THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1439 OF 2012 Date: 24-01-2014 Between Machineni Kesava Rao …..Appellant And Machineni Madhava Rao and five others …..Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA S.A No. 1439 OF 2012 JUDGMENT:
The unsuccessful appellant – plaintiff filed this second appeal against judgment dated 10-02-2010 in A.S No. 233 of 2006 on the file of the learned VII Additional District Judge (Fast Track Court), Vijayawada, confirming the judgment and decree dated 30-06-2006 passed by the learned I Additional Senior Civil Judge, Vijayawada in O.S No. 135 of 1997.
For the sake of convenience, the parties are referred to as ‘plaintiff’ and ‘defendants’.
The plaintiff filed suit O.S No. 135 of 1997 for partition and separate possession of the suit schedule property and for allotment of one-fourth share to him and for profits from the date of suit till the date of delivery of possession. Initially the suit was filed against the 1st defendant and thereafter, defendant Nos.2 and 3 were added.
It was the case of the plaintiff that himself and defendant No.1 are sons of Machineni Ramayya who died intestate on 27-12-1994. Their father had inherited the suit schedule property from his father Subbayya and, thus, the suit schedule property is ancestral property of himself, defendant Nos.1 to 3 and their father. The suit schedule property was retained by their father for his maintenance and since he died intestate, the plaintiff and defendant Nos.1 to 3 have acquired rights over the plaint schedule property. The plaintiff demanded defendant No.1 for partition of the suit schedule property and got issued legal notice dated 04-03-1996 which according to the plaintiff was replied with false allegations. The plaintiff has also got issued rejoinder notice dated 26- 03-1996 and since the defendant did not cooperate with the plaintiff for partition, the suit was filed.
Defendant No.1 filed written statement admitting his relationship with the plaintiff but denied that the suit schedule property is their joint family property. It is his case that partition of joint family properties took place between himself, the plaintiff and defendant Nos.2 and 3 vide partition list dated 25-04-1969 and that their father was given Ac.1.00 cents of wet land situated in Done Atkuru Village. According to defendant No.1, during his life time, their father executed registered Will dated 25-01-1981 in a sound and disposing state of mind bequeathing the same to defendant No.2 who took possession of the land and is in absolute possession of the same. It is also the case of defendant No.1 that in terms of partition list dated 25-04-1969, the suit schedule property fell to the share of defendant No.3 and after partition, defendant No.3 is said to have sold the same to defendant No.1 for a valuable consideration of Rs.24,000/- in the year 1975 and delivered possession to him and ever since he is in enjoyment of the suit schedule property. Though he did not obtain registered sale deed from defendant No.3, pattadar pas books were issued in his favour in respect of the plaint schedule property in recognition of his rights of ownership. According to defendant No.1, the plaintiff had voluntarily signed the partition list and that the suit schedule property was never enjoyed by them jointly.
On the basis of the above pleadings, the trial Court framed the following issues:
1) Whether the plaintiff is entitled for partition of the plaint schedule property as prayed for?
2) Whether the suit is barred for non-joinder of necessary parties?
3) Whether the suit relief is not properly valued and Court fee paid is not correct?
4) To what relief?
During the course of trial, on behalf of the plaintiff PWs 1 to 4 were examined and Exs.A-1 to A-8 were got marked and on behalf of the defendants, DWs 1 to 3 were examined and Exs.B-1 to B-47 were got marked.
The trial Court after hearing both sides and on an evaluation of the evidence available on record, dismissed the suit holding that since the suit schedule property was already partitioned, the plaintiff is not entitled to partition.
Aggrieved by the judgment and decree passed by the trial Court, the plaintiff carried the matter in appeal before the VII Additional District Judge , Vijayawada which was also dismissed confirming the judgment and decree passed in the suit. Hence, this second appeal by the plaintiff.
Heard the learned counsel for the appellant – plaintiff and perused the material available on record.
Admittedly, the plaintiff and the defendants are brothers and sisters and the suit schedule property is their ancestral property. It is the case of the plaintiff that the suit schedule property was retained by their father for his maintenance and that since their father died on 27- 12-1994 intestate, himself and the defendants acquired rights over the suit schedule property and that he is entitled to one-fourth of his share. Whereas, it is the case of the defendants that the suit schedule property is not the joint family property and that partition of the joint family properties took place as per partition list dated 25-04-1969 and in terms of the partition list, the suit schedule property fell to the share of defendant No.3 and after partition, defendant No.3 is said to have sold away the same to defendant No.1 for a total sale consideration of Rs.24,000/- in the year 1975 and since then defendant No.1 is in possession and enjoyment of the suit schedule property.
In order to prove his case that the suit schedule property is the joint family property and that he is entitled to a share in it, the plaintiff got examined PWs 2, 3 and 4. PW 3 in his cross examination categorically admitted that the plaintiff and defendant No.1 partitioned their properties in the year 1969 but he cannot say which property fell to the share of defendant No.1. PW 3 also deposed that he does not remember as to when the plaintiff, defendant No.1 and their father partitioned their properties. Even PW 4 clearly and categorically admitted that the plaintiff, defendant No.1 and their father partitioned their properties in the year 1969, that defendant Nos.2 and 3 were also parties to the document and that he saw the document that plaintiff, defendant No.1 and their father partitioned.
Defendant No.1 examined himself as DW 1 and marked Exs.B- 1 to B-47. Ex.B-45 is the registered partition list dated 25-04-1969. When once the witnesses examined on behalf of the plaintiff clearly and categorically stated that partition took place between the plaintiff, defendant No.1 and their father and since defendant No.1 proved his case by filing necessary documents on his behalf, the trial Court rightly dismissed the suit disbelieving the version of the plaintiff. The lower appellate Court on re-appreciation of the evidence rightly dismissed the appeal confirming the dismissal of the suit. The findings so arrived at by the Courts below are on appreciation of both oral and documentary evidence. In view of the concurrent findings of facts by the Courts below on a cogent and careful consideration of the evidence, no question of law, much less any substantial question of law arises for consideration in this second appeal.
It is well settled that under Section 100 CPC jurisdiction of this Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on this Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.
The second appeal is accordingly dismissed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 24-01-2014 ks