THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.M.S.A.No.50 of 2008 JUDGMENT: This Civil Miscellaneous Second Appeal, filed under Section 100 C.P.C., arises out of the judgment and decree in A.S.No.23 of 2004, dated 02-04-2008, rendered by the Court of Senior Civil Judge, Razole. The appeal, in turn, was filed against the order and decree dated 15-06-2004, passed by the Court of Principal Junior Civil Judge, Razole, in E.A.No.77 of 2002 in E.P.No.99 of 2001, in O.S.No.156 of 1981. The relevant facts, in brief, are as under: One Sri Kollabathula Subbayya, the brother of the deceased 1st respondent, and father of the 2nd respondent, owned an extent of Ac.1.13 cents of land in Sy.No.135/8-A and 8-B of Mori Village, East- Godavari District. The appellant is the daughter of the 2nd respondent and wife of the 3rd respondent. The 1st respondent filed O.S.No.156 of 1981, stating that Subbayya had only one daughter, the 2nd respondent; he gifted her different items of property, and that the latter is living with her husband at Thurangi Village of Kakinada Mandal. After the death of the wife of Subbayya, he is said to have asked the 1st respondent to assist him and accordingly she came down from Antharvedipalem village to help and assist him. Out of love and affection towards the 1st respondent, Subbayya is said to have gifted an extent of 33 cents of land in Sy.No.135, with specific boundaries through a document dated 25-08-1974, duly retaining life interest in himself. It is stated that the 1st respondent accepted the gift and became owner, subject to the life interest of the Subbayya, and that on the death of Subbayya, on 05-08-1980, she became the absolute owner thereof. It was complained that respondents 2 and 3 have dispossessed her from the property. Therefore, the suit was filed for the relief of declaration of title and recovery of possession. The respondents 2 and 3 pleaded that, subsequent to the gift deed dated 25-08-1974, executed in favour of the 1st respondent, Subbayya executed another document dated 25-03-1979, bequeathing an extent of 50 cents in favour of the appellant herein (not a party to the suit) and 30 cents in favour of the 2nd respondent. The trial Court decreed the suit through judgment dated 27-10-1985. A.S.No.8 of 1996, filed by the respondents 2 and 3 in the Court of Senior Civil Judge, Razole, against the judgment and decree in O.S.No.156 of 1981, was dismissed, on 06-04-2001. After the decree became final, the 1st respondent filed E.P.No.99 of 2001, before the Court of Principal Junior Civil Judge, Razole. The E.P. was resisted by the respondents 2 and 3, by reiterating the same contentions, as were urged in the suits. The trial Court ordered delivery of possession, by overruling the objections. However, the appellant herein obstructed the delivery of possession, by claiming independent rights. It was in this context, that the 1st respondent filed E.A.No.77 of 2002, under Rule 97 of Order XXI C.P.C., for removal of obstructions. The application was opposed by the appellant. She based her rights upon a settlement deed, said to have been executed by late Subbayya in favour of herself and 2nd respondent, for 50 cents and 30 cents, respectively, in a preliminary decree and subsequent proceedings in, O.S.No.152 of 1996, filed by her, against the 2nd respondent. The Executing Court allowed the E.A., and rejected the claim of the appellant, through its order and decree dated 15-06-2004. Aggrieved thereby, the appellant filed A.S.No.23 of 2004. The appeal was also dismissed on 02-04-2008. Hence this Civil Miscellaneous Second Appeal. Sri Gullapally Radhakrishna, learned counsel for the appellant submits that the right of the appellant under settlement deed, marked as Ex.B-3, is independent of any disposition in favour of the 1st respondent, and that she secured the possession thereof by filing a suit for partition. He contends that the Executing Court and the lower Appellate Court have totally disregarded the proceedings in O.S.No.152 of 1996, a partition suit filed by the appellant against her mother, the 2nd respondent, and that the judgments under appeal are untenable in law. He submits that the right, if any, that has accrued to the 1st respondent, under Ex.A-1, stood superseded with the execution of Ex.B-3, by Subbayya. He further contends that, even now the 1st respondent can proceed against the 2nd respondent for