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IN THE HIGH COURT OF ANDHRA PRADESH
M.VENKATA RAMANA, J.
Kondamudi Raghavamma – Appellant
Versus
Ikkurthu Krishna Murthy – Respondent
Second Appeal No. 475 of 2015
Decided on : 10-03-2020
Code of Civil Procedure – Section 100 – Second Appeal is preferred under Section 100 of Code of Civil Procedure against decree and judgment in A.S. of Court of X Additional District Judge – Decree and Judgment of Court of Senior Civil Judge, in O.S. was set aside in the above appeal – It is desirable to consider the material on record viz., the pleadings and the evidence let in by the parties at the trial and which were considered by both the Courts below – Whether the plaintiff is entitled to seek declaration and consequential injunction, as prayed for – Whether the relinquishment deed is true and correct – Whether the registered will is true, valid and duly executed – Held, On account of improper consideration and exercise of its jurisdiction as an appellate Court, twice the parties had to approach this Court and they were made unnecessarily to bear the burden in every respect – It is desirable to direct the parties to bear their own costs in this second appeal – Court set aside decree and judgment of Court of X Additional District Judge, in A.S. and restoring decree and judgment of court of Senior Civil Judge, in O.S. – Second Appeal Allowed (Paras 49, 50)
Facts of the case:
Appellant is the daughter of Sri Thummalacheruru Satyanarayana, S/o.Sri Peda Narasaiah. He died in the year 1990. Smt.Satyavathamma was the first wife of Sri Thummalacheruvu Satyanarayana. She died when the appellant was quite young. Thereafter, Sri Thummalacheruvu Satyanarayana married Smt. Hanumayamma. She died on 15.08.2009. She did not have issues by her husband Sri Thummalacheruvu Satyanarayana – appellant laid the suit to declare her right, title and interest of the plaint schedule house and to grant perpetual injunction restraining the respondent from interfering with her peaceful possession and enjoyment of the same.
Findings of The court:
On account of improper consideration and exercise of its jurisdiction as an appellate Court, twice the parties had to approach this Court and they were made unnecessarily to bear the burden in every respect – It is desirable to direct the parties to bear their own costs in this second appeal – Court set aside decree and judgment of Court of X Additional District Judge, in A.S. and restoring decree and judgment of court of Senior Civil Judge, in O.S
Result: Second Appeal Allowed
JUDGMENT :
This Second Appeal is preferred under Section 100 of Code of Civil Procedure against the decree and judgment in A.S.No.34 of 2013 dated 30.04.2015 of the Court of the learned X Additional District Judge, Guntur at Gurazala. The decree and Judgment of the Court of learned Senior Civil Judge, Gurazala in O.S.No.151 of 2009 dated 30.11.2012 was set aside in the above appeal. In order to decide this second appeal, it is desirable to consider the material on record viz., the pleadings and the evidence let in by the parties at the trial and which were considered by both the Courts below.
2. The plaintiff is the appellant in the second appeal and was the respondent in the first appeal. Whereas the defendant is the respondent herein and was the appellant in the first appeal.
3. The appellant is the daughter of Sri Thummalacheruru Satyanarayana, S/o.Sri Peda Narasaiah. He died in the year 1990. Smt.Satyavathamma was the first wife of Sri Thummalacheruvu Satyanarayana. She died when the appellant was quite young. Thereafter, Sri Thummalacheruvu Satyanarayana married Smt. Hanumayamma. She died on 15.08.2009. She did not have issues by her husband Sri Thummalacheruvu Satyanarayana.
4. The plaint schedule property is a house with an open site in Macherla Town of Guntur District. A vacant site was purchased in the name of Sri Thummalacheruvu Satyanarayana on 15.06.1976 from the original owner Smt. Koteswaramma for valuable consideration and Ex.B1 is the registration extract of this sale deed. Smt. Hanumayamma during her lifetime was living in the plaint schedule house and till she died. The defendant is the grandson of Smt.Subbayamma, who is elder sister of Smt.Hanumayamma.
5. The above are the admitted facts in this case.
6. The appellant laid the suit to declare her right, title and interest of the plaint schedule house and to grant perpetual injunction restraining the respondent from interfering with her peaceful possession and enjoyment of the same.
7. The claim set forth by the appellant in the plaint was that she is class-I heir to succeed the estate of her late father Sri Thummalacheruvu Satyanaryana, who died intestate, and that the respondent, who was nothing to do with their family or the plaint schedule house, tried to interfere with her peaceful possession and enjoyment creating a panic situation threatening her and to cause damage to the plaint schedule house. Thus alleging that there was threat of dispossession from the respondent by use of force, she claimed such relief.
8. The respondent resisted the case of the appellant in the plaint contending mainly in the written statement that the appellant relinquished her right and share in the plaint schedule house in favour of Smt.Hanumayamma upon receiving Rs.40,000/-under a Term Deposit Receipt of Andhra Bank, executing a relinquishment agreement dated 10.04.1990 in her favour. He further claimed in the written statement that Smt.Hanumayamma was in possession and enjoyment of the plaint schedule house for more than 20 years exclusively to the knowledge of everyone as an absolute owner including from the date of alleged relinquishment agreement and thus perfected her right and title to the plaint schedule house by adverse possession.
9. The respondent further stated in his written statement that during lifetime of Sri Thummalacheruvu Satyanarayana, upon the vacant site purchased, he as well as Smt. Hanumayamma got constructed the house with their joint funds and she executed a registered Will in his favour and in favour of her other three sisters bequeathing the plaint schedule house in their favour with certain directions including meeting the expenses for her obsequies and to discharge her liabilities, upon selling the same and that the balance to be shared among all the legatees equally. Thus setting up right, title and interest in the plaint schedule house exclusively in favour of Smt.Hanumayamma against the interest of the appellant and further claiming as a legatee under t
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