THE HONOURABLE SRI JUSTICE GODA RAGHURAM S.A.No.354 and 396 OF 2010 03-09-2010 Between: E.V.Ramana Reddy and others ..Appellants Vs. Chitturi Padmavathamma W/o Venkata Subba Reddy …Respondent. THE HONOURABLE SRI JUSTICE GODA RAGHURAM S.A.Nos.354 and 396 OF 2010 ORAL COMMON JUDGMENT: Second Appeal No.354 of 2010 is preferred against the judgment and decree dated 22-11-2001 in O.S.No.26 of 1993 of the learned Junior Civil Judge, Giddalur as confirmed by the VI Additional District Judge, Markapur by the judgment in A.S.No.181 of 2007, dated 18-12-2009. The respondent herein had filed O.S.No.26 of 1993 for declaration of her right and title and consequential permanent injunction restraining the appellants herein from interfering with her possession and enjoyment of, the plaint schedule property. The suit was decreed on 22-11-2001 and the trial court declared the title of the respondent herein to the plaint schedule property and granted her permanent injunction as sought. Aggrieved thereby, the appellants herein preferred A.S.No.181 of 2007. The appeal was also rejected. Thus the second appeal. S.A.No.396 of 2010: The appellants, 1 and 2 of whom are also the appellants in S.A.No.354 of 2010 assail the judgment and decree dated 07-12- 2009 in A.S.No.251 of 2007 of the learned VI Additional District Judge, Markapur confirming the judgment and decree dated 09-11- 2006 in O.S.No.428 of 1998 of the learned Junior Civil Judge, Giddalur. The property, which is the subject matter of O.S.Nos.26 of 1993 and 428 of 1998, is one and the same. The plaintiff in O.S.No.26 of 1993 is the 2nd defendant in O.S.No.428 of 1998. In O.S.No.26 of 1993 the plaintiff Chitturi Padmavathamma claimed declaration of title and a permanent injunction against the appellants herein asserting that her mother Veeramma wife of Kota Reddy, the original exclusive owner of the plaint schedule property, obtained a right to the plaint schedule property under a registered relinquishment deed executed by the mother in favour of Kota Reddy, her father. It is further pleaded that the mother Veeramma obtained possession of the plaint schedule property from her husband and had been in possession and enjoyment thereof since 1958 and Veeramma became old and Padmavathamma was looking after her mother. Veeramma executed a registered gift settlement deed in favour of the plaintiff Padmavathamma on 30-09-1992 and delivered possession of the property to her. It was further claimed that she acquired absolute right over the plaint schedule property under the Hindu Succession Act,1956 in view of the registered relinquishment deed dated 19- 01-1959 executed by the father Kota Reddy in favour of her mother Veeramma; that the defendants (the appellants herein) have no manner of right to the plaint schedule property since they are children of Kota Reddy’s brother and the property is the exclusive property of Kota Reddy and not a joint family property in which Kota Reddy’s brother Papi Reddy has any right. In defence, the first appellant herein filed a written statement. The execution of the relinquishment deed dated 19-01-1959 by the mother-Veeramma is denied and the execution of the gift settlement deed dated 30-09-1992 executed by Veeramma in favour of Padmavathamma is also denied, as also the possession and enjoyment of Veeramma and later the plaintiff- Padmavathamma over the suit schedule property. The defendants while ambiguously claiming a right over the property through Kota Reddy, alternatively claimed to have perfected their title over the suit schedule property by adverse possession. Further, according to the written statement, the marriage between Kota Reddy and Padmavathamma’s mother Veeramma is admitted. It is however contended that since the marriage, which took place before Veeramma attaining puberty, Veeramma did not join Kota Reddy’s conjugal company but remained with her parents and she also had an adulterous relationship through which the Padmavathamma was born. As Veeramma did not join the company of her husband Kota Reddy unreasonably she was disentitled to maintenance and therefore the plaintiff-Padmavathamma cannot derive any title under the gift settlement deed dated 30-09-1992 executed by Veeramma in favour of plaintiff-Padmavathamma as well. The trial court in analyzing the evidence in respect of the issue whether the plaintiff- Padmavathamma was entitled to a declaration of her title and for injunction concluded that: admittedly the 1st defendant the deceased Papi Reddy and Kota Reddy were brothers; the plaintiff-Padmavathamma’s mother Chinna Veeramma was also admittedly married to Kota Reddy some where around 1945; after the institution of the suit, Kota Reddy’s brother Papi Reddy died and defendant Nos.2 and 3 who are the sons of Papi Reddy continued the proceedings; the defendants specifically admitted the possession and enjoyment of Veeramma in respect of item Nos.1 and 3 of the plaint schedule properties but claimed the same to be a permissive possession; the principal contention of the defendants is that the marriage between Veeramma and Kota Reddy was not consummated and therefore the marriage stood repudiated; the defendants failed to establish the