HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.201 of 2015
JUDGMENT :
This Second Appeal is arising out of the judgment dated 17.11.2014 in A.S.No.78 of 2005 on the file of II Additional District Judge, Khammam, confirming the judgment and decree dated 22.09.2005, passed in O.S.No.26 of 1984 on the file of Senior Civil Judge, Khammam.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned Counsel for the appellant as well as the counsel for the respondents and perused the record.
4. The appellant is the plaintiff No.1. The plaintiffs filed the suit for declaration that they are the absolute owners of an extent of Ac.2-35 gts. of land in Sy.No.134/E, within the boundaries as mentioned in the plaint schedule and for recovery of vacant possession from the defendants.
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5. It is the case of the plaintiffs that they filed a suit for partition and separate possession of joint family properties in O.S.No.35 of 1974 on the file of Sub-Court, Khammam while they are minors, represented by their mother, as their father, namely, Devadas was addicted to bad vices and the said suit was preliminarily decreed and an Advocate-Commissioner was appointed in the final decree proceedings in E.P.No.32 of 1975, and further, the Bailiff of the Court delivered the possession of the property to them and they were put in possession of the property and plaintiffs cultivated the land. It is the further case of the plaintiffs that defendant No.1 had illegally occupied Ac.0-25 gts., and defendant No.2 had illegally occupied Ac.2-10 gts. of land in Sy.No.134/E and further, the 2nd defendant transferred the land in favour of defendant Nos.3 to 5, and therefore, the plaintiff was constrained to file the suit for declaration of title and recovery of possession.
6. On the other hand, the defendants filed a detailed written statement contending that Sy.No.134 is comprising 20 acres of land and some extent of land was purchased from Devadas, who is the 3 GAC, J S.A.No.201 of 2015 father of the plaintiffs and the defendants are bona fide purchasers for a valuable consideration and further, they constructed their houses in the suit schedule land. Defendants 2 to 5, who are brothers, purchased Ac.1-18 gts. of land out of Sy.No.134/E from Devadas in the year 1976 for a valid consideration and that the plaintiffs were never in possession of the suit schedule land and the boundaries mentioned in the suit schedule pertains to Ac.20-00 gts. of land but not to Ac.2-35 gts., as claimed by the plaintiffs, and therefore, prayed to dismiss the suit.
7. Basing on the pleadings, the trial Court has framed the following issues for trial :
"1. Whether the plaintiffs are entitled for the recovery of possession of the plaint schedule property ?
2. To what relief ?
8. During the course of trial, on behalf of the plaintiffs, PWs.1 and 2 were examined and Exs.A-1 to A-7 were marked. On behalf of the defendants, DWs.1 to 7 were examined and Exs.B-1 to B-5 and X-1 to X-3 were marked.
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9. On considering the oral and documentary evidence on record, the trial Court has dismissed the suit with a specific finding that the 2nd plaintiff died pending the suit and the 1st plaintiff has not taken any steps to bring the legal heirs of the 2nd plaintiff as the claim of the plaintiffs is joint and further the suit is filed seeking to declare the plaintiffs as owners of the suit schedule property. In the absence of the legal heirs of the 2nd plaintiff, the suit cannot be decreed and therefore, dismissed the suit.
10. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs have filed an appeal in A.S.No.78 of 2005 on the file of II Additional District Judge (FTC-I), Khammam, along with interlocutory applications in I.A.Nos.67 of 2007, 906 of 2010 and 192 of 2014.
11. On perusal of record, it is evident that I.A.No.67 of 2007 was filed under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner and I.A.No.192 of 2014 was also filed under Order 26 Rule 9 r/w. Section 151 of CPC to appoint an Advocate- Commissioner by directing the Assistant Director, Land and 5 GAC, J S.A.No.201 of 2015 Survey to depute Mandal Surveyor to demarcate the schedule property with the help of Naksha and for proper adjudication of the matter, but the Commissioner's warrant was returned on 09.06.2010 in I.A.No.67 of 2007 was not executed. Further, I.A.No.906 of 2010 is filed by the defendants/respondents under Order 22 Rule 3 r/w. Section 151 of CPC to dismiss the appeal as not maintainable for not impleading the legal heirs of Late Banoth Prathap Rao/plaintiff No.2.
12. The first appellate Court, after hearing the rival contentions of the parties and considering the material on record, has framed the following points for consideration:
"1. Whether the judgment and decree in O.S.No.26 of 1984, dt.22-09-2005 on the file of Senior Civil Judge Court, Khammam is to be set aside or not ?
