Telangana High Court
Odela Ramulu, vs The Commissioner, on 6 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.98 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree, dated 26.08.2022, passed in A.S.No.113 of 2018 on the file of the Court of Principal District Judge, Sangareddy, wherein and whereby the judgment and decree dated 06.04.2018 passed by the Principal Junior Civil Judge, Sangareddy, in O.S.No.290 of 2013, was confirmed.
2. The appellant is the plaintiff and the respondent is the defendant in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The case facts, in brief, which led to filing of the present Second Appeal are that the appellant/plaintiff filed the suit seeking perpetual injunction. In the plaint, the plaintiff inter alia averred that he is the owner and possessor of house bearing No.1-1-61/1, situated at Chenna Basweshwar Mandir area, Sadasipet town, Medak District and also the land appurtenant to the said house bearing No.1-1-622, which is the suit schedule property, and he purchased the same from one Umeth Basappa under registered sale 2 LNA, J S.A.No.98 of 2023 deed, dated 15.03.1982. He had installed a water tap connection in pursuance of Ex.A-6-approved sketch map. In the year 2006, he constructed toilet with septic tank, having obtained permission and the defendant had approved the construction of the same by issuing sanctioned plan. It is further averred that in compliance of the proceedings dated 20.11.2006, which is marked as Ex.A-10, he changed the nature of latrine from dry to flush. However, the defendant issued notice dated 08.11.2013 alleging that the constructions in the suit schedule property are illegal and had to be removed. Hence, the suit.
4. The defendant filed the written statement denying the contentions of the plaintiff and stated that the plaintiff had encroached upon the open land i.e., the suit schedule property over which he had no right; that no permission was granted either under Ex.A-6 or Ex.A-10 to construct the compound wall, latrine and septic tank in the suit schedule property; that the plaintiff is misusing the judgments rendered in O.S.No.99 of 1997 and A.S.No.17 of 2002 and raised unauthorized constructions by occupying the suit schedule property and therefore, the same have 3 LNA, J S.A.No.98 of 2023 to be demolished which is the duty of the defendant; and that the plaintiff has no right to oppose the same and obtain an injunction.
5. In support of his case, the plaintiff got himself examined as PW-1 and also examined PW-2 and got marked Exs.A-1 to A-15. On behalf of the defendant, DW-1 was examined, but no documents were marked.
6. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment dated 06.04.2018, observed that the suit schedule property in O.S.No.99 of 1997 and the suit schedule property in the suit are one and the same and on perusal of Ex.A-7-certified copy of the judgment passed in O.S.No.99 of 1997, which is filed by the vendor of the plaintiff i.e., one U.Basappa against the plaintiff herein, it is evident that a specific finding was rendered therein against the plaintiff holding that he does not have any right, title or interest over the suit schedule property. It was further observed that the notice under Ex.A-11 issued by the defendant basing on the findings recorded in the judgment in OS.No.99 of 1997, marked as Ex.A-7, became final as the plaintiff did not prefer any appeal 4 LNA, J S.A.No.98 of 2023 against the said finding. It was further observed that the plaintiff failed to file the registered sale deed through which he purchased the house and as such, in view of Section 114 of the Evidence Act, 1872, an adverse inference has to be drawn. The trial Court held that the plaintiff who does not have any right or interest over the suit schedule property is not entitled for the decree of perpetual injunction and accordingly, dismissed the suit.
7. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed that in the judgment passed in O.S.No.99 of 1997, the court found that the plaintiff had no right or title over the suit schedule property since he had purchased only 195 square yards under the registered sale deed and the said judgment became final as the plaintiff did not prefer any appeal. It was also observed that the plaintiff neither filed the sale deed nor the original construction permission before the court and further, the record clearly disclosed that no permission was granted by the defendant for construction of latrine, septic tank or compound wall in the suit schedule property. Further, the first Appellate Court observed that in the face of the specific findings in the judgment in O.S.No.99 of 5 LNA, J S.A.No.98 of 2023 1997, marked as Ex.A-7, and in view of lack of any cogent material produced by the plaintiff to support his claim of injunction, the same cannot be granted and thus, dismissed the appeal.
8. The respondent filed counter-affidavit in the present appeal stating that the appeal grounds do not constitute the substantial question of law and hence, the appeal is liable to be dismissed as it is not maintainable.
9. Heard Sri Palle Sriharinath, learned counsel for the appellant as well as Sri B.Jagan Madhav Rao, learned counsel for the respondent, and perused the record.
10. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff does not have any right, title or interest over the suit schedule property in order to grant the relief sought for and accordingly, negatived his claim.
11. Learned counsel for appellant 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. 6
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12. 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.
13. 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 on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
14. 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.
15. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first 1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.98 of 2023 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.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:06.02.2024 dr