Telangana High Court
Syed Abdul Quddus vs Smt. K. Vijaya Laxmi on 5 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.3 of 2024
JUDGMENT:
The Second Appeal is filed against the judgment and decree dated 29.08.2023 in A.S.No.18 of 2022 on the file of the Court of the I Additional District Judge, Khammam, wherein the judgment and decree dated 25.02.2021 in O.S.No.155 of 2005 on the file of the Court of the Senior Civil Judge, Khammam, was confirmed.
2. For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the trial Court.
3. Brief facts leading to file the present Second Appeal are that plaintiff No.1 is the husband and plaintiff No.2 is wife of plaintiff No.1. Plaintiff No.1 purchased plaint 'A' and 'B' schedule properties through an un-registered sale deed dated 16.04.1991 for a consideration of Rs.7,000/- from one Mohd. Issaq Ahmed and since the date of sale, plaintiff No.1 has been in possession and enjoyment of plaint schedule properties. The above mentioned unregistered sale deed was scribed by late A.Subba Rao and the same was attested by Syed Abdullah, who is father of plaintiff No.1.
4. It is further contended that taking advantage of temporary absence of plaintiffs, defendant No.1 encroached an extent of 20 sq.yards of land on South-West corner (which is plaint 'B' schedule 2 LNA, J S.A.No.3 of 2024 property), in the month of September 2003 and raised a tin sheet shed. Thus, defendant No.1 had been in illegal occupation of plaint 'B' schedule property. In spite of several demands made by the plaintiffs, defendant No.1 did not evict the plaint 'B' schedule property and did not deliver the vacant possession to him.
5. It is further submitted that defendant No.1 is canvassing in the area that she is owner of plaint 'A' schedule property and also trying to interfere in possession of plaint 'A' Schedule property. Hence, the plaintiffs have O.S.No.155 of 2005 before the Senior Civil Judge, Khammam, to declare that the plaintiffs as the absolute owners of the plaint 'A' and 'B' schedule properties and to grant perpetual injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiffs over the plaint 'A' schedule property and also sought for eviction of the defendants from plaint 'B' schedule property.
6. Defendant No.1 has filed written statement denying the averments of the plaint inter alia contending that plaintiff No.1 is nephew of Syed Issaq Ahmed, as such, sale deed was got written in favour of plaintiff No.1 to suit his case. There is no legality to entertain sale deed. Plaintiff No.1 created the alleged gift deed in favour of his wife and in fact in Mohammedan Community, execution of gift deed that too with registration is not necessary and property can be even 3 LNA, J S.A.No.3 of 2024 transferred without any type of consideration by way of Hiba, which is oral gift and that the gift was executed less than one month prior to filing of the suit. It is contended that plaintiff No.1 himself was not in possession of any part of the suit schedule property to deliver its possession to plaintiff No.2.
7. It is further submitted that the husband of defendant No.1 had a residential house bearing No.5-2-140/1, which was purchased on 11.11.1982 from Abdul Rashid, who is the elder brother of Issaq Ahmed, who is vendor of plaintiff No.1. The document of husband of defendant No.1 was attested by one D.Sangaiah and Inam Venkateswarlu and scribed by late J.Durga Rao. Thereafter, husband of defendant No.1 gifted the plaint 'A' and 'B' schedule properties to defendant No.1 on 07.05.2002.
8. It is further submitted that defendant No.1 made construction on it, which was shown as 'A' schedule property on South-West corner and using front eastern place to access the road. It is finally contended that neighbour viz., Afsar Miya is resident of 5-2-232/2 of Mustafa Nagar, Khammam and he was never in occupation for the past more than 12 to 15 years and the said house was always let out to the tenants and the said Afsar Miya never resided in the said house and hence, prayed to dismiss the suit.
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9. Before the trial Court, on behalf of the plaintiff, PW1 to PW4 were examined and Exs.A1 and A2 were marked. On behalf of the defendants, DW1 was examined and Exs.B1 to B7 were marked.
10. The trial Court, after considering the entire material available on record, vide its judgment and decree dated 25.02.2021, dismissed the suit. Aggrieved by the judgment and decree dated 25.02.2021, the plaintiffs filed A.S.No.18 of 2022 on the file of the I Additional District Judge at Khammam. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 29.08.2023 dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
11. Heard Mr.M.V.Venu, learned counsel for the appellants and Mr.Srikanth Hariharan, learned counsel for respondents. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs failed to prove their title and possession over the plaint schedule properties as their evidence is no cogent and convincing and as such plaintiffs are not entitled for any of the reliefs claimed in the plaint.
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13. Learned counsel for appellants vehemently argued that the trial Court decreed 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.
14. However, learned counsel for appellants 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.
15. 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.
16. 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.
1 (2007) 1 Supreme Court Cases 546 6 LNA, J S.A.No.3 of 2024
17. Having considered the entire material available on record and the findings recorded by the trial Court as well as the 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.
18. 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:05.02.2024 Dua 7 LNA, J S.A.No.3 of 2024 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.3 of 2024 05.02.2024 Dua