IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE EIGHTH (8TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.466 of 1997 Between: Komineni Chinna Linganna & others … Appellants And: Jupalli Swami Reddy & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY SECOND APPEAL No.466 of 1997 JUDGMENT: This second appeal is directed against the judgment dated 28.10.1996 in AS No.31 of 1993 on the file of the III Additional District Judge, Kurnool, wherein the said appeal filed by the appellants herein, was dismissed, confirming the judgment and decree in OS No.49 of 1982 dated 03.03.1993 on the file of the Subordinate Judge, Nandyal, wherein, the suit filed by the appellants herein/plaintiffs for declaration and permanent injunction, was dismissed. 2. Heard both sides. Perused the record. 3. The first appellant herein, originally filed suit for declaration of title in respect of plaint schedule lands of 75 cents in Sy.No.762, 42 cents in Sy.No.763 and 29 cents in Sy.No.764 of Panyam village of Nandyal Taluq and for permanent injunction restraining the respondents/defendants from interfering with his possession and enjoyment of the same and in the alternative for recovery of possession. The total extent of lands in Sy.No.762 is Ac.6.70 cents, Sy.No.763 is 55 cents and Sy.No.764 is 39 cents, respectively. According to the first plaintiff, his father Komineni Linganna had 3/4th share in the above lands and his father’s sister Kadugu Lingamma had 1/4th share. K.Lingamma, under Ex.B.8 registered gift deed dated 23.08.1957 settled her 1/4th share in favour of Pedda Subbarayudu-DW.2 and his brother Chinna Subbarayudu, who were her grand sons through her daughter. On the same day, she also executed Ex.B.9 registered settlement deed giving life estate in another 1/4th share out of the above three survey numbers to her second daughter Munemma and her husband and vested reminder to her grand sons, DW-2 and his brother Chinna Subbarayudu. Munemma and her husband died one year later and the vested reminder devolved on DW.2 and his brother. Thus, DW.2 and his brother came to acquire half share in the above three survey numbers under Exs.B.8 and B.9. They sold the said half share to 3rd defendant under Ex.B.7 registered sale deed dated 30.06.1967 and delivered possession to him. The first defendant purchased 39 cents in Sy.No.764, 46 cents in Sy.No.763 under Ex.B.2 registered sale deed dated 07.05.1982 and also purchased 43 cents in Sy.No.762 under Ex.B.3 sale deed dated 11.05.1982 from the 3rd defendant. The 2nd defendant is the wife of first defendant and she purchased Ac.2.00 in Sy.No.762 from 3rd defendant under registered sale deeds dated 11.05.1982 under Exs.B.2 and B.5. Thus, half share in the above three survey numbers was acquired by DW.2 and his brother under Exs.B.8 and B.9 was ultimately purchased by defendants 1 and 2 under Ex.B.2 sale deed dated 07.05.1982. The first plaintiff alleges that his father’s sister K Lingamma had only 1/4th share in the total extent in the above three survey numbers and that she alienated excess land to an extent another 1/4th share, which she was not entitled to, in favour of her grand sons DW.2 and his brother and therefore, all subsequent transactions in respect of the excess 1/4th share covered by registered sale deeds Exs.B.6, B.2 to B.5 are illegal and the alieanees never got possession of the excess 1/4th share and the alleged alienations in favour of defendants 1 and 2 are not binding on him. Hence, the suit for declaration of title in respect of the said 1/4th share out of the total extent and for permanent injunction and in the alternative for recovery of possession. 4. The defendants 1 to 3 filed written statement, contending that Exs.B.8 and B.9 are also valid and binding on the first plaintiff and consequently, Exs.B.6, B.2 to B.5 are also valid and binding and that the first plaintiff was never in possession of the plaint schedule lands. Subsequently, defendants 1 and 2 filed counter- claim pleading that subsequent to the suit, the first plaintiff tress passed in to the land covered by Exs.B.2 to B.5 and sought for declaration of their title for the said extent and also for recovery of possession. During pendency of the suit, 3rd defendant died and his legal representatives were impleaded as Defendants 4 to 10. One Tamballa Muruga Pani, filed suit in OS No.297 of 1976 before the Principal District Munsif, Nandyal, against 3rd defendant and one of his sons Venkata Subbaiah (D.9) for recovery of debt on a promissory note. The suit was decreed against 9th defendant herein, though it was dismissed against 3rd defendant on the ground that he was a small farmer. The decree-holder in OS No.297 of 1976 filed EP No.166 