2024 Supreme(Online)(Telangana) 48367

[ ³³⁸³ I

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD

THURSOAY, THE TWENTY NINTH DAY OF FEARUARY

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE ^I AXMI NAII-AYANA ALISHETTY

S\^"'31

d

SECOND APPEAL NO: 393 AND 395 OF 2023

Appeal under section 100 of C.P.C against the Judgment and Decree Dated

13.02.2023 made in A.S.No.6 ot 2018 on the file of the Court of the ^Principal

District and Sessions Judge, Rajanna Siricilla ^preferred against the Decree ⁱⁿ

O.S.NO.SO of 2007 dated 04.01.2012 on the file of the Court of the Senior Civil

Judge, at Sircilla.

Between:

1. Varala Ravinder, S/o. Late Varala Ramulu, Aged. 47 ^years, Occ. P.adio

Mechanic, R/o.H.No.8-2-'112, Anjaninagai, Vemulawada, Karimnagar District.

2. Varala Sobha, Wo- Varala Ravinder, Aged.37 ^years, Occ. House Hold, ^R/o.

...Appellants/Defendant Nos.2 & 3

AND

Smt.Ananthamma @ Vippapoovula Lakshmi, W/o. Vippapoovula Shankar,

Aged. 53 ^years, Occ. House wife, R/o.H.No.17-1-186/23,

Keshavnagar,Saidabad, Hyderabad.

...Respondent

Petition under Section 151 CPC praying.that in the circumstances stated in

the affidavit filed in support of the petition, lt is prayed that this Hon'ble Court that

the Order dated 13-02.2012, in A.S. No.6 of 2012 on the file of the Principal

District and Sessions Judge, Rajanna Siricilla, to be Stayed, ^pending outcome of

the main Second Appeal.

Counsel for the Appellants: Sri Rachana Reddy representing

Sri Mohd Baseer Riyaz

Counsel for the Respondent: Sri Rakesh Sanghi

H.No.8-2-1 12, Anjaninagar, Vemulawada, Karimnagar District.
lA NO: 2 OF 2023

SECOND APPEAL NO: 3e5 OF 2023

Appeal under section 100 of C.P.C against the Judgment and Decree Dated

13.02.2023 made in A.S.No.7 of 2018 on the file of the Court of the Principal

District and Sessions Judge, Rajanna Siricilla preferred against the Decree in

O.S.No.23 of 2O1O dated 30.10.2012 on the file of the Court of the Senior Civil

Judge, at Sircilla.

Between:

Varala Shobha, Wio. Ravinder, Aged about.33 years, Occupation. House

Hold, Rl/o.H.No.A-2-112, College Road, Vemulawada Proper and Mandal,

District. Karimnagar.

...Appellant

AND

1

Smt.Ananthamma @ Mppapoovula Lakshmi, Wo. Vippapoovula Shankar,

Aged about. 50 years, Occupation: House Hold, Rr/o.H.No.17-1-386-1-23,

Keshavanagar, Saidabad, Hyderabad.

Vippapoovula Shankar, S/o. Bhoomaiah, Aged about. 67 ^years, Occupation.

Hyderabad.

...Defendants/Respondents

lA NO: 2 OF 2023

Petition under Section 151 CPC pralng that in the circumstances stated in

the affidavit filed in suppo( of the petition, lt is prayed this Honourable Court that

the Order daled 1310212012, in A.S.No.7 of 2012 on the file of the Principal District

and Sessions Judge, Rajanna Siricilla, to be Stayed, ^pending outcome of the main

Second Appeal.

Counsel for the Appellant: Sri Rachana Reddy representing

Sri Mohd Baseer Riyaz

Counsel for the Respondents: Sri Rakesh Sanghi

The Court delivered the following Common Judgment:

Govt. Employee, R/o. l'{.No. 1 7-1 -386-1 -23, Keshavanagar, Saidabad,

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

SECOND APPEAL Nos.393 & 395 of 2023

The parties and the subject matter of the property involved in

both these Second Appeals are one and the same and hence, they

are being heard together and disposed olby common ^judgment.

2.

