IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.192 of 2011 Between: Sri S. Krishna .. Appellant AND Smt. Bhoolakshmi .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.171 of 2006 on the file of the Family Court, Secunderabad, dated 14-09-2010 confirming the judgment and decree in O.S. No.375 of 2000 on the file of the III Senior Civil Judge, Secunderabad, dated 21-08-2006. The factual background for the second appeal is that the respondent herein filed the suit for declaration of title and recovery of possession of portion of house No.2-4-643, Ramgopalpet, Secunderabad and for mesne profits claiming to be the adopted daughter of J. Ushamma and Sayamma, the sisters. The adopted mother was claimed to have performed the marriage of the plaintiff and to be living with the plaintiff even after her marriage. The Western portion of the house, which is the subject matter of the suit, was claimed to have been gifted under a registered deed dated 25-02-1997 and to have been put in possession of the plaintiff. Later a Will also was claimed to have been executed in favour of the plaintiff and the plaintiff claimed to have performed the last rites of the adopted mother. The defendant was claimed to have been in permissive possession of the suit property being the son of the plaintiff’s mother’s sister and to be refusing to vacate in spite of demands and a legal notice dated 18-08-2000. The appellant herein defended the suit contending that the alleged adoption is false and the suit house was purchased in the name of Ushamma and Sayamma and when a registered document was executed in favour of the plaintiff, the matter was placed before Sri Gangaputra Sangham questioning the gift and the execution of the Will. The Sangham allowed the defendant to perform the obsequies of both the sisters and the defendant had become the successor of the sisters as a male legal heir and became entitled to the suit property. He, therefore, desired the suit to fail. The trial Court framed issues about the adoption of the plaintiff or the defendant, the truth of the Will and the entitlement of the plaintiff to declaration of title, delivery of possession and mesne profits. During the trial, the trial Court had examined P.Ws.1 and 2 and D.Ws.1 to 3 and marked Exs.A.1 to A.7 and B.1 to B.5. The trial Court rendered its judgment on 21-08-2006 firstly referring to the rival claims about the plaintiff or the defendant being adopted by Ushamma and Sayamma and there being no clinching evidence in respect of the same. The trial Court noted Ex.A.1 registered settlement deed to be specifically referring to the plaintiff as the adopted daughter of Ushamma and Sayamma and the defendant had no contrary evidence. Even D.Ws.2 and 3 claimed to be the elders of the community of fishermen, were noted to be not claiming any personal knowledge about the adoption of the plaintiff or the defendant. The trial Court further noted that the execution of Ex.A.2 Will was proved by examining P.W.2, one of the attestors apart from the evidence of P.W.1 herself and the execution of the Will within one week of execution of settlement deed was not considered as a suspicious circumstance. The trial Court further noted that the death of Sayamma and Ushamma on 09-12-1997 and 01-03-2000 was not shown to have been followed by any possession of the defendant of the suit property as absolute owner and hence, the trial Court considered the plaintiff to be entitled to declaration of her title, recovery of possession and past mesne profits of Rs.1,000/- per month from 18-08-2000 till the filing of the suit, while future mesne profits will be determined on a separate application. In appeal, the impugned judgment was delivered by the first appellate Court, which again referred to the rival pleadings, contentions and evidence and considered the points of adoption of either party, execution of the Will and the entitlement of the plaintiff to the reliefs. The appellate Court also found that even after marriage, the plaintiff claimed to have continued to live with Ushamma and Sayamma and the contents of Ex.A.1 describing the plaintiff as the adopted daughter as opposed to the total absence of evidence for the defendant, were relied on and the self- serving statements of D.W.1 or Ex.B.1 card were refused to be relied on. The evidence of D.Ws.2 and 3 who admitted to be ignorant about the adoption of the plaintiff, was considered unhelpful and the appellate Court also accepted the evidence of P.W.2 corroborating P.W.1 about the execution of Ex.A.2 Will. The evidence of D.Ws.2 and 3 and Ex.B.5 resolution were refused to be acted upon, as the gift deed was executed by Ushamma and Sayamma under Ex.A.1 subsequent to the alleged resolution, dated 07-04-1996. The defendant was, hence, considered to be not in lawful possession and the appeal was dismissed with costs. The defendant was granted one month’s time to vacate the subject premises. The defendant challenges the said judgment in the second appeal contending that execution of Exs.A.1 and A.2 within one week was artificial and the plaintiff was residing at her father-in- law’s house at Nizamabad and not with Ushamma and Sayamma. When there was no documentary evidence for either side and the