The High Court · 2025

... Respondents/Defendants lA NO: 2 OF 2024 Petition under Section 5 of Limitation Act praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone delay of 47 days in filing the Second Appeal as against the judgment and decree dated 28-06-2024 in A.S. No. 15 of 2021 on the file of Principal District Judge, Nagarkurnool and Second Appeal on taken on file for its disposal on merits. Counsel for the Appellants : SRI M DAMODAR REDOY Counsel for the Respondents: SRI D L PANDU The Court delivered the following: Judgment ) / I I I I I I I I HON'BLI' SRI JUSTICE LAXMI NARAYANA ALISHE'TTY SECOND APPEAL No.489 of 2024 JT]DGMENT: This Second Appeal is filed challenging ihe judgment and decree, dated 28.06.2024, passed by the Principal District Judge, Nagarkumool, in A.S.No.15 of 2021, whereunder and whereby the judgment and decree, dated I1.08.202 I, passed by the Senior Civil Judge, Nagarkumoo[, in O.S.No.33 of 2015 was confirmed.

2. The appellants herein are plaintiffs and respondents herein are defendants, in the suit before tl-re trial Court. For convenience, hcreinafter the parties are rel'erred to as they are amayed in the suit.

3. 'the brief lhcts of thc case are that plaintifT tlled the suit in O.S.No.33 of 2015 before Senior Civil Judge, Nagarkumool, for specific performance of contract in respect ol opcn site bearing Sy.No.l 19 admeasuring 98ft length, 60ft width total admeasuring 653 sq.yards, situated in the limits of Peddakothapally vitlage and mandal (hereinafter refen'ed to as 'schedulc property'). In the plaint, it is averred that the schedule property was originally purchased by Gopala Balaiah, the father of plaintiffs and defendant No.1, in the name of his \ 2 LNA, J 5.4.No.489 of 202,1 rvife Gopala Laxmamma and the said property is the ioint family property; that in a family settlement made in the vear 2009, the said property was given to the plaintiffs, but on 01.06.2009 the defendant obtained a registered gift settlement deed bcaring document No.2364l1009 in his favour from his mother Gopal:r Laxmamma in respect ol' the schedule propefty and took possession o1- the same; that irr this regard panchayath was held on 17.04.2012, arrrl delendant No.l cxccuted an agreement of sale ir-r favour of plaintilfs agrceing to cxccutc rcgistered sale deed within 3 nlonthl r'r ithout taking arry consideration and despite repeated requests ol- plaintiff, defendant No.l, did not execute the sale deed ; that on 0l.li1.2012 defendant No. I cxecutcd registered sale deed bcaring docrLnrcnt. No..1286/2012, in lavour ol defendant ].1o.2 in respect of 86.66 sq.yards ol the schedule propefiy and on the same day, the defbndant No.l executed anothcr rcgistered sale deed bcaring documcr.rt 1ro.4285/2012, It-l favour of delendant No.3 in respect of 86.66 sq.5,3111r of the schedule property and also executed one more registered r;ale deed bearing document No.428712012 in favour of defendant Nio.4 in respect ol

83.33 sq.yards of the schedule property; that dcferrdants Nos.2 to 4 have purchased part of the suit property having knowledge ol the I LNA, J SA.No.489 of2024 agreement between the plaintiffs and defendant Nos.1, thus, defendants No.2 to 4 have to execute the registered sale deed along with defendant No.l. Hence, the suit.

4. Defendant No.l remained ex-pafte and Defendant Nos. 2 to 4 filed common written statement, wherein they admitted that the mother ol defendant No.l, Gopala l-axmamma, gifted the schedule propeffy on 01.06.2009 to defendant No. I under registered gift deed document No.2364/2009 and subscquently defendant No. I executed three separate registered sale deeds dated 01.12.2012 in favoul of defendants No.2 to 4 vide doc.Nos.4286l2012.,4285/2012 and 4287 /2012 respectively, however, denied the remaining averments of the plaint. It is further averred that Gopala l,axntamma, w/o Gopala Balaiah, was the exclusive owner of the schedule property and neither the plaintiffs nor their husbands have any right or authoriry over the suit property, and by virtue of the registered gift deed document No.236412009, defendant No. I is the owner and possessor of the schedule properry; that defendant No.1 executed three registered sale deeds in favour of defendant Nos.2 to 4, and delivered possession and since then they have been in possession and enjoyment of their I \\ 4 I,NA. J SA.No 189 of2A24 respecti\/c lands. At this stage, the defendant No. I b1, colluding with thc plaintills and his parents got fited this false suit through plaintiff.s by crcating a lalse agreement before filing of the su't by taking f'alse pleas in order to harass defendants No.2 to 4. F-ence, prayed to disrniss the suit

