APHC010006902011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] WEDNESDAY,THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 146/2011 Between: Sonti Lakshmi Kamala & 6 Others and Others ...APPELLANT(S) AND Sonti Sivananda Rao ...RESPONDENT Counsel for the Appellant(S): 1. M BALASUBRAHMANYAM Counsel for the Respondent: 1. GVVSR SUBRAHMANYAM The Court made the following: Reserved on 12.11.2025 Pronounced on 19.11.2025 Uploaded on 19.11.2025 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL No.146 of 2011 JUDGMENT: This second appeal under Section 100 of the Code of Civil Procedure is filed aggrieved against the judgment and decree, dated 02.03.2010, in A.S.No.104 of 2005 on the file of the VII Additional District Judge at Kakinada, reversing the judgment and decree, dated 15.07.2005, in O.S.No.45 of 2001 on the file of the I Additional Senior Civil Judge at Kakinada. 2. The plaintiffs initiated action in O.S.No.45 of 2001, on the file of the I Additional Senior Civil Judge at Kakinada, with a prayer for preliminary decree in favour of the plaintiffs to divide the plaint schedule property into two equal shares with reference to good and bad qualities and allot one such separate share to the plaintiffs and to deliver separate possession to them and to award costs. 3. The learned I Additional Senior Civil Judge at Kakinada, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned VII Additional District Judge at Kakinada, allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Aggrieved thereby, the plaintiffs approached this Court by way of second appeal. VGKR, J. SA_146_2011 4. The appellants herein are the plaintiffs and the respondent herein is the defendant in O.S.No.45 of 2001. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the suit O.S.No.45 of 2001. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.45 of 2001, is as follows: The 1st plaintiff is the wife and the 2nd to 7th plaintiffs are the children of one late Sonti Babu Rao, who died on 26.10.1988 intestate, leaving behind the plaintiffs, who are his wife and children, as his nearest legal heirs, and the said late Sonti Babu Rao and the defendant are brothers. Late Sonti Babu Rao and the defendant jointly purchased the plaint schedule house site to an extent of Ac.0.20 cents situated in Ashok Nagar, Kakinada, from one Mangipudi Lakshminarayana under a registered sale deed dated 13.06.1964, and they have been in joint possession and enjoyment of the same with equal rights. Subsequently, the defendant and the said late Sonti Babu Rao jointly constructed a tiled house therein and are in joint possession and enjoyment of the said property by paying the taxes thereon jointly as of right. Subsequently, some disputes arose between them, the defendant fabricated the agreement dated 26.04.1975, falsely contending that late Sonti Babu Rao had executed an agreement dated 26.04.1975, undertaking to execute a registered release deed in his favour, and the defendant filed a suit in O.S.No.673 of 1978, on the file of the I Additional District Munsiff Court, VGKR, J. SA_146_2011 Kakinada, seeking declaration that he is the owner of the joint ½ share of the plaint schedule property standing in the name of plaintiffs’ predecessors in title of the said late Sonti Babu Rao, and the said suit was dismissed. Thereupon, the defendant filed an appeal in A.S.No.141 of 1982, on the file of the I Additional Subordinate Judge, Kakinada, and the said appeal was allowed on 06.07.1988. Against the said decree and judgment in A.S.No.141 of 1982, the plaintiffs herein i.e., defendants therein filed a second appeal in S.A.No.641 of 1988 before this Court, and this Court, vide decree and judgment dated 09.09.1999, allowed the second appeal, and thus the plaintiffs have got their joint ½ share in the plaint schedule property and the defendant has got joint ½ share in the plaint schedule property, and they have been in joint possession and enjoyment of the said property as of right by paying taxes thereon. As such, the plaintiffs are constrained to file the present suit with a request to divide the plaint schedule property into two equal shares with reference to good and bad qualities and allot one such share to the plaintiffs and to grant separate possession to the plaintiffs and costs. 