HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.746 of 2013
JUDGMENT :
This Second Appeal is arising out of the judgment dated 02.06.2011 in A.S.No.11 of 2006 on the file of Senior Civil Judge, Peddapalli, which is arising out of the judgment and decree dated 27.03.2006, passed in O.S.No.15 of 2002 on the file of Junior Civil Judge, Sultanabad, Karimnagar District.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. The appellant is the plaintiff. The plaintiff had filed a suit against the defendant Nos.1 to 3 seeking relief of perpetual injunction, over the suit schedule property to an extent of Ac.0-02 gts in Sy.Nos.743-A and B and to an extent of Ac.0-04 gts in Sy.No.637, situated in Kolanur Village within separate schedule boundaries and also for the relief of declaration that the registered sale deed Nos.135 and 139 of 1991 and 2129 of 2001 are null and void and not binding on the plaintiff.
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4. The brief facts of the plaint are that the plaintiff is owner and possessor of the suit schedule properties which are called 'Ayyavaribhoomi' and 'Besthavaribhoomi' and that the defendant Nos.1 and 2 are the own brothers of the plaintiff and the 3rd defendant is a stranger. The father of the plaintiff purchased the suit schedule properties from one Ravelli Venkataiah and others and Ayavari Kuchaiah respectively for a valid consideration under simple sale deeds in the year, 1988 and also purchased land from one Maturi Mallaiah and another under separate registered sale deed bearing No.1029/1989 dated 14.06.1989 which was executed in favour of the plaintiff and defendant Nos.1 and 2. A family partition took place among the plaintiff and defendant Nos.1 and 2 and subsequent to the partition, the plaintiff has got the suit schedule property towards his share and further the memorandum of partition was also prepared and executed on 23.12.1990 in the presence of elders. Subsequent to the partition, the plaintiff laid foundation for construction of compound wall around Ac.0-04gts of land in Sy.No.743/A & B and also raised construction of compound wall around Ac.0-04 gts of land in Sy.No.687 which is 3 GAC, J S.A.No.746 of 2013 adjoining to the house of the plaintiff bearing No.6-24. Due to differences that arose between the parties, panchayats were held and later plaintiff came to know that 1st defendant executed sale deeds in favour of 3rd defendant alienating the suit schedule property for which he was constrained to file the suit for perpetual injunction and for cancellation of said sale deed as null and void and therefore, prayed to dismiss the suit.
5. On the other hand, defendant Nos.1 and 3 filed common written statement and defendant No.2 filed a separate written statement. The recitals of written statement of defendant Nos.1 to 3 are the denial of the facts, which are averred in the plaint and it is the case of the defendants that the parties have settled their respective properties in Sy.No.687 which was reduced into writing as memorandum of partition, but subsequently additional terms were incorporated by the plaintiff in the said memorandum. It is the specific case of the defendants, that the 1st defendant purchased Ac.0-11 gts of land in Sy.No.743/A & B under registered documents bearing Nos.135 and 139/1991 from one Ayavari Kuchaiah, Revelli Venkataiah and Narsimha Chary on 11.02.1991 4 GAC, J S.A.No.746 of 2013 and 13.02.1991 and that the 1st defendant is the exclusive owner and possessor of the suit property and out of the same, he has alienated Ac.0-02 gts of land to 3rd defendant on 24.12.2001 by way of registered document and since then, 3rd defendant is in possession of the suit schedule property. Further, 3rd defendant raised basement structure for construction of compound wall and obtained necessary permission. Therefore, prayed to dismiss the suit.
6. Basing on the pleadings of both the parties, the trial Court has framed the following issues:-
"1. Whether the plaintiff is in lawful possession over the suit schedule land. If so, whether he is entitled for the relief of perpetual injunction against the defendant?
2. Whether the plaintiff is entitled for the relief of declaration of sale deeds bearing No.135/91, 139/91 and 2129/2001 of office of Sub-Registrar, Sulthanabad as null and void. If so, whether the defendant Nos.1 and 3 are liable to deliver the said documents to the plaintiff?
