HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.355 of 2015
JUDGMENT :
This appeal is arising out of the judgment dated 24.01.2015 in A.S.No.284 of 2009 on the file of X Additional Chief Judge, City Civil Court, Hyderabad, which arose out of the judgment dated 11.09.2009 in O.S.No.6042 of 2000 on the file of X Junior Civil Judge, City Civil Court, Hyderabad.
2. For the purpose of convenience, the parties are referred to as arrayed in the original suit.
3. The appellant/Union of India, Ministry of Defence, is the defendant in the suit. The suit was filed by the plaintiffs for mandatory injunction directing the defendant to incorporate the names of the plaintiffs/agreement holders/title holders, namely, C. Bharatamma W/o. Buchaiah Choudhari, B. Jansi Laxmi W/o. P.S.Rao and C.Sesha Rao S/o. Buchaiah Choudhari in the General Land Register maintained by the defendant in respect of the suit schedule lands. During the pendency of the suit, a further prayer was made to issue injunction restraining the defendant' authorities 2 GAC, J S.A.No.355 of 2015 from interfering with the peaceful possession and enjoyment together with the development activities over the suit schedule land. The original plaintiff is one Mohd. Saleem. The case of the plaintiff is that originally, one Dawar Ali was the owner of the suit schedule property from 1930 A.D., who in turn sold the land to one Late Buchaiah Choudhary, by delivering the vacant possession of land through a deed dated 12.03.1946. During the life time of Buchaiah Choudhary, the boundaries of the said land were fixed on 02.11.1954 at his request and the revenue authorities conducted panchanama. Further, Buchaiah Choudhary used to pay land tax. After his death, his wife and children succeeded to the said land by survivorship and they continued to pay the taxes. The suit schedule property was improved by Buchaiah Choudhary by constructing a farm house, which have become dilapidated later, but they paid taxes by way of challans dated 17.01.1974 and under receipt from MTO of the then Hyderabad, dated 08.04.1987 and letter dated 24.10.1984 of the Tahsildar, Golconda Mandal, who gave 'No due certificate' also in the month of August, 1986. The Commissioner, Municipal Corporation of Hyderabad, Town 3 GAC, J S.A.No.355 of 2015 Planning addressed a letter dated 29.07.1986 to Buchaiah Choudhary calling upon him, to submit documents in respect of 1514 square yards out of the land sought to be acquired for road widening on payment of compensation. Subsequently, the compensation was also paid to the family of Buchaiah Choudhary by proceedings dated 30.09.1986 by way of cheque, in the name of plaintiff No.4 who is the son of Buchaiah Choudhary. Plaintiff Nos.2 to 4, who are the heirs of the deceased Buchaiah Choudhary, proposed to entrust the land for development with A.Narsimha Reddy, A. Niranjan Reddy, Mohd. Ibrahim, M.Ravi Varma, S.Venkat Rao and Shaik Salahuddin by entering into a Memorandum of Understanding on 06.03.1996. Pursuant to the said Memorandum of Understanding, they deposited Rs.3,00,000/-, which was paid to plaintiff Nos.2 to 4 as security deposit out of Rs.5,00,000/-, and balance amount of Rs.2,00,000/- to be paid after the completion of survey and determination of the total extent of land by metes and bounds. In the month of October 2000, when plaintiff No.1 undertook the work of development and started to remove the structures, the defendant-authorities under a baseless 4 GAC, J S.A.No.355 of 2015 claim that the land belongs to the Defence, interfered with the work of the plaintiffs and caused obstruction as if, the land belongs to them. The defendant did not produce any document nor have any right over the suit schedule property. It is the specific averment in the plaint that the plaintiffs are in continuous possession of the suit property since 70 years by legitimate transfer and that the defendant stand barred on the face of law and facts. The original pattadar/Dawar Ali and Buchaiah Choudhary have perfected their title by way of adverse possession. The partners, except one A.Narsimha Reddy, who was not available in the city, executed a letter of authorization to co-operate and pursue the activities in their common commercial interest, plaintiff No.1 filed the original suit.
4. It is further averred in the plaint that the Statutory notice under Section 80 of CPC could not be issued and a separate petition was filed under Section 80(3) of CPC, to dispense with the same for filing the suit. It is also averred in the plaint that on the threat of being dispossessed by force, by the defendant-authorities 5 GAC, J S.A.No.355 of 2015 and against the inaction of the revenue authorities, the plaintiffs approached the Court without issuing the mandatory notice.