7. The defendant filed written statement before the trial Court denying the material averments made in the plaint. The brief averments in the written statement of the defendant are as follows: The defendant pleaded that the suit filed by the plaintiffs itself is barred by the law of limitation, the plaintiffs are never in possession and enjoyment of the property and they never enjoyed the plaint schedule property in joint possession of the property. He further pleaded that the Second Appellate VGKR, J. SA_146_2011 Court decreed the suit for recovery of Rs.5,300/- with interest from 25.04.1975 till the date of realization with a charge on the share of late Babu Rao. The defendant pleaded that the plaintiffs have to pay the amount due to him and, without paying the said amount, the plaintiffs have filed the suit for partition, which is not maintainable under law. He further pleaded that subsequent to the judgment of the High Court in S.A.No.641 of 1988, it was orally agreed that the property should be sold to the defendant and the defendant herein should purchase the share of the plaintiffs for a sum of Rs.1,00,000/-, and out of the amount due to the defendant is deducted and the balance is liable to be paid to the plaintiffs. The defendant further pleaded that the plaintiffs herein have orally agreed to sell the schedule property, i.e., their share, to the defendant herein and, being in agreement to the same, the plaintiffs have filed the present suit for partition with false allegations, and as such the plaintiffs have no manner of right to claim for partition of the plaint schedule property and requested to dismiss the suit. 8. On the basis of above pleadings, the learned trial Judge framed the following issues for trial: 1) Whether the schedule property is joint property between both parties? 2) Whether the plaintiffs have to pay Rs.5,300/- with interest seeking for partition as per the proceedings in O.S.No.673 of 1978? 3) Whether there was an oral agreement between both to sell the share of plaintiff for Rs.1,00,000/- as alleged in the written statement? VGKR, J. SA_146_2011 4) Whether the plaintiff is entitled for partition of schedule property into 2 equal shares and allot one such share with his possession? and 5) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-4 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and no documents were marked. 10. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.104 of 2005, wherein the following points came up for consideration: 1) Whether the plaint schedule property was the joint property of plaintiff father Sonti Babu Rao and defendant? 2) Whether the plaintiffs are entitled for partition of the plaint schedule property into two equal shares and allot one such share? 3) Whether the plaintiffs father Sonti Babu Rao has executed relinquishment deed prior to his death for his half share in the suit schedule property as such, the defendant is entitled for specific performance and whether the plaintiffs have orally agreed to sell away their half share for Rs.1,00,000/-? 4) Whether the plaintiffs without paying Rs,1,800/- towards purchase of the site and Rs.3,500/- towards construction of house together with interest VGKR, J. SA_146_2011 at 6% p.a. from 25-4-1975 are entitled to seek partition of the suit schedule property? 5) Whether the judgment and decree of the trial Court require any interference by this Court? and 6) To what relief? 11. The learned first appellate Judge after hearing the arguments, answered the points, as above, against the plaintiffs and allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful plaintiffs in O.S.No.45 of 2001 filed the present second appeal before this Court. 12. On hearing both sides’ counsel at the time of admission of the second appeal on 01-04-2011, the Composite High Court of Andhra Pradesh has framed the following substantial question of law: 1) Whether, on the facts and in circumstances of the case, the reversing judgment and decree of the lower Court is vitiated in that it misconstrued/misinterpreted the clauses in Ex.A-1 decree in S.A.No.641 of 1988 and thus erred in dismissing the plaintiffs suit for partition? 13. Heard Sri M.Bala Subrahmanyam, learned Counsel for the appellants/plaintiffs and Sri G.V.V.S.R. Subrahmanyam, learned counsel for the respondent/defendant. VGKR, J. SA_146_2011 14. The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is final Court of facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In the case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held as follows: <The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.= In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar2, the Apex Court held as follows: <The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.