Telangana High Court
Mohammed Ali Imam Najaff vs Ap Housing Board on 15 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.118 of 2019
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 21.10.2013 in A.S.No.137 of 2010 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad, wherein and where under the judgment and decree dated 17.02.2010 in O.S.No.1550 of 2004 on the file of the IX Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad, was reversed.
2. The appellant herein is the plaintiff and the respondent No.1 herein is the defendant in the suit. Respondent No.2 herein is impleaded as party before the first appellate Court. For convenience, the parties hereinafter are referred to as they are arrayed before the trial Court i.e, the appellant herein is referred as plaintiff and respondents herein are referred as defendants.
3. Brief facts leading to filing of present Second Appeal are that originally one Zohra Begum was the owner and pattedar of land admeasuring Acs.660-00 gts and LNA, J S.A.No.118 of 2019 2 Acs.177.03 gts in survey No.162 (old) and new survey Nos.10, 11 and 6/2 of Mallepally village, Hyderabad Deccan; that she executed a will deed dated 14.01.1957 in respect of the said land in favour of (1) Khurshid Ali Khan, (2) Khulsum Begum, and (3) Sohra Begum and that she died in the month of December, 1957. The plaintiff as the legal heir of late Khurshid Ali Khan, later came into possession of the suit schedule property i.e., 104 sq.yards situated in survey No.162 (old) and 10 (new) of Mallepally, Hyderabad, enjoying all rights and title over the land. Thereafter, when he tried to raise construction in the schedule property, the defendant interfered with the possession of the plaintiff under the guise of false and fabricated documents and threatened the plaintiff with dire consequences. Hence, the suit for declaration of tile and for perpetual injunction.
4. On the other side, the defendant filed written statement denying the allegations of the plaintiff inter alia contending that the suit schedule property was acquired for a valuable consideration by the ex-City Improvement LNA, J S.A.No.118 of 2019 3 Board (CIB), which is the predecessor of the A.P. Housing Board. The plaintiff as well as several other persons in fact made claims to the said property in earlier rounds of litigation and lost the same in favour of the defendant. It is contended that the CIB acquired the land situated at Mallepally from 1326 Fasli onwards by paying compensation to the rightful owners. Apart from the suit schedule property, the CIB acquired various other properties also in Mallepally area; that the plaintiff has no right, title over the suit schedule property. The lands at Mallepally including the suit schedule land were handed over to the Collector in pursuance of the letter No.6540, dated 01.12.1956, who in turn handed over the same to the CIB. The APHB being the successor to the CIB, became the exclusive owner and possessor of the suit schedule property. The plaintiff was never in possession of the suit schedule property. Hence, the suit is liable to be dismissed.
5. Basing on the above pleadings, the trial Court has framed the following issues:
"1. Whether the plaintiff is entitled to declaration as prayed for?
LNA, J S.A.No.118 of 2019 4
2. Whether plaintiff is entitled to permanent injunction as prayed for?
3. To what relief?"
6. Before the trial Court, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A19 were marked. On behalf of the defendants, DWs.1 and 2 were examined and no document was marked.
7. The trial Court, after considering the entire material available on record, decreed the suit vide judgment and decree dated 17.02.2010 by observing as under:
"Now it is to be seen the claim of the plaintiff, he filed the Certified Copy of the Will under Ex.A16. He has examined PW2 Mir Ashafaq Ali Khan who is the son of Late Riyasal Ali Khan and grand son of Late Kulsum Begum one of the beneficiaries of the Will, according to him said Kulsum Begum died and his father died, he went on to depose the ownership of Zohra in respect of 177 acres 3 guntas in 162 old and new survey nos. 10,11 & 6/2. His evidence would go to show that the plaintiff is the son of Kurshid Ali Khan who is one of the beneficiaries of Ex.A16 and that he deposed about the plaintiff's right over the suit property. Admittedly he is not the attestor of the Ex. A16, even otherwise his evidence is admissible to the extent of accepting the plaintiff's claim over the suit property being the legal heir of Late Khurshid Ali Khan. In his cross examination it is brought out that one Sugra Begum who is one of the LNA, J S.A.No.118 of 2019 5 beneficiaries of Ex.A16 is no more now. It is seen that Ex.A16 had come to be executed on 14.01.1957. Already 53 years period elapsed and that Zohara Begum died in the month of December, 1957. Perhaps none of the witnesses may have been alive, as such the plaintiff seems to have inducted the PW2 to speak in respect of the will. In as much as PW2 is none other than the grand son of Kulsum Begum (one of the legatees under Ex. A16) and no other persons disputing the title of the father of plaintiff in respect of the suit property, the plea of the defendant is not tenable, as such, the plaintiff can be declared as the owner of the suit property on the basis of the Ex A16. No suspicious circumstances either brought on record or taken as a plea in the written statement of the defendant in regard to the genuineness of the Ex. A16. As such it could be held that Ex.A16 is true, valid and genuine. Accordingly, I hold that the plaintiff is entitled for declaration of title as prayed for.
