Telangana High Court
Mohd. Azeemuddin vs V. Seetharamaiah on 14 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.404 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 20.01.2023 passed in A.S.No.73 of 2018 on the file of the I Additional District Judge, Mancherial, wherein the judgment and decree dated 23.01.2018 passed in O.S.No.617 of 2007 on the file of the Principal Junior Civil Judge, Mancherial, 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 the plaintiffs are the owners and possessors of house plot measuring 654 sq.yards in Sy.No.208, Mancherial (hereinafter referred to as 'suit land') and the suit land is ancestral property. After family partition, the father of plaintiffs got share of total Ac.4-39 guntas of land in survey No.208, Mancherial, and out of which, the plaintiffs have sold various house sites to different persons. The suit land is an open plot and it is covered by adjacent plot of defendant No.2. 2
LNA, J S.A.No.404 of 2023
4. It is contended that the defendant No.1 has purchased 1200 sq.yards from one Kodapaka Raju under registered sale deed, who in turn, purchased the same from the plaintiffs in the year 1996 through registered sale deed. However, the dimensions of 1200 sq.yards acquired by Kodapaka Raju, and the land alienated by him to defendant No.1, is not one and the same. Thereby, defendant No.1, by changing the dimensions, has been trying to encroach about 20 feet land towards Southern side of the house plot.
5. It is further contended that defendant No.3 is stranger to the suit land and he did not have any title to the suit land. The defendant No.3 has purchased some other land from some other persons in Sy.No.207 and tried to interfere over the suit schedule property with a malafide intention to grab the suit land. On 09.12.2007, the defendants came to the suit land and tried to occupy the same by force, however, the plaintiffs resisted the illegal acts of the defendants. Hence, the suit.
6. Defendant Nos.1 and 2 have filed a written statement denying the contents of the plaint inter alia contending that defendant No.1 has purchased 1200 sq.yards of land in 3 LNA, J S.A.No.404 of 2023 Sy.No.208, Mancherial from Kodapaka Raju through registered sale deeds from his vendor Kodapaka Raju and there was no excess land found towards northern side as claimed by the plaintiffs. It is contended that mutation has been taken place in favour of defendant No.1 and the defendant No.1 has made six plots in 1200 sq. yards and he gifted one of such plot to his wife i.e., defendant No.2, and they constructed individual houses in the said six plots having obtained permission from the Municipality of Mancherial.
7. It is further contended that the plaintiffs herein and Kodapaka Raju in collusion with each other obstructed the construction by defendant Nos.1 and 2 by demanding huge amount. Therefore, defendant No.2 has filed suit in O.S.No.587 of 2007 against the plaintiffs herein and Kodapaka Raju, wherein the Court has granted ad-interim injunction vide I.A.No.1524 of 2007. Further it is contended that the plaintiffs, in order to extract money from the defendants, have filed the present suit. Therefore, they prayed to dismiss the suit.
8. Defendant No.3 had also filed the written statement denying the averments of the plaintiffs inter alia contended that 4 LNA, J S.A.No.404 of 2023 the documents filed by the plaintiffs did not prove that the suit land is within the boundaries as mentioned in the schedule and that the plaintiffs are owners and possessors of the suit land. In fact, physically no open land is existing as pleaded by the plaintiffs and thereby, the possession of the plaintiffs over 654 sq.yards of land in Sy.No.208 does not arise. It is further contended that defendant No.3 is the owner and possessor of house plot measuring 437 sq.yards in Survey No.207 of Mancherial.
9. After filing of the written statement by the defendants, the plaintiffs with the permission of the Court vide I.A.No.696 of 2013 have filed rejoinder by denying the assertions in the claim of the defendants. It is contended that defendant No.1 has executed registered gift deed in favour of defendant No.2 by showing wrong boundaries and that Northern side boundary belongs to the plaintiffs and Kamma Shivaiah has no right over the suit schedule property. The plaintiffs have also stated that defendant Nos. 1 and 2 have no right to proceed with the construction during pendency of trial, thus the acts of the defendant Nos. 1 and 2 upon the suit land is a clear case of 5 LNA, J S.A.No.404 of 2023 abuse of process of Law. It is contended that at the time of filing of the suit, the suit land was open land and there was no construction and defendant Nos. 1 and 2 have encroached the plot of the plaintiffs to an extent of 20 feet towards Northern side and constructed the building illegally.
10. Before the trial Court, on behalf of the plaintiffs, PW1 and PW2 were examined and Exs.A1 to A9 were marked; on behalf of the defendant, DW1 and DW2 were examined and Exs.B1 to B21 were marked and the advocate commissioner's report dated 25.04.2015 is marked as Ex.C1.
11. The trial Court, after considering the entire material available on records, had decreed the suit vide judgment and decree dated 23.01.2018, by observing as under:
"The advocate commissioner report under Ex.C1 shows that the advocate commissioner has measured the suit schedule property in pursuance of the orders of this Court and found that the northern side to the land of defendant Nos.1 and 2 there existing the property of PW1.
Thereby, mere injunction suit is not maintainable when defendant No.3 is said to be in the possession of the property, which claimed to be belongs to plaintiffs.6
LNA, J S.A.No.404 of 2023 Thereby, having admitted that the open plot of Kamma Shivaiah, which is situated towards northern side of house of defendant Nos.1 and 2 and further no steps taken to amend the suit either for declaration of title or recovery of possession from defendant No.3 is fatal to the case of the plaintiffs."
12. Aggrieved by the judgment and decree dated 23.01.2017, the defendants have filed A.S.No.73 of 2018 before the I Additional District Judge, Mancherial. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 20.01.2023 dismissed the appeal by observing that the suit is maintainable when the plaintiffs have been in possession, when they admit the possession of defendant No.3, then there is no question of maintainability of perpetual injunction suit against the defendants. Hence, the present second appeal.
13. Heard Sri A.Gangadhar, learned counsel for appellants. Perused the record.
14. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs have failed to 7 LNA, J S.A.No.404 of 2023 establish that they were in lawful possession over the suit schedule property as on the date of filing of the suit.
15. 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.
16. Learned counsel for the appellants relied upon the following decisions:
i) Ananthula Sudhakar vs. P.Buchi Reddy (dead) by LRs. and others 1;
ii) Rattan Dev vs. Pasam Devi 2; and
iii) Malluru Mallappa (dead) through Legal representatives vs. Kuruvathappa and others 3
17. The facts in Ananthula Sudhakar (supra) does not apply to the facts of the present case and in fact, it mandates filing of suit for declaration and possession, where the plaintiff's title is under a cloud and he does not have possession. It is relevant to 1 (2008) 4 SCC 594 2 (2002) 7 SCC 441 3 (2020) 4 SCC 313 8 LNA, J S.A.No.404 of 2023 note that the same observation has been made by the learned trial Court while dismissing the suit.
18. The other two decisions relied upon by the learned counsel for appellants do not come to the aid of the appellants.
19. 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.
20. 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.
21. Further, in Gurdev Kaur v. Kaki 4, 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 4 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.404 of 2023 only where a substantial question of law is raised and fell for consideration.
22. 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.
23. 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:14.02.2024 Dua