= 15. The undisputed facts are that the defendant herein filed a suit in O.S.No.673 of 1978, on the file of the I Additional District Munsif Court, Kakinada, seeking relief of declaration that he is the owner of the plaint schedule property and also the consequential relief of permanent injunction restraining the plaintiffs herein from entering into the possession of the defendant herein and after full-fledged trial, the learned I Additional District 1 AIR 1993 SC 398 2 AIR 1999 SC 471 VGKR, J. SA_146_2011 Munsif, Kakinada, dismissed the suit, against which the defendant herein filed an appeal in A.S.No.141 of 1982, on the file of the I Additional Subordinate Judge, Kakinada, and the said appeal was allowed by the I Additional Subordinate Judge, Kakinada, against which the defendant herein had filed a second appeal in S.A.No.641 of 1988, before this Court and the same was allowed by this Court vide decree and judgment dated 09.09.1999, by holding that the defendant herein is entitled to recover an amount of Rs.5,300/- together with interest @ 6% per annum from 25-4-1975 till the date of realization and a charge is also created for the aforesaid amount in favour of the plaintiff in the suit property to the extent it pertains to the share of the plaintiffs herein and this Court also further held in its judgment that in case of default, the defendant herein is entitled to recover the same by seeking the sale by auction of half of the suit property belonging to the plaintiffs herein. The contention of the plaintiffs herein is that even though the plaintiffs herein approached with the amount as ordered by the Second Appellate Court, as per the decree and judgment in S.A.No.641 of 1988, but the defendant herein refused to partition of the plaint schedule property, which led to the filing of the present suit. The defendant herein pleaded in the written statement that subsequent to the judgment of the High Court in S.A.No.641 of 1988, it was orally agreed that the property should be sold to the defendant and the defendant herein should purchase the share of the plaintiffs for a sum of Rs.1,00,000/-, and out of the amount due to the defendant is to be deducted and the balance is liable to be paid to the plaintiffs herein. The defendant VGKR, J. SA_146_2011 herein further pleaded that the plaintiffs herein have orally agreed to sell the schedule property to the defendant herein and he agreed to the same. Admittedly, no evidence is produced by the defendant to show that the plaintiffs herein have orally agreed to sell the schedule property in respect of their share to the defendant for Rs.1,00,000/-, and the defendant herein pleaded that since the plaintiffs did not fulfill the conditions mentioned in the decree passed in S.A.No.641 of 1988, the plaintiffs herein are not entitled to the relief of partition of plaint schedule property. 16. The relationship in between the plaintiffs and the defendant is not in dispute. The plaintiff No.1 is the wife and the plaintiff Nos.2 to 7 are the children of one Sonti Babu Rao, who died intestate leaving behind the plaintiffs and Sonti Babu Rao and the defendant herein are the brothers. Learned counsel for the appellants would contend that the First Appellate Court has misinterpreted clauses in Ex.A-1 decree in S.A.No.641 of 1988 and came to a wrong conclusion and allowed the first appeal and dismissed the suit filed by the plaintiffs herein. 17. The First Appellate Court came to a conclusion in paragraph No.20 of its judgment that since the plaintiffs have not complied with the direction of the High Court as held in the second appeal covered under Ex.A-1 and since the plaintiffs have not deposited an amount of Rs.5,300/- together with interest @ 6% per annum as ordered by this Court in the second appeal in S.A.No.641 of 1988. As seen from the judgment of this Court in S.A.No.641 of 1988, this Court held in its judgment that as per Ex.A-1 agreement, the defendant has to VGKR, J. SA_146_2011 execute a relinquishment deed and the said relinquishment deed is not at all executed by the defendant No.1 in favour of the plaintiff. In the said second appeal, this Court further held that in its judgment that <as per Ex.A-1, the defendant No.1 required to execute a relinquishment deed and such deed is not executed by the defendant in favour of the plaintiff and therefore, Ex.A-1 at the most can be taken as an agreement to execute a relinquishment deed and in the absence of the relinquishment deed by the defendant in favour of the plaintiff, the title of the defendant No.1 would not be affected=. The defendant No.1 in the second appeal in S.A.No.641 of 1988 is the husband of the plaintiff No.1 and the father of the other plaintiffs herein and the plaintiff in S.A.No.641 of 1988 is the defendant herein. Therefore, it is manifest that the First Appellate Court has misconstrued the clauses in the decree and judgment passed in S.A.No.641 of 1988. 