alternative plea of having acquired title to the plaint schedule properties by adverse possession; the defendants did not adduce any evidence to establish the failure of consummation of marriage between Kota Reddy and Veeramma and therefore the plaintiff- Padmavathamma must be presumed to be the daughter of Kota Reddy; that Veeramma became the absolute owner of the suit schedule properties in view of the provisions of Section 14(1) of the Hindu Succession Act,1956; that the defendants’ claim that Veeramma is only in permissive possession of items 1 and 3 of the suit schedule properties is a plea without any basis; that the properties are in possession of the plaintiff-Padmavathamma and her mother Veeramma and therefore the plaintiff is entitled to declaration of title and permanent injunction. In the appeal thereagainst, the learned VI Additional District Judge, Markapur by the judgment dated 18-12-2009 while rejecting the appeal of the appellants herein concurred with the conclusion of the trial court with regard to the Padmavathamma’s title and possession and the conclusion with regard to the grant of permanent injunction. The lower appellate court held that the contention of the defendants that since Veeramma had lead an adulterous life, she had no right of maintenance and therefore cannot acquire absolute rights under Section 14(1) of the Hindu Succession Act, was a plea which was not established through any reliable evidence except the oral assertion of DWs.1 and 2. The appellate court concurred with the trial court that DW.1 was of tender age by the time of the alleged affair of Veeramma and therefore his testimony with regard to the adulterous life of PW.2 cannot be relied upon; similarly the assertion on behalf of the defendants on the basis of the testimony of DW.1 and 2 denying the paternity of Padmavathhama through Kota Reddy was also not liable to be given credence as no cogent evidence having probative value was led to displace the presumption of Padmavathamma’s paternity under Section 112 of the Indian Evidence Act,1872 and no case was thus made out for appellate interference. As already recorded S.A.No.396 of 2010 arises out of the judgment and decree dated 09-11-2006 in O.S.No.428 of 1998 as confirmed in A.S.No.251 of 2007 by the judgment and decree dated 07-12-2009. The appellants had filed this suit for eviction of Veeramma and Padmavathamma (defendants therein) and for re- delivery of possession to them and for a permanent injunction restraining these defendants from interfering with item No.2 of plaint schedule property, for mesne profits and other incidental reliefs. In the plaint in O.S.No.428 of 1998 the appellants herein specifically pleaded that the plaint schedule properties belong to Kota Reddy and that they are sons of his brother Papi reddy. The marriage between Kota Reddy and Veeramma in or about the year 1945 is also specifically pleaded in the plaint. It is however alleged that Veeramma did not join the conjugal company of Kota Reddy but lived in adultery. On account of the same, Veeramma lost her right to maintenance against Kota Reddy under Section 18(3) of the Hindu Adoptions and Maintenance Act,1956. It was also pleaded that Veeramma had executed a registered relinquishment deed on 19-01-1959 in favour of Kota Reddy relinquishing her right to other properties of Kota Reddy except the suit schedule property. But however she executed a registered settlement deed in respect of suit schedule property in favour of Padmavathamma through a registered settlement deed dated 30-09-1992. Since Veeramma did not have a right of maintenance in view of her adulterous life, she was not entitled to convey any title in respect of Kota Reddy’s properties, in favour of Padmavathamma as well. The trial court principally rejected the suit on the ground that it was barred by res judicata in view of the judgment and decree in O.S.No.26 of 1993. The judgment and decree of the trial court in O.S.No.428 of 1998 does not disclose that either of the parties brought to the notice of the trial court the fact of an appeal pending against the judgment and decree in O.S.No.26 of 1993. The entire discussion proceeded on the basis that the judgment and decree in O.S.No.26 of 1993 had become final. Aggrieved thereby, the appellants herein/the defendants in O.S.No.428 of 1998 preferred A.S.No.251 of 2007. In the grounds of appeal however, the judgment of the trial court was assailed inter alia on the ground that there was an error in rejecting the suit on the basis of a plea of res judicata in the context of A.S.No.181 of 2007 pending against the judgment and decree in O.S.No.26 of 1993. While rejecting the appeal by the judgment and decree dated 07-12-2009, the lower appellate court also affirmed the judgment and decree in O.S.No.428 of 1998 to the extent the suit was rejected, on the ground that it was barred by res judicata in view of the judgment and decree in O.S.No.26 of 1993. The rejection of the appeal on the ground of the bar of res judicata is a clearly erroneous finding since an appeal against the judgment and decree in O.S.No.26 of 1993 was pending. There is no question of said judgment and decree having