HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL. 1533 of 2011 . DATED 19th September, 2011. BETWEEN Puppala Anasuya … Appellant And Puppala Adinarayana and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL. 1533 of 2011 JUDGMENT: The appellant herein is the plaintiﬀ in the suit in O.S.No. 234 of 1983 on the ﬁle of the learned Principal District Munsif, Tadepalligudem, West Godavari District. She ﬁled the said suit for partition of plaint schedule properties into eighteen equal shares and put her in three contiguous shares and for the past proﬁts of Rs.250/- with interest at 12% p.a. from the date of the suit till realization and for future profits. The trial Court upon consideration of the evidence, both oral and documentary, held that the plaintiﬀ had no right to claim partition of the suit schedule property and thereby to allot three shares to her in as much as she failed to establish her right and source of title over the plaint schedule property. Aggrieved by the same, the appellant/plaintiﬀ preferred appeal in AS.No. 23 of 1991 on the ﬁle of the learned Senior Civil Judge, Tadepallegudem,W.G.District. The lower appellate Court, upon re- appreciation of the evidence placed on record, dismissed the appeal, conﬁrming the judgment and decree of the trial Court. Hence, the present second appeal. Heard. Perused the case file meticulously. For the sake of convenience, the nomenclature of the parties herein are referred to as arrayed in the suit. Before adverting to the contentions of the learned Counsel on either side, 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 as to whether any substantial question of law is raised in the Memorandum of Grounds that needs consideration warranting 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 Panchugopal Barua v. Umesh Chandra Goswami {(1997) 4 SCC 713} and in 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. It was the case of the plaintiﬀ that herself, defendants 1 and 2 and one Ch.Ramanamma are the children of Puppala Pallaiah, who is the owner of the plaint schedule property and after the death of their parents, herself, her two sisters and brother succeeded to the same. It was her further case that on 2.6.1980 the said Ramanamma and mother of ﬁrst Defendant executed the sale deed in respect of their shares and as such she is entitled to 3/10th share of the plaint schedule property. Defendants 1 to 4 remained ex parte. Defendants 5 and 6 contested the matter. It was their case that the plaint schedule property was the sridhana property of their mother, Narasamma, who died on 1.9.1979 and after her death, they leased out the property to one Ch.Ramanamma. It was their further case that as the said Ramanamma committed default in payment of rents, they ﬁled O.S.No. 31 of 1983 for her eviction and also for eviction of defendants 3 and 4 who were inducted by the said Ramanamma and the said suit was decreed in their favour. It was their further case that by virtue of the sale deed dated 21.8.1922 executed in favour of their mother, they succeeded to the plaint schedule property. Before the trial Court, in order to prove the claim of the plaintiﬀ, P.Ws. 1 to 3 were examined on her behalf and Exs. A. 1 to A.8 were got marked. On behalf of the defendants, D.Ws. 1 to 3 were examined and Exs. B.1 to B.4 were got marked. The established facts on record would disclose that Ex.A.1 sale deed dated 2.6.1980 is the crucial piece of evidence. The plaintiﬀ placing reliance on Ex.A.1 stated that her mother and sister executed the same in her favour in respect of 3/10th share of the plaint schedule property. In order to prove the sale deed Ex.A.1, she her self was examined as P.W.1. She deposed that she did not know as to how her father acquired the plaint schedule property. To prove the contents of Ex.A.1, the attestor of Ex.A.1 was examined as P.W.2, who deposed that he was not present at the time of scribing Ex.A.1 and that he did not know the contents of the said sale deed. The evidence of other attestor and P.W.2 reveals that the plaintiﬀ paid the consideration to Seethamma and her daughter. But as per Ex.A.1, the consideration was already paid and hence the evidence of P.W.2 in this regard was disbelieved by both the Courts below. P.W.2 further stated that he was also not present at the time of scribing Ex.A.1. P.W.3 stated that though he was present at the time of scribing Ex.A.1, but did not remember and could not identify his signature. Even the scriber of Ex.A.1 Subbarao, also stated that he did not remember anything about it. Even P.W.1 also did not produce any title deed of her father to prove that her father is the owner of the plaint schedule property. Based on the evidence on record, the fact ﬁnding Court recorded a ﬁnding that there was no evidence to show that P.Pallayya, father of the plaintiff, is the owner of the plaint schedule property. On the other hand, Defendants 5 and 6 deposed that they leased out the plaint schedule property to Ch.Ramanamma, who in turn inducted the defendants 3 and 4 without their consent. When the said