5. The gist of the written statement reveals that without complying Section 80 of CPC, the suit cannot be instituted against the Government and therefore, the suit is liable to be dismissed. It is the specific contention of the defendant that the land admeasuring 104.65 acres popularly known as 'Old Cantonment Garden', situated opposite to and near Quli Qutub Shahi Tombs, at Shaikpet village, Golconda Mandal, Hyderabad, which was taken over by the Government of India, Ministry of Defence through local military authorities as Ex-State forces property. The transfer was effected through a Board Proceedings dated 19.03.1958 in pursuance of Government of India, Ministry of Defence letter No.707342/Q3(Plg)Vol.II/168-S/D(Qtg), dated 11.03.1957 and Government of Andhra Pradesh, General Administration (Military) Department No.2733/57-2, dated 24.08.1957 and that the land is under the control and management of the defendant. The land devolved to the share of the Central Government (Ministry of Defence) consequent to the financial integration of Princely States 6 GAC, J S.A.No.355 of 2015 with Indian Union. They recognized the rights in the land originally of erstwhile Hyderabad State, but has been assigned to the Central Government and the same belong to Government of India in full rights by virtue of Article 295(1) of the Constitution of India. Out of the total extent of land, 1033 acres was transferred by the Ministry of Defence to the P & T Department on 28.06.1971 on outright sale for establishing a telephone exchange. But, out of the remaining land, about 10 acres was under the occupation of Municipal Corporation of Hyderabad and the said land was given to the State Tourism Department. Approximately 40 acres is occupied by the State Archaeology and Museums Department. The erstwhile Executive Officer, Hyderabad leased out Ac.52.25 gts. to one Lt. Col. T.E.Ross for a period of 25 years commencing from 13.01.1951 for agricultural purpose and it is inclusive of the entire Ac.104.65 of land but the said Lt. Col. T.E. Ross entered into a partnership deed with Buchaiah Choudhary without the knowledge and approval of the erstwhile Hyderabad Cantonment Authority. After the expiry of the lease period on 12.01.1976, Lt.Col.T.E.Ross failed to deliver back the possession of the lease 7 GAC, J S.A.No.355 of 2015 land to DEO, Secunderabad. On enquiry, his whereabouts were not known but Buchaiah Choudhary was in enjoyment of the land. Then, Buchaiah Choudhary was prosecuted under the Public Premises (Eviction of unauthorised Occupants) Act, 1971 for his unauthorised occupation of the defence-owned land, but the said proceedings could not be finalized in view of the death of Buchaiah Choudhary. The wife of Buchaiah Choudhary continued to be in the unauthorised occupation of the land, who was also prosecuted under the said Act. The State Government also initiated separate action under the A.P. Land Grabbing (Prohibition) Act, 1982, which was registered as LGC.No.65 of 1989, but the same was challenged by the wife of Buchaiah Choudhary by filing W.P.No.11174 of 1989 before this Court, which was disposed of on 08.03.2000 with an observation that if it is found that the wife of Buchaiah Choudhary is a grabber or unauthorised occupant, it has to be decided by the Tribunal as a preliminary issue. Later, the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad dismissed LGC.No.65 of 1989 on 02.08.2000 by holding that the same was not maintainable.
8
GAC, J S.A.No.355 of 2015
6. It is further averred in the written statement that one Hyder Ali Khan and others have filed a suit in O..S.No.1113 of 1991 on the file of IV Additional Judge, City Civil Court, Hyderabad against the Union of India and others for declaration and perpetual injunction in respect of land comprising Sy.Nos.246, 247, 264, 268 to 273 in respect of Ac.38-06 guntas situated at Shaikpet village, Golconda Mandal, Hyderabad, restraining the Government from interfering with the plaintiffs right and possession. Further, one Mir Pasha Ali and others filed LGC.No.31 of 1990 before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad claiming Ac.52-25 gts., but the same was dismissed on 07.05.1993 as not maintainable and with an observation that the petitioners therein should seek relief of declaration of title in a Civil Court. Further, a Review Petition No.231 of 1994 was filed before the Land Grabbing Court but the same was also dismissed on 22.06.1994, thereafter, he filed a writ petition vide W.P.No.610 of 1998, which was also dismissed on 29.01.1998 at the stage of admission with the same observation that the petitioners may seek remedy from the Civil Court.
