Telangana High Court
Hazrath B Rao vs Mirza Hashim Ali Baig on 13 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.329 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 16.03.2023 passed in A.S.No.21 of 2016 on the file of the VIII Additional District and Sessions Judge, Ranga Reddy District, L.B.Nagar, wherein the judgment and decree dated 06.05.2015 passed in O.S.No.1613 of 2007 on the file of the I Additional Junior Civil Judge, Ranga Reddy District, L.B.Nagar 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 plaintiffs are owners of the agricultural land in survey No.118 admeasuring Ac.3-18 gts situated at Jalpally village (hereinafter referred to as 'suit property') and they have been cultivating the land by passing over the lands of the defendant. The defendant carries the business of real estate and purchased his lands only a few months back and approached the plaintiffs to purchase their lands, but the plaintiffs refused to sell away their lands. Thereafter, the defendant had illegally 2 LNA, J S.A.No.329 of 2023 converted the agricultural land for non-agricultural purposes and started constructing parapet wall on the boundaries separating his land and the plaintiff's land. The plaintiffs have a right of easement to pass through the lands of the defendant and that this right was exercised not only by the plaintiffs but also their predecessors and further, they have no other alternative way to reach their land. The plaintiffs approached the defendant requesting him to leave some space between the parapet walls for the plaintiffs to have access to their land, but the defendant refused the same. Therefore, the plaintiffs got issued registered legal notice dated 19.12.2006 to the defendant. Hence, the suit.
4. The defendant had filed a written statement denying the contents of the plaint inter alia contending that the defendant had purchased a land admeasuring Ac.0-13 gts., in Sy.No.122, situated at Jalpally Village, Saroornagar Mandal, Ranga Reddy District through registered sale deed document No.7752/2006, dated 06.04.2006 and also constructed compound wall encircling the said land including the other lands. Thereafter, the plaintiffs mounted pressure on the defendant to part with 3 LNA, J S.A.No.329 of 2023 the said land and the same was not entertained by the defendant. Therefore, the plaintiffs filed the present suit with false allegations.
5. It is contended that the plaintiff is claiming suit property and coming to the schedule of property, the plaintiff alleges that the said land is falling within the ambit of Sy.No.48, which itself shows that the plaintiffs never enjoyed any right of easement more particularly the alleged easement right necessity either by himself or their predecessors in title and when such is the case, the question of the defendant trying to obstruct or prevent the plaintiffs from exercising the alleged right, which was enjoyed by the plaintiffs from the time immemorial, does not arise. Further, it is contended that the defendant did not receive any legal notice from the plaintiffs and the plaintiffs also failed to specify the boundaries of the suit property.
6. It is further contended that the road from Jalpally to Mamidipally lies on the North-South direction to the land allegedly owned by the plaintiffs and there is also an approach road in East-West direction from the main road to the land owned by the plaintffs and thus, there is abundant access to 4 LNA, J S.A.No.329 of 2023 the lands, as such the above suit is liable to be dismissed. Further, the plaintiff failed to prove any of the ingredients of the Section 13 of the Easementary Act. Hence, prayed to dismiss the suit.
7. Before the trial Court, on behalf of the plaintiffs, PW1 to PW4 were examined and Exs.A1 to A12 were marked. On behalf of the defendant, D.W.1 was examined and Exs.B1 to B7 were marked.
8. The trial Court, after considering the entire material available on record, decreed the suit with costs vide judgment and decree dated 06.05.2015 and directed the defendant to remove the parapet wall to the extent of 10 feet, over the boundaries separating his land and the plaintiffs' land and also granted perpetual injunction restraining the defendant, his agents or any person claiming through him, from obstructing the plaintiffs from using the way to reach suit property.
9. Aggrieved by the judgment and decree dated 06.05.2015, the defendant has filed A.S.No.21 of 2016. The first appellate Court on re-appreciation of the entire evidence and perusal of 5 LNA, J S.A.No.329 of 2023 the material available on record vide judgment and decree dated 16.03.2023 dismissed the appeal confirming the judgment and decree passed by the trial Court. Hence, the present second appeal.
10. Heard Sri Koppula Gopal, learned counsel for the appellant. Perused the record.
11. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs have established the boundaries to support their case that there is no other alternative way to approach the suit property and thereby, burden casts upon the defendant to adduce evidence to establish their case that there is a alternative road to the plaintiffs, but the defendant is failed to do so.
12. Learned counsel for the 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.
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13. Learned counsel for the appellant has raised specific contention that the first appellant Court failed to exercise the powers conferred under Order XLI Rule 31 of C.P.C., and also failed to frame the points/issues for consideration and did not independently evaluate the evidence on record. A perusal of the judgment passed by the first appellate Court would reveal that though, specific points/issues were not framed, the first appellate Court had elaborately discussed the evidence placed on record by both the parties and also recorded reasons for conclusions.
14. The Hon'ble Apex Court in the case of Laliteshwar Prasad Vs. S.P.Srivastava (D) through L.Rs 1 held that as per Order XLI Rule 31 of CPC, the judgment of the first appellate Court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Further, the Hon'ble Apex Court also held as follows:
"It is well settled that the first appellate Court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate Court provided that 1 (2017) 2 SCC 415 7 LNA, J S.A.No.329 of 2023 the first appellate Court records its reasons based on evidence adduced by both the parties."
In the light of the above decision of the Hon'ble Apex Court, the contention raised by learned counsel for the appellant that the first appellate Court failed to exercise powers under Order XLI Rule 31 of CPC is unsustainable.
15. Further, learned counsel for appellant failed to raise any further 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.
16. 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.
17. Further, in Gurdev Kaur v. Kaki 2, 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 2 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.329 of 2023 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.
18. 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 appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
19. 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