge, City Civil Court at Hycerabad (with records, if any)

2. The XX Junior Civil Judge, City Civil Court, at Hyderrbad. 3. One CC to Sri Mohammed Abdul Quadeer, Advocate |OPUCI 4. Two CD Copies Kam/GR D HIGH COURT DATED:1110612025 '<. I JUDGMENT SA.No.227 of 2025 - ':\'. , : -.\\ , I5 t'r r.#f i'- i i:'l . ,l ) ',/,.. ,/ THE SECOND APPEAL IS DISMISSED AT THE STAGE OF ADMISSION U J o\