Telangana High Court
Kalakonda Ashalatha vs Ponnam Laxmi on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.508 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 13.07.2023 passed in A.S.No.235 of 2018 on the file of the Principal District Judge, Karimnagar, confirming the judgment and decree dated 12.10.2018 passed in O.S.No.429 of 2012 on the file of the learned II Additional Junior Civil Judge, Karimnagar, whereby the suit filed by the plaintiff was dismissed. Thus, the present Second Appeal is filed against the concurrent findings of trial Court as well as first Appellate Court.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present second appeal are that the appellant /plaintiff herein has filed the suit i.e., O.S.No.429 of 2012 against the defendants for perpetual injunction restraining them from interfering with peaceful possession and enjoyment of house bearing No.7-3-331 (Old No. 7-3-257/1) including open place to an extent of 250 square 2 LNA, J S.A.No.508 of 2023 yards situated at Kashmeergadda locality of Karimnagar (hereinafter referred to as 'suit schedule property').
4. It is contended that originally, the suit schedule property was LIGH Quarter and it was allotted to one Smt. Katla Kousalya by the Municipal Commissioner, Karimnagar, in the year 1971; that the Municipal Commissioner, Karimnagar, after obtaining permission from the erstwhile Government of Andhra Pradesh, executed a sale deed in favour of Katla Kousalya vide document No.3814/2000 dated 14.07.2000 for a consideration of Rs.3,461/- in respect of the suit schedule property including open place in an extent of 250 square yards.
5. It is further contended that Katla Kausalya dismantled the quarter and executed gift settlement deed in favour of the plaintiff in respect of open place in an extent of 250 square yards vide document No.5583/2003 dated 26.06.2003. Thereafter, the plaintiff obtained permission and constructed a building in an extent of 160 square yards leaving the open place towards western side i.e., back side of the house admeasuring 90 square yards and has been living in the said house by paying the tax to the Municipality. It is further stated that defendant Nos.1 and 2, who are wife and husband, illegally tried to 3 LNA, J S.A.No.508 of 2023 encroach the suit schedule property and tried to erect a wall to some extent in the suit schedule property claiming that they purchased the suit schedule property from Katla Kousalya. Aggrieved by the same, the plaintiff filed the suit.
6. The defendant Nos.1 and 2 filed their written statement denying the plaint averments and stating that the defendant No.2 purchased the suit schedule property in the name of his wife-defendant No.1 through a registered sale deed dated 20.04.2006. It is stated that before purchasing the said property, paper publication was also issued calling for objections, if any, from general public. It is further stated that defendant No.1 started construction before filing the suit itself.
7. On behalf of plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A.9 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B1 to B15 were marked.
8. The trial Court, after considering the entire material available on record, dismissed the suit holding that the plaintiff failed to produce material, evidence to show that she is the lawful possessor of the suit schedule property, whereas the defendants proved their possession over the suit schedule property by adducing oral and documentary evidence. 4
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9. Aggrieved by the same, the plaintiff filed A.S.No.235 of 2018. The said appeal was clubbed with A.S.No.136 of 2019, which was filed by the respondent No.1 herein against judgment and decree dated 18.07.2019 passed in O.S.No.266 of 2013, by which, the suit filed by respondent no.1 for mandatory and recovery of possession with regard to land admeasuring 18 square yards in H.No.7-3-330 was dismissed. In the said suit, respondent no.1 claimed that she is owner and possessor of the house bearing No.7-3-330, admeasuring 165 square yards, situated at Kashmeergadda locality of Karimnagar, having purchased the same from her vendor Nalimela Subashini vide registered sale deed dated 20.04.2006 and contended that appellant herein and her husband have illegally occupied the land admeasuring 18 square yards belonging to her by raising compound wall.
10. The first Appellate Court on re-appreciation of the entire evidence and perusal of the material available on record, vide common judgment and decree dated 13.07.2023 dismissed both the appeals confirming the judgments and decrees passed by the trial Court. In the common judgment and decree dated 13.07.2023, the first Appellate Court had specifically recorded 5 LNA, J S.A.No.508 of 2023 that trial Court rightly observed that parties failed to prove their respective cases and thus, rightly declined to grant reliefs in favour of the plaintiffs in both the suits. The first Appellate Court also further observed that dismissal of one suit does not lead to an automatic inference that the plaintiff in other suit established his/her right. It is further observed that O.S.No.429 of 2012 was filed by the appellant herein for perpetual injunction, whereas, the first respondent herein filed suit in O.S.No.266 of 2013 for recovery of possession of the land admeasuring 18 square yards.
11. Aggrieved by the judgment and decree dated 13.07.2023 passed in A.S.No.235 of 2018, the present Second Appeal is filed.
12. Heard Sri Sankalp Pissay, learned counsel for the appellant. Perused the record.
13. Learned counsel for appellant vehemently argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
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14. However, learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this second appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
15. It is well settled legal principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
16. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
17. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate Court, this Court finds no ground or reason 1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.508 of 2023 warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
18. Hence, the second appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________________________ LAXMI NARAYANA ALISHETTY, J Date: 27.12.2023 va