defendant was admittedly in possession of a portion of the house, the defendant’s absolute ownership of the suit property as the adopted son ought to have been upheld and the evidence of D.Ws.1 to 3 and Exs.B.1 to B.5 should have been accepted. The defendant while narrating in detail the various circumstances on record about the alleged improbabilities in the claim of the plaintiff, contended that the following substantial questions of law arise for consideration in the second appeal: a) The Will Deed dated 3.3.1997 alleged to have been executed by Ushamma and Sayamma is marked as Exhibit A-2 bequeathing the portion under occupation of the appellant is quite contrary to law, as the alleged Will Deed dated 3.3.97 was executed within one week after the execution of Gift Deed dated 25.2.1997 which is suspicious document and the same is liable to be considered by this Hon’ble Court in this Second Appeal as substantial question of law; b) The Exhibit B-5 issued by the resolution dated 7.4.96 and the evidence adduced by the Committee ought to have been considered as a substantial question of law and the same is liable to be considered by this Hon’ble Court in this Second Appeal; c) The Lower Court and the Lower Appellate Court miserably failed to consider the evidence of D.W.3, which is quite contrary to the Evidence Act. The second appeal was admitted on the same questions on 25-02-2011. Sri T.V. Rajeevan, learned counsel for the appellant and Sri P. Venugopal, learned counsel for the respondent are heard. The points for adjudication in the second appeal are the three questions formulated at the time of admission of the appeal. The first question sought to be raised is about the suspicion about the execution of Ex.A.2 Will within one week of the execution of Ex.A.1 settlement deed. The second question sought to be raised is about the evidence of D.Ws.2 and 3 about Ex.B.5 resolution. The third question sought to be raised is about the consideration of the evidence of D.W.3. None of the three questions even remotely suggest the involvement of any legal issue and they sought to project the impropriety or untenability of the findings of the Courts below on the questions in issue involved about the Will or the gift deed or the resolution of the Sangham. If they are pure questions of fact and do not have even a shade of any issues of law being involved, the entertainment and continuance of the second appeal becomes untenable in terms of Section 100 and Order XLII Rule 2 of the Code of Civil Procedure. The conclusive presence and existence of substantial questions of law in a second appeal is a sine qua non for its maintainability and the first appellate Court being the final Court of fact, its conclusions, on fact, cannot be interfered with, unless patently perverse and manifestly illegal. Even on merits, it is seen from the oral and documentary evidence on record that it is only Ex.A.1 which has a direct reference to any adoption by Ushamma and Sayamma, the adoptee being the plaintiff according to Ex.A.1. Ex.A.2 Will in its recitals was fully supportive of the claims of the plaintiff and as opposed to the same, it is only Ex.B.4 invitation letter for the death ceremony that was pressed into service by the defendant, which was opined by the appellate Court to be a self-serving document. Even if the defendant performed the obsequies of Ushamma and/or Sayamma, the same, as rightly held by the first appellate Court, cannot nullify the impact of Ex.A.1 gift deed or Ex.A.2 Will. Ex.B.5 resolution, as rightly noted by the first appellate Court, is of no consequence in the face of the subsequent gift deed Ex.A.1 and as to how civil rights and interests of the parties can be prejudicially affected by any resolution of the Sangham, has not been elaborated. The evidence of P.W.2, the attestor of Ex.A.2, answers the requirements of Section 68 of the Evidence Act with reference to Ex.A.2, while the evidence of D.Ws.2 and 3 without any personal knowledge about the facts in issue between the parties except what they claimed to have been referred to and decided by the Sangham will be insufficient to overrule Exs.A.1 and A.2. The evidence of P.W.1 and D.W.1 suffer from interestedness equally and the other evidence on record suggests the broad human probabilities to be in tune with the version of the plaintiff. The second appeal should, therefore, fail in any view. Sri T.V. Rajeevan, learned counsel for the appellant submitted that the appellant/defendant residing in the suit property, would require reasonable time to secure a reasonable alternative accommodation and requested for grant of sufficient time and Sri P. Venugopal, learned counsel for the respondent has no serious opposition for grant of reasonable time. Considering the nature of the property and the necessities of the parties and balancing their rights and interests, grant of six months time may be a reasonable measure to subserve the ends of justice. In the result, the second appeal is dismissed without costs, but the defendant/appellant is granted time for six months from today to vacate and deliver possession of the suit schedule premises to the respondent/plaintiff. _____________________ G. BHAVANI PRASAD, J Date: 08-09-2011 Svv