5. On thc basis olthe above pleadings of both thr: parties, the trial Court tramed the following issucs for trial:- "(1) Ilthether the plaintffi are entitled to specific perforrnance of agreement dt.17.04.2012 a{ginst tlrc de.fendant.s in respect of the suit schedule proper'ry os prayed .for? (2) To what relieJ? "

6. To substantiate their case, plaintiff No.l eot lrereby examined himself as PW I and Pw.2 was also examined and [;<s.A I to ,A5 wcrc marked. t.)n behalf of the defendants, DWs.l and 2 were examined and Exs.[]l ro 83 were marked.

7. Alier futl-fledged trial and upon considering the oral and documentaru cvidence and the contentions of both tfLe parties, the trial Court disrnisscd the suit, vide judgmentand decree dated 11.08.2021. I

8. The trial Court in its judglnent catcgorically observed as 5 LNA, J SA.No.489 of2024 hereunder:- " ....on one hand it is contended by the plaintiffs rhat the defendant No.l vide Ex.Al agreed to execute o registered sale deed in favour of plaintffi whereas the learnecl counscl for pluinriffi sugg,asred b DWI in his cross examinalion that the defendant No.l ugreed to execute gift deed (as against regislered sale deed pleoded in favour of plaintffi in respect of the suit properly. The above mentioned discrepancy in the pleadings and cross examindlion by the learned counsel for plaintilrt b DII/1, is also one of the fuctors and grounds for lo draw an inlerference that the plaintifii lhemselves are not oware of the cuse facts or lhe nulure of the document and the contents of lhe documenl i.e., Ex.Al allegedly executed by defendant No.l in rhe ir favour... ...the documenl on the strength of which the plaintiffs have approached this court seeking the relief of speci,fic performance, is itself not proved in evidence. Furlher, the incon.ristenl of pleas taken by the plaintffi in their pleadings and during tlte course of their evidence, makes this case devoid of merits and hence il is liable to be dismissed. There.fore, the plaintiffs are not enlilled to the relief of spectfc performance of agreement dt.17.04.2012 against the defendanls in respect of suit schedule property and as such lhe question of recovery ofpossession of the suit propertyfrom the defendants does not arise... "

9. On appeal, the first Appellate Court, being the hnal fact- finding Court, re-appreciated the entire evidence and material 6 LNA, J SA No 189 of2024 available on record and dismissed the Appeal, vide rr.s judgment dated

28.06.2024. thereby, confirming the judgment of the trial Court.

10. -fhe first Appellate Court in its judgmcnt observed as hereunder:- "...lhat admittedly the mother executed Ex.A2 r,:gistered gift s?ttlam('nt deed dt.ll-06-2009 vide doc. No- 2364/2009 in.favour of deJbndont No.l. The said document is un-challenged so for. Hottcter. as pcr the case qf tlte plaintifs the dt fendunt No-I misrcpre.\lnted untl by playing .fraud on lhe mother Loxmamtno got cseculetl Ex.A2 registered gifi settlement deed. I'he same is not pxtvLd to be true and correct since the defendant No.l is not cxantintd in lhis case. The pluintffi cannol lake adtunlage of the fuct thal the defendant No.l is set exparte in the suil more particularll, because it is the specific defence of the alefendants and evi<lcnce of DWI and Dl/2 that the defendant No.l ett'cuted Ex. A3 to ./14 regi.stercd documenls, vhich are copies of Ex.B I lo B3 documents rl.0 I - I 2-201 2 in respect of part of the suit .olots. Further, Pl|tl almitted in her cross examination rhat Exs.Bl to B3 documents trcre execuled hy defendant No.l in fovour of defend,tnt Nos.2 to 4 un<l deiivered ytssession of the same to them."

