1

*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

+SECOND APPEAL No.456 of 2024

Between:

#S. Bhaskar Reddy ...APPELLANT

AND

$S Raghu Rami Reddydied By L Rs and Others ...RESPONDENT(S)

JUDGMENT PRONOUNCED ON 13.03.2025

THE HON’BLE DR.JUSTICE K. MANMADHA RAO

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

- Yes -

2. Whether the copies of judgment may be marked to Law

Reporters/Journals

- Yes -

3. Whether Their Ladyship/Lordship wish to see the fair

copy of the Judgment?

- Yes -

___________________________________

DR.JUSTICE K. MANMADHA RAO

2

* THE HON’BLE DR.JUSTICE K. MANMADHA RAO

+SECOND APPEAL No.456 of 2024

% 13.03.2025

# Between:

#S. Bhaskar Reddy ...APPELLANT

AND

$S Raghu Rami Reddydied By L Rs and Others ...RESPONDENT(S)

! Counsel for the Petitioner : Sri J. Janakirami Reddy

! Counsel for Respondents: Sri Varun Byreddy

<Gist :

>Head Note:

? Cases referred: 1. 2001 (4) SCC 262

2. 1985 0 Supreme (Mad) 245

APHC010301972024

IN THE HIGH COURT OF ANDHRA PRADESH

(Special Original Jurisdiction)

THURSDAY ,THE THIRTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FIVE

THE HONOURABLE DR JUSTICE K MANMADHA RAO

SECOND APPEAL NO: 456/2024

Between:

S. Bhaskar Reddy

S Raghu Rami Reddydied By L Rs and Others

Counsel for the Appellant:

1.

J JANAKIRAMI REDDY

Counsel for the Respondent(S):

1.

VARUN BYREDDY

The Court made the following:

JUDGMENT:

The present Second Appeal is preferred by the appellants aggrieved by

the Decree and Judgment dated

file of the VI Additional District Jduge, Kurnool by parly

decree passed in O.S No.573 of 2011 dated 03.07.2018 on the file of the

Principal Senior Civil Judge,

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IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

THURSDAY ,THE THIRTEENTH DAY OF MARCH

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE DR JUSTICE K MANMADHA RAO

SECOND APPEAL NO: 456/2024

...APPELLANT

AND

S Raghu Rami Reddydied By L Rs and Others

...RESPONDENT(S)

Counsel for the Appellant:

J JANAKIRAMI REDDY

Counsel for the Respondent(S):

The Court made the following:

The present Second Appeal is preferred by the appellants aggrieved by

the Decree and Judgment dated 08.05.2024 passed in A.S.No.63 of 20

VI Additional District Jduge, Kurnool by parly allowing the preliminary

decree passed in O.S No.573 of 2011 dated 03.07.2018 on the file of the

Principal Senior Civil Judge, Kurnool

IN THE HIGH COURT OF ANDHRA PRADESH

[3310]

THE HONOURABLE DR JUSTICE K MANMADHA RAO

...APPELLANT

...RESPONDENT(S)

The present Second Appeal is preferred by the appellants aggrieved by

of 2018 on the

allowing the preliminary

decree passed in O.S No.573 of 2011 dated 03.07.2018 on the file of the

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2. The appellant herein is plaintiff and the respondents herein are the

defendants in O.S.No.573 of 2011 on the file of Principal Junior Civil Judge,

Kurnool (for short “the trial Court”).

3. For convenience the parties are hereinafter referred to as arrayed

before the Principal Senior Civil Judge, Kurnool (for short “the trial Court”) in

O.S..No.573 of 2011.

4. Brief facts of the case are that the plaintiff is the son of the defendant.

He is co-parcener along with the defendant constitute Hindu undivided joint

family. The plaint schedule property is undivided joint family property which is the

ancestral property. The plaintiff and the defendant are in joint possession and

enjoyment of the plaint schedule property. The parties to the suit as coparceners

have unchallenged half share in the suit schedule property. Sambhasiva Reddy

who is grandfather of the plaintiff died about 1990 and the suit schedule property

came into possession after division among the children of Sambhasiva Reddy.