Second Appeat No.393 of 2023 is filed questioning the

judgment and decree, dated 13.02.2023, passed by Principal

District Judge, Rajanna Sircilla in AS.No.6 ol 2018, whereunder

and whereby thejudgment and decree dated 04.01.2012 passed by

the Senior Civil Judge, Sircilla in O.S.No.50 of 2007, which was

filed seeking partition ol the suit schedule properties,

was

confirmed.

3.

Second Appcal No.395 of 2023 is fited questioning the

judgment and decree, dated 13.02.2023, passed by Principal

District Judge, Rajanna Sircilla in AS.No.7 ol 2018, whereunder

and whereby the ^judgment and decree dated 30.10.2012 passed by

the Senior Civil Judge, Sircilla in O.S.No.23 of 2010, which was

filed seeking the relief of perpetual injunction restraining the

defendants, their agents from interlering with the peaceful

COMMONJUDCMENT:

I-AA, J

S-A-Nos-J9J & J95 of 202J

possession and enjoyment of the plaintiff over the suit schedule

properties, was confi rmed

4.

The brief facts of the case, shom off unnecessary details,

which led to filing of Second Appeal No.393 of 2o23,are that rhe

plaintiff is the natural daughter of defendant No. t through Late

Varala Ramulu. Defendant No.2 is adopted son of delendant No. l.

Late Varala Ramulu acquired the suit schedule property during his

life time and enjoyed rhe same with absolute rights.

4. l.

It was averred that the lather of the plaintiff by name

Varala Rarnulu died in year 1971, without any male issues, leaving

behind the plaintiFf and defendant No.I as his legal hcirs ro

succeed the suit schedule properry.

4.2.

[t was lurther averred that the at the time of marriage of the

plaintiffin the year 1968, during the life time of Varala Ramulu, no

money or articles were given and the plaintilfs father promised

that he would divide the suit schedule property into two parts and

bequeath half share to the praintiff. After the death or varala

Ramulu, the said property has become joint family property. The

plaintiff and defendant No. I are having half share each in the suit

J

LNA, J

schedule property. Defendant No. I used to manage the suit

schedule property as the plaintiff is residing at Hyderabad.

4.3. After death of plaintiffs flather, the defendant No.l took

defendant No.2 in adoption in the year 1978, performed his

marriage and he was blessed with three daughters. The plaintifls

request to delendant No. I to settle the property was postponed on

one pretext or the other, The plaintiff used to visit Vernulawada

frequently to look after the welfare of defendant No. l, who became

old and was suffering flrom ill health and the plaintiff regularly

provided medical treatrnent to her.

4.4. It was further averred that since the plaintitl did not agree

lor marriage alliance to her son, the delendants bore grudge against

her and threatened that delendant No. I would not settle the

property

tn favour ol' ptaintiff. While so, on 10.06.2007, the

plaintiffgot issued a legal notice to the defendant No. I for partition

of the suit property, but defendant No. I gave a reply by attributing

baseless allegations and claimed that she was the absolute owner of

the suit schedule property. Delendant No.I is making e flo rts to

transfer the suit schedule prope(y in lavour o[ delendant No.2

- {ence, the suit lor partition olthc suit schedule propertles.

S-A.Nos.393 & 395 of 2023

LNA, J

S.A.No|-J9J & JgS of 202J

5.

Defendant Nos. t and 2 filed common written statement

denying the averments of the plaint and further contended that Late

Varala Ramulu and defendant No. I took defendant No.2 in

adoption in the year 1966 by following the caste and custonrary

rites, but delendant No. I executed a registered adoption deed on

16.12-1978, i.e., after the demise ol Varala Ramulu.

5.l.

It was lurther contended that after the death ol Varala

Ramulu, defendant No. I purchased the suit schedule property for a

consideration of Rs.2 t0/- lrom its originat owner Chitlabotla

Venkataiah through a sirnple sale deed dated 06.04. 1976 and rhus,

she became absolute owner therefor. ^-fhe plaintilf and delendant

No.2 did not succecd to any property as Varala Ramulu did not

acquire any propert\/ during his life time. The plaintilf never

looked alter the welfare of defendant No.l. Defendant No.2 has

been looking after the defendant No.l. Defendant No.l being the

actual owner, has every right to deal with the suit schedule

property according to her wish and will. The ptaintift has no righr

or interesr in the suit schedule property and she is not in joint

possession along with delendant No. l. [{ence, prayed to disrniss

the suit.