recovery of 33 cents from out of the land, excluding 50 cents, that was settled in favour of the appellant. Sri V.L.N.G.K. Murthy, learned counsel for the 4th respondent, the legal representative of the deceased, 1st respondent, on the other hand, submits that by colluding with one another, the appellant and respondents 2 and 3 have prevented the decree passed in O.S.No.156 of 1981 for the past several decades by raising one plea or the other. He contends that the gift in favour of the 1st respondent, under Ex.A-1, was in respect of 33 cents, with specific boundaries, and once the document was upheld, there is no way, that the delivery of possession thereof can be obstructed. He submits that the validity of Ex.B-3, which is relied upon by the appellant was examined in detail by the trial Court, in O.S.No.156 of 1981, and it was held to be not enforceable in law. Learned counsel further submits that O.S.No.152 of 1996 filed by the appellant, lacked bona fides, and the decrees, said to be passed therein; do not have the effect of defeating the rights of his client. The relationship of the parties has already been mentioned at the threshold. Subbayya, the original owner of Ac.1.13 cents did not have any male issue. The 1st respondent rested her claim on Ex.A-1, a gift settlement deed dated 25-08-1974, executed by Subbayya. The validity thereof was upheld by the trial Court in O.S.No.156 of 1981, through its judgment dated 27-10-1995. Respondents 2 and 3, who were parties to that suit, made an attempt to neutralize Ex.A-1, by pleading that Subbayya executed a subsequent gift deed dated 22-06- 1974, Ex.B-3, wherein he is said to have settled 50 cents in favour of the appellant, and 30 cents in favour of the 2nd respondent. The 2nd respondent pleaded that another settlement deed dated 23-05-1979 was executed by Subbayya in her favour in respect of the suit schedule property. After recording oral and documentary evidence, the trial Court rejected the claim of the respondents 2 and 3. The suit for declaration of title in respect of the 33 cents in Sy.No.135/8-B with specific boundaries and delivery of possession thereof was decreed and the decree became final. In the course of execution, the appellant offered resistance, basing her claim on Ex.B-3, a deed anterior in point of time, to the one, in favour of the 1st respondent. Even if both the deeds of gift, or settlement deeds, Exs.A-1 and B-3 are taken into account, and treated as valid, there does not exist any conflict between them. The distinguishing feature between these two documents is that, while the settlement under Ex.B-3, in favour of the appellant (50 cents) and the 2nd respondent (30 cents) was undivided in nature, the one, under Ex.A-1, in favour of the 1st respondent (33 cents) was with specific boundaries. Further, there is nothing on record to disclose that any independent and absolute rights have accrued in favour of the appellant and her mother, the 2nd respondent, on the basis of Ex.B-3, the document dated 22-06-1974, by the time Subbayya executed Ex.A-1, the gift deed dated 25-08-1974, in favour of the 1st respondent. Hence, there is absolutely no justification on the part of the appellant in offering resistance for the execution of the decree. Heavy reliance was placed by the appellant on the execution proceedings in O.S.No.152 of 1996. That was a suit, which was filed by the appellant, against her mother, the 2nd respondent herein. By the time it was filed, A.S.No.8 of 1996 filed by the 2nd respondent against the decree in O.S.No.156 of 1981 was pending before the Court of Senior Civil Judge, Razole. Obviously it was a collusive exercise. It is evident from the fact that though there was hardly any resistance by the 2nd respondent for partition of the property, the appellant filed the E.P. The effort appears to have been to get a semblance of authenticity for her possession, over 50 cents of her choice, which obviously, included 33 cents, which is the subject- matter of the decree, in O.S.No.156 of 1981. The Executing Court and the lower Appellate Court have discussed the matter in detail, with reference to each and every contention advanced by the appellant, and turned down her plea. This Court is not inclined to take a different view. No substantial question of law arises for consideration. The Civil Miscellaneous Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.09-07-2010. KO