THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
SECOND APPEAL No.819 of 2017
ORDER:
Appellant has filed this second appeal under section 100 of Code of Civil Procedure questioning the finding of the first appellate Court where-under his appeal vide A.S.No.50 of 2007 was also dismissed by confirming the judgment of trial Court in O.S.No.786 of 2004.
2. The appellant has filed the above said original suit for perpetual injunction in respect of plot of 500 square yards in survey No. 1368 at Subashnagar, Karimnagar. According to his plaint filed before the trial Court, he claimed ownership over the said property, through the registered gift deed executed by one Mahemooda begum and also by claiming possession by virtue of Ex.A2 certificate. The claim of appellant herein was resisted by the defendants No.1 and 2, and first defendant in the suit while disputing the relationship between the above said Mahemooda Begum and appellant herein and about her right over the property for executing a gift deed in favour of the appellant, further contended before the trial Court that an extent of Ac.10.00 guntas of land in survey No.1368 originally belonged SA.No.819 of 2017 2 to one Abdul Rahaman who sold an extent of Ac 0.13 guntas to one Megharaju Pochamma, mother in law of first defendant under a registered document on 4.3.1950. The said Pochamma obtained a rythu passbook and inspite of the claim the defendants filed certified copy of Pahani, the trial Court having framed proper issues came to the conclusion that the donor of the appellant herein had no right over the property thereby she could not have conveyed any title in respect of the suit plot even by virtue of Ex.A1. As such, the appellant/plaintiff cannot claim title and his possession was also not believed by the trial Court.
3. Being not happy with the said findings the appellant herein filed first appeal vide A.S.No.50 of 2007 before the III Additional District Judge, Karimnagar. The first appellate Court having appreciated the contentions of the parties dismissed the appeal and confirmed the judgement of the trial court.
4. This second appeal has been filed by the plaintiff who is appellant in this appeal mainly on the ground that the Courts below could have believed Ex.A1 being a registered document and since the plaintiff filed Ex.A2 possession certificate the appellant further claimed that the Courts below could not have SA.No.819 of 2017 3 accepted the contention of defendants which is based on Ex.B1, an unregistered document.
5. While filing this second appeal the appellant has formulated the following substantial questions of law:
a) Whether the Courts below are right in discarding Ex.A1 though the same was proved by examining attestors i.e. PW's 3 and 4?
b) Whether the defendants are entitled to question Ex.A1 being the 3rd parties to Ex.A1 document?
c) In the absence of proof of Ex.B1 under which the defendants claiming rival title whether the Courts below are right in rejecting the injunction in favour of the plaintiff?
d) Whether the stray sentences in the cross examination of PW2 with regard to the execution of Ex.A1 can be a ground to reject the claim of plaintiff?
6. After the amendment of Code of Civil Procedure, in order to get the second appeal admitted the unsuccessful party who filed the appeal has to prove that there is a substantial question of law involved and the appeal can be admitted only on the said substantial question of law. The failure of the Courts below in appreciation of evidence or the concurrent findings of the trial Court on first appellate Court on facts cannot be questioned in a second appeal.
7. As could be seen from the material placed before this Court, the second appeal is filed mainly on the ground that the SA.No.819 of 2017 4 first appellate Court did not consider the contention of plaintiff which is based on a registered gift deed. As could be seen from the judgment of the trial Court and the judgement of the first appellate Court, it is made clear that the appellant herein was not able to prove the right of Mahemooda Begum from whom he said to have obtained property under Ex.A1. Since the suit is filed for a perpetual injunction, even in the absence of title, the plaintiff can seek such a relief provided, he is able to prove possession over the property. The Courts below did not accept the right of donor of the appellant herein to execute Ex.A1 and also did not accept the claim of plaintiff about his possession on the property.
8. The findings of the trial Court and first appellate Court on facts cannot be questioned in the name of substantial question of law. Absolutely there are no substantial questions of law that can be decided in this appeal. Therefore this appeal is liable to be dismissed at the stage of admission.
9. In the result, appeal is dismissed before admission. No order as to costs.
SA.No.819 of 2017 5 Miscellaneous applications, if any pending, shall also stands closed.
_________________________________ JUSTICE SAMBASIVARAO NAIDU Date: 20.09.2023 BV