of 1979 for recovery of the decree debt. The 11th defendant herein-Tamballa Chandraiah purchased 1/3rd share of 9th defendant in the Court auction on the premise that they were the joint properties of 3rd defendant and his two sons-9th and 10th defendants. The sale was confirmed and the sale certificate was issued on 06.05.1981 by the Principal District Munsif Court, Nandyal. Thus, 11th defendant came to be added to the present suit. The first plaintiff alleges that even, this execution of sale in favour of 11th defendant is not binding on him. The 11th defendant-Court auction purchaser filed OS No.577 of 1981 before the District Munsif, Nandyal for partition and recovery of his 1/3rd share and impleaded the defendants 1 and 2 and also 3rd defendant. OS No.577 of 1981 was transferred to the Subordinate Judge, Nandyal and re-numbered as OS No.59 of 1987 and the same was also tried along with OS No.49 of 1982. According to 11th defendant, the properties covered under Ex.B.6 sale deed, were the joint properties of 3rd defendant and his two sons and so, he acquired 1/3rd share therein by virtue of court auction sale. The defendants 1 and 2 on the other hand contended that the said properties covered by Ex.B.6 under which, 3rd defendant purchased his absolute properties and the court auction sale in respect of 1/3rd therein in favour of 11th defendant is invalid and not binding on them. 5. In OS No.49 of 1982, the trial court framed the following issues and additional issues. 1. Whether the plaintiff’s father Komineni Linganna had three fourth share in the full extent of which the suit schedule items 1 to 3 are parts or whether he had half share only in them? 2. Whether the plaintiff was in possession of the suit schedule items 1 to 3 on the date of suit having title thereto? 3. Whether the plaintiff is entitled to the declaration and either of the alternative reliefs sought by him? 4. To what relief? Additional Issues: 1. Whether the plaint schedule property was self acquisition of 3rd defendant? 2. Whether the defendants 1 and 2 purchased the suit property from the 3rd defendant? If so, whether it is binding on plaintiff? 3. Whether the sale of undivided one third share in the plaint schedule lands in favour of 11th defendant in Court auction sale on 19.02.1981 in EP No.166 of 1979 in OS No.296 of 1975 on the file of the Principal District Munsif’s Court, Nandyal is binding on the plaintiff? 4. Whether the defendants 4 to 10 are necessary parties to this suit? On 27.11.1992, the following additional issues were also framed. 1. Whether the defendants 1 and 2 are entitled for a declaration of their title and possession of the plaint schedule properties in accordance with their counter claim? 2. Whether the counter claim filed on behalf of the defendants 1 and 2 is barred by limitation? 6. During trial, first plaintiff was examined as PW.1 and Exs.A.1 to A.34 were marked on his side. DWs.1 to 7 were examined and Exs.B.1 to B.21 were marked on behalf of the defendants. On a consideration of the evidence on record, the trial Court held that the first plaintiff’s father Linganna had only half share in the entire extent in the three survey numbers and the plaintiff has not been in possession and enjoyment of the plaint schedule items 1 to 3 as he had no title over the same and so, the first plaintiff is not entitled for declaration of title or for injunction or for recovery of possession. On Additional Issue No.1, the trial Court held that there is no evidence to establish that the plaint schedule items are the self acquired properties of 3rd defendant; on additional issue No.2, it was held that the entire sale of land by 3rd defendant in favour of first defendant and 2nd defendant is valid and binding on the first plaintiff. On additional Issue No.3, it was held that the purchase of 1/3rd share of 3rd defendant by the 11th defendant is binding on the plaintiff. On additional issue No.4, it was held that the 3rd defendant is a proper and necessary party and consequent to his death, his legal representatives, defendants 4 to 10, have become necessary parties to the suit. On additional Issue No.1 framed on 27.11.1992, it was held that even the defendants 1 and 2 are not entitled for declaration of title and possession in regard to their counter-claim in this suit, since the same depends on the result of the suit filed by 11th defendant in OS No.59 of 1987; on additional Issue No.2 framed on 27.11.1992, it was held that the issue does not arise in the present suit in view of the findings on the earlier issue No.1. Consequently, the suit OS No.49 of 1982 originally filed by the first plaintiff was dismissed and the counter claim of defendants 1 and 2 was also dismissed. 