9
GAC, J S.A.No.355 of 2015
7. It is also averred in the written statement that the wife of Buchaiah Choudhary in her affidavit in W.P.No.11174 of 1989, had in unequivocal terms, admitted the proprietary rights of the Government of India, Ministry of Defence over the land which was originally leased out to Lt. Col. T.E. Ross. During his life time, her husband has been repeatedly representing to the authorities concerned for extension of the lease in his favour and the plaintiff also filed W.P.No.11571 of 2001, before the High Court of Andhra Pradesh, against the respondents for a Writ of Mandamus directing the defendants to act in accordance with law and forebear from demolishing any of the structures existing in the schedule land admeasuring Ac.47-21 gts., at Shaikpet village and that the plaintiff is not having any right or interest over the suit schedule property and therefore, prayed to dismiss the suit.
8. Basing on the pleadings, the trial Court has framed the following issues for trial:
"1. Whether the plaintiffs are entitled to the mandatory injunction against the defendant as prayed for ?10
GAC, J S.A.No.355 of 2015
2. Whether the plaintiffs are entitled to the relief of consequential relief of permanent injunction against the defendant ?
3. Whether the plaintiffs have complied the mandatory notice U/s.80 of CPC ?
4. To what relief ?"
9. On behalf of plaintiffs, PWs.1 to 4 were examined and got Exs.A-1 to A-49 marked. On behalf of defendant, DW-1 was examined and got Exs.B-1 to B-11 marked. The trial Court, after considering rival contentions and the material on record, decreed the suit, restraining the defendant from interfering with the peaceful possession and enjoyment of plaintiffs over the suit schedule property. However, the trial Court has not discussed issue No.1, as the learned counsel for plaintiffs has mentioned in the written arguments that he was not pressing for issue No.1. It is the specific finding of the trial Court that the plaintiffs are in possession of the suit schedule property and they cannot be evicted even though they are encroachers without due process of law and that the cause of action arose suddenly by the defendants, therefore, the Statutory notice under Section 80 of CPC could not 11 GAC, J S.A.No.355 of 2015 be issued, for which, a separate application was filed by the plaintiffs under Section 80 (c) of CPC with a request to dispense with said notice and the trial Court has dispensed with issuance of notice under Section 80 of CPC in view of the urgency.
10. Being aggrieved by the judgment and decree of the trial Court, the defendant in the suit has preferred an appeal before the Court of X Additional Chief Judge, City Civil Court, Hyderabad. The appellate Court, on hearing the rival contentions of the parties and on perusal of the record, framed the following points for consideration :
"1. Whether the decree and judgment dt.11-09-
2009 on the file of X Junior Civil Judge, City Civil Court, Hyderabad suffers from any infirmity either on facts or on law and whether the same is liable to be set-aside ?
2. To what relief ?"
11. The first appellate Court, after considering the entire material on record, has dismissed the appeal holding that the judgment and decree of the trial Court does not suffer from any infirmity either on facts or on law and the findings with regard to 12 GAC, J S.A.No.355 of 2015 the possession therein, and that there is no need to interfere with. Being aggrieved by the judgment of the first appellate Court, this Second Appeal is filed, raising the following substantial questions of law:
"(i) Whether the judgments of the courts below are vitiated in law for improper appreciation of evidence on record ?
(ii) Whether in the absence of any plea and proof of title and possession by the plaintiffs, the courts below are justified in dismissing the appeal filed by the appellant ?
(iii) Whether the lower courts below are wrong in not considering the documents filed by the appellant herein under exhibit B-1 to B-11 and dismissed the appeal filed by appellant herein in a mechanical manner without application of mind, confirming the Judgment and decree dated 11-09-2009 in OS No.6042 of 2000 passed by trial Court ?
(iv) Whether the Trial Court acted legally in granting perpetual injunction in favour of the plaintiffs restraining the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property inspite of the fact that counsel for the plaintiff submitted that he is not pressing issue no.1 i.e. whether the plaintiffs are entitled to mandatory injunction against the defendants as prayed for, and therefore the Trial court ought to have dismissed the suit as there was no other relief 13 GAC, J S.A.No.355 of 2015 since the 2nd relief is to grant injunction during the pendency of the suit ?
