THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.966 of 2010 March 04, 2011 Between: Sakala Sundaramma, W/o.late Venkatenarayanappa And others ... Appellants And Talari Lakshmamma, W/o.Muni Venkatappa And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.966 of 2010 JUDGMENT: The plaintiffs are the appellants. They instituted O.S.No.342 of 1996 on the file of the Court of the I Additional Junior Civil Judge, Madanapalle, for division of Acs.2.92 towards their share in the plaint schedule S.No.1224 and for delivery of the same, after division by metes and bounds through the Court. By the judgment and decree dated 28.2.2003, the suit was dismissed. They appealed to the Court of the VII Additional District Judge, Madanapalle. Their appeal being A.S.No.36 of 2003 was also dismissed confirming that of the trial Court. Therefore, the plaintiffs preferred the instant second appeal. In this judgment, the parties are referred to as they are arrayed in the trial Court. The case of the plaintiffs is as follows. The total extent of land in S.No.1224 situated at Badikayala Palli Village of B.Kothakota Mandal in Chittoor District admeasures Acs.13.95. An extent of Acs.1.17, Acs.2.92 and Acs.1.17 was owned by Thotidara Gopal, Dara Kadirappa and Dara Ramudu respectively. The ancestors of defendants 1, 2, 14 and 15 belong to Talari family, and the ancestors of defendants 3 to 13 belong to Kogara family. The father of the original plaintiff, Sakala Venkataramanaiah, who is the grandfather of the plaintiffs 1 to 7 (appellants herein), (hereafter grandfather) purchased an extent of Acs.4.66 under three separate sale deeds dated 27.11.1930, 20.7.1932 and 09.6.1933. An extent of Acs.1.74 was sold by the grandfather leaving the balance land of Acs.2.92. Talari and Kogara families also own lands in S.No.1224. The plaintiffs alleged that as the property is owned jointly, it is not divided, and they are enjoying as co- owners. So as to avoid unpleasantness among the co-owners, the plaintiffs requested for division, in vain. The defendants 1 and 2 got issued a notice dated 28.6.1996 to the plaintiffs, who then issued reply notice dated 09.7.1996 to which another notice was issued by the defendants on 15.7.1996. Finally after issuing notice dated 26.7.1996 the plaintiffs filed the suit. The defendants 1 and 2 filed written statement. The defendants 6 and 7 and the defendant No.8 filed written statements separately whereas other defendants did not file any written statement and remained ex parte. The contesting defendants 1 and 2, in their written statement, opposed the suit alleging that their ancestors are the owners of the entire extent in S.No.1224; they had purchased the property under two sale deeds dated 24.9.1927 and 15.9.1933; the properties are not joint; the plaintiffs’ family had been in possession of only Acs.1.74; the vendors of the grandfather had no right or title to the extent of the land covered by the sale deeds. They further allege that possession was never delivered to the grandfather and that Eguvakota Thirumalappa purchased an extent of Acs.1.74 from the grandfather under registered sale deed dated 21.3.1936 and after the said sale no part of the land was retained and, therefore, Sakala family had no subsisting interest in the family. The defendants 6 and 7 filed a joint written statement alleging that plaintiffs and defendants are not co-owners and that they were not in joint possession. The eighth defendant filed written statement alleging that out of total extent of Acs.13.95 in S.No.1224, the plaintiffs owned half of the land and the remaining extent belong to four sons of Maddi Reddy and that each son became entitled to Acs.1.75. In view of the rival pleadings, the trial Court framed three issues. The plaintiffs examined P.Ws.1 to 3 and marked Exs.A1 to A16. Talari Rangappa, defendant No.16, gave evidence as D.W.1. Defendant No.10 gave evidence as D.W.2, and six more witnesses were examined on behalf of defendants. Exs.B.1 and B.2 were marked. The sale deeds dated 21.11.1930, 27.4.1932 and 09.6.1933 on which the plaintiffs relied were marked as Exs.A1 to A3. The defendants marked two sale deeds dated 24.9.1927 and 15.9.1933 as Exs.B1 and B2 respectively. On considering the oral and documentary evidence, the trial Court came to the conclusion that the plaintiffs failed to explain as to how Ex.A2 sale deed was executed for Acs.2.32 when the vendor under the said document had only Acs.1.17. From this, the trial Court inferred that the total extent under Exs.A1 to A3 should have been Acs.3.51 and when the vendors themselves had no title, the plaintiffs cannot have any joint ownership rights. The fact that the plaintiffs did not file any record showing the cultivation and the particulars in Exs.A8 to A13 also, according to the trial Court, improbablised the case of the plaintiffs. When the plaintiffs carried the matter in appeal, the first appellate Court reappreciated the entire evidence and dismissed the appeal. The Counsel for the appellants submits that the Courts below did not appreciate the oral evidence correctly and recorded findings which are perverse; the first appellate Court considered the points which did not actually arise in the first appeal; and the interpretation of Exs.A1 to A3 and other documents is perverse. This Court has thoroughly perused the judgments of the Courts below. Admittedly the plaintiffs project the case as follows. Thotidara Kadirappa had three sons, namely, Gopal, Kadirappa and Ramudu. They allege that Gopal sold an extent of Acs.1.17 under Ex.A1; Kadirappa sold an extent of Acs.2.32 under Ex.A2; and Ramudu sold an extent of Acs.1.17 under Ex.A3. As a question of fact, the trial Court found that Kadirappa had mortgaged his properties under Exs.A10 and A12 and, therefore, he could not have sold the entire extent under Ex.A2. As a question of fact, it was also found that on 21.3.1936, the grandfather had sold entire extent of land to Tirumalappa and, therefore, the joint family of plaintiffs retaining any land in S.No.1224 does not arise. This finding also found favour with the first appellate Court. It is certainly a question of fact and when the final Court of fact has correlated the documents and came to the conclusion, merely because other view is also possible, the same cannot be a ground for the second appellate Court to assume that there is a question of law. Indeed as observed by the first appellate Court, it appears, the plaintiffs claimed for division of Acs.2.92 without even mentioning specific boundaries and that the plaint schedule is vague. This only leads to a reasonable inference that the plaintiffs themselves were not clear about the source of title and the property in respect of which they were claiming division in the suit. The second appeal is misconceived and is liable to be dismissed in limine. The second appeal is, accordingly, dismissed. _______________ (V.V.S. RAO, J) March , 2011 YS