Telangana High Court
Harijan Kistanna vs Harijan Lazer on 15 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.294 of 2017
JUDGMENT:
This Second Appeal is filed against the judgment and decree dated 18.11.2016 in A.S.No.3 of 2015 on the file of the III Additional District Judge, Gadwal, wherein and where under the judgment and decree dated 31.12.2014 in O.S.No.203 of 2010 on the file of the Principal Junior Civil Judge, Gadwal was confirmed.
2. The appellant herein is the plaintiff and the respondents herein are the defendants in the suit. For convenience, the parties hereinafter are referred to as they were arrayed before the trial Court.
3. Brief facts leading to filing of the present second appeal are that the plaintiff is owner and possessor of the suit schedule land to an extent of Ac.3-00 gts in survey No.364; that the defendants asked the plaintiff to sell or lease out his land and the same was refused by the plaintiff. While so, on 15.12.2010, the defendants, without any right, title and possession over the suit schedule property, highhandedly tried to occupy the suit schedule property however, the plaintiff 2 LNA, J S.A.No.294 of 2017 averted the acts of the defendants with great difficulty. It is contended that the defendants are very powerful persons and having political backup. Hence, the suit for permanent injunction in respect of suit schedule land.
4. The defendants have filed written statement denying the averments made by plaintiff inter alia contending that defendant No.1 got Ac.1.08 gts of land in suit survey No.364 from his ancestors and the Mandal Revenue Officer recognized the same and issued pattadar pass book and title deed book in his favour towards the said land; that so far as defendant No.2 is concerned, one Sanjigadu was the owner of the land to an extent of Acs.6-21 gts in suit survey No.364 and there was a family settlement between defendant No.2 and the legal representatives of Sanjigadu namely Santhoshamma and Sham Sone, wherein defendant No.2 was given Acs.3.06 gts in suit survey No.364; that the title of defendant No.2 has been recognized by the Revenue Department and pattadar pass book and title deed book were issued in his favour. It is contended that the plaintiff is not the owner of the suit schedule land and he has never been in possession and that the plaintiff is not legal heir of the deceased Sanjigadu. Further, the plaintiff 3 LNA, J S.A.No.294 of 2017 colluded with the revenue authorities and created the documents for filing of the suit for wrongful gain. Hence, prayed to dismiss the suit.
5. Before the trial Court, on behalf of the plaintiff, PW.1 and PW.2 were examined and Exs.A1 to A5 were marked. On behalf of the defendants, DW1 to DW3 were examined and Exs.B1 to B17 were marked.
6. The trial Court, after considering the entire material available on record, vide its judgment and decree dated 31.12.2014 dismissed the suit by observing as under:
(i) First of all the oral and documentary adduced by the plaintiff is concerned, plaintiff himself examined as P.W.1 behind examined P.W.2 another witness on his behalf. It is contention of P.W.1 that he is the owner and possessor of the suit schedule land and that defendants no have concerned suit schedule land, that they demanded him to sell his land or to lease out to them, their proposal not accepted and keeping the bore grudge they are trying to interfere into the suit schedule land. It is further stated that he has not filed any document before the court to show that this property in the name of his father. Admittedly, he has not filed ROR how he acquired the suit schedule property. He denied suggestion that Ex.A1 to A5 were created documents.
(ii) PW.2 admitted that the suit schedule land having total Acs.15.18 guntas in Sy.No.364, he further stated that the plaintiff acquired the suit schedule property from their forefathers name 4 LNA, J S.A.No.294 of 2017 Sanjigadu, to that effect plaintiff did not file into the court that he acquired the suit schedule property from his forefather and plea taken by the plaintiff that he acquired property from his grandfather he did not file the document pertaining to their grandfather or ROR and except the Ex.A1 to A5. Ex.A5 shows that he acquired the title deed wherein mentioned he acquired the Ex.A5 from their ancestors. But did not file the corresponding document with regarding Ex.A5. With this evidence of P.W.1, it is crystal clear that plaintiff is not having title and possession over suit schedule property.
(iii) Defendants explained in their evidence that they got the property from their ancestors by virtue of Ex.B.2 subsequently they proved their possession by virtue of Ex.B3 to B10 and they having title under Exs.B.1, B.11 and B.12. Exs.B.13, B14 and B18 these documents showing possession in the name of 2nd defendant. With these admissions made by the defendants it is suffice to come to à conclusion that they have been in possession, enjoyment, right and title. Further Pw.1 not explained in his evidence no answer has given before the court how he acquired the properties under Ex.A1 to A5. Viewed from any angle Pw.1 failed to prove his case and Pw.1 does not give any confidence and trustworthy over his contention and this court unable to accept his version in the absence of supporting documents.
Accordingly this court is considering view and opinion come to conclusion that the plaintiff failed to establish his case by filing Ex.A1 to A5. Thus the defendants established and proved by filing their documents they have been in possession and enjoyment over the suit schedule property."
7. The first appellate Court on re-appreciation of the entire evidence and the material available on record vide judgment 5 LNA, J S.A.No.294 of 2017 and decree dated 18.11.2016 dismissed the appeal by observing as under:
"Admittedly the plaintiff has failed to narrate in his plaint and also in his evidence as to his source to get the suit schedule property. However, he produced Ex.A1, which is a document issued by Tahasildar of Ieeja Mandal. But the said document lacks in clarity of mentioned aspects. It has not been mentioned in Ex.A1 as to how the plaintiff got the suit schedule property. Therefore A1 is a waste piece of evidence to the plaintiff. Ex.A2 which is a pattadar pass book issued in favour of the plaintiff also turns futile due to the futility of Ex.A1. Likewise Exs.A3 to A5 also will attract the same fate. Therefore, the conclusion is that the plaintiff has miserably failed to establish his title as well as possession over the suit schedule property and consequently he is not entitled to any relief. On the other hand the defendants could establish their rightful possession over the said Acs.4.14 gts by way of Exs.B1 to B18. This court feels it not necessary to appreciate the oral and documentary evidence of the defendants as the plaintiff has frankly admitted in his cross examination itself about the title and possession of the defendants over the said Acs.4.14gts of land in suit survey No.364."
8. Heard Sri K.Venkatesh Gupta, learned counsel for appellant and Sri R.Prasad, learned counsel for respondents. Perused the record.
9. A perusal of the record discloses that both the trial Court as well as the first appellate Court concurrently held that the plaintiff failed to prove his title as well as possession over the 6 LNA, J S.A.No.294 of 2017 suit schedule property and consequently, held that he is not entitled to any relief. Further, both the Courts have held that the defendants could establish their rightful possession over the said Acs.4.14 gts of land by way of Exs.B1 to B18.
10. Learned counsel for the appellant vehemently argued that the trial Court dismissed 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.
11. However, learned counsel for the 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.
12. 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. 7
LNA, J S.A.No.294 of 2017
13. 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.
14. Having considered the entire material available on record and the findings recorded by the trial Court as well 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 appellants are factual in nature and no question of law, much less, a substantial question of law arises for consideration in this Second Appeal.
15. 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 1 (2007) 1 Supreme Court Cases 546