APHC010263902013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] FRIDAY,THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 920/2013 Between: 1. V. BHASKAR REDDY, KURNOOL DIST., S/O LATE RAGHAVA REDDY SERVICE R/O AMADAGUNTLA VILLAGE, KODUMUR MANDAL, KURNOOL DISTRICT. ...APPELLANT AND 1. KONDAPURAM RAMI REDDY KURNOOL DIST, S/o Jayarami Reddy Agriculturist R/o Amadaguntla Village, Kodumur Mandal, Kurnool District. ...RESPONDENT Appeal under section ___________ against orders IA NO: 1 OF 2011(SAMP 1482 OF 2011 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 1286 days in presenting the above Second Appeal against the Judgment and decree dt. 20-8-2007 passed in AS No. 9 of 2005 on the file of the Principal District Judge, Kurnool and to pass IA NO: 2 OF 2011(SAMP 1483 OF 2011 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of the certified copy of the decree and judgment dt. 20- 8-2007 in AS No. 9 of 2005 on the file of the Principal District Judge, Kurnool and to pass IA NO: 1 OF 2013(SAMP 2435 OF 2013 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To stay all further proceedings in O.S.No.1089 of 2000 on the file of the Principal Junior Civil Judge, Kurnool and A.S.No. 9 of 2005 on the file of the Principal District Judge, Kurnool pending disposal of the above SA and to pass Counsel for the Appellant: 1. SRINIVASA RAO KURAPATI Counsel for the Respondent: 1. T KUMAR BABU The Court made the following: Judgment: This second appeal is filed aggrieved against the Judgment and decree dated 20.08.2007 in A.S.No.9 of 2005 on the file of learned Principal District Judge, Kurnool, confirming the Judgment and decree dated 01.10.2004 in O.S.No.1089 of 2000 on the file of learned Principal Junior Civil Judge, Kurnool. 2. The appellant herein is the plaintiff and the respondent herein is the defendant in O.S.No.1089 of 2000 on the file of learned Principal Junior Civil Judge, Kurnool. 3. The plaintiff initiated action in O.S.No.1089 of 2000 on the file of learned Principal Junior Civil Judge, Kurnool, with a prayer for seeking declaration of title of the plaintiff to the suit schedule lands, for delivery of possession of the suit schedule lands from the 1st defendant, for recovery of past mesne profits of Rs.10,000/- from the 1st defendant, for future mesne profits from the 1st defendant and for costs of the suit. Initially, the plaintiff filed the suit against the defendants 1 and 2. Subsequently, the suit against the 2nd defendant was dismissed as abated on 25.09.2003. 4. The learned Principal Junior Civil Judge, Kurnool, dismissed the suit without costs. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Principal District Judge, Kurnool, dismissed the first appeal with costs by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.1089 of 2000, is as follows: The plaintiff is a native of Amadaguntla village. Himself, his younger brother and his father late Raghava Reddy constituted a Hindu joint family having vast extent of ancestral landed property. The second defendant is the mother of plaintiff. The father of the plaintiff died when himself and his younger brother were minors. Thereafter, the family is being managed by their mother, the second defendant. The plaintiff and his younger brother got an extent of Ac.15-78 cents of landed properly each in the family partition. The second defendant used to maintain the landed property of the plaintiff and has been appropriating the income from the property for herself. Unfortunately, the younger brother of the plaintiff, out of jealousy for the plaintiff and taking advantage of the old age and helplessness of the second defendant, has made her develop an antagonistic attitude towards the plaintiff without valid reasons whatsoever. The suit schedule property fell to the share of the plaintiff in the family partition. In December, 1998, the plaintiff came to know that the second defendant sold away the suit schedule property to the first defendant without any right whatsoever. The younger brother of the plaintiff by name V.Rama Krishna Reddy is one of the attesters to the sale deed. The younger brother of the plaintiff is the person behind the transaction. In pursuance of the sale deed, the first defendant had taken possession of the property and he has been enjoying the same. The plaintiff got issued a legal notice dated 17.12.1998 directing the defendants to deliver the suit schedule property to him. The defendants, having received the legal notice, kept quiet. As the possession of the first defendant over the suit schedule properly is illegal, he is liable to pay mesne profits to the plaintiff since the date of taking the possession. Therefore, the plaintiff was constrained to file the suit. 7. The 1st defendant filed written statement denying the contents of plaint averments including the alleged family partition between the plaintiff and his younger brother and further contended as follows: After the death of her husband Raghava Reddy, his sons and daughters approved the grant of the land in lieu of maintenance to the second defendant. The second defendant is also entitled for share in the joint family properties along with her sons and daughters. The second defendant executed a sale deed in favour of this defendant on 14.07.1998, which is a valid one. The second defendant, being the legal heir of her husband Raghava Reddy, has been in exclusive possession and enjoyment of the suit schedule land along with the land situated to the east of the said land since very long time. The second defendant delivered the suit schedule property in favour of this defendant in pursuance of the sale deed. Hence, sought for dismissal of the suit. 8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Kurnool, framed the following issues for trial: (1) Whether the plaintiff is entitled to the declaration of title over the suit schedule property? (2) Whether the plaintiff is entitled for recovery of possession of suit property from D.1? (3) Whether the plaintiff is entitled for past mesne profits of Rs.10,000/- and future mesne profits? