2018 Supreme(AP) 196
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. SHANKAR NARAYANA, J.
K. Chitti Babu - Appellants
Vs.
K. Payanivel Chetty and Ors. - Respondent
Second Appeal Nos. 818 and 819 of 2016
Decided On : 22-01-2018
For the Appellant : S.V. Muni Reddy
For the Respondents: K. Ravinder Rao for M. Siva Kumar
Headnote:
Code of Civil Procedure, 1908 - Order 41 Rule 31 - Andhra Pradesh Rules under the Registration Act, 1908 - Rule 26 (k) Suit decreed - Counter claim - Two second appeals are preferred by the plaintiff having been unsuccessful before the trial Court and also before the lower appellate Court - One of these appeals is directed against dismissal of the suit and the decree passed therein, the other against decreeing the counter claim - Held, It is difficult to construe the questions of law formulated by the plaintiff constituting substantial questions of law besides the plaintiff completely becoming unsuccessful in showing perversity in the findings recorded by the Courts below - When the plaintiff fails to project patent illegality in the findings recorded by the Courts below, it cannot be said that there exists substantial questions of law - Therefore, both the Second Appeals fail and are dismissed accordingly, at the admission stage itself - Second Appeals dismissed.
A. Shankar Narayana, J.
1. Both these Second Appeals are taken up for disposal by this common judgment, though, they arise from two different first appeals in A.S. No. 117 of 2015 and A.S. No. 125 of 2015, that were directed against one and the same judgment and decree dated 15.02.2013 in O.S. No. 951 of 2005 passed by the learned II Additional Junior Civil Judge, Chittoor, dismissing the suit of the plaintiff, who is the appellant in both these second appeals, by allowing the counter claim of defendant Nos. 1 to 4, who are respondent Nos. 1 to 4 herein. Admittedly, defendant Nos. 5 to 7, who are respondent Nos. 5 to 7 herein, remained ex parte, and thus, did not participate in the suit proceedings. For the sake of convenience, the parties are hereinafter referred to as arrayed in the original suit before the trial Court.
2. These Second Appeals are disposed of, at the admission stage itself, having heard Sri S.V. Muni Reddy, learned counsel for the appellant - plaintiff, and Sri K. Ravinder Rao, learned counsel appearing for Sri M. Siva Kumar, learned counsel for respondent Nos. 1, 2, 7 and 8 - defendant Nos. 1, 2, 7 and 8, and perused the material on record. None appears for respondent Nos. 3, 4, 5 and 6.
3. These two second appeals are preferred by the plaintiff having been unsuccessful before the trial Court and also before the lower appellate Court. One of these appeals is directed against dismissal of the suit and the decree passed therein, the other against decreeing the counter claim. Thus, these two second appeals have arisen against one and the same judgment and decree rendered by the trial Court.
4. It is now well settled that though, concurrent findings have been rendered by the Courts below, still, if the plaintiff makes out a strong case in the direction of showing that the concurrent findings recorded by the Courts below are patently perverse or suffer from patent illegality, at the admission stage, it is difficult to formulate substantial questions of law, merely, basing on the questions of law, shown under the caption 'Substantial Questions of Law' in the Memorandum of Grounds of Second Appeal.
5. The plaintiff has projected identical questions of law as 'substantial questions of law', in paragraph No. 22, thus:
"22. Substantial Questions of Law:
(a) When the findings of the courts below are not supported by evidence or based on misconception or erroneous and perverse or based only on surmises, the judgment of courts below are liable to be vitiated.
(b) Whether the courts below are justified, in allowing counter claim of the defendants 1 to 4, without considering its maintainability, as the defendants failed to present the counter claim along with written statement.
(c) Whether the trial court is right in dismissing the suit and the lower appellate court is right in dismissing the appeal, contrary to law, evidence on record and against the Rule 26 (k), prohibits registration of document which seeks to cancel previous transactions between parties unilaterally.
(d) Whether the Judgments of the courts below are liable to vitiated an (Sic. and) they are rendered contrary to the principle that once the gift was accepted by donee, right of the donor to unilaterally cancel the gift deed ceases to exist, in case, the donor felt that there are circumstances warranting cancellation of gift deed, she/he could have cancel only with the consent or participation of the donee, or by filing suits for the cancellation in the court of law.
(e) Whether the judgments of the courts below are liable to be vitiated, in view of specific clause in Ex. A17, that the donor has no right to cancel the same during her life time.
(f) Whether unilateral cancellation of Ex. A17, Registered Gift Settlement deed, dated 31.05.1996, by a registered cancellation deed dt. 26.04.1997, under Ex. B1, is permissible under law.
(g) Whether the judgments of the courts below are liable to vitiated, as same are contrary to the principles settled by this Hon'b