(v) Whether the civil suit originally filed by Mod.Saleem/Plaintiff No.1, alleging that there were 07 partners including himself who entered into Memorandum of Understanding (Ex-A4) alleging that the other partners except A. Narasimha Reddy authorized him in (Ex-A1) to file the suit, is maintainable in law ?
(vi) Whether the trial court acted legally in believing the contents of the Ex-A6, un- registered sale deed, in the absence of examining any person/s with regard to same ?
(vii) Whether the trial court acted legally in believing the contents of Ex-A14, Panchanama, in the absence of specified boundaries and extents of land in each Survey number ?
(viii) Whether the trial court as well as the appellate court below have acted legally in partly decreeing the suit in favour of the plaintiff, restraining the appellants from interfering with the peaceful possession and enjoyment of suit schedule property inspite of the fact that, the suit land was already taken possession by the appellants herein, on expiry of lease period from its lessee ?
12. Heard learned counsel for the appellant as well as the learned counsel for respondents. Perused the record.
The points for consideration in this Second Appeal are : 14
GAC, J S.A.No.355 of 2015
1. Whether the judgments of both the Courts below are liable to be set aside basing on the substantial questions of law as raised in para 40 of the grounds of appeal ?
2. Whether this Court can interfere with the findings of fact of the Courts below under Section 100 of CPC ?
13. It is the specific contention of the learned counsel for appellant that the original plaintiff Sri Mohd. Saleem is a total stranger to the suit schedule property and he has no right to claim the suit schedule property. It is contended that the plaint disclose that the legal heirs of one Buchaiah Choudhary have executed MoU/Ex.A-4 in his favour along with six others for development of the suit schedule property, the said MoU authorized him to prosecute the case on behalf of Buchaiah Choudhary and six others, but the said MoU does not give any authorization to Mohd. Saleem and further, the alleged MoU is an unregistered document and no right or interest could accrue over the property, under the said document and therefore, the plaintiff has no locus standi to file the suit. It is the further contention that having realized that the 15 GAC, J S.A.No.355 of 2015 suit is not maintainable on the name of Mohd. Saleem, the plaint was amended in the year 2007 adding the legal heirs of Buchaiah Choudhary as plaintiffs and the trial Court ought not have granted injunction in their favour. It is the contention of the learned counsel for appellant that in a suit for injunction simplicitor with respect to an immovable property, the plaintiff is required to prove that he is in possession of the suit schedule property as on the date of filing the suit and if the land is an open land, then the law envisages on the presumption that possession follows title and plaintiff is required to prove his possession on the basis of title and in the present case, absolutely there is no authenticated document to prove that the plaintiffs are the owners and possessors of the suit schedule property and the unregistered sale deed dated 12.03.1946 did not confer any title over the suit schedule property in favour of defendant and there is no identification of the property within the specific boundaries and prayed to allow the second appeal by setting aside the orders of the trial Court as well as the lower appellate Court. It is the further contention of the learned counsel for appellant that as per the request of Sri Buchaiah Choudhary, 16 GAC, J S.A.No.355 of 2015 survey department has conducted panchanama and fixed boundaries, but as on that date, Buchaiah Choudhary was no more and the said land is in the jurisdiction of the Cantonment area and therefore, notices have to be issued to the military authorities, therefore, the alleged panchanama is not binding on the defendant as no notice was given to them. It is further contended that Exs. A-11, A-12, A-20 and A-21 though proves that the plaintiffs are in possession of the property, the said documents do not disclose identity of the suit schedule property on spot and therefore, it is not binding on the defendant, and therefore, prayed to set aside the orders of the trial Court, as well as the orders of first appellate Court.