become final to operate to bar the claim of the appellants/the plaintiffs in O.S.No.428 of 1998, even though they were parties (defendants) to O.S.No.26 of 1993 and in respect of the same properties and the cause of action also being substantially similar. The lower appellate court also rejected the appeal on the ground that the plaintiffs failed to establish prima facie title or possession to the property nor did establish their claim that Chinna Veeramma the widow of Kota Reddy was in permissive possession of items 1 and 3 of the suit schedule properties. The case of the appellants herein as the defendants in O.S.No.26 of 1993 and the plaintiffs in O.S.No.428 of 1998 proceeded on a fundamentally fallacious premise on account of their confused pleadings and unwarranted assumptions as to the applicable principles of law. The confusion was confounded by the inadequate and deficient adversarial forensic efforts of the plaintiff in O.S.No.26 of 1993 and the defendants in O.S.No.428 of 1998/the respondents herein as well. Admittedly the suit schedule property in O.S.Nos.26 of 1993 and 428 of 1998 is the same and is the exclusive property of Kota Reddy, notwithstanding some ambiguous plea that it was held jointly with Papi Reddy’s brother of Kota Reddy, till Kota Reddy’s death in 1979. There is not a scintilla of pleading to support the vague claim, of the appellants herein that the property jointly belonged to their father Papi Reddy and his brother Kota Reddy, nor was there a plea that it was an ancestral property. In the context of the ambiguous pleadings and in the context of the specific averment in O.S.No.428 of 1998 (that the property belongs to Kota Reddy) the inference is irresistible that it is the admitted case of the appellants herein that the property is the exclusive property of Kota Reddy. Kota Reddy was married to Chinna Veeramma, the 1st defendant in O.S.No.428 of 1998 and that Padmavathamma (the 2nd defendant in O.S.No.428 of 1998 and the plaintiff in O.S.No.26 of 1993) is the daughter of Chinna Veeramma (whether or not through Kota Reddy) is also not in dispute. Irrespective of whether Veeramma acquired a limited right which later enlarged into an absolute right under Section 14(1) of the Hindu Succession Act,1956 ( in respect of the same suit schedule property, in both the suits), the fact remains that in view of the fact that the property are Kota Reddy’s exclusive property; in view of the undisputedly subsisting marital relationship between Kota Reddy and Chinna Veeramma; in the light of the undisputed factum of Kota Reddy having died in 1979 leaving behind his widow Chinna Veeramma, Chinna Veeramama becomes entitled to the property through intestate succession to Kota Reddy under the provisions of the Hindu Succession Act,1956 as a Class.I heir of Kota Reddy. The appellants herein neither pleaded nor even remotely established any legitimate and legally plausible claim to succession to the estate of Kota Reddy under any law brought to the notice of this court or to the notice of the courts below i.e., trial court or the lower appellate court. Their claim to having acquired title to the property by adverse possession was negatived by both the courts in respect of the suits and in respect of the appeals. Once Chinna Veeramma, the widow of Kota Reddy acquired title to the property by operation of law by intestate succession on the demise of Kota Reddy, the property becomes her exclusive property and how she deals with it is of no concern to the appellants herein. In view of the true position of law on the ambiguous facts pleaded, as analysed herein above, the substantive conclusions recorded in O.S.No.26 of 1993 qua the judgment and decree dated 22-11-2001 and in O.S.No.428 of 1998, dated 09-11-2006 as confirmed by the judgment of the lower appellate court dated 18-12-2001 in A.S.No.181 of 2007 and dated 07-12-2009 in A.S.No.251 of 2007, suffer from no infirmity warranting interference in these Second Appeals as no substantial question of law arises for consideration, warranting second appellate interference. The appellants have no manner of right, title or claim to the suit schedule properties nor are they entitled to interfere with the possession and enjoyment of the Chinna Veeramma or Padmavathamma in respect of the suit schedule properties. The findings in O.S.No.428 of 1998 as confirmed in A.S.No.251 of 2007 that the said suit O.S.No.428 of 1998 is barred on account of the judgment and decree dated 22- 11-2001 in O.S.No.26 of 1993 is however fallacious as an appeal thereagainst was pending in A.S.No.181 of 2007. The appellants herein have however failed to make out any case for interference against the substantive conclusion and the relief granted namely of declaration of title and injunction in favour of Padmavathamma and Chinna Veeramma warranting interference in these second appeals. These appeals are without merits and are accordingly dismissed at the stage of admission after hearing Sri V.Mallik, the learned counsel for the appellants and Sri K.Raja Reddy, the learned counsel for the respondents. There shall however be no order as to costs. _______________ GODA RAGHURAM,J 3rd SEPTEMBER 2010 TSNR