The plaintiff was demand on or about 15.09.2011 for division of the suit schedule

property into two equal shares and to allot respective share to the plaintiff. Later,

the defendant promised to effect the division by 20.09.2011, but he did not keep

up his promise. Therefore, the plaintiff filed the suit in O.S HNo.573 of 2011.

5. The defendant filed his written statement and denied that the plaintiff is

in joint possession with him. In fact, the plaintiff is residing with his mother in

Bijanur village, whereas the properties are in the Orvakal and this fact discloses

that the plaintiff is neither in joint possession nor notional possession of the

properties. It is stated that Item No.1 of the plaint schedule property does not

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belongs to this defendant. It is the property of Sakunthalamma @

Rameswaramma and she got from the government under Indiramma Pathakam

and it is also not liable for partition. Further, the mother of the plaintiff deserted

the defendant since 1986 without any reason. This defendant got two sons by

name Bharath Kumar Reddy and Siva Sankar Reddy through his kept mistress

Sakunthalamma @ Rameswaramma who has also got share in the plaint

schedule property of Item No.2 of the plaint schedule. The item No.2 of schedule

property was acquired by the funds supplied by Sakunthalamma @

Rameswaramma and thus, this property belongs to Sakunthalamma @

Rameswaramma. In fact, the said land was given on lease to one Chenna Nalk

for 15 years under Regd. Lease deed and it is not liable for partition and the suit

is liable for dismissal. Without prejudice in the rights of this defendant, he

submitted that the plaintiff is not at all entitled in the item Nos 3 and 4 of the

property and the other sons through Sakunthalamma @ Rameswaramma were

also entitled the share in the properties. Hence, he prays to dismiss the suit with

costs.

6. Basing on the above pleadings, the trial Court framed the following

issues for determination:

1. Whether the plaintiff is entitled for partition of the schedule mentioned

property into two equal shares and to allot one such share to the

plaintiff as prayed for ?

2. Whether the schedule mentioned property is the exclusive property of

Sakunthalamma @ Rameswaramma as contended by the defendant in

his written statement?

3. To what relief ?

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7. During the course of trial, PWs.1 to 3 were examined and Ex.A1 and

Ex.A2 were marked on behalf of the plaintiff. On the defendant' side, the

defendant alone was examined as DW.1 and marked Exs.B1 to 87.

8. After careful appreciation on record the trial Court decreed the suit as

prayed for. Aggrieved by the same, the defendant preferred A.S No.63 of 2018

before the first appellate Court stating that the trial Court has not considered the

evidence and probabilities of the case facts and has not properly appreciated the

contention of the defendant and that the original suit was mainly for partition of

the plaint schedule properties. Since the sole appellant/defendant died, his legal

representative has come on record as second appellant. The first appellate

Court has partly allowed the Appeal Suit while setting aside the decree and

judgment of the trial Court dated 3.7.2018 in O.S No.573 of 2011 so far as the

plaint schedule item Nos. 1 and 2 properties concerned and dismissed partly

confirming the decree and judgment of the trial Court in so far as the plaint

schedule item Nos.3 and 4 of properties concerned. Challenging the same, the

present second appeal came to be filed by the appellant/plaintiff.

9. Heard Sri J. Janaki Rami Reddy, learned counsel appearing for the

appellant and Sri Varun Byreddy, learned counsel appearing for the respondents.

10. Learned counsel for the appellant has urged in the grounds of appeal

as the following substantial questions of law (2 & 4 mentioned in the grounds)

arisen for determination of the second appeal :

2) Whether the first appellate Court and properly appreciated the question of law in

partition of ancestral properties of father of appellant and wrongly applied the

General rules of succession in the case of males U/s 8 of Hindu Succession Act.

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4) Whether the coparcenary property acquired by male Hindu members of the family

above four degrees of ascendants i.e., father, paternal grandfather, great

paternal grandfather, and ascendants property can be only treated as ancestral

properties and appellant not entitled for partition if the properties are purchased

by grandfather i.e., item No.1 and 2 of plaint schedule properties.

