Telangana High Court
Nazeema Begum vs Cheema Venkatamma on 6 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.44 of 2024
JUDGMENT:
The Second Appeal is filed against the judgment and decree dated 05.06.2023 in A.S.No.18 of 2016 on the file of the Principal District Judge, Vikarabad District, wherein the judgment and decree dated 06.05.2016 in O.S.No.13 of 2004 on the file of the Junior Civil Judge, Pargi, Ranga Reddy District, 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 the plaintiff is the owner and exclusive possessor of the agricultural land in Survey No.39 admeasuring Ac.2-00 gts situated at Thiammipally village Doma Mandal, R.R.District (herein after referred to as 'suit schedule property') and the same is succeeded to the plaintiff through her ancestors under proceeding No.B/297/2003 dated 30.01.2003 of MRO, Doma Mandal. The defendants, being unconcerned with the said land, tried to occupy the said land illegally on 12.03.2004, however, the same was resisted by the plaintiff. Therefore, the plaintiff has filed a suit vide O.S.No.13 of 2004 on the file of the Junior 2 LNA, J S.A.No.44 of 2024 Civil Judge, Pargi, Ranga Reddy District, for perpetual injunction against defendant Nos.1 and 2 in respect of the suit schedule property.
4. Defendant Nos.1 and 3 have filed the written statement, inter alia, contending that one late Khaja Moinuddin, who is the husband of defendant No.1, had purchased a plot measuring 750 sq.yards in Survey No.39 of Thimmaipally Village through an unregistered sale deed dated 10.03.1973 for construction of house. The said plot is situated towards Southern side of the suit schedule property and it is separate from the suit schedule property. Further, defendant Nos.1 and 3 erected a hut in part of the said plot and in the remaining plot, they raised eucalyptus trees.
5. It is contended that late Khaja Moinuddin, during his life time, had obtained permission dated 10.06.1999 from the Grampanchayat Utwally, for construction of a house and subsequent to his death, defendant No.1 had obtained renewal permission dated 25.04.2003 from the said Grampanchayat. However, the plaintiff having no right illegally tress passed into the said plot on 29.03.2004 and cut down the eucalyptus trees and set them fire. Therefore, defendant No.1 lodged a complaint against the plaintiff and others in Doma Police Station and the 3 LNA, J S.A.No.44 of 2024 same was registered as Crime No.12 of 2004. It is contended that the plaintiff, with a mala fide intention to grab the land of defendant No.1, is trying to occupy the said land. Hence, they prayed to dismiss the suit.
6. Defendant No.2 had also filed her written statement alleging that she had purchased Ac.0-02 gts of land under a registered sale deed in the year 1992 in Survey No.39 of Thimmaipally village and Ac.0-06 gts of land under private sale deed in the year 1983 in Survey No.39 of Thimmaipally Village, which was validated through a proceeding under the Record of Rights Act, 1993. Thus, defendant No.2 is in possession and enjoyment of Ac.0-08 gts of land in Survey No.39 of Thimmaipally Village. Thereafter, she had constructed two houses in a part of the said land and kept the remaining land vacant and using the same for storing wood etc. Further, she had denied the remaining case of the plaintiff and prayed to dismiss the suit.
7. Before the trial Court, on behalf of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A3 were marked. On behalf of the defendants, DW1 to DW6 were examined and Exs.B1 to B4 were marked.
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8. The trial Court, after considering the entire material available on record, vide its judgment and decree dated 06.05.2016, observed that the plaintiff established his possession in respect of suit schedule property as on the date of filing of the suit and thus, the plaintiff is entitled to the perpetual injunction as prayed for.
9. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 05.06.2023 dismissed the appeal by observing as under:
"As rightly held by the learned Trial Judge, when in Ex.B-3 pass book at Sl.No.2 the land is described as 39-A to an extent of Ac.0-08 gts, it is the bounden duty of the defendant No. 2 to explain that the said land and the land claimed by the plaintiff in survey No. 39 are one and the same. There is no pleading to that extent and also the defendant No.2 failed to explain how the sub number 'A' was suffixed.
Thus, from the evidence let in by the plaintiff as P.W-1 coupled with Exs. A-1 to A-3, the plaintiff could successfully prove his possession as a rightful owner and on the other hand, the defendant No. 2 miserably failed to produce any documentary evidence as to purchase of land to an extent of Ac.0-06 gts under a private sale deed. It is the contention of defendant No.2 that the court below failed to ignore the fact that the authorities under ROR Act will validate the unregistered sale deeds by receiving the 5 LNA, J S.A.No.44 of 2024 originals and issue the certificate under Rule 13(B) and 13(C) of the Act. But it is significant to note that the defendant No. 2 though produced Ex.B-2/13-B form showing that she purchased Ac.0-06 gts from Chandraiah and Lalaiah, but Ex.B-2 does not disclose the boundaries of Ac.0-06 gts and the sketch which is said to be annexed to Ex.B-2 at the time of issuing the same. Therefore, in the absence of showing any topography or boundaries in Ex.B-2, the said document is no way helpful to the case of the prosecution.
Thus, upon scrutiny of the judgment of the trial court, the learned trial judge having considered the oral and documentary evidence in a right perspective and came to a right conclusion that the plaintiff is in peaceful possession and enjoyment of the suit schedule land and on the other hand the defendants failed to make out any case against them. Therefore, there is nothing coming on record to interfere with the finding of the trail court in granting perpetual injunction in favour of the plaintiff."
10. Heard Mr.Suresh Kumar, learned counsel for the appellant. Perused the record.
11. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff established her possession in respect of the suit schedule property as on the date of filing of the suit and thus, the plaintiff is entitled to the perpetual injunction. Further, it has been held that the defendants are failed to establish their case. 6
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12. Learned counsel for 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.
13. 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.
14. 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.
15. 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 1 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.44 of 2024 only where a substantial question of law is raised and fell for consideration.
16. 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.
17. 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:06.02.2024 Dua