14. It is further contended by the learned counsel for the appellant that the burden is always on the plaintiffs to prove that they are in possession of the suit schedule property and as there is no proper oral and documentary evidence to prove their possession, the trial Court ought to have dismissed the suit and allowed the appeal of the defendant. It is the further contention of the learned counsel for the appellant that the 1st plaintiff has no locus standi to 17 GAC, J S.A.No.355 of 2015 file or prosecute the case on behalf of the plaintiffs and admittedly, he is not the GPA holder of the plaintiffs and that mere marking the documents does not amount to proof. Plaintiff Nos.2 to 4 are competent to speak and prove the documents filed by them, but they have not entered into witness box to prove the documents. As such, the documents marked before the Court cannot be relied upon and that both the Courts below have delivered judgments on the self-serving evidence of PWs.1 to 4. The documents filed by the plaintiffs under Exs.A-1 to A-49 are fictitious and fabricated and were brought into existence for the purpose of filing of the false suit. PWs.1 to 4 are strangers to the suit and the suit cannot be decreed in their favour. It is further contended by the learned counsel for appellant that Exs.B-1 to B-11 filed in this case were already marked in O.S.No.1113 of 1991 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad and the said Court, on considering the said documents, held that the defendant is in possession of the land and it is the contention of plaintiffs that the suit lands in both the suits are not same and that they are not parties to the said suit in O.S.No.1113 of 1991, and therefore, the 18 GAC, J S.A.No.355 of 2015 defendant is to be treated as the owner of the suit schedule property. Furthermore, it is contended that the documents relied upon by the defendants were not properly appreciated by the Courts below and if they are properly perused, the Courts ought to have concluded that the defendant alone had title and possession over the suit schedule property and that the documents filed by the plaintiffs are fictitious and fabricated and are brought into existence only to knock-away the property of the Government and therefore, it ought to have allowed the appeal.
15. On the other hand, it is the contention of the learned counsel for respondents that both the Courts have appreciated the evidence on record, considered the rival contentions of the parties and decreed the suit, which was confirmed by the appellate Court and there is no substantial question of law in this Second Appeal, and therefore, the second appeal has to be dismissed as it is devoid of merits. It is the specific contention of the respondents that a plain reading of Section 100 of CPC makes it clear that the Second Appeal primarily requires (i) the Court is satisfied that the case involves a substantial question of law (ii) the order impugned is 19 GAC, J S.A.No.355 of 2015 passed ex-parte, and (iii) precise statement of substantial question of law involved in the appeal. Then only, the High Court can interfere, but it cannot re-appreciate the evidence and interfere with the findings of fact by the lower appellate Court. The only limited ground on which the High Court can interfere in the Second Appeal is that the decision of the lower Court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in the Second Appeal.
16. The learned counsel for the respondents has relied on the judgment of Hon'ble Supreme Court in Mattulal v. Radhe Lal1, wherein, it is held as under:
"It is settled law that the High Court in second appeal cannot re-appreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond 1 AIR 1974 SC 1956 20 GAC, J S.A.No.355 of 2015 the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse."
17. It is further contended by the learned counsel for respondents that it is also settled law that an erroneous finding of fact is a different thing from an error or defect in procedure and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. In 1890, the Privy Council had occasion to consider this aspect of the matter in Mst. Durga Chawdhrain v. Jawahir Singh (1890) 17 Ind App 122 (PC). In that case, it was observed by the Privy Council that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. Their Lordships added that nothing can be clearer than the declaration in the Code of Civil Procedure that no second appeal will lie except on the grounds specified in Section 584 (corresponding to Section 100 of the present Code) and they uttered a word of warning that no Court in India or elsewhere has 21 GAC, J S.A.No.355 of 2015 power to add to or enlarge those grounds. Since 1890, this decision has been treated as a leading decision on the question about the jurisdiction of the High Court in dealing with questions of facts in second appeal.
18. The learned counsel has relied on the judgment of Hon'ble Supreme Court in Pattabhiramaswamy v. S. Hanumayya2, wherein, it is held that, "finding of fact arrived at by the District Judge on the consideration of all evidence, oral and documentary, adduced by the parties, cannot be set aside in second appeal". The said finding of the Hon'ble Supreme Court was followed in the case of Chunni Lal V. Mehta and Sons Ltd., Bombay v. Centure Spinning and Manufacturing Co. Ltd., Bombay [AIR 1962 SC 1313]. It was held in that case that an issue of law does not arise merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed.
19. The learned counsel for respondents has further relied on the judgment of Hon'ble Supreme Court in C. Doddanarayana 2 AIR 1959 SC 57 22 GAC, J S.A.No.355 of 2015 Reddy (D) By Lrs. v. C. Jayarama Reddy (Dead) By Lr.3, wherein, it is held as under:
"The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 (3) SCC 392), this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166], this Court held :
3 2020 (4) SCC 659 23 GAC, J S.A.No.355 of 2015 "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:
"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."
30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact.
31. In view of the aforesaid enunciation of law and the facts of the present case, we find that the High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court."