11. This Second Appeal is filed under Section 100 CPC on the ground that

the judgment and decree of both courts below is totally basing on the

presumption, surmises and conjectures, ignoring the material facts available on

record and interpretation of law.

12. There cannot be any dispute that, under the amended Section 100

C.P.C., a party aggrieved by the decree passed by the first appellate court has no

absolute right of appeal. He can neither challenge the decree on a question of

fact or on a question of law. The second appeal lies only where the High Court is

satisfied that the case involves a substantial question of law. The word

‘substantial’ as qualifying ‘question of law’, means and conveys – of having

substance, essential, real, or sound worth, important, considerable, fairly

arguable, in contradiction with – technical, formal, or no substance, no

consequence or academic only. A substantial question of law should directly and

substantially affect the rights of the parties. A question of law can be said to be

substantial between the parties if the decision in appeal turns one way or the

other on the particular view of law. But, if the question does not affect the

decision, it cannot be said to be substantial question between the parties.

Recording a finding without any evidence on record; disregard or non

consideration of relevant or admissible evidence; taking into consideration

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irrelevant or inadmissible evidence; perverse finding- are some of the questions,

which involve substantial questions of law.

13. According to Section 100 CPC, a definite restriction on to the exercise

of jurisdiction in a second appeal so far as the High Court is concerned. Needless

to record that the Code of Civil Procedure introduced such an embargo for such

definite objectives and since the Courts are required to further probe on that

score and the Courts while detailing out, but the fact remains in second appeal

finding of fact, even if erroneous, will generally not be disturbed but where it is

found that the findings stand vitiated on wrong test and on the basis of

assumptions and conjectures and resultantly there is an element of perversity

involved therein, the High Court will be within its jurisdiction to deal with the issue.

The High Court can interfere with such finding recorded by the trial Court though

not on law in view of judgment reported in Kulavant Kaur v Gurdial Singh

Mann

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14. Keeping in mind the scope of Section 100 CPC, I would like to decide

the present appeal at the stage of admission.

15. Learned counsel for the appellant contended that first appellate Court

erred in partly allowing the appeal pertaining to item Nos. 1 and 2 of the plaint

schedule property and failed to see that the entire plaint schedule property i.e.,

item Nos. 1 to 4 are undivided Hindu joint family property which is ancestral

property liable for equal share for appellant/plaintiff and respondent/defendant

who is son and father respectively. He submits that the first appellate Court

1

2001 (4 SCC 262

9

failed to see that as per Ex,.A1 i.e, Adangal for the fasli 1420, the plaint schedule

properties are in the possession of the Sambasiva Reddy who is grandfather of

the plaintiff and the father of the respondent and the respondent did not file any

documents or oral evidence to show that item No.s1 and 2 are self acquired

properties to reverse the trial Court judgment and partly allowing the decree. He

further submits that the first appellate Court failed to appreciate properly the

pleadings and the evidence by partly allowing the appeal and setting aside the

well considered judgment pertaining to item Nos.1 and 2 of the plaint schedule

properties. Therefore, the judgment under first appeal is contrary to law, weight

of evidence and probabilities of the case, if it is allowed to stand, it would

occasion in grave miscarriage of justice. Therefore, prayed to allow the second

appeal by setting aside the judgment of the first appellate Court.

16. Per contra, learned counsel for the respondents argued that the

parties to the suit as coparceners have unchallenged half share in the suit

schedule property. Sambasiva Reddy who is grandfather of the plaintiff died

about 1990 and the suit schedule property came into possession after division

among the children of Sambasiva Reddy. He further submits that a demand was

made by the respondent/plaintiff for division of the suit schedule property into two

equal shares and to allot respective share to the plaintiff and that demand was

also made in the presence of elders who also advised to appellant/defendant to

settle out of the Court. Accordingly, the appellant/defendant already promised to

effect the division of the property.

17. To support his contentions, learned counsel for the respondent has

drawn attention of this Court to the judgment of Hon’ble Supreme Court reported

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in Satish Vishanji Fatnani v. Mohanlal Dungarmal Futnani and Ors.