7. Aggrieved by the dismissal of the suit, plaintiffs filed AS No.31 of 1993 and aggrieved by the dismissal of the counter claim, defendants 1 and 2 filed AS No.24 of 1993. The learned III Additional District Judge, Kurnool, by impugned common judgment, dismissed AS No.31 of 1993 and confirmed the dismissal of the suit and allowed AS No.24 of 1993 and granted preliminary decree declaring that the defendants 1 and 2 are owners of the extent, which is subject matter of the counter-claim and they are entitled for possession of the same and the question of mesne profits shall be decided separately on the application made by the defendants 1 and 2, but it is made clear that the defendants 1 and 2 shall hold the entire lands covered by their sale deeds i.e., Exs.B.2 to B.5, including the land covered by the counter-claim subject to the result of AS No.18 of 1993. 8. Assailing the dismissal of AS No.31 of 1993, plaintiffs filed the present second appeal. After the death of first plaintiff, his legal representatives were impleaded as plaintiffs 2 to 5, as appellants 2 to 5 herein. During pendency of this appeal, 11th defendant died and his legal representatives were impleaded as respondents 13 to 16. 9. In the impugned judgment, the learned III Additional District Judge, framed the points for consideration as under: 1. Whether the deceased-first plaintiff and through him the other plaintiffs who are his legal representatives are able to establish their title to the plaint schedule lands? 2. Whether Exs.B.8 and B.9 settlement deeds and Ex.B.6 sale deed and Exs.B.2 to B.5 sale deeds are not valid and binding on plaintiffs and if so whether plaintiffs are entitled to the perpetual prohibitory injunction or in the alternative the relief of possession of plaint schedule lands as claimed? 3. Whether the first plaintiff trespass and occupied Ac.1.45 cents of land covered by Exs.B.2 to B.5 sale deeds after the suit and whether defendants 1 and 2 are entitled to the possession of the same as pleaded in their counter-claim? 4. To what relief? 10. On re-appraisal of the evidence on record, it was held that the plaintiffs failed to establish their title in respect of the plaint schedule lands; on point No.2, it was held that the 3rd defendant was in possession and enjoyment of the share of Pedda Subbarayudu and Chinna Subbarayudu and Ex.B.6 sale deed in favour of 3rd defendant is valid; on point No.3 it was held that the counter-claim of defendants 1 and 2 shall be up-held subject to the result of dispute between them, which is adjudicated in AS No.18 of 1993 and consequently, AS No.31 of 1993 was dismissed and AS No.24 of 1993 was allowed. Aggrieved by the dismissal of AS No.31 of 1993, the appellants/plaintiffs filed the present second appeal. 11. PW.1-deceased first plaintiff admitted in the cross- examination that the 3rd defendant has been in possession and enjoyment of the plaint schedule lands since 16 years prior to 1983 and the said admission, as rightly observed by the Courts below, supports the case of 3rd defendant that he has been in possession and enjoyment of the plaint schedule lands by virtue of Ex.B.6 registered sale deed dated 30.06.1967 from Pedda Subbarayudu and Chinna Subbarayudu. PW.1 also admitted that his paternal aunt Lingamma was living along with his father in the same family ever since her husband’s death. When that is so, the execution of Exs.B.8 & B.9 by Lingamma in favour of her grand sons Pedda Subbarayudu and Chinna Subbarayudu cannot escape the attention of her brother i.e., father of PW.1. In fact, Exs.B.8 and B.9 were acted upon, as the beneficiaries i.e., Pedda Subbarayudu and Chinna Subbarayudu, mortgaged under Ex.B.10 mortgage deed, the same lands along with the limited estate holder under Ex.B.9 settlement deed i.e., Lingamma’s 2nd daughter and her husband. The Courts below rejected the contention of PW.1 that he came to know about Exs.B.8 and B.9 for the first time only at the time of giving evidence, inasmuch as his paternal aunt lived with him under the same roof till her death. The truth of execution of Exs.B.8 and B.9 was established by evidence of DW.3 one of the attestors. Though Exs.B.8 and B.9 settlement deeds were executed in the year 1967, first plaintiff chose to file suit in 1982 about 24 years after execution of the settlement deed by Lingamma in favour of her grand sons Pedda Subbarayudu and Chinna Subbarayudu. 