HON’BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.283 of 2010 Dated : 18.06.2010 Between : G.Ramulu & others ….. Appellants a n d Smt.G.Chaya Devi & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.283 of 2010 JUDGMENT: Heard Sri L.Ramu, learned counsel for the appellants. O.S.No.425 of 1972 filed by one Gandla Ramanna for partition was decreed and one Umakantham was claimed to have executed a gift deed in favour of the first respondent herein in respect of the schedule property in which the second respondent happened to be the tenant. On the ground of default in payment of rents by the second respondent, the first respondent obtained a decree for eviction and was executing the same in E.P.No.120 of 2005. While so, the claim petitioners came up with E.A.No.394 of 2005 before the Executing Court claiming that the joint property is inherited by them along with other members of the family and the property is liable to be partitioned inter alia among the other share holders. The Executing Court, after recording the evidence of PWs 1 and 2 and RW.1 and marking Ex.P1 during the enquiry into the claim petition, found that the evidence of PWs 1 and 2 and RW.1 disclosed that the premises have been in the possession of the decree holder- RW.1 and family members and the main Rent Control Case was decided on 30.12.2004 holding RW.1 to be the land lady and the second respondent herein to be the tenant, R.C.A.No.1 of 2005 preferred by the second respondent was dismissed. The claim of RW.1 that the property is a self acquired property and the conflicting claim of the claim petitioners that it is a joint family property liable for partition are the subject matter of O.S.No.362 of 2005 on the file of the II Additional District Judge, Ranga Reddy. The Executing Court, therefore, observed that mere delivery of possession of the demised premises to the decree holder will not in any manner prejudice the rights of the claim petitioners, who in the event of their success in O.S.No.362 of 2005 will be entitled to partition and possession of their separate shares. A.S.No.75 of 2006 against the said order was dismissed by the learned District Judge, Ranga Reddy, by judgment dated 09.12.2009 and the learned District Judge after referring to the conflict noted that the order in R.C.C.No.3 of 2003 between respondents 1 and 2 became final and a suit is also pending between the second respondent and the first respondent and her husband in O.S.No.234 of 2003 on the file of the Principal Junior Civil Judge, Sangareddy. The learned District Judge also noted that the claim of the first respondent to be in possession of the property under a Will since more than 20 years was the basis for the order of eviction against the second respondent in favour of the first respondent and the conclusion of the Executing Court about the need for the claim petitioners to establish their rights in O.S.No.362 of 2005 and about the absence of any prejudice by delivery of possession of the premises to the decree holder in these proceedings is cogent and convincing. The learned District Judge also noted that the appellants 1 to 4 never disputed the registered Will- Ex.P1 in favour of the first respondent and consequently he dismissed the appeal with costs. In the second appeal, the appellants again seek to raise the same questions of fact about their joint ownership and possession of the schedule property along with the husband of the first respondent and as noted by the learned District Judge, the first respondent herself is not a party to O.S.No.362 of 2005 and it is also not known whether the appellants have taken recourse to any other proceedings. The questions which are claimed to be substantial questions of law involved in the second appeal related to whether the Courts below were right in dismissal of the claim petition when OS No.362 of 2005 is pending and whether the Will in question could have been relied upon and whether the claim petitioners have inherited the properties. These questions are pure questions of fact, which are the subject of concurrent findings given by the Executing Court and the first Appellate Court. Section 100 of the Civil Procedure Code clearly mandates that a second appeal can be the subject of consideration by the High Court only if the High Court is satisfied about involvement of substantial questions of law. Order XLII of the Civil Procedure Code also restricts consideration of the second appeal only to such substantial questions of law formulated by the High Court. On a close and careful consideration of the entire material on record, it cannot be said that any substantial question of law is involved in the present second appeal and the questions sought to be raised are pure questions of fact, which are concurrently decided against the appellants by the Courts below and hence the second appeal cannot be entertained as a matter of course. Accordingly, the second appeal is dismissed without costs. ______________________ G.BHAVANI PRASAD, J 18th June, 2010 SUR