suit for eviction - the appellant was unable to demonstrate that the plaint schedule property is part of coparcenary property. On the other hand, the trial Court accepted various documents produced by the 1st respondent and 2nd respondent to held that the suit schedule property is the self acquired property of the 1st respondent. The trial Court had also held that the appellant had not discharged the initial burden of demonstrating that the property is coparcenary property. 2023:APHC:32587
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON'BLE SRI JUSTICE B KRISHNA MOHAN
SECOND APPEAL No.333 of 2023
Versus
SARAKANAM BABJI RAO (DIED)HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.333 of 2023
JUDGMENT:
Heard Sri G.V. Anand Kumar, learned counsel for the appellant.
2. The brief facts of the case are –
The 1
st respondent herein had filed O.S.No.165 of 2008 against the
appellant herein for recovery of possession of the suit schedule property
and for future profits. The 1st respondent had two sons, viz., the 2nd
respondent herein and the husband of the appellant. The appellant was
residing along with her husband in the plaint schedule property. After the
demise of the husband of the appellant, the 1st respondent had requested
the appellant as well as her children to vacate the property. As the
appellant was not vacating the property, the 1st respondent got a notice
issued on 22.12.2007 demanding the appellant to vacate and handover
the plaint schedule property to the 1st respondent. Thereafter, he filed
O.S.No.165 of 2008 on the file of the Additional Senior Civil Judge, Eluru
for recovery of possession of the suit schedule property. During the course
of the suit, the 1st respondent passed away. The 2nd respondent, on the
basis of a registered Will dated 06.07.2008 executed by the 1st
respondent, had claimed absolute ownership over the plaint schedule
property and impleaded himself as the 2nd plaintiff in the suit.
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S.A.No.333 of 2023
2
3. The case of the respondents was that the suit schedule
property is the self acquired property of the 1st respondent and the
occupation of the suit schedule property by the appellant, despite
demands made by the 1st respondent to vacate the property, is illegal and
the respondents were entitled to recover the property.
4. The appellant took various defences. In the first place, the
appellant contended that the suit schedule property is joint family
property in which her husband also had a share and consequently, she
and her children would be entitled to such share. Secondly, there was a
oral partition between the respondents and her husband and consequently
she could not be evicted from the property. Thirdly, the property would
devolve equally on the 2nd respondent and on her and her children, who
are legal heirs of her husband and consequently they cannot be evicted.
She also disputed the Will dated 06.07.2008 under which the 1st
respondent had bequeathed the property to the 2nd respondent.
5. The trial Court decreed the suit on 01.09.2017. Aggrieved by
the said judgment and decree, the appellant moved the family Court-cumVII Additional District Judge, West Godavari at Eluru, by way of A.S.No.99
of 2017, which was dismissed on 25.04.2023. The present second appeal
has been filed by the appellant against the dismissal of A.S.No.99 of 2017.
6. Sri G.V. Anand Kumar, learned counsel appearing for the
appellant would submit that both the trial Court and the appellate Court
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S.A.No.333 of 2023
3
had misdirected themselves in holding that the property was not joint
family property and in accepting the registered Will dated 06.07.2008
under which the 1st respondent is said to have bequeathed the plaint
schedule property to the 2nd respondent. The trial Court, had framed
issues on these lines and had held that the appellant was unable to
demonstrate that the plaint schedule property is part of coparcenary
property. On the other hand, the trial Court accepted various documents
produced by the 1st respondent and 2nd respondent to held that the suit
schedule property is the self acquired property of the 1st respondent. The
trial Court had also held that the appellant had not discharged the initial
burden of demonstrating that the property is coparcenary property. This
Court was not show any material to held otherwise. In any event, the
appellate Court also went through the same evidence and had come to a
similar conclusion. This Court does not find any perversity or mistake
requiring this Court to interfere with the said findings of fact.
7. As far as the Will is concerned, the 2nd respondent had
proved the Will by examining Pws.2, 3 and 5. It may be noted that PWs.2
and 3 are the attestors of the Will and PW.5 is the scribe of the will.
8. In these circumstances, this Court does not find any
question of law, much less substantial question of law, which required to
be decided in this second appeal.
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S.A.No.333 of 2023
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9. Accordingly, the second appeal is dismissed. There shall be
no order as to costs. As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
__________________________
R. RAGHUNANDAN RAO, J.
12th September, 2023
Js.
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S.A.No.333 of 2023
5
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.333 of 2023
12th September, 2023
Js.