18. The material on record reveals that the First Appellate Court came to a conclusion for allowing the first appeal in the present case is since the plaintiffs have not complied with the direction passed by this Court in S.A.No.641 of 1988, therefore, the plaintiffs are not entitled to maintain a suit for partition of the plaint schedule property. As seen from the judgment passed in S.A.No.641 of 1988, this Court directed the husband of the plaintiff No.1 and the father of the other plaintiffs herein to pay an amount of Rs.5,300/- together with interest @ 6% per annum from the date of Ex.A-1 to the date of realization, failing which the defendant herein is entitled to recover the same by selling the same in an auction sale in respect of the other half of the suit VGKR, J. SA_146_2011 property under ownership and possession of the plaintiffs herein. Admittedly, there is no direction given by this Court in its judgment, in case, if the defendant herein refused to receive the said amount, to deposit the same into the trial Court. Moreover, the defendant herein has also not filed an execution petition for implementing the condition in Clause No.4 of the decree and judgment passed in S.A.No.641 of 1988 viz., namely for the auction of the other half share of the plaintiffs’ property herein. It is specific case of the plaintiffs herein that though they have approached the defendant herein to receive the money, but he refused to receive the same and also refused to partition the plaint schedule property. Having waited till the year 2001, the plaintiffs have filed the present suit. 19. It was contended by the defendant in the written statement that subsequent to the decree and judgment passed by the High Court in S.A.No.641 of 1988, it was orally agreed by the plaintiffs herein to sell their half share to the defendant herein and the defendant herein should purchase the share of the plaintiffs for a sum of Rs.1,00,000/-, out of that amount due to the defendant was deducted as ordered in the second appeal and the balance amount is liable to be paid to the plaintiffs herein. But, the alleged oral agreement is strongly disputed by the plaintiffs herein. The defendant herein failed to prove the alleged oral agreement for the reasons best known to him. It is not the specific case of the defendant that the plaintiffs herein refused to pay an amount as ordered in the second appeal. The defendant herein simply pleaded in the written statement that subsequent to the passing of the VGKR, J. SA_146_2011 judgment by this Court in S.A.No.641 of 1988, there was an oral agreement in between both the parties that the property should be sold to the defendant herein and the defendant should purchase the share of the plaintiff for a sum of Rs.1,00,000/- and out of the amount due to the defendant has been deducted and the balance is liable to be paid to the plaintiffs, as stated supra, the same is not proved by the defendant herein. Therefore, it is quite clear that there are latches on the part of the defendant in so far as not receiving the amount as ordered in the judgment in the second appeal. It is brought to the notice of this Court by the learned counsel for the appellants herein that subsequent to the passing of decree and judgment by the trial Court itself the plaintiffs have deposited an amount as ordered by the trial Court i.e. an amount of Rs.13,409/- before the trial Court on 20.08.2005. A copy of the challan is also placed on the record by the appellants/plaintiffs. 20. For the aforesaid reasons, I am of the considered view that the First Appellate Court has misconstrued the clauses in the decree and judgment passed by this Court in S.A.No.641 of 1988, and without re-appreciating the evidence on record in a proper manner, came to a wrong conclusion and allowed the first appeal filed by the defendant herein. Therefore, the decree and judgment passed by the First Appellate Court is liable to be set aside. 21. In the result, the second appeal is allowed and the judgment and decree, dated 02.03.2010, in A.S.No.104 of 2005 passed by the VII Additional District Judge at Kakinada, is hereby set aside and the judgment and decree, dated 15.07.2005, in O.S.No.45 of 2001 passed by the I Additional Senior VGKR, J. SA_146_2011 Civil Judge at Kakinada, in decreeing the said suit is hereby confirmed. Pending applications, if any, shall stand closed. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal. __________________________ V. GOPALA KRISHNA RAO, J. Date: 19.11.2025 SRT