24
GAC, J S.A.No.355 of 2015
20. The learned counsel for respondents has also relied on another judgment of Hon'ble Supreme Court in Chandra Bhan v. Pamma Bai & another4, wherein, it is held as under:
"Since the trial court and the lower appellate court had recorded concurrent findings of fact that Ram Nihore was not in possession at any time over the land in question and that the defendant had acquired the bhumiswami rights under the M.P. Land Revenue Code on account of his long uninterrupted possession. It was not open to the High Court to reverse those findings, particularly when the findings were supported by the own admission of Ram Nihore that at the age of 13 he had left the village and returned after 16-17 years which indicated that he was not in possession over the land in question."
21. Considering the entire evidence on record, the rival contentions of the parties and the substantial questions of law, this Court is of the considered view that there is very limited scope under Section 100 of CPC and this Court can interfere with the findings of the Courts below, if there is any substantial question of law. Section 101 (c) of CPC refers to a substantial error or defect in the procedure. The defect or error must be substantial. The substantial error or defect should be such as may possibly have produced error or defect in the decision of the case upon the merits. 4 [2002 (9) SCC 565] 25 GAC, J S.A.No.355 of 2015 The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, however, erroneous the said conclusions may appear to be to the High Court, in view of the observations made by the Privy Council. Furthermore, it can be construed that High Court can interfere with the findings of fact under Section 103 of C.P.C., if there is any misreading of evidence or if there is any perversity of findings.
22. Even on facts, it is the specific contention of the appellant that the land to an extent of 103 acres belongs to the Government, but it is admitted by the Government that the land is in possession of one Buchaiah Choudhary, who is the father of plaintiff Nos.2 to 26 GAC, J S.A.No.355 of 2015
4. It is the specific contention of the appellant that the suit itself is not maintainable as it was filed by the 1st plaintiff initially and later, plaintiff Nos.2 to 4 were added. On perusal of record, it is evident that plaintiff Nos.2 to 4 were added to the suit by impleading them under Order I Rule 10 of CPC and if at all the defendant had any objection for impleading them as a party, the Government ought to have opposed the petition in the trial Court and inspite of opposition, if impleadment is ordered, the Government had it's right to challenge the impleadment of plaintiff Nos.2 to 4 by way of revision. In the present case, the Government has not challenged the impleadment of plaintiff Nos.2 to 4 and at a belated stage, it cannot raise the said plea and it is not a substantial question of law that can be discussed in the Second Appeal.
23. It is the specific case of the defendants that the Government has given the land on lease in favour of Lt.Col.T.E.Ross, who in turn, leased the land to Buchaiah Choudhary and since then, Buchaiah Choudhary was in possession of the land. As per the law of adverse possession, if any Government land is in continuous possession of third parties for more than 30 years, third parties 27 GAC, J S.A.No.355 of 2015 perfect title over the property and if it is a private land, then, the third parties who are in possession for a continuous period of 12 years, can claim right by way of adverse possession. Admittedly, both the Courts below have come to the conclusion that the plaintiffs are in possession of the property for more than a period of 70 years and the Government is not in possession of the property. Even the land grabbing case filed by the Government was dismissed as not maintainable and the land grabbing Court has directed the parties to approach the Civil Court for their rights. Admittedly, the present case is not filed for declaration of title, but it was filed for injunction alone. Therefore, the question of looking into title will not arise at this juncture. Both the Courts have rightly appreciated the documents filed by the parties and came to the conclusion that the plaintiffs are in possession of the property. On perusal of the documents, it is evident that the Government has not objected for marking of documents before the trial Court. So, at the stage of Second Appeal, this Court cannot discard the documents. Though it is contended by the appellants that the documents are false, fabricated and fictitious, no steps were taken 28 GAC, J S.A.No.355 of 2015 by the appellant, to disprove the documents of plaintiff. The appellant/Government itself has admitted the possession of Buchaiah Choudhary over the property and subsequently the land was in the hands of wife and children of Buchaiah Choudhary. Though it is the contention of the appellant that the Civil Court has passed the decree in favour of the Government on the ground that the Government