HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.63 of 2011
JUDGMENT :
This Second Appeal is arising out of the judgment and decree in A.S.No.46 of 2008, dated 05.07.2010 on the file of II Additional District Judge (FTC), Mahbubnagar against the judgment in O.S.No.90 of 1996 dated 29.03.2008 on the file of II Additional Senior Civil Judge (FTC), Mahbubnagar.
2. For the sake of convenience, the parties herein are referred as arrayed in the suit.
3. Initially, the plaintiffs filed a suit for declaration of title and recovery of possession over the suit schedule property land admeasuring 1700 sq.yards in Plot No.(Sy.No.44) situated at Subhashnagar, Boyapally gate and for mandatory injunction for removal of construction made by the defendants in the suit schedule property. During the pendency of the suit, the plaintiff died and the legal representatives of the plaintiff were brought on record.
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4. The case of the plaintiffs is that the 1st plaintiff purchased the suit schedule property from one Mohammed Sherief in the year 1945 for a valuable consideration and took possession of the said land. The defendants 1 to 3 and 4 to 6 are the brothers and sisters of the 1st plaintiff respectively. D-7 to D-9 are the wives of D-1 to D-3 respectively. D-10 and D-11 are the daughter and son of the 5th defendant. D-12 is the son of the 4th defendant. All the defendants who are relatives of the 1st plaintiff with a malafide intention colluded together to grab the property for which the 1st plaintiff is constrained to issue paper publication declaring his rightful ownership over the property and further directing not to purchase the property from any others. As the defendants are trying to alienate the suit schedule property, the plaintiff filed O.S.No.57 of 1986, seeking relief for declaration and injunction. Inspite of it, 8th defendant sold some property to one Satyanandam, who started constructing a house. The 1st plaintiff also filed another suit against the said Satyanandam for declaration of title and recovery of property which was transferred to Sub-Court and renumbered as O.S.No.104 of 1990 and it was decreed in favour of 3 the plaintiff against D-5 and D-8 and the said defendants also preferred appeals which are pending. It is the further case of the plaintiffs that some third parties by name Md.Abdul Jabbar, his brothers and others encroached some portion of the property and made temporary constructions in the plaint schedule property in the year, 1990 for which the present suit i.e.,O.S.No.90 of 1996 before the Sub-Court of Mahbubnagar for relief of declaration of title and for recovery of possession.
5. On the other hand, a common written statement was filed by D-2 and D-4 and other defendants adopted the written statement. All the averments in the plaint are denied including the rights of the 1st plaintiff over the suit schedule land.
6. It is the specific case of the defendants that one Md.Ismail, the father of the 1st plaintiff purchased the suit schedule land in the year 1945 for the benefit of the family members and the 1st plaintiff was aged about 15-16 years at the time of the said purchase. Md.Ismail was a rich man with a large family and purchased several properties in the name of his children and similarly, purchased the suit schedule property in the name of the 4 1st plaintiff. During the lifetime of Md.Ismail, there was a family settlement of those properties at different times with mutual adjustments and transfers to one another in the division of properties acquired by him. Accordingly, the plaintiff became the owner of Green Lodge and in the same way, Plot No.44 and the adjacent land put together was partitioned in early 70's before registration of the said settlement. In all the registered partition deeds, the 1st plaintiff signed and therefore, cannot deny those registered sale deeds. The plaintiff right from 1945 till 1986 i.e., filing of the suit, never by his word, conduct or anything, pay any such claim over any part of Survey plot No.44 of which the extents of the land is part and that the suit filed by the plaintiff is barred by limitation. As per the family settlement registration in the year, 1976 all the defendants have become the absolute owners of plot No.44 with exclusive enjoyment and possession of the shares and further in the year, 1994, the Municipality, Mahbubnagar granted permission for making constructions in the suit schedule property for which the defendants made pacca/permanent constructions over the suit schedule property by using the name Rose Garden Function 5 Hall. It is further contended in the written statement that the plaintiff did not made any objections for constructions denying the title of the defendants and alleged date of encroachment is created only to establish law of limitation and thus the suit is barred by limitation and therefore, prayed to dismiss the suit with costs.
7. Basing on the pleadings, the trial Court had framed the following issues:-
"1. Whether the plaintiffs are entitled to declaration over the suit schedule plot as prayed for?