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.5 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B.1 to B.4 were marked. 10. The learned Principal Junior Civil Judge, Kurnool, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit without costs. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.9 of 2005 before the learned Principal District Judge, Kurnool, wherein, the following points came up for consideration. (1) Whether the plaintiff is entitled for declaration that he is the absolute owner of the suit schedule property? (2) Whether the plaintiff is entitled for recovery of possession of the suit schedule property from the defendants? (3) Whether the plaintiff is entitled for mesne profit of Rs.10,000/- towards past and future profits? (4) Whether there are any grounds to set aside the decree and judgment of the lower Court? 11. The learned Principal District Judge, Kurnool, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiff/appellant and in favour of the defendant/respondent and dismissed the appeal filed by the plaintiff. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.1089 of 2000 filed the present second appeal before this Court. 12. After institution of the second appeal by the plaintiff in the suit, this Court ordered notice to the respondent before admission and the said notice was served on the respondent/defendant. Heard Sri Srinivasa Rao Kurapati, learned counsel for the appellant / plaintiff and Sri T.Kumar Babu, learned counsel for the respondent / defendant. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of Civil Procedure Code (hereinafter referred to as „CPC‟) could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi1, the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law. 14. The plaintiff having chosen to invoke the jurisdiction of this Court under Section 100 of CPC, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal 1(2007) 8 SCC 155 are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The appellant herein is the plaintiff in O.S.No.1089 of 2000 on the file of learned Principal Junior Civil Judge, Kurnool. The plaintiff filed the suit in O.S.No.1089 of 2000 for seeking the relief of declaration of title and recovery of possession of the plaint schedule property. The specific case of the appellant is that the plaintiff and one V.Rama Krishna Reddy are the sons and 2nd defendant is the wife of one late Raghava Reddy and Raghava Reddy died when the plaintiff and his younger brother are minors and late Raghava Reddy died intestate leaving behind him, his wife and two sons and daughters. The plaintiff further pleaded late Raghava Reddy owned an extent of Ac.33.00 of land at Amadaguntla village and the mother of the plaintiff by name Ramamma i.e. 2nd defendant died during pendency of the suit. The relationship in between the plaintiff and 2nd defendant is undisputed. The specific case of the appellant is that the suit schedule property fell to the share of plaintiff in a family partition and in the month of December, 1998, the plaintiff came to know that the 2nd defendant sold away the suit schedule property to the 1st defendant without any right whatsoever under the registered sale deed dated 14.07.1998. The appellant herein is seeking the relief of declaration of title and recovery of possession of the plaint schedule property. The basis for claiming title over the schedule property by the plaintiff is based on unregistered partition list dated 01.09.1989. 17. The legal position in this regard is no more res integra. The same has been well settled by the Apex Court in catena of judgments: In a case of Union of India and others vs. Vasavi Cooperative Housing Society Limited and others2, the Apex Court held as follows: “In a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff‟s own title, plaintiff must be non-suited.” In a case of Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira & others3, the Apex Court held as follows: “It is perfectly clear that in a suit of this description if the plaintiffs are to succeed they must do so on the strength of their own title.” In a case of Sajana Granites, Madras and another vs. Manduva Srinivasa Rao and others4, the Composite High Court of Andhra Pradesh at Hyderabad, held as follows: “The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.” In a case of K. Venkatasubba Reddy vs. Bairagi Ramaiah (died) by L.Rs.5, the Composite High Court of Andhra Pradesh at Hyderabad, held as follows: 2 (2014) 2 Supreme Court Cases 269 3 1958 SCC OnLine Supreme Court 136 4 2001 SCC OnLine AP 666 “A Division Bench of this Court also in Chakicherla Adilakshmamma v. Almakuru Rama Rao and Ors,- (3) AIR 1973 AP 149. Relying on the judgment of the Supreme Court in AIR 1954 SC 526 (cited supra) held that "in a suit for ejectment, the plaintiff is liable to be nonsuited, if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not." The law laid down by the Supreme Court and also by the Division Bench of this Court in the ejectment suits is also applicable to the suits for declaration of title. Thus, the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant's case. 18. In a case of Brahma Nand Puri vs. Neki Puri Since deceased represented by Mathra Puri and another6, the Apex Court held as follows: “The plaintiff‟s suit being one for ejnectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property, assuming learned counsel is right in that submission”. In a case of Jagdish Narain vs. Nawab Sai Ahmed Khan7, the Privy Council held as follows: “In a suit in ejectment the plaintiffs can succeed only on the strength of their own title, and there is no obligation upon the defendants to plead possible defects in the plaintiffs‟ title which might manifest themselves when the title is disclosed. It is sufficient that in the written statement the defendants deny the plaintiffs‟ title, and under this plea, they can avail themselves of any defect which such title discloses.” In a case of A. Ramloo and others vs. G. Sreeramachandra Murthy and others8, the composite High Court of Andhra Pradesh at Hyderabad held as follows: In a ruling reported in Moran Mar Basselios Catheolicos and another v. Most Rev. Mar Poulose Athanasius and others, AIR 1954 SC 526, it has been held by their Lordships as under: 5 1999 (1) APLJ 416 (HC) 6 AIR 1965 SC 1506 7 1945 SCC OnLine PC 56 8 1999 SCC OnLine AP 80 "That the plaintiff in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendants title, in the absence of establishment of his own title carries the plaintiff nowhere." 