is in possession of the land, it is the specific contention of the plaintiffs that the said land is different in both the suits and it was accepted by both the Courts below. On perusal of the judgment of the first appellate Court, it is evident that the plaintiffs have filed Ex.A-6, which is an unregistered document in Urdu, executed on non-judicial stamp paper worth Rs.1/-, the translation of which is Ex.A-7, under which, Dawar Ali executed sale deed dated 12.03.1946 with his free will to the effect that an extent of Ac.52-11 gts., comprising Sy.Nos.246 to 253, 263 to 268, 270 to 273 situated at Shaikpet village, sold for an amount of Rs.26,125/- as a pattadar and in possession of the said property to Buchaiah Choudhary. The Courts have come to the conclusion that even leaving apart Ex.A-6, which is an unregistered document, 29 GAC, J S.A.No.355 of 2015 there are some other documents on record to prove the possession of Buchaiah Choudhary over the suit schedule property. Exs.A-11 and A-12 are important documents showing the possession of plaintiffs over the suit schedule property. Ex.A-11 is Kami Zafa statement for the year 1982-83, in which, Ac.47-21 guntas was shown against the names of plaintiff Nos.2 to 4 and one Bharatamma, who is the wife of Buchaiah Choudhary. Ex.A-12 is the passbook issued in the names of plaintiff Nos.2 to 4 and wife of Buchaiah Choudhary, as pattadars in respect of Ac.47-21 guntas comprising Sy.Nos.246 to 253, 263 to 268, 270 to 273. In Column No.20 of Ex.A-12, it is clearly mentioned as prior to 1950, which was identified that the said land belongs to one Dawar Ali as a pattadar, and he sold away the said land to Buchaiah Choudhary, and since then, the said land is in possession and enjoyment of Buchaiah Choudhary. It is also mentioned that as per the Will, the said land was in possession of his legal heirs i.e. PWs.2 to 4 and his wife. Exs.A-23 and A-24 relate to the proceedings of Land Acquisition Act, wherein, the land was acquired for the purpose of road widening and the Municipal authorities have paid 30 GAC, J S.A.No.355 of 2015 compensation to the wife of Buchaiah Choudhary, which clearly proves that the Government has recognized the possession of plaintiffs over the suit schedule property and paid amount to them and not to the defendant/appellant. Though it is the contention of the learned Counsel for appellant that PWs.2 to 4 were not put into witness box, it cannot be treated as a substantial question of law in the Second Appeal so as to discard the possession of plaintiffs over the suit schedule property. Therefore, it needs no interference.
24. On the other hand, it is admitted by DW-1 before the trial Court that there is no documentary proof for leasing of land belonging to the defendant in favour of one Lt. Col. T.E.Ross and no document was filed before the Court and further, even after the lapse of 25 years of lease, no notice has been issued to Lt. Col. T.E.Ross. Therefore, both the Courts below have rightly come to the conclusion that there is no evidence on record showing that Ac.52-25 gts. of land was leased out to one Lt. Col. T.E.Ross, who in turn, entered into partnership with Buchaiah Choudhary and that he was in illegal possession of the land. It is the specific admission of DW-1 before the Court that there is no explanation as to how 31 GAC, J S.A.No.355 of 2015 Ex.B-2/letter alleged to have been addressed by Buchaiah Choudhary to the Collector, came into the hands of the defendant. Therefore, the appellate Court has also come to the conclusion that it is a well settled law that in a suit for injunction, the plaintiffs have established their possession over the suit schedule property as on the date of filing of the suit. Ex.A-6/sale deed dated 12.03.1946 discloses that the suit land was sold by one Dawar Ali to Buchaiah Choudhary and Ex.A-14/panchanama disclose that boundaries are fixed by the revenue authorities, which is conclusive proof and the documents clearly shows that the plaintiffs are in continuous possession of the suit schedule land and even the State Government has recognized Late Buchaiah Choudhary as owner of the land and further, compensation was also paid to him in the land acquisition proceedings. Ex.A-29 is the ration card, which clearly shows H.No.9-4-138/1, Cantonment Garden, Golconda Fort, Hyderabad and Exs.A-30 to A-32 are electricity passbook and electricity bills, which clearly reveals that the plaintiffs are in possession of subject property as on the date of filing of the suit. Therefore, this Court finds that there is no error or irregularity in the orders passed by 32 GAC, J S.A.No.355 of 2015 both the Courts below and as no substantial question of law is involved in this Second Appeal, there is no need to interfere with the findings of Court below.
25. The Second Appeal is accordingly dismissed, confirming the judgment in A.S.No.284 of 2009, dated 24.01.2015 on the file of X Additional Chief Judge, City Civil Court, Hyderabad. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 01.03.2023 ajr