Ch.Ramanamma failed to pay the rent, they (defendants 5 and 6) ﬁled OS.No. 31 of 1983 for her eviction and the said suit was decreed. P.W.1 in her evidence admitted that defendant 5 was collecting rents up to March, 1987, which was also corroborated by the evidence of D.W.1. There is no explanation forthcoming from the plaintiﬀ as to in what capacity Defendant 5 was collecting rents up to March, 1987. On the contrary, the said assertion of the plaintiﬀ clearly establishes that Defendants 5 and 6 are the owners of the plaint schedule property. Thus it goes to show that unless Defendants 5 and 6 are the owners of the plaint schedule property, it was not possible for them to collect rents. The brother of the plaintiﬀ’s father was examined as D.W.3, who deposed that the plaint schedule property belongs to his mother Narasamma; and that defendants 3 and 4 resided as tenants under the said Ramanamma. He further stated that after the death of his father and mother, Defendants 5 and 6 took possession of the plaint schedule property. During the course of taking steps for eviction of said Ramanamma, who is no other than the sister of the plaintiﬀ, there was exchange of notices between said Ramanamm and Defendants 5 and 6. The plaintiﬀ having been aware of the assertions made by Defendants 5 and 6 in the said notices that they are the absolute owners of the plaint schedule property, did not ask for declaration of title and on the other hand ﬁled the suit for partition. Under Exs.A.1 and A.2 the plaintiﬀ contended that it is the self acquired property of her father, whereas the vendor of the plaintiﬀ and said Ch.Ramanamma who sent reply to the defendants 5 and 6 under Ex.A.6 stated that the plaint schedule property belongs to Appalaswamy, who was the husband of Narasamma, parents of defendants 5 and 6. Defendants 5 and 6 ﬁled the registration extracts of the sale deed dated 21.8.1922 executed in favour of their mother. As the original of the same was burnt by Pallayya 40 years back, defendants 5 and 6 obtained registration extract and the same was marked as Ex.B.1, which was not denied by the plaintiﬀ nor was any cross examination conducted in that regard. The evidence of P.W.1 that defendant 5 was collecting rents, which was corroborated by the evidence of D.W.3 would only establish that Ex.B.1 was executed in favour of P.Narasamma, mother of defendants 5 and 6. Basing on the over all evidence on record, the fact ﬁnding Court recorded a ﬁnding that defendants 5 and 6 are the absolute owners of the plaint schedule property and that the sale deed dated 2.6.1988, Ex.A.1 executed in favour of the plaintiﬀ by her mother and sister did not confer any rights to the plaintiﬀ in as much as she failed to prove the source of title to her father. The lower appellate Court, upon re- appreciation of the evidence on record, conferred the above said ﬁnding of the trial Court in toto. The learned Counsel for the appellant submitted that if the property belongs to Pappala Narasamma, mother of Defendants 5 and 6, no evidence was adduced to show that they paid house tax to support their case. It is a well settled principle of law that mere payment of house tax does not confer right or title unless it is proved before the Court by producing the title deeds or other documents through which defendants 5 and 6 claim right over the property. The trial Court while dismissing the suit gave cogent reasons that the plaintiﬀ failed to establish her title over the plaint schedule property vis-a-vis defendants 5 and 6 who established their right over the plaint schedule property by providing Ex.B.1 sale deed. The other submissions of the learned Counsel for the appellant that the version of defendants 5 and 6 regarding the burnt of the original of Ex.B.2 by the father of the plaintiﬀ was without any pleading and proof. During the evidence, when D.W.1 stated that the said Pallayya burnt the original of Ex.B.1 forty years back, she was not cross-examined nor was any suggestion made in that regard denying the same. Hence, it is now not open for the appellant to plead the same at this stage. The other submissions raised by the learned Counsel for the appellant that there is no evidence to prove the fact that Smt. Narasamma, mother of defendants 5 and 6 died 40 years back, that D.W.1 admitted in her evidence that the plaintiﬀ had stayed in the plaint house for some years, etc merits no consideration in as much as these contentions per se would not enable the plaintiff to establish the source of title to the plaint schedule property in the absence of any documentary evidence adduced before the trial Court in regard thereto. For the foregoing discussion, I do not see any question of law, much less a substantial question of law, warranting interference by this Court with the well founded judgment of the trial Court, which was rightly and correctly affirmed by the first appellate Court. The Second Appeal is dismissed. There shall be no order as to costs. ---------------------------------- ---- JUSTICE ASHUTOSH MOHUNTA Dated 19TH SEPTEMBER, 2011. Msnro