19. The title of the appellant / plaintiff is based on Ex.A.5 partition list. As per the evidence of P.W.1, his mother has been managing the properties since the date of partition. As per the testimony of D.W.1, the 2nd defendant got the property in lieu of her maintenance during the lifetime of her husband late Raghava Reddy. As per the own evidence of P.W.2, the schedule property fell to the share of plaintiff in a family partition that taken place on 01.09.1989. As seen from Ex.A.5, though it is named as partition list, which is unregistered document, the recitals in Ex.A.5 clearly goes to show that it is a partition deed, but not evidencing earlier oral partition in between the plaintiff and 2nd defendant. As seen from the material on record, the plaintiff did not choose to file the partition deed along with the plaint. There is no whisper about the alleged date of partition in the plaint. 20. Admittedly, it is undisputed that the alleged Ex.A.5 document is an unregistered document. The appellant / plaintiff is claiming right of ownership under Ex.A.5. Ex.A.5 is not a document evidencing the earlier partition. Therefore, it requires registration and it is inadmissible in evidence to prove the ownership or division of the property under the Registration Act, 1908, because registration is mandatory. Section 17 (1) (b) of the Registration Act, 1908 requires compulsory registration for partition deed that declare exclusive title to immovable property. 21. The appellant is claiming right and title through unregistered partition list. It is well settled that the nomenclature given to the document is not decisive factor, but the nature and subsistence of the transaction has to be determined with reference to the terms of the document and that admissibility of the document is entirely depending upon the recitals contained in the document, but not on the basis of the pleadings set up by the party, who seeks to introduce the said document in question. A thorough reading of Ex.A.5 makes it very clear that it is not evidencing earlier oral partition. Both the plaintiff and his brother alleged to have been partitioned the properties through Ex.A.5 unregistered document, which is compulsorily registerable document and if the same is not registered, become inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Ex.A.5 is the document which squarely falls within the ambit of Section 17 (1) (b) of the Registration Act, 1908 and hence, Ex.A.5 is a compulsory registerable document and the same is inadmissible in evidence for the purpose of proving the factum of partition between the parties. As stated supra, the nomenclature given to the document is not a decisive factor. The subsistence of the transaction has to be determined with reference to the terms of the document. The recitals in Ex.A.5 clearly goes to show that it is not evidencing earlier oral partition. The plaintiff herein is claiming rights through Ex.A.5 partition deed. Furthermore, no evidence is placed by the appellant to show that Ex.A.5 is acted upon and he came into possession of the plaint schedule property through Ex.A.5. The plaint schedule property is the immovable property i.e. agricultural land. No revenue record is filed by the appellant to show that he is in possession of the schedule property for about some period from 01.09.1989 onwards. 22. The case of the respondent / 1st defendant is that the 2nd defendant executed a registered sale deed in favour of the 1st defendant on 14.07.1998 by alienating the schedule property under Ex.B.1. D.W.2 is the attestor to Ex.B.1. The testimony of D.W.1 and D.W.2 reveals that the younger brother of the plaintiff V.Rama Krishna Reddy is also one of the attestor of Ex.B.1 sale deed. The plaintiff is not at all disputing the execution of sale deed Ex.B.1. But the plaintiff pleaded that it is a sham and nominal document. But the plaintiff failed to prove that it is a sham and nominal document. Furthermore, Exs.B.2 to B.4 clearly proves that by virtue of Ex.B.1 registered sale deed, the 1st defendant came into possession of the plaint schedule property and the revenue authorities recognized his possession over the schedule property under pattadar passbook and title deed passbooks were also issued in respect of the schedule property. Ex.B.4 – No.3 Adangal also proves the possession of the 1st defendant in the plaint schedule property. 23. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues / points in favour of the defendant and against the plaintiff do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of CPC. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 24. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki9. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of CPC. 9 AIR 2006 SC 1975 25. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. Pending applications, if any, shall stand closed. No costs. //TRUE COPY// VENUTHURUMALLI GOPALA KRISHNA RAO,J To, 2. Two CD Copies HIGH COURT VGKRJ DATED:26/09/2025 ORDER SA 920/2013