LNA, J

5.2. Defendant No.3 filed a memo adopting the written

statement of defendants Nos. I and 2.

6.

On the basis of the above pleadings, the trial Court lramed

the lollowing issues and additional issues for trial:-

" ( I ) Whether the suit property belonged to late Vara

Ramulu? If so, is the plaintilf and D. I inherited the

same?

(2) Whether D. I purchased the suit open plot for

valuable consideration from

Ch. Venkalaiah,

S/o Chandraiah under simple sale deed date

06.04.1976? lf so, is she exclusive owner of the same?

(3) l4/hcther rhe plaintiff is entitled for portition and

seporate possession as prayed for?

1'4) ^{To wlrut relieJ?}

(5) Wherher late Varala Ramulu and D. I took D.2 in

adoption in the year 1966 as pleaded in the written

slatement and whether adoption deed dated 16. 12. 1978

is true and valid?

(6) Whether the Will deed dated 07.03.2007 was

executed by D. I in favour of D.2? II so, whether it is

valid and binding on the plaintif/? ^"

7.

On behalt of the plaintiff, P.Ws. I to 4 rvere examined and

Exs.A. I to A. 16 were marked. The evidence ol P.W.] was

eschewed as he lailed to appear before tlre Court to lace cross-

e)iamination. On behalf of the defendants, D.Ws. I to 7 were

S.A.Nos.393 & 395 of 2023

LNA, J

S.A.htos.393 & ^j95 of 2023

examined and Exs.B.l to 8.39 were marked. The evidence of

D.W.3 was eschewed as he expired.

8.

The triat Court after perusing the material on record and

after hearing hoth sides, vrZe its judgr.nent dated 04.01 .20 I2, rvhile

answering issues Nos. t and 2, observed as under:_

"None of lhe auesting witnesses to the

Ex. B- l -simplc sale deed. through which

document

defendant

No. I claims litle over thc suit schedule properly. were

examined and hence, the said document which was

impounded is not proved according to law. Therefore,

title over the suit schedule property is not vested in

defenda nt No.! under Ex.B_t.

It oppears front Exs.A-3 and A_4 that by the dare

of Ex-A-l i.e., 15.01.1977. the properq) stood recordetl

in lhe name qf late Varala Ramulu and as such the

properry lax u,os received from him and accordingly,

Exs.A-3 and A-4 were issued in his name.

It can be gathered from lhe evidence o,f p W_4,

Exs.A-l to A-4. A-t2 and A_t3 that riil 1974-75 the

name of l/arakt Ramulu stood recorded in the Gram

Panchayat records and since he died in 197 I, the name

of defendant No.l has been mutated.',

8. l.

Further, the trial Court while answering the issue as regards

the validity ol the Adoptiorr decd, dated I 6. l2.lg7g, observed as

hereunder:-

I

LNA, J

S-A.Nos-J9J & Jgt of 2021

"[t is an ddmitted fact that Ex.B2 is registered in

accordance with the provisions of the lndian

Registrotion Act and though ir is a compulsorily

attestable documenl, it shall not be necessary to call an

attesting wilness to prove its execution for lhe reason

that D I had never disputed ils execution. Moreowr, the

present litigation between the plaintilf and the

defendants u)as never in contemplation as on the ddte

of execution of Ex.B2 and as such, there was no

occasion Jbr D I to execute Ex.82 with an evil inlenlion

of extending a helping hand to D2 to the detriment of

the plainti./f and similarly, there was no occasion for

defendant No.2 to get Ex.82 executed through

defendant No. I .for the reason thal he vtas just l4 ltsat'g

as on the date of Ex-l)2.

While answering additional issue No.2 i.e., with

regard to validity of the Will- Ex-B-3, the trial Court

observed thal it was nol necessary to deal with lhe neur

and different cose set up by the defendants as regards

the execution of ExB-3 by defendant No.l and

accordingly, did not answer the said issue-

9.

