Telangana High Court
Amatulgaffar vs Md. Sadiq on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.442 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 29.03.2023 passed in A.S.No.31 of 2016 on the file of the I Additional District Judge at Karimnagar, confirming the judgment and decree dated 30.12.2014 passed by the learned Additional Senior Civil Judge, Karimnagar, in O.S.No.214 of 2005. 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 respondents/plaintiffs filed a suit vide O.S.No.214 of 2005 for declaration that the preliminary decree dated 26.10.2005 passed in O.S.No.40 of 2003 is null and void and not binding on the plaintiffs, and also perpetual injunction retraining the defendants 1, 2 and 4 from encroaching and raising any constructions in the suit schedule land.
4. It was contended that plaintiff No.1 purchased house bearing No.3-5-137 from one Mohd. Khan, Narseen Rahana and 2 LNA, J S.A.No.442 of 2023 Mehajabeen Farhana through a registered sale deed in the year 2004; that the plaintiff No.2 purchased house bearing No.3-5-136 from Mahajabeen Farhana through a registered sale deed dated 28.04.2005; that the vendors of the plaintiffs are the legal heirs of Moin Mohd. Khan and that the original owner Moin Mohd.Khan died in the year 2001.
5. It was further contended that the father of the vendor of the plaintiffs filed a suit vide O.S.No.72 of 1976 against defendant No.4 and it was decreed and the First Appeal and the Second Appeal preferred by defendant No.4 were also dismissed; that defendant Nos.1 and 2 filed O.S.No.40 of 2005 against defendant Nos.3 and 4 for partition including a public way i.e., the suit property which was used by the plaintiff and other adjoining owners and the said suit was decreed. As the plaintiffs are not parties to O.S.No.40 of 2005, the judgment and decree passed in the said suit is not binding on them. Therefore, the plaintiff filed the suit vide O.S.No.214 of 2005 against the defendants seeking perpetual injunction and also to declare that the judgment dated 26.10.2005 passed in O.S.No.40 of 2005 as null and void and not binding on the plaintiffs.
6. The defendant Nos.1 and 2 and defendant No.4 filed written statements denying the plaint averments and inter alia 3 LNA, J S.A.No.442 of 2023 stating that the plaintiffs neither have any right over the suit schedule property nor have any right to use the suit land as public way.
7. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A.13 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B1 to B7 were marked.
8. The trial Court, after considering the entire material available on record, decreed the suit. Aggrieved by the same, the defendant Nos.1, 2 and 4 filed A.S.No.31 of 2016. The first Appellate Court on re-appreciation of the entire evidence and considering the material available on record, dismissed the appeal vide judgment and decree dated 29.03.2023 confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
9. Heard Sri Arshad Ahmed, learned counsel for the appellants and perused the record.
10. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs are using the suit schedule passage since long time; that there was a decree against defendant No.4 restraining him from interfering and making any constructions; that the defendants are trying to 4 LNA, J S.A.No.442 of 2023 interfere with the possession of the plaintiffs over the suit schedule property and trying to raise construction across the suit schedule passage and obstructing the plaintiffs from using the suit schedule passage.
11. Learned counsel for appellants vehemently argued that the trial Court decreed 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.
12. However, learned counsel for appellants 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.
13. It is well settled 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. 5
LNA, J S.A.No.442 of 2023
14. 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.
15. 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 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.
16. 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 1 (2007) 1 Supreme Court Cases 546