3. Whether there is any cause of action against the D-2?
4. Whether the plaintiff is entitled for any alternative relief. If so, to what relief?"5
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7. During the course of the trial, on behalf of the plaintiff, PWs.1 to 6 were examined and Exs.A-1 to A-4 were marked and on behalf of the defendants DWs.1 to 4 were examined and Exs.B-
1 to B-5 were marked.
8. On considering the oral and documentary evidence on record, the trial Court dismissed the suit with a finding that the plaintiff is not entitled for relief of declaration of sale deeds bearing document Nos.135/1991, 139/1991 and 2129/2001 as null and void and further the property shall be delivered to 1st defendant. It is the specific finding of the trial Court that the plaintiff has sought for declaration of documents as null and void, but failed to produce any reliable evidence in support of his contention except Ex.A-1 which do not disclose the nature of the property acquired, particulars of the property in dispute with survey numbers or boundaries and further the transaction relied on by A-1 is subsequent transaction of 10 years of the purchase made by the 1st defendant under Exs.B-1 and B-2. 6
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9. Being aggrieved by the same, the plaintiff had preferred Appeal vide A.S.No.11 of 2006 before the file of Senior Civil Judge, Peddapalli.
10. On considering the arguments and material before the Court, the 1st appellate Court framed the following points for determination:-
"Whether the judgment of the lower Court dismissing the suit of the plaintiff is correct? or Whether the appellant/plaintiff is entitled for perpetual injunction over the suit schedule property and declaration that the registered sale deeds bearing Nos.135/91, 139/91 and 2129/2001 as null and void and not binding on the plaintiff by setting aside the dismissal order against him passed the lower Court?"
11. On considering the oral and documentary evidence, the 1st appellate Court also dismissed the appeal with a finding that the evidence on record prove and establish that the plaintiff is in possession of Ac.0-04 gts of land in Sy.No.687 which is known as 'Besthavari Bhoomi' and he does not apprehend any danger of 7 GAC, J S.A.No.746 of 2013 dispossession from his property from any of the defendants. But the plaintiff failed to establish that he is the owner and possessor of Ac.0-02 gts of land in Sy.Nos.743/A & B out of Ac.0-11 gts of land and contents of Ex.A-1 came into effect. Further, the plaintiff failed to establish that his father purchased Ac.0-11 gts of land from the original vendor, prior to registered purchase made by 1st defendant in Sy.No.743/A & B and therefore, he is not entitled for perpetual injunction against any of the defendants over the suit schedule property.
12. Being aggrieved by the same, the Second Appeal is filed by the plaintiff herein raising the following substantial questions of law:-
"a) Whether, the First Appellate is justified in passing the impugned judgment and decree on dated 02.06.2011 in A.S.No.11 of 2006 in dismissing the same with the sole aim of confirming the judgment and decree passed in O.S.No.15 of 2002, dated 27.03.2006 by misreading and misappreciating the pleadings and evidence on record in the suit causing in justice to the appellant/plaintiff?8
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b) Whether, both the courts are justified in ignoring the fact that the memorandum of paritition marked as Ex.A-1 dated 23.12.1990 pleaded by the plaintiff has been proved with the evidence of PW-1 (Plaintiff), and PW-2 and PW-3 (Attestors of the said document, and PW.4 (Scribe of the said document) and PW.5 (Owner of the adjoining of the house with regard to suit land poart of 0.04 guntas) and PW-6 (Adjoining opposite house owner of the part of the suit land of 0.02 guntas) and coming to the conclusion of dismissing the suit based on the perverse findings in the suit causing injustice to the appellant herein?
c) Whether, both the lower courts are justified in ignoring the admissions made by the DW.1 in his cross examination about the partition of the properties in the year 1990 by executing a document as pleaded by the plaintiff in the suit and as such, whether both the courts are justified in decreeing the suit in spite of the said admission by the defendant No.1 in his evidence as DW.1 contrary to Section 58 of the Evidence Act?