2

, wherein

the Apex court held in para No.4 that:

So far as the first contention is concerned, it is not in dispute, that the appellant is the

son of the caveator and the grand-son of the testator. However, so long as the caveator is

alive, his son, the appellant, cannot be claimed to be an heir at law, even if the deceased had

died intestate. Under Section 8 of the Hindu Succession Act, it is only the son who can claim

to succeed to the father as Class I heir and the grand-children of the deceased cannot claim

to be class I heirs. Therefore, the fact that the appellant is a son of the caveator and a

grandson of the testator will not clothe him with a caveatable interest.

18. As seen from the judgment of the trial Court, it is observed that, there

is no dispute with regard to relationship between the plaintiff and the defendant.

The plaintiff is claiming that the plaint schedule properties are ancestral

properties and that he is having a right of equal share. In his cross examination,

PW.1 admitted that his grandfather sold Ac.0.15 cents out of Ac.1.75 cents in

Sy.No.198. He further admitted that his father had three other brothers including

himself and they were partitioned from family properties. He further admitted that

the defendant got Ac.0.41 cents in Sy.No.198 in the partition. PW.1 exhibited

Ex.A1 No.3 adangal for the fasli 1420. On perusal of the said document, the

possessor is Sambhasiva Reddy, grandfather of the plaintiff and the enjoyer is

the defendant by name Raghu Rami Reddy. In Sy.No.156 Ac.0.46 ½ cents, in,

Sy.No.198 Ac.0.41 cents and in Sy.No.337 Ac.1.12 cents are in the enjoyment of

the defendant. The actual extents in Sy.No.156 is Ac.2.78, Sy.No.198 is Ac.5.94

and 5y.No.337 is Ac.17.14. Thus, on perusal of Ex.A1 it is clear that the

properties are the ancestral properties.

2

1985 0 Supreme (Mad) 245

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19. As stated by learned counsel for the respondents that, in the instant

case, since the plaint schedule item Nos.1 and 2 properties were devolved upon

the defendant from his father under Section 8 of Hindu Succession Act, the

property ceased to be joint family property. therefore, the law laid down by the

Hon’ble Supreme Court referred to above, it clearly held that under Section 8 of

Hindu Succession Act, it is only the son who can claim to succeed to the father

as Class-I legal heir and the grand children of the deceased like plaintiff in this

case cannot claim to be Class-I heir. Under these circumstances, it can be clear

that the suit schedule item Nos.1 and 2 properties cannot be characterized as

ancestral properties and thus the plaintiff/appellant has no right to claim in it.

20. It is also observed that, the recital in Ex.A3/No.3 Adangal for the Fasli

1420 goes to reveal that the grandfather of the plaintiff is possessor and the

defendant/respondent is the enjoyer of the property. Moreover, the plea of the

defendant/respondent that the appellant/plaintiff has no share in the plaint

schedule item Nos.3 and 4 properties. After perusal of the facts, it is stated that,

the platen schedule item Nos.3 and 4 properties are the ancestral properties of

the plaintiff/appellant and the defendant/respondent who are having equal share

in it. Therefore, the first appellate Court rightly concluded that the

plaintiff/respondent certainly entitled for partition of the plaint schedule item Nos.3

and 4 of properties, and however he has no right to claim any share in the plaint

schedule items Nos.1 and 2 which were devolved upon the defendant/respondent

under Section 8 of Hindu Succession Act.

21. In the light of the settled position of law and in the light of the findings

of fact given by the Courts below, and as there is no other substantial question of

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law to be considered by this Court, I do not find any valid ground either to remand

the matter to the first appellate court or to set aside the judgment of the court

below.

22. For the above-mentioned reasons, I do not find any reason to interfere

with the well-considered judgment of the first appellate Court.

23. Accordingly, the Second Appeal is dismissed at the stage of

admission. No order as to costs. As a sequel, all the pending miscellaneous

applications shall stand closed.

___________________________

DR. K. MANMADHA RAO, J.

Date : 13 -03-2025

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HON’BLE DR. JUSTICE K. MANMADHA RAO

SECOND APPEAL No.456 of 2024

Date : 13 .03..2025

Gvl