HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.128 of 2015
JUDGMENT :
This Second Appeal is arising out of the judgment dated 28.08.2014 in A.S.No.100 of 2008 on the file of II Additional District Judge (FTC), Mahabubnagar, which is arising out of O.S.No.97 of 1994 on the file of Junior Civil Judge, Mahabubnagar.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned Counsel for the appellants as well as the learned counsel for the respondents and perused the record.
4. The suit was filed by the plaintiff for perpetual injunction with respect to Item Nos.1 and 2 of Suit schedule properties. The brief averments of the plaint are that plaintiff No.1 has purchased Item No.1 of the suit schedule property to an extent of Ac.4-11 gts., from the original owners and pattadars i.e. Smt.Nooirunnisa Begum and Syed Sayeeduddin under the registered sale deed dated 2 GAC, J S.A.No.128 of 2015 17.02.1994. Further, plaintiff Nos.2 and 3 have purchased Item No.2 of the suit schedule property to an extent of Ac.4-11 gts., on the same day under the registered sale deed from the original pattadars Smt.Mahaboob Bee, Khuteeza Begum, Syed Mahaboob Ali, Syed Ahmed Ali, Syed Khaza and Syed Basheer Ali and since then, the plaintiffs are in exclusive possession and enjoyment of the suit schedule properties and the defendants, without any right, were interfering with their peaceful possession and enjoyment, and therefore, prayed to grant perpetual injunction.
5. A detailed written statement was filed by defendant No.1, which was adopted by the other defendants. The defendant No.1 denied all the averments made by the plaintiffs and it is specifically averred by the defendants that Late Mahabub Ali, who is the maternal uncle of the 1st defendant, was the owner of the land to an extent of Ac.12-33 gts. in Sy.No.361. On 18.06.1958, the said Mahabub Ali orally gifted the suit schedule property to the mother of defendant No.1 by name Doulat Bee, as they rendered services to him. On the same day, possession was also delivered and the gift was accepted upon. Further, Doulat Bee got cultivated the said 3 GAC, J S.A.No.128 of 2015 land by her husband and later, defendant No.1 cultivated the same by paying land revenue taxes. Further, defendant No.1 gave the said land to several persons on Battai basis and the said persons also paid Battai and grains to defendant No.1. It is further contended by defendant No.1 that in oral family settlement, the entire land was allotted to the share of defendant No.1 as he served his mother and maintained the entire family. The brothers of Mahabub Ali by name Syed Ali and Syed Jaffar have also relinquished their rights over the property. The revenue officials, without any basis, have subdivided the survey number and allotted one survey number to each of the three brothers and the said three brothers never claimed rights and later it was gifted to Doulat Bee. It is the specific contention of defendants that the plaintiffs and their vendors were never in possession of the property and the documents filed by them are all forged, and further, the suit land is not identifiable and therefore, prayed to dismiss the suit as devoid of merits.
6. Basing on the pleadings, the trial Court has framed the following issues:
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GAC, J S.A.No.128 of 2015 "1. Whether the plaintiffs were in lawful possession of the suit schedule property as on the date of suit ?
2. Whether the defendants interfered with the possession of plaintiffs over the suit schedule property without any rights and possession ?
3. Whether the plaintiffs are entitled for
permanent injunction as prayed for ?
4. To what relief ?"
7. During the course of trial, on behalf of plaintiffs, PWs.1 to 3 were examined and Exs.A-1 to A-36 were got marked. On behalf of defendants, DW.1 was examined and no documents were marked. On considering the oral and documentary evidence on record, the trial Court has decreed the suit with costs granting permanent injunction as prayed for.
8. Being aggrieved by the same, the defendants have preferred appeal in A.S.No.100 of 2008 before the II Additional District Judge (FTC), Mahabubnagar. The first appellate Court, on hearing the appellants and considering the entire oral and documentary evidence on record, has dismissed the appeal confirming the judgment and decree in O.S.No.97 of 1994, dated 11.10.2006. 5
GAC, J S.A.No.128 of 2015
9. Being aggrieved by the judgment and decree of the first appellate Court, the defendants have preferred this second appeal raising the following substantial questions of law:
"a) Whether suit for mere injunction is maintainable when the title is in dispute and denied ?
b) Whether lower appellate court can dismiss the I.A. application when all the documents are filed along with the application ?"
10. It is contended by the learned counsel for appellants that the appellants have filed an interlocutory application i.e. I.A.No.411 of 1994 along with documents in Exs.B-1 to B-25, but the trial Court did not mark those documents as exhibits through DW-1. It is the specific contention of appellants that the documents filed by the defendants were returned by the office and they were not resubmitted. But, it is the specific contention of the learned counsel for appellants that the counsel for the defendants before the trial Court did not evince any interest in getting the documents marked, and therefore, the appellants have filed I.A.No.235 of 2012 to receive the documents as additional evidence, but it was not considered by the appellate Court. On perusal of the record, it 6 GAC, J S.A.No.128 of 2015 is evident that no reasons have been assigned by the defendants as to why the documents were not marked before the trial Court and the ground/plea taken by the appellants that their counsel did not evince any interest, is not at all tenable in the eye of law. It is pertinent to mention that the first appellate Court has gone through the entire material on record and gave a specific finding that sufficient opportunity was given to defendant No.1/DW-1 to mark the documents in the suit, and even after the closure of evidence, no petition was filed by the defendants before the trial Court for getting the documents marked and after the lapse of 20 years, the question of receiving documents as additional evidence does not arise and therefore, dismissed the said I.A.
11. Admittedly, no application is filed before this Court under Order 41 Rule 27 of CPC along with this Second Appeal to receive the documents on behalf of appellants. Further, the appellants have not filed any revision against the dismissal of I.A.No.235 of 2012, which was dismissed by the first appellate Court. Both the Courts below have given concurrent findings that the plaintiffs are in possession of the suit schedule property as on the date of filing of 7 GAC, J S.A.No.128 of 2015 the suit, basing on the documentary evidence i.e. Exs.A-1 to A-36. Admittedly, in a suit for injunction, the Courts have to see as to who is in possession of the suit schedule property as on the date of filing of the suit and incidentally, the title can be looked upon. As the suit is filed for injunction simplicitor, the trial Court need not look into the ownership of the property. Admittedly, there is not even a single scrap of document before the trial Court to show that the defendants are in possession of property either as on the date of filing of the suit or subsequent thereto. Further, while considering the arguments, it is pointed out by the learned counsel for appellants that the Joint Collector, Additional District Magistrate, Mahabubnagar has confirmed that the appellants are in possession of the property and the said orders were passed on 22.02.2014. Even assuming for a moment that the appellants are in possession of property as on the date of passing orders by the Joint Collector on 22.02.2014, the defendants have failed to file any documents before the first appellate Court to prove their possession. In the absence of any documentary evidence on record, this Court cannot now consider the orders of the Joint 8 GAC, J S.A.No.128 of 2015 Collector, dated 22.02.2014. Therefore, there is no error or irregularity in the orders of the Court below so as to interfere with the same.
12. Further, there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, then only, the Court can interfere with the orders of the Courts below. On perusal of the entire material, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore, it is not proper to interfere with the concurrent fact findings of the Courts below, in the absence of substantial question of law. Therefore, the Second Appeal deserves to be dismissed.
13. In the result, the Second Appeal is dismissed at the stage of admission, confirming the judgment dated 28.08.2014 in A.S.No.100 of 2008 on the file of II Additional District Judge (FTC), Mahabubnagar. No order as to costs.
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GAC, J S.A.No.128 of 2015 Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 24.11.2022 ajr