d) Whether, both the lower courts are justified in not considering that the burden of proof of genuineness of the Ex.A2 to A4 sale deeds lies on the respondents No.1 and 3 as the appellant has proved partition of the properties as per the partition deed (Ex.A1) dated 9 GAC, J S.A.No.746 of 2013 23.12.1990 which is earlier in time to Ex.A2 to A4 sale deeds and for that reason Ex.A2 to A4 (corresponding to Ex.B1 to B3) are null and void?
e) Whether, both the lower courts are justified in not considering the fact that the appellant as well as respondents admitted possession of the appellant over the 0.04 gts of suit land out Sy.No.687 and even after holding by the trial Court that there is no dispute in respect of the said suit land and in view of the said fact, whether the lower appellate court is justified in not considering the above fact in passing the impugned judgment and decree in appeal that the trial court erroneously dismissed the suit under the law causing in justice to the appellant herein?
f) Whether both the lower courts are justified in passing the impugned judgments and decree under this appeal on presumptions and surmises ignoring the pleadings and evidence on record and misreading the same. In coming to the conclusion of the dismissing the suit with perverse findings causing injustice to the appellant/plaintiff?"
13. Heard the learned counsel for the appellant. There is no representation for the respondents. Perused the record. 10
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14. This Second Appeal is filed in the year, 2013 and it underwent numerous adjournments and is still at the admission stage.
15. Admittedly, this Second Appeal is arising out of concurrent findings of the Courts below. On perusal of the substantial questions of law which are mentioned at paragraph No.11 of grounds of appeal 'a' to 'f', they all are on the fact findings of the Courts below but not on "Law" except substantial question of law raised under (c) which specifies about Section 58 of the Indian Evidence Act, 1872.
Section 58 of Indian Evidence Act envisages as under:
"58 Facts admitted need not be proved. --No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings"
16. It is the contention of the learned counsel for the appellant that the Courts below were not justified in ignoring admissions made by DW-1 in his cross-examination about the partition of 11 GAC, J S.A.No.746 of 2013 properties in the year, 1990 and also of executing the documents as pleaded by the plaintiff in the suit. Further, in view of the admission of DW-1, the admitted facts need not be proved as per Section 58 of the Act. But the said contention is not at all tenable as the 1st defendant himself pleaded in the written statement that there was partition between the parties which was reduced into writing with respect to land in Sy.No.687 alone, but not of Sy.No743/A & B. It is the specific case of the 1st defendant that subsequently, incorporations have been made without his knowledge. Further, it is denied by the defendants about the purchase of the property by the plaintiff, to an extent of Ac.0-02gts in Sy.No.743/A and also about construction of the compound wall. It is the specific evidence of DW-1 that he has purchased Ac.0-11 gts of land in Sy.No.743/A & B under registered sale deeds dated 11.02.1991 and 13.02.1991 for which the plaintiff has no right over the subject property. The cross-examination, DW-1 also reveal that after going through the contents of Ex.A-1, he specifically deposed that it is not the document executed for partition of properties and at the time of execution of partition deed, one of his 12 GAC, J S.A.No.746 of 2013 relative Yamsani Ramanaiah was present. Further, denied about creation of fabricated documents in respect of Ac.0-02gts of land out of Ac.0-11 gts of land and also about the creation the documents to register the land which was purchased by the father of the plaintiff and defendant Nos.1 and 2. With a specific finding, the trial Court as well as the 1st appellate Court have concurred that the plaintiff has failed to establish his right over Ac.0-02 gts of land out of Ac.0-11 gts of land covered under Sy.No.743/A & B.
17. It is pertinent to mention that 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, only then, this Court can interfere with the orders of the Courts below. On perusal of the entire material on record, 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, in the absence of substantial question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
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18. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment dated 02.06.2011, in A.S.No.11 of 2006 on the file of Senior Civil Judge at Peddapalli. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 17.10.2022 dv