Telangana High Court
Cherukumalli Govinda Rao Died vs Grampanchayath Office Kodad on 13 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.446 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 23.06.2023 passed in A.S.No.2 of 2019 on the file of the Principal District Judge, Suryapet, wherein the judgment and decree dated 20.12.2018 passed in O.S.No.480 of 2014 on the file of the Senior Civil Judge, Huzurnagar, 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 filing of the present Second Appeal are that plaintiff No.1 (died) was in exclusive possession with ownership over the land situated in survey No.1 and 2, Kodad revenue village (hereinafter referred to as the "suit schedule property") and he had purchased the suit schedule property about 30 years back in oral transaction and the person, who sold the property to the plaintiff, also acquired the same in the oral transaction from its owners. Therefore, there are no documents in respect of suit schedule property with plaintiff No.1 except the property tax receipts.
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4. It is contended that the Wakf Board of A.P. is also claiming the entire land of Ac.7.09 gts, in survey Nos.1 and 2 of Kodad revenue village, which includes suit schedule property; that as a matter of fact, the Wakf Board of A.P. has no right over the said property, since it was the service inam land and the inam holders alienated the said property to different individuals and that those individuals constructed houses, shops and other structures. The Wakf Board of A.P. issued notice to several persons in the year 2002 itself, but notice was not served on plaintiff No.1. The A.P. Wakf Board filed writ petition vide W.P.No.24702/2002 and obtained interim direction from the erstwhile High Court for the States of Telangana and Andhra Pradesh, Hyderabad in W.P.M.P.No. 31095 of 2002 and the defendant herein is a party to the petition and the said writ proceedings are still pending.
5. It is further contended that four days prior to filing of the suit, the defendant started demolishing certain very old structure claiming that the land belongs to the defendant; that the structures were raised in the land in survey Nos.1 and 2 of 3 LNA, J S.A.No.446 of 2023 Kodad revenue village, over which, the defendant has no right. Hence, the plaintiffs filed the suit.
6. The defendant had filed written statement denying the averments of the plaint inter alia contending that Ac.0-36 gts in survey No.1 of Kodad belongs to Grampanchayat, Kodad. Before the merger of Hyderabad State into Union of India, the said area was used by Nizam Government for customs and exchange of currency purposes in the name of 'Karodgiri' and ' Naka' and subsequent to formation of A.P. State, the Government of Andhra Pradesh vide G.O.Ms.No.1936, dated 07.08.1959 of Public Works Department, the entire customs naka building area was transferred to Panchayat Office, Kodad. Subsequently, the Gram Panchayat, Kodad had constructed two new buildings and using third old building and the remaining area which is part and parcel and abutting to it, is kept vacant. Further, in the open place of Grampanchayat, Kodad, several small and petty vendors with the permission of Gram Panchayat, Kodad, carried on their petty business by paying land rent to Gram Panchayat, Kodad. Plaintiff No.1 was one among them and he is running his petty shop Nos.38 to 40.
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7. It is further contended that after receipt of the report of the Executive Engineer (PR), Miryalguda, the Grampanchayat, Kodad, on 22.12.2006, in their council meeting, decided to construct a shopping complex building after demolition of the structure bearing Gram Panchayat door No.2-232/2 of Kodad and for which, they obtained permission from the District Collector (Pt. Wing), Nalgonda, vide office proceedings No.373/07. B3(Pts), dated 16.04.2007 and dismantled the same.
8. While the matter stood thus, the Wakf Board put up a claim contending that the area proposed to build shopping complex by Grampanchayat, Kodad, is part of their Wakf property. The Grampanchayat, Kodad contested their claim. The Gram Panchayath, Kodad, and the then Sarpanch had filed a W.P.No.8524/2008 before the Hon'ble High Court of Andhra Pradesh claiming that right and title over Ac.0.36 gts of land in survey No.1 of Kodad and the matter is pending for enquiry; that the entire property including the suit land is part and parcel of property of Gram Panchayat, Kodada, now it is the 5 LNA, J S.A.No.446 of 2023 property of Municipality, Kodad. Hence, the defendant prayed to dismiss the suit.
9. Before the trial Court, on behalf of the plaintiffs, PW1 to PW3 were examined and Exs.A1 to A12 were marked. On behalf of the defendant, DW1 to DW3 were examined and no document was marked.
10. The trial Court, after considering the entire material available on record, dismissed the suit with costs vide judgment and decree dated 20.12.2018. Aggrieved by the judgment and decree dated 20.12.2018, the plaintiffs have filed A.S.No.02 of 2019. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 23.06.2023 dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
11. Heard Sri Pasham Ravindra Reddy, learned counsel for the appellants. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held the defendant has not filed any 6 LNA, J S.A.No.446 of 2023 document in proof of their claim and that at the same time the Wakf Board is also claiming right over the said property and the writ petitions vide Ex.A11 and A12 are pending before the Hon'ble High Court of Andhra Pradesh. Further, the Courts below held that in view of the pending litigation with regard to title to the suit schedule property, the suit filed by the plaintiff for perpetual injunction is not maintainable without seeking relief of declaration of title.
13. Learned counsel for the appellants 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.
14. However, learned counsel for the 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. 7
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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.
17. 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.
1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.446 of 2023
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: 13.02.2024 Dua