10. I . I'he first Alrpellate Court has fufther observeri as hereunder:- "...As per the pleadings registered document is to be executed in ./avour oJ'lhe plaintifs within 3 months from the date of cxecution, but.from the evidence it is seen that the defendant No.l was asked to txecult a gift deed which is contrary to the pleading,t. Yet another u-specl u,hich assumes imlnrlance is lhat as per the agreement of 1 LNA, J SA.No.489 of2024 sale there is no consideration passed from the plaintiffs to the defendant No.l. In such circumstances, the agreement of sale under Ex,Al becomes a void document and cannol be executed as prayed. Section 54 of the Transfer of Property Act mandates thal considaration musl be there in one form or lhe olher either in part or t,n u'hol<'. Further there is no admittcd pntmise lo puy lhe sdDt.' in .future also- There is no such pleading in the plainl in lhis regurd and as such Ex Al is nol a valid document for consideration- ... the defendants established lhol the defendant No.l ttas the original owner and possessor of the part of the suit plot covered by Et-Bl to 83 by virtue of Ex.Al registered gift settlement deed and tlrut huving sold away lhe same by virtue of lhe said three regislered sale deeds, neither the plaintffi nor the defendant No.l have any righl over the said extent of suil plot. On the other hancl. the evidence of PWI and PW2 is contrary to lhe pleadings and contents of Ex.Al to A5. The evidence of Dl{l and DW2 is in accordance tl,ith thc contents of the written statement and Ex.Bl lo 83-" 1 I . Heard Sri D. Damodar Reddy, leamed counsel for thc appellants and Sri D.L. Pandu, leamed counsel for the respondents. Perused the entire material available on record.

12. Learned counsel for the appellants contended that the trial Couft as well as first appellate Court misinterpreted the documents placed on record and came to erroneous conclusion and thus dismissed the suit. Learned counsel further contended that both the I LNA, J SA.No.189 of2024 Courts havc considered the agreement dated 17.04.11012 agreement of sale and erroneously refused to grant the reliei' of specific performancc. which requires interference of this Court. Leamed counsel iurthcr contcnded that both the Courti failed to consider the fact that schedule property was purchased by the father of the appellants and defendant No.l, in the name of their mother and therefore. their mother has no cxclusive rights ,rver the schedule properq and thus gift deed executed by her is invalid. Hence, prayed to allow thc Second Appeal.

13. A perusal of rccord would disclose that the trial Court as well as the first Appellate Court concurrently held that plaintifls failed to substantiate their claim of specific performance and have not placed evidence in support of their contention. The I'irst Appellate Court categorically held that gift deed dated 01.06.2009 (Ex.A2), executed b), mother ol' ptaintilf in lavour of defendant No. l, has not been challenged" therefore the same is binding on them. First appellate I Court ohselved that defendant executed three sale cieeds in favour of delendants Nos.2 to 4 in the month of December ilO12, whereas suit was filed in the month of April, 20 I 5 and plaintifls have not explained 9 , LNI, J S,'l.i\o..189 of2024 the said delay. First appellate Court lurther observed that as per I I agreement of sale, no consideration is paid by the plaintifls to delendant No. l, therefore, the same becomes invalid as per Section 54 ol Transler of Property Act.

14. ln considered view of this Courl, the leamed counsel lor appellants lailcd to raise any substantial question of law to be decided by'this Court in this Second Appeal. In fact, all the grounds raised in this appcal are tactr.ral in nature and do not qualifo as the substantial cluestions of law in terms of Section 100 C.P.C.

15. It is well settled principle by a catena of decisions ol the Ilon'blc Apex Courl that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the findings on facts arrived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. I I i6. Furtlrer, in Gurtlev Kaur v. Kakil , the Apex Courl 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 100 I (2007) 1 Supreme Court Cases 546 l0 I,NA, J SA.No 189 of2024 C.P.C- is very lin-rited and it can be exercised only where a substantial question of larv is raised and falls for consideration.

17. Har, ins considered the entire material available on record and the findings recorded by the first Appellatc Court. this Court finds no grounrl or rclson waffanting interference with the sairl hndings, under Section I00 C.P.C. Moreover, the grounds raised by rhe appellant are factual in naturc and no question ol law, much l:ss a substantial question o1- lrlv arises, lor consideration in this Seconil Appeal.

18. Hence . the Second Appcal fails and the samt: is accordingly dismissed at thc stage oladmission. No costs. Pending nriscellaneous applications. ilany, shall stand closed. Sd/. N. CHT.NDRA SEKHAR RAO ASSiISTANT REGISTRAR ,TRUE COPY// G SECTION OFFICER 1 The Principal District Judge, Nagarkurnool 2. The Senior Civil Judge, Nagarkurnool 3 One CC to SRI M DAMODAR REDDY, Advocate [OPUC] 4. One CC to SRI D L PANDU, Advocate tOpUCl 5. Two CD Copies \ To, **,,,pp. I HIGH COURT DATED:1210612025 JUDGMENT SA.No.489 of 2024 -.1-----:=-- /.'.-1-+:;t.;r: - \.t.. 1 I lii 2025 -7_ .\l I I I I DISMISSING THE SECOND APPEAL AT THE STATE OF ADMISSION WITHOUT COSTS