HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1536 OF 2011 DATED 28TH December, 2011 BETWEEN Nagidi Venkata Krishna Rao andors …….Appellants and Revu Radha Krishna and anr …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1536 OF 2011. JUDGMENT: The unsuccessful claimants/petitioners filed this appeal under Section 100 CPC aggrieved by the judgment and decree dated 16.03.2011 in A.S.No. 115 of 2009 on the file of the learned III Additional District Judge (Fast Track Court), Bhimavaram, confirming the order and decree dated 17.04.2009 passed by the learned Senior Civil Judge, Bhimavaram, in E.A.No. 143 of 2006 in E.P.No. 132 of 2004 in O.S.No. 103 of 2001. The appellants 1 to 3 are sons and appellants 4 to 7 are daughters of the second respondent/J.Dr. The first respondent herein is the Decree Holder. The appellants herein filed the aforesaid claim petition, i.e. E.A.No. 143 of 2006 to declare that the appellants/claim petitioners have got right, title and interest in the plaint schedule property which was sought to be attached in E.P.No. 132 of 2004 in O.S.No. 103 of 2001 for sale in order to realize the decreetal amount. It was the case of the appellants before the trial Court that the EP schedule property, which is ancestral and joint Hindu family property of the appellants, second respondent and his brother, Gopalarao, fell to the share of the appellants; and that the first and second respondent colluded each other and concocted partition deed dated 13.6.1998 to grab the EP schedule property; and that the appellants/claim petitioners are not parties to the said partition deed; and that the first and second respondent colluded each other and filed the aforesaid suit and the same was decreed in their favour. The first respondent/D.Hr contested the said claim petition by filing counter affidavit specifically averring that the EP schedule property is not the joint Hindu family property of the second respondent/J.Dr; and that the second respondent and his brother, Gopalarao partitioned their properties long back and thereafter they purchased some other properties on their own as self acquired and that the present claim petition was filed only to protract the execution proceedings. In support of their claim, the appellants got examined P.Ws. 1 to 4 and got marked Exs.A.1 to A.6 before the Executing Court. On behalf of the respondents, R.W.1 was examined, but no documentary evidence was adduced. The Court below upon consideration of the oral and documentary evidence on record, dismissed the claim petition (E.A.No.143 of 2006), holding that the appellants failed to establish that the petition schedule property is ancestral property and they got the said property in the oral partition against to the second respondent; and that the appellants are not certain with regard to acquisition of the EP schedule property in the year 1978 from the joint family; and that the oral partition was introduced by the appellants to claim the share of the second respondent and that the EP schedule property is in the name of the second respondent and the same belonged to the second respondent. The appeal in A.S.No.115 of 2009 preferred by the appellants/claim petitioners against the order and decree dated 17.4.2009 stands dismissed confirming the findings of the trial Court. Heard the learned Counsel for the appellant. Perused the record. The learned Counsel for the appellants, apart from reiterating the grounds raised in the appeal submitted that the plaint schedule property sought to be attached is not the exclusive property of the second respondent/J.Dr.; and that the suit schedule property had fallen to the share of the appellants in pursuance of an oral settlement arrived at before the village elders; and that the second respondent who is the father of the appellants and who is supposed to protect the interest of the appellants has acted against their interest in collusion with the first respondent; and that the EP schedule property which was being brought to sale by the first respondent is the ancestral property held by the grandfather of the appellants and that both the Courts below failed to appreciate the evidence on record in the proper perspective. He therefore prayed that the second appeal be allowed by setting aside the judgment and decree of the Courts below. Before adverting to the contentions of the learned Counsel, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference by this Court in this second appeal. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise Keeping in mind the law laid down by the Supreme Court in Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. Admittedly the relationship between the appellants and the second respondent is not in dispute. The prime case of the appellants is that the plaint schedule property is ancestral and joint Hindu family property and the same was fallen to their share in the oral parturition. To substantiate the same, it is very unfortunate that the appellants did not choose to adduce evidence to establish that the petition schedule property is the ancestral property and they got the said property in the oral partition against the second respondent as pleaded and claimed by them. Though the appellants stated that the EP schedule property had fallen to their share in the alleged oral partition, it is not explained as to how the partition took place between the brother of the second respondent and the appellants without obtaining any relinquishment deed from the second respondent in their favour. Neither the second respondent did choose to adduce evidence nor was he examined to clarify as to whether he purchased the part of plaint schedule property along with his brother—Gopalrao in the year 1978 from their own funds or from the joint family funds. Neither of the parties have placed the registered sale deed obtained by the second respondent and his brother in the year 1978 to an extent of Ac.5.70 cents. On the other hand, the first appellant who was examined as P.W.1 stated in his cross examination that some of the properties as well as properties of his mother covered by EP schedule are in the name of his father and he denied that the EP schedule properties were purchased after disposing of their ancestral properties succeeded from their grandfather. However, both the Courts below observed that nowhere the survey numbers spoken to by P.W.1 are connected with the survey numbers covered in the EP schedule and that the oral evidence of appellants did not corroborate with each other and there is inconsistency in regard thereto. Further, the appellants had not filed any documentary evidence to establish their possession over the plaint schedule property. The lower appellate Court upon due appraisal of the evidence on record in the proper perceptively, rightly confirmed the findings of the trial Court. Having gone through the entire material available on record and the findings recorded by both the courts below, I am of the considered view that both the courts below have appreciated the evidence, both oral and documentary, in the right perspective and recorded the findings in accordance therewith, which do not call for any interference by this Court in the appeal. Consequently, I do not find any question of law much less a substantial question of law. The second appeal fails and is accordingly dismissed. No order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 28TH DECEMBER, 2011. Msnro