By observing so, the trial Court held that the suit schedule

property originally belonged to late Vernula Ramulu and on his

death, plaintiff and defendant No.2 succeeded to the suit schedule

propeny and accordingly, passed a preliminary decree allotting half

share each to the plaintifland det'endant No.2.

LNA, J

t0.

On appeal. the first Appellate Court, being the final fact_

finding Court, re-appreciated the entire evidence and the material

available on record and observed as hereunder:_

"[t is evidentfrom the documents_Ers.A- l to A_4 and

A-13 that the suit property slood in the name of

Varala Ramulu tilt lgZZ and thereaffer, the name oJ.

defendant No. t

started. reflecting in

the

Grampanchayat records. Thus. the plaintiff proved

lhat the suit proper\t is lhe properlv of her father

Varala Rantulu and she

the suit property.

is entitled for her share in

I0.1. The firsr appellate Court t,ide its judgment dated

13.02.2023 confirrned rhe .judgmenr dated 04.01.2012 of the trial

Court by observing as under:_

"The defendanrs .failed to prove thar defendant No. I is

tlte exclusive owner of the suit properb, and os already

dzcided supra (he suit proDert.y stood in the nome of

Varala Ramuluduring his left time and rhe name of

defendant No. I was mutated only after his death, the

queslion of exclusive ownership of defendant No. ! over

lhe suit properq' does not arise. When defendanl No. I

has no exclusive right over tle suit property, she has

no right lo execute Ex.B_3_Wilt Deed.

lt is held proved that the suil properv is the

property of Vorala Rantulu and thc ptaintif being ttrc

S.A-NolJgJ & 395 oI 2DJ

LNA, J

S.A.Nos.393 & J95 oI202J

legal heir of Varala Ramulu is entitled to a share in lhe

suit property. Further. as defendant No. I died during

the pendency of the suit, the plairuilf and defendant

No.2 who are the legal heirs of Varala Ramulu and

defendanl No.l are entitled for equal share in the suil

property- ^"

I l.

The brief facts of the case, shorn off unnecessary details,

which led to filing of Second Appeal No.395 of 2023, are that the

plaintitl is the owner and possessor ol suit schedule property

having purchased the same from her mother-in-law i.e., one Varala

Devamma for a valid consideration under a registered sale deed

bearing document No.8l4 of 2007 dated 14.03.2007. Since the date

of purchase, the plaintiff is in peaceful possession and enjoyment

of the suit schedule land by paying the house taxes to ^the

Grampanchayath concerned. Thc name of the plaintiff ^{has been}

mutated in the Grarnpanchayath records in respect of ^{the suit}

schedule land.

I 1.1. [t was averred that the defendants who have no right or

interest over the suit schedule property developed ill-intention

against the plaintiff and are trying to occupy the ^{same by}

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t0

LN/, J

S.A-Nos.393 & J9S of 2023

dispossessing the plaintilf fiom the suit schedule land. Hence, the

suit seeking the relief of perperual injunction.

12.

The defendants filed common written statement inter alia

denying the averments of the plainr and further contended that the

suit is filed with a malafide intention to have a wrongful gain and

by suppressing the facts. The vendor of the ptaintiff by name

Varala Devamma is none other than the natural rnother of

defendant No. l and adoptivc nlother of Varara Ravinder, who is

the husband of the praintiFt Defendant No.2 is the husband of

defendant No. l. Varala Devarrrna being the rnothcr-in_law of the

plaintiff, the plaintifl could not purchase rhe suir schedule properry

and the said registered sale deed is created and not supported l;y

consideration and delivery of possession.

12.1. It was further averred that during his liG time, the said

Ramulu acquired the suit schedule property and enjoyed the same

with absolute rights and he dicd in the year I97l leaving behind his

wife Varala Devamma and his daughter, i.e., defendant No.l as his

only legal heirs to succeed to the suit schedule property. After the

death of Varala Ramulu, Varala Devamma took the husband of the

LNA, J

plaintiff by name Ravinder in adoption, perlormed their marriage

and they were blessed with three daughters.

12.2.

