*HON’BLE SRI JUSTICE R. KANTHA RAO + S.A.NO.949 OF 2008 %Dated: 30.11.2010 BETWEEN: # Boddana Pydamma .. Appellant And $ Killana Kamappadu and others .. Respondents !Counsel for the Appellant: Sri B.M.Patrao ^ Counsel for the Respondent : Sri K.Purushotham <GIST: > HEAD NOTE: ? Cases HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.949 OF 2008 DATE: 30.11.2010 BETWEEN: Boddana Pydamma .. Appellant And Killana Kamappadu and others ` .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.949 OF 2008 JUDGMENT: This second appeal is filed against the judgment and decree dated 12.06.2008 passed by the Senior Civil Judge, Rajam in A.S.No.11 of 2007 wherein he reversed the decree and judgment dated 07.03.2007 passed by the Junior Civil Judge, Rajam, Srikakulam District in O.S.No.129 of 2002. I have heard the learned counsel appearing for the appellant and the respondents. In the grounds of appeal, the appellant stated that the lower appellate Court reversed the finding of the trial Court in regard to the title and possession of the appellant ignoring the documentary and oral evidence let in by the appellant and that the reasons assigned by the lower Appellate court in support of the decisions are baseless. Basing on the above mentioned grounds, this Court formulated the substantial questions of law to the effect whether the findings of fact and law arrived at by the learned lower appellate Court are contrary to the pleadings and evidence available on record and also whether they are perverse, so that this Court can interfere in the second appeal. The brief facts necessary for considering the second appeal may be stated as follows: The appellant is the daughter of late Thoudu and the first respondent is her brother. According to the appellant, the schedule mentioned property which is an extent of Ac.01.05 cents of land is the self-acquired property of her father and her father sold the said property to her under a registered sale deed on 30.3.2000 and since then she has been in peaceful possession and enjoyment of the schedule mentioned land and the revenue authorities incorporated her name in the revenue records and also issued pattadar pass book after making due enquiry. The suit was resisted by the first respondent on the ground that the property is ancestral which is undivided and his father has no right to execute the sale deed in respect of the said property which is a joint family property in which the first respondent has half share. He also contended that the appellant by influencing the revenue authorities with the help of sarpanch of the village obtained pattadar pass book without notice to him. Therefore, the appellant is not entitled for the relief of permanent injunction. The suit filed by the appellant is for mere injunction and to prove her case, she herself was examined as PW-1 besides examining three more witnesses as PWs.2 to 4 of whom PW-4 is the scribe of the document and got marked Ex.A-1-sale deed dated 30.3.2000 and the certified copy of the judgment in A.S.No.10 of 2002 as Ex.A.2. The first respondent himself was examined as DW1 besides examining two more witnesses as DWs.2 and 3 and no documentary evidence was adduced on his behalf. The trial Court after considering the evidence of PWs.1 to 4 held that Ex.A.1-sale deed has been proved by the appellant and she has been in possession of the suit schedule property. The learned trial Court mainly took into consideration the certified copy of judgment in A.S.No.10 of 2002 on the file of the II Additional District Judge, Srikakulam which is marked as Ex.A.2 which reveals that the first respondent filed O.S.No.4 of 2002 seeking partition of the schedule mentioned property and some other properties against his father and the same was dismissed and the appeal A.S.No.10 of 2002 preferred there against by him was also dismissed and no second appeal had been filed. The learned first appellate Court reversed the findings of fact recorded by the learned trial court by holding that since the appellant stated in her pleadings that pattadar pass book was issued by the revenue authorities but she did not produce the same and also that the plaintiff failed to prove the certified copy of the Adangal to establish her possession. According to the first appellate Court, the trial Court went wrong in holding that the appellant is in possession of plaint schedule property on the date of filing of the suit. The learned first appellate Court lost sight of the fact that when both parties adduced evidence, the burden of proof becomes insignificant and a decision has to be rendered basing on the preponderance of the probabilities. The first appellate court also rendered a baseless finding that oral evidence cannot be considered to prove the possession of the plaintiff in the absence of adducing documentary evidence such as title deed, pattadar pass book, cist receipt etc. In fact DW3 who was examined on behalf of the first respondent had categorically admitted that he came to know about the sale transaction between the appellant and the first respondent and also admitted that the appellant used to cultivate the plaint schedule property. The main contention urged by the first respondent is that his father has no right to sell away the properties since it is ancestral property in which he has share and basing on the very same ground, he filed O.S.No. 4 of 2004 for partition which was dismissed and the appeal A.S.No.10 of 2002 filed by him against the said decree and judgment was also dismissed. In the present case, he again took the same plea that the plaint schedule property is not the self-acquired property of his father, but it is his ancestral property. He is estopped under law from taking such plea. The learned trial Court rightly recorded a finding to the effect that the appellant is entitled for decree of permanent injunction. The said finding is based on evidence and supported by adequate reasoning. Whereas, the lower appellate Court adopted a highly pervert approach without proper application of mind to the pleadings and evidence and reversed the judgment passed by the trial court. Normally, this Court will not interfere with the findings of fact recorded by the first appellate Court while deciding the second appeal. But, if the findings of fact reached by the first appellate Court are totally perverse and contrary to the evidence available on record, certainly this Court will interfere with the said findings of fact while dealing with the second appeal. In the present case, this Court has not merely examined the correctness of the findings of fact recorded by the first appellate Court, but upon considering the entire material available on record and the judgments passed by the courts below this Court is of the considered view that the findings recorded by the first appellate court are not only contrary to the evidence on record but also perverse. For the aforementioned reasons, the decree and judgment, dated 12.06.2008 passed by the first appellate Court in A.S.No.11 of 2007 on the file of the Senior Civil Judge, Rajam is set aside and the decree and judgment dated 07.03.2007 passed in O.S.No.129 of 2002 on the file of the Junior Civil Judge, Rajam are confirmed. The second appeal is allowed with costs. _______________ R.KANTHA RAO,J Date: 30.11.2010 Note: L.R.Copy to be marked. b/o kvrm HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.949 OF 2008 DATE: 30.11.2010