2. Whether the suit is liable to be decreed or not ?
3. Whether another Advocate Commissioner is to be appointed in this case or not by allowing I.A.Nos.192 of 2014 and I.A.No.67 of 2007 ?
4. Whether the appeal is abated as the legal representatives of 02nd plaintiff are not joined as parties, by allowing I.A.No.196 of 2010 ?6
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5. To what relief ?"
13. On considering the contentions of the parties and material on record, the first appellate Court has passed a common judgment dismissing the appeal as well as I.A.Nos.67 of 2007 and 192 of 2014, but allowed I.A.No.906 of 2010, which was filed by the respondents/defendants therein.
14. Being aggrieved by the judgment and decree of the first appellate Court, the present Second Appeal is filed raising the following substantial questions of law :
"1. Whether the learned appellate Court is justified in dismissing the appeal without formulating proper points as contemplated under Order 41 Rule 19 of CPC ?
2. Whether the learned Appellate Court is justified in rejecting the request of the appellant for appointment of Commissioner despite orders in CRP.No.5137 of 2011 and to enquire about missing of Naksha and disposal of appeal without there being any survey for demarcation of land, which resulted in dismissal of appeal without determination of issues ?
3. Whether both the courts justified in rejecting the prayer of the appellant to adjudicate the issue about boundaries and location of suit property even though suit was filed by the appellant is for recovery of possession and declaration which is a comprehensive one ?7
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4. Whether learned Appellate Court is justified in dismissing the appeal without appreciating the earlier orders of the Hon'ble High Court in SA.No.1134/2003, and A.S.No.39/97, dt.27-1-2005 which constitutes non-consideration of material evidence on record ?
15. On perusal of the judgment of the first appellate Court, it is evident that the first appellate Court has formulated the points for consideration at para 14 of its judgment, which are stated supra. The appeal was dismissed on merits but not under Rule 11(2) or Rule 17 of Order 41 CPC. Rule 11 of Order 41 clearly envisage that the appellate Court, after fixing a day for hearing the appeal, has to hear the appeal. Admittedly, after hearing the parties only, the appeal was dismissed by the 1st appellate Court and it was not dismissed for default. Therefore, Order 41 Rule 19 is in no way applicable and it cannot be a substantial question of law to be formulated in this Second Appeal.
16. The further substantial question of law which was mentioned by the appellant is that despite the orders in CRP.No.5137 of 2011 to enquire about missing of Naksha and disposal of appeal without there being any survey for demarcation of land, which resulted in dismissal of appeal without determination of issues. Admittedly, 8 GAC, J S.A.No.201 of 2015 the order passed in CRP.No.5137 of 2011 are filed along with the material papers, which disclose that the orders in I.A.No.678 of 2010 in I.A.No.67 of 2007 in A.S.No.78 of 2005 on the file of II Additional District Judge (FTC-I), Khammam, are set aside and the trial Court was directed to examine the question of taking these pleas in the interlocutory application and clarity has to be given on the boundaries of suit schedule premises and also to consider the contents of the report of the Advocate Commissioner before taking necessary measures for the purpose of calling for the Tippon as required and if necessary an opportunity is to be given to the parties for taking necessary steps.
17. As orders in CRP.No.5137 of 2011, the judgment in O.S.No.78 of 2005 on the file of II Additional District Judge (FTC- I), Khammam was set aside. But the present appeal, which was being preferred by the plaintiff relates to O.S.No.26 of 1984 on the file of Senior Civil Judge, Khammam. Therefore, the order in CRP.No.5137 of 2011 has no relevance to the present case. Admittedly, the judgment of the first appellate Court clearly disclose that the orders in CRP.No.5137 of 2011 were not filed 9 GAC, J S.A.No.201 of 2015 before it nor received by the Court and further, the Second Appeal filed before this Court vide S.A.No.1134 of 2003 was remanded back for fresh disposal by the judgment dated 27.01.2005 and further, the appellants have filed interlocutory applications along with the appeal.
18. Admittedly, the second appeal is filed in the year 2015 and it is still coming up for admission, though it underwent numerous adjournments. Both the Courts below have given concurrent findings as to the facts.
19. 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 10 GAC, J S.A.No.201 of 2015 findings of the Courts below, in the absence of substantial question of law. Therefore, the Second Appeal deserves to be dismissed.
20. In the result, the Second Appeal is dismissed confirming the judgment dated 17.11.2014 in A.S.No.78 of 2005 on the file of II Additional District Judge, Khammam. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 13.10.2022 ajr