Telangana High Court
Kunta Ravinder vs Vemula Venkateshwarlu on 4 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.406 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 30.06.2023, passed by the Senior Civil Judge, Manthani in AS.No.24 of 2018, whereunder and whereby the judgment and decree dated 28.06.2018 passed by the Principal Junior Civil Judge, Manthani, in O.S.No.71 of 2011 was set aside.
2. The appellant is the defendant and the respondent is the plaintiff in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present Second Appeal, are that the plaintiff is the absolute owner and possessor of the suit schedule property having acquired the same by way of a gift settlement executed by his wife-Vemula Jayamma on 05.09.2008, vide Document No.1690/2008. The said Jayamma acquired the suit land through one Ganta Gopal Reddy, in the ROR proceedings, dated 16.07.2006. While so, the defendant, without having any right whatsoever in the suit land, tried to dispossess the plaintiff and obstructed the construction work of the plaintiff on the suit land on 20.06.2011 and the plaintiff, with the help of 2 LNA, J S.A.No.406 of 2023 neighbours, could resist the illegal acts of the defendant. Hence, the suit for perpetual injunction against the defendant in respect of the suit schedule property.
4. The defendant filed his written statement denying the averments made in the plaint and submitted that he is the absolute owner of the suit schedule property having purchased the same from its original owner-Ganta Gopal Reddy, through a registered deed dated 17.05.2010, and his name has been mutated in revenue records and in the Pahanies as pattadar and possessor of the suit schedule property. Hence, he prayed to dismiss the suit.
5. On the strength of the above pleadings, the trial court framed the following issues:-
1. Whether the plaintiff is in actual lawful possession of the suit schedule property ?
2. Whether the plaintiff is entitled for relief of the perpetual injunction?
3. To what relief?"
6. During the trial, on behalf of the plaintiff, PWs.1 to 4 were examined and Ex.A-1 to A-17 were marked and on behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-5 were marked.
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LNA, J S.A.No.406 of 2023
7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court dismissed the suit, vide judgment and decree dated 28.06.2018. The trial Court categorically observed that on perusal of the admitted versions of P.Ws.1 to 4, it is clearly established that there are two plots occupied by the plaintiff. He adduced evidence regarding only one plot, but he did not adduce any evidence regarding the other plot. It was further observed that the abuttal mentioned in the unregistered sale deed/sada bainama of wife of the plaintiff and the abuttal mentioned in the registered gift deed which was executed in favour of the plaintiff by his wife are not one and the same. Thus, the plaintiff failed to adduce any cogent evidence to prove his possession in respect of the suit schedule property.
7.1. The trial Court further observed that plaintiff failed to adduce any evidence with regard to the fact that the plot purchased by his wife and the plot purchased by the defendant from its original owner is one and the same and hence, the plaintiff failed to establish his case beyond preponderance of all probabilities. On the other hand, the defendant clearly established through Exs.B-1 to 4 LNA, J S.A.No.406 of 2023 B-5 that he purchased an extent of 151.25 square yards. By observing thus, the trial Court held that the plaintiff failed to prove his possession in respect of the suit schedule property and hence, dismissed the suit.
8. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record and allowed the appeal and set aside the judgment of the trial Court, vide its judgment dated 30.06.2018. 8.1. The first Appellate Court observed as hereunder:-
"As per Exs.A-13 and A-14, the unregistered sale transaction of the wife of the plaintiff took place in the year 1994 and the concerned Mandal Revenue Officer issued proceedings for the same. The defendant purchased the land under Ex.B-1 in the year 2010, which was subsequent to Exs.A-13 and A-14 and there is no evidence available on record to show that the defendant or his vendor challenged Exs.A-13 and A-14 and they were cancelled by competent authority. Therefore, it is evident that Ex.B-1 was executed while Exa.A-13 and A-14 are very much in existence. Thus, the plaintiff succeeded in proving his case."
8.2. The first Appellate Court further observed as under:-
"From the recitals of Exs.A-13 to A-15, the plaintiff established his incidental ownership and possession 5 LNA, J S.A.No.406 of 2023 over the suit schedule land as on the date of filing of the suit. On the other hand, the defendant has not filed any reliable document to show his possession of the suit plot and hence, he failed to establish that he was in physical possession of the suit land as on the date of filing of the suit."
9. A perusal of the record discloses that the trial Court held that the plaintiff failed to establish his case beyond preponderance of probabilities and hence, he is not entitled to the relief of perpetual injunction. However, on appeal, the first appellate Court set aside the judgment of the trial Court holding that the trial Court has not considered Exs.A-13 to A-15 and also the possession of the plaintiff under Ex.B-5 and also erred in considering the simple sale deed, which is an unmarked document.
10. Heard Sri T.Ramchander Rao, learned counsel for the appellant and Sri C.A.R.Seshagiri Rao, learned counsel for the respondent. Perused the entire material available on record.
11. Learned counsel for the appellant contended that the first Appellate Court failed to take into consideration Ex.B-1 through which the defendant purchased the suit schedule property and Ex.B-2 the original proceedings of the Tahsildar, which shows that 6 LNA, J S.A.No.406 of 2023 the defendant is the owner and possessor of the suit schedule property. Learned counsel further contended that the first Appellate Court, without appreciating the evidence adduced under Exs.B-1 to B-5, erred in setting aside the judgment of the trial Court. Hence, he prayed to allow the Second Appeal.
12. Per contra, learned counsel for the respondent contended that the trial Court failed to take into consideration the evidence adduced by the plaintiff under Exs.A-1 to A-12, which shows that the plaintiff is the pattadar and possessor of the suit schedule property and erred in dismissing the suit. Learned counsel further contended that in view of recitals of Ex.A-13 and A-15, first Appellate Court held that the plaintiff established his incidental ownership and possession in respect of the suit schedule property. He further contended that the first Appellate Court has appreciated the evidence adduced by both the parties in proper perspective and rightly allowed the Appeal and hence, prayed to dismiss the Second Appeal. In support of his contentions, the learned counsel relied upon the decision of the Hon'ble Apex Court in Nemai 7 LNA, J S.A.No.406 of 2023 Chandra Dey (dead) through Lrs. Vs. Prasanta Chandra (dead) through Lrs 1.
13. In the said judgment, it was held that the findings of fact are ordinarily to attain finality at the hands of the Court of Appeal and it is only on substantial question of law that the High Court can interfere in the findings of the first Appellate Court.
14. There is no quarrel with the regard to the said ratio laid down by the Hon'ble Supreme Court.
15. Learned counsel for appellant argued that the trial Court on appreciation of the evidence on record, rightly dismissed the suit and the first Appellate Court, on re-appreciation of the evidence, committed an error in setting aside the judgment and decree passed by the trial Court.
16. 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.
1 2022 (3) ALT (SC) 73 (D.B.) 8 LNA, J S.A.No.406 of 2023
17. 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 findings on facts arrived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record.
18. Further, in Gurdev Kaur v. Kaki 2, 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.
19. Having considered the entire material available on record and the findings recorded by the first Appellate Court, this Court finds no ground or reason warranting interference with the said findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
2 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.406 of 2023
20. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:04.04.2024 dr