THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.1237 of 2010 Date of Order: 03-12-2010 Between: 1.Konangi Ademma and others ..Appellants and 1. Yalagla Venkata Narasaiah and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.1237 of 2010 Oral Judgment: The unsuccessful plaintiffs in the courts below filed this Second Appeal aggrieved by the dismissal of A.S.No.16 of 2008 by the Senior Civil Judge, Nandigama by judgment and decree dated 30-06-2010 confirming the dismissal of suit-O.S.No.212 of 2002 filed for declaration of title and permanent injunction by the Principal Junior Civil Judge, Nandigama by judgment and decree dated 30-10-2008. The appellants/plaintiffs filed the suit for declaration and consequential permanent injunction. Late Konangi Venkatappaiah married Konangi Manikyamma as his 3rd wife. During their wedlock one Anjamma was born to them. The said Anjamma was married to one Yalagala Pullaiah. Defendants 1 to 3 are the sons of said Anjamma and Pullaiah. So, defendants 1 to 3 are maternal grand sons of Konangi Manikyamma w/o late Venkatappaiah. During the lifetime of Venkatappaiah he adopted one Konangi Ramaiah and kept him in his house and brought up as his adopted son. The 1st plaintiff is the wife, plaintiffs 2 and 3 and the 4th defendant are the daughters of Konangi Ramaiah. Venkatappaiah died 46 years back leaving behind wife—Manikyamma and his adopted son—Ramaiah as his legal heirs. After the death of Venkatappaiah disputes arose between Manikyamma and adopted son—Ramaiah regarding the properties and village elders and relatives have settled the dispute and decided to allot plaint schedule item Nos. 1 and 2 house sites to the Ramaiah and the vacant site i.e. Plot No.3 was allotted to Manikyamma along with cultivable and pasture lands. Since from the date of settlement they are enjoying the properties, which fell to their shares. Ramaiah died 12 years back leaving behind the plaintiffs and the 4th defendant as his legal heirs and Manikyamma died about 10 years back. On the death of Manikyamma, the defendants 1 to 3 who have no manner of right have been making false and illegal claims over the plaint schedule properties and threatening to occupy the same. Therefore, the present suit is filed for declaration. The 1st defendant filed written statement denying the averments made in the plaint. Defendants 2 to 4 filed a Memo adopting the same. It is stated that Konangi Venkatappaiah was the absolute owner of all the properties; after the death of his first wife he married one Manikyamma as 2nd wife and through her he had a daughter by name Anjamma. Since Venkatappaiah had no male issues, he adopted Ramaiah and performed his marriage with Seetharavamma, who died after begetting a son by name Narasimha Rao. After the death of his 1st wife—Seetharavamma, Ramaiah married the 1st plaintiff as second wife. The plaintiffs 2 and 3 and 4th defendant are the daughters of Ramaiah through his second wife—Ademma. After the death of Venkatappaiah, his wife—Manikyamma, daughter—China Anjamma and adopted son—Ramaiah partitioned the properties with metes and bounds. After partition Manikyamma resided with her daughter—China Anjamma till her death. Due to love ad affection over the defendants 1 to 3, Manikyamma executed a registered settlement deed on 21-09-1959 in their favour (D1 to D3) settling landed properties including plaint schedule properties keeping her life interest. As per the terms of settlement deed, defendants 1 to 3 are the absolute owners of Ac.0.10 cts. of house site and house therein; defendants’ grand mother—Manikyamma and her son— Ramaiah got equal shares (6 ½ cts. each) in Ac.0.13 cts. site. In that 13 cts. of land a well and thatched house was constructed during the life time of Venkatappaiah. Manikyamma allowed one Sannidhanam Narayana Murthy to live in that house which is situated in one cent site. The remaining Ac.0.12 cts. site was orally partitioned between Manikyamma and her adopted son— Ramaiah about 5 years back. In the partition half share along with thatched house was allotted to Manikyamma and western half share was allotted to Ramaiah. Sannidhanam Narayana Murthy vacated the house and handed over to the defendants. After the death of their grand mother about 10 years back, the defendants 1 to 3 are in possession and enjoyment of properties as absolute owners as per the settlement deed dated 21-09-1959. The defendants 1 to 3 lived in one house situated in Ac.0.10 cts. site which was shown in the settlement deed and the plaintiffs possession and enjoyment of Ac.0.10 cts. under item No.1 and Ac.0.5 cts. under item No.2 of the plaint schedule is not correct. The defendants are in possession and enjoyment of Ac.0.10 cts. and house therein and Ac.0.6 ½ cts. and a house out of Ac.0.13 cts. The house situated in Ac.0.10 cts. was collapsed about one year ago. The 3rd defendant constructed a terraced building about one year ago in Ac.0.10 cts. The plaintiffs filed the suit to grab the entire Ac.0.13 cts. under the colour of injunction order. The plaintiffs are having Ac.0.4 ½ cts. on the eastern side of defendants Ac.0.10 cts. and Ac.0.06 cts. only out of Ac.0.13 cts. The plaintiffs without disclosing the terms of settlement deed filed the suit to grab the entire Ac.0.13 cts. site. Basing on the above pleadings, necessary issues were settled by the trial court. On behalf of the plaintiffs P.Ws.1 to 4 were examined and Exs.A1 to A3 were got marked. On behalf of the D.Ws.1 to 3 were examined and Exs.B1 to B3 were marked. The trial court after taking into consideration the evidence on record held to prove the partition the plaintiffs have examined P.Ws.2 to 4, but they are not aware of the partition and about the properties fell to the share of Ramaiah and Manikyamma. The defendants admitted the case of the plaintiffs only to some extent. According to the plaintiffs, plaint schedule items 1 and 2 and some other properties were allotted to Ramaiah, whereas the defendants claimed that though item No.2 was allotted to Ramaiah item No.1 which is an extent of Ac.0.13 cts. was divided into two equal shares and Ramaiah and Manikyamma were allotted Ac.0.6 ½ cts. each with joint rights over the well; and Manikyamma executed a settlement deed in favour of defendants 1 to 3 in respect of that Ac.0.6 ½ cts. and some other sites and they are in possession and enjoyment of the same. Once the plaintiffs failed to establish the oral partition and title over item No.1 of schedule property, mere filing Exs.A1 to A3—house tax receipts, which relates to the house where they are residing i.e. item No.2 of plaint schedule property will not entitle them to claim declaration over that property. Once the plaintiffs failed to establish oral partition and title over item No.1 of plaint schedule property and the same was allotted to Ramaiah and after his death they are in possession, the plaintiffs are not entitled to declaration and injunction. In view of the above, the lower court rightly dismissed the suit. The lower appellate court on re-appreciation of evidence dismissed the appeal confirming the finding of the trial court. The concurrent findings recorded by the trial court as well as appellate court are based on appreciation of evidence which do not give rise any question of law, much less substantial question of law, to admit the Second appeal and it is accordingly dismissed at the admission stage. _________________ A.GOPAL REDDY, J. 03-12-2010 Murthy