2. Whether the plaintiffs are entitled for recovery of possession of the suit plots as prayed for?
3. To what relief?"
8. On behalf of the plaintiffs, PWs-1 to 3 are examined and Exs.A-1 to A-3 were got marked. On behalf of the defendants, DWs-1 and 2 were examined and Ex.B-1 to B-10 were got marked.
9. The trial Court after considering the oral and documentary evidence on record dismissed the suit with a finding that except the sole testimony of PW-1 and Ex.A-1, there is no 6 other material on record to establish their physical possession over the suit schedule property. Further the preponderance of possibility is in favour of the defendants rather in favour of the plaintiffs and to seek relief for mandatory injunction, the plaintiffs have to establish their title as well as their physical possession and the plaintiffs failed to establish title in their favour as well as the possession.
10. Being aggrieved by the judgment and decree in O.S.No.90 of 1996, dated 27.03.2008, the plaintiffs have preferred the 1st appeal i.e., A.S.No.46 of 2008 on the file of II Additional District Judge (FTC) Mahbubnagar. The 1st appellate Court after hearing arguments of both the parties have framed the following points for consideration:-
"1. Whether the 1st plaintiff is the owner of the suit land admeasuring 1700 sq.yards in plot No.44 at Subhashnagar, Boyapally gate, Mahbubnagar.
2. Whether the respondents/defendants are bonafide purchasers of the suit schedule property?7
3. Whether the defendants are in unauthorized possession of the suit schuedule property?
4. Whether the suit is bad for non-joinder of vendors of the respondents?
5. Whether the appellants are entitled to seek relief for declaration and recovery of possession of suit schedule property?
6. Whether there are any grounds to interfere with the judgment and decree of the II Additional Senior Civil Judge at Mahbubnagar dated 27.03.2008 made in O.S.No.90 of 1996?
7. To what relief?"
11. Considering the entire oral and documentary evidence, the 1st appellate Court has dismissed the appeal with a specific finding that the plaintiffs are not entitled for declaration of title and for cancellation of the registered partition deeds and that PW-1 was not in possession of the suit schedule property and also gave finding that the plaintiff is the signatory to all those documents and the suit is barred by limitation for seeking relief of cancellation of partition deeds.
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12. Aggrieved by the judgment and decree of the 1st appellate Court, the plaintiffs/appellants have preferred the second appeal with the following grounds:-
"1. Whether the lower appellate court was right in law in saying that the plaintiff cannot have any absolute rights over the suit schedule property eventhough, there is no concept of joint property in Muslims and the concept of coparcenary does not arise and the concept of family existence has no resistance in Muslims?
2. Whether the property purchased with the money taken from father's estate would make the property the common property of the family and create an interest for all the other members of the family?
3. Whether the findings of the lower appellate court on facts are contrary to the evidence on record and perverse?
4. Whether the non-examination of the party to the suit as witness was fatal?
5. Whether the suit filed by the appellants was barred by limitation, while the suit was filed within 3 years from the date of knowledge?9
6. Whether the lower appellate courts conclusion are vitiated by non-consideration of the evidence on record, interpretation of Muslim law?"
13. Heard counsel for the appellant and for the respondent. Perused the record.
14. It is pertinent to mention that the grounds of the appeal do not contain any substantial question of law. No substantial question of law is raised by the appellant.
15. As per Section 100 of CPC, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
"Section 100 (3) of CPC envisages that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal."
"Section 100 (4) of CPC envisages that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate the question."10
"Section 100 (5) of CPC envisages that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question."
16. In the present case, the memorandum of grounds do not contain any substantial question of law and even the grounds do not reveal any substantial question. Though the ground No.5 contains deal with limitation, the plaintiff/appellant cannot plead at this stage with respect to limitation as the trial Court as well as the appellate Court have dealt the matter on merits i.e., considering the oral and the documentary evidence and the suit was not dismissed on the ground of limitation, though pleaded by the defendants.
17. Both the Courts have given concurrent findings basing on the oral and documentary evidence on record. In a suit for perpetual injunction, the plaintiffs have to establish that they were in possession of the property as on the date of filing of the suit. There is not even a scrap of paper or document filed before the courts below to prove that the plaintiffs were in possession of the property as on the date of filing of the suit. Therefore, this Court is 11 of the considerable view that there is no irregularity or error in the findings of the courts below so as to interfere with the same. Furthermore, there is no substantial question of law involved so as to formulate a question of law. Therefore, the Second Appeal is dismissed at the stage of admission as devoid of merits. No order as to costs.
18. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date:11.10.2022 dv