In as much as the plaintiff has been able to prove his title through his father under Ex.A16 and evidence of PW2 establishes his possession over to suit property as on the date of the suit, he is entitled for permanent injunction as prayed for."
8. On appeal, the first appellate Court, on re- appreciation of the entire evidence and the material available on record, allowed the appeal vide judgment and decree dated 21.10.2013 by observing as under:
"(i) The plaintiff failed to prove his possession over the suit schedule property as on the date of filing of the suit.
LNA, J S.A.No.118 of 2019 6 He did not file a single document to show his alleged long possession over the suit schedule property. Though he has examined PW-2 in respect of the same but the self serving statement of PW-1 as well as the oral testimony of PW-2 are no way helpful in proof of his case.
(ii) Though the plaintiff mainly based on Ex.A-16 will deed said to be executed by Zohra Begum which has not revealed any details of the alleged suit property in any way. Thereby I cannot rely upon Ex.A-16 in any way in supporting of plaintiffs contention.
(iii) Therefore after going through the entire evidence it can be said that the plaintiff has miserably failed to prove his title over the suit schedule property as well as failed to prove his possession over the suit schedule property much less as on the date of filing of the suit. In such a circumstance, I am of the opinion that the lower court committed error in decreeing the suit in favour of the plaintiff which warrants interference of this Court."
9. Heard Mr.B.Suresh, learned counsel for appellant and Sri C.Buchi Reddy, learned counsel for respondent No.1-Housing Board. Perused the record.
10. A perusal of the record disclose that the trial Court decreed the suit only on the basis of the will deed executed in the year 1957, but the witness to the said will deed has not been examined; PW.2 is the son of the beneficiary of LNA, J S.A.No.118 of 2019 7 the will deed. Further, the trial Court observed that the defendant- Housing Board did not file any document to prove their case.
11. The first Appellate Court, on re-appreciation of evidence and material placed on record, came to the conclusion that the plaintiff did not place any evidence on record in support of his title and further no witness to the will deed was examined. PW.2 is the son of the beneficiary and therefore, his evidence cannot be taken into consideration. Further, the first appellate has observed that if really, the will was executed, the plaintiff ought to have taken steps to mutate his name in revenue and other records; the plaintiff did not place any document except the will deed. Therefore, in the absence of any other document to prove the title of the plaintiff, the first appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court.
12. Admittedly, the suit filed for declaration of title and injunction, therefore, the burden lies is on the plaintiff to prove his title and possession over suit schedule property.
LNA, J S.A.No.118 of 2019 8 However, perusal of the record shows that except will deed, no other document has been filed by the plaintiff in proof of his title and possession and no attesting witness of the will was examined. It is also pertinent to mention that the plaintiff has not got his name mutated in the revenue record or any other municipal record pursuant to the alleged will deed.
13. In the light of above discussion, in considered opinion of this Court, the plaintiff failed to prove his title and therefore, this Court does not find any irregularity or illegality in the judgment passed by the first appellant Court and thus, the appeal fails and is liable to be dismissed.
14. Learned counsel for the appellant argued that the trial Court has rightly allowed the suit, however, the first appellate Court has committed error in setting aside the judgment and decree passed by the trial Court.
15. However, learned counsel for the appellant failed to raise any substantial question of law to be decided by this LNA, J S.A.No.118 of 2019 9 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.
16. 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.
17. 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.
18. Having considered the entire material available on record and the findings recorded by the trial Court as well 1 (2007) 1 Supreme Court Cases 546 LNA, J S.A.No.118 of 2019 10 as the first 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 appellant are factual in nature and no question of law, much less, a substantial question of law arises for consideration in this Second Appeal.
19. 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: 15.04.2024 Dua/kkm