It was further averred that about one ^year ago, there ^was

a proposal flrorn the plaintiffl, her husband, and Varala ^Devamma

requesting defendant No.l to have marriage alliance to ^{her son}

with the daughter of the plaintift, but the defendants did not ^agree

for it. Since then, the plaintift, her husband and Varala ^Devamma

bore grudge against tl-re delendants and threatened that ^Varala

Devamma would not settle the property in ^favour of ^defendant

No.l unless she agrees to the said ^proposal o[ ^{marriage. After}

seeing the indifflerent attitude of Varala Devamma, defendant ^{No. I}

got issued a tegal notice dated 10.06.2007 to her demanding

partition ol the suit schedule property, Varala Devamma ^{in her}

reply notice, claimed that she was the absolute owner ^{of the suit}

schedule property.

12.3.

[t was further averred that Varala Devamma ^{in collusion}

with her adopted son and the ptaintilf, dismantled ^{the old structures}

in the suit schedule property. Defendant ^No. I filed ^{suit in}

O.S.No.50 oC 7007 on the file ol this Court for ^{partition and}

,Jpdiu," possession against Varala Devamma ^{and the husband ol}

ll

S.A.Nos.39) & 395 of 2023

LNA, J

S-A.Nos-3gJ & l9S of 2021

the plaintiffby name Ravinder and during the pendency of the said

suit, the plaintiff rvas also impleaded as defendant No.3 therein.

After full-fledged trial, the said suit was decreed. Thus, the

judgment and decree dated 04.0 1.20 I2 P655gd in O.S.No.50 of

2007 would operate as res-judicata against the plaintiff in this suit.

The registered sale deed in favour of the plaintiff is illegal, invalid

and sham and has no legal sanctity in the eye of law. Henss, plzygcl

to dismiss the suit with costs.

13.

Based on the above pleadings, the trial Court tiamed the

following issues for trial:_

"(l) Ilhether the plaintiff is the owner in possessi,Ln of

the plaint schedule properry?

(2) ttthether the plaintiff is entirled /or permanent

injunction as prayed for?

(3) To what relie/?

(4) Whether the .iudgment

<iecree

ln

O.S.No.50/2007 on the fite of this Court operates as

res judicata against the plaintiff? ^..

14.

On behalf of the plaintiff, p.Ws. I to 3 were examined and

Exs.A.l to A.5 were marked. On behalf olthe defendants. D.W_i

rvas examined and Exs.B. I to B.l5 were marked.

li

LNA, J

15.

The triat Court, after perusing the ^{material on record and}

on hearing both sides, observed ^{as hereunder:-}

"The documentary evidence filed by the plaintiff is not

su./trcient lo dnswer the issues ^{in her} favour ^{in the}

light of the speciJic case of the defendants ^{lhat a total}

extenl of 561 square yards of ^{property originally}

belonged to late ^Varala Ramulu ^{and that Varala}

Devamma had no competency to alienate ^{a part of it}

to the exclusion of defendant ^{No. I} , ^{who is admittedly}

legal heir of Varala Ramulu.

It is only from the year ^{t987-88 the name of}

Varala Devamma has been ^{recorded in Revision}

Registcr as is evidenr from ^{Exs.B-6 to B-8. Thus,}

Exs.B-t to B-5 strengrhen the ^{case of the delendants}

thot the propert)' originaily beionged ^{rc Varala}

Ramulu only ^"

16. The triat Court accordingly ^{answercd issue Nos. I and 2}

against the plaintiff hotding ^{that Ex.A- I does not confer title on the}

plaintiff and that the plaintiff is deemed ^{to be out of possession}

unless the suit schedule ^{property is dividcd by metes and bounds.}

16.1. Further, the trial Court ^{observed that 0.S.No.50 of 2007}

was filed before the Court on 21.09 -2007 ^{for partition, whereas, the}

present suit was originally instituted on ^{21.01 .2008; that the parties}

in both the suits are one ^{and the same and the issues settled in}

S-A.Nos.39J & 395 of ²⁰²³

l4

I-NA, J

S-A.^,'os-lst & JgS of 2021

O.S.No.5O of 2007 are akin to issue No. t of rhe present suit and

hence, rhe judgmenr in o.S.No.SO of 2007 operares as res judicata

in the present suit.

t7.

Thus, in the light ol the above findings, the trial Cou(

dismissed the suirO.S.No.23 of 20 l0 vide irs