12. Admittedly, PW.1’s father Linganna and his paternal aunt Lingamma were only the legal heirs in respect of entire extents covered by Sy.Nos.762, 763 and 764. Though the plaintiff sought to contend that the extent of Ac.6.70 cents in Sy.No.762 alone belong to his father’s maternal grand father Narappa, who executed a gift deed in favour of his two grand children i.e., PW.1’s father and paternal aunt Lingamma, conveying half share each and that the other two survey numbers 763 and 764 belong to his father. The said plea was rejected by the Courts below for want of any evidence. The evidence on record, particularly, acquiescence of PW.1 that his paternal aunt Lingamma executed Exs.B.8 and B.9 settlement deeds in favour of her grand sons Pedda Subbarayudu and Chinna Subbarayudu and the silence on the part of PW.1 for over 24 years in not questioning either Exs.B.8 and B.9 settlement deeds or subsequent alienations by Pedda Subbarayudu and Chinna Subbarayudu in favour of 3rd defendant under Ex.B.6 clearly established that the entire lands in all the three survey numbers were inherited by PW.1’s father and paternal aunt in equal shares, though it was not clear from the record as observed by the learned Additional District Judge as to when the succession opened up to the estate of Narappa. PW.1 categorically admitted that his paternal aunt and subsequently her grand sons, Pedda Subbarayudu and Chinna Subbarayudu and their successors in interest i.e., 3rd defendant enjoyed half share of the entire suit Survey numbers for 24 years. The evidence on record also establishes the truth and validity of Exs.B.8 and B.9 in favour of Pedda Subbarayudu and Chinna Subbarayudu and the alienations in favour of 3rd defendant under Ex.B.6. It follows that the alienations in respect of part of the entire extent of three survey numbers in favour of defendants 1 and 2 under Exs.B.2 to B.5 is also unassailable. As rightly observed by the Courts below Exs.A.1 to A.19 land revenue receipts and Exs.A.19 and A.21 Ryotwari pattas did not establish the claim of the plaintiff in respect of the alleged excess extent, inasmuch as, first plaintiff- PW.1 was admittedly having half share in the same survey numbers and therefore, those documents do not in any way help the case of the plaintiff. Above all, there is absolutely no iota of evidence as to how the first plaintiff-PW.1’s father Linganna came to acquire 3/4th share in the entire land covered by three survey numbers. There is absolutely no basis laid either in the plaint for the said claim nor the same is substantiated in the evidence. In the absence of the same, the very claim of the first plaintiff that Lingamma (paternal aunt of PW.1) had only 1/4th share and she alienated another 1/4th extent in excess, remains totally baseless and unsubstantiated. As the plaintiff failed to establish their claim of title in respect of the alleged excess extent equivalent to 1/4th share of the total extent, which became part of the property alienated by Lingamma, it was rightly held by the courts below that the plaintiffs are not entitled for declaration of title or for recovery of possession or injunction in respect of the same. 13. The entire case revolved on the question as to whether PW.1’s father Linganna and paternal aunt Lingamma were having equal extents i.e., half share each in the entire extent in three survey numbers 762 to 764 as contended by the defendants or PW.1’s father Linganna was having 3/4th share and paternal aunt Lilngamma was having 1/4th share as claimed by the plaintiffs. It was basically a question of fact that was answered by the Courts below against the plaintiffs and in favour of the defendants on proper appreciation of oral and documentary evidence available on record. The said concurrent findings recorded by the courts below on the question of fact do not call for any interference in the second appeal in the absence of any question of law, much less substantial question of law arising there from. 14. In ‘Hero Vinoth v. Seshammal[1]’, the apex Court held as follows: “Though the scope for interference with concurrent findings of fact while exercising jurisdiction under S. 100, CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under S. 100, CPC after formulating a substantial question of law.” 15. In ‘P.Chandrasekharan v. S.Kanakarajan’[2] the apex Court held that there cannot be any doubt whatsoever that a substantial question of law is different from a question of law. 16. In the present case also, no question of law much less substantial question of law arises for consideration. In the light of the principles laid down by the Apex Court in the above decisions and in view of the concurrent findings recorded by the Courts below on a question of fact and no substantial question of law arising there from, it must be held that there are no merits in the second appeal. 17. In the result, the second appeal is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 08.06.2011 bss [1] (2006) 5 SCC 545 [2] (2007) 5 SCC 669