Telangana High Court
Bairi Venkatrajam, vs Bairi Bose on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.435 of 2023
JUDGMENT:
Aggrieved by the judgment and decree, dated 01.8.2023, passed in A.S.No.185 of 2019 on the file of the I Additional District Judge, Hanumakonda, whereunder and whereby the judgment and decree dated 25.6.2019 passed by the VII Additional Junior Civil Judge, Warangal, in O.S.No.596 of 2013, was confirmed, the present Second Appeal is filed.
2. The appellant is the plaintiff and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that the plaintiff is the owner and possessor of the suit schedule property having purchased the same from one Vaddemanukota Ramesh, S/o late Sammaiah and another, through registered sale deed vide Doc.No.5427/2011, dated 18.08.2011 and since then he has been in peaceful possession and enjoyment of the same. The plaintiff contended that originally one Vaddemanukota (Chakali) Narsaiah is the pattadar of the said 2 LNA, J S.A.No.435 of 2023 property. The grandfather of the plaintiff's vendor died leaving behind his son V.Sammaiah as his legal heir who inherited the suit schedule property. After the demise of said V.Saminaliah, the plaintiffs vendors inherited the suit schedule property as 'his legal heirs. The plaintiff further contended that defendant No.1-his natural brother and defendant No.2-wife of defendant No.1, who are no way concerned with the suit schedule property, on 05-06-2013, tried to interfere with his peaceful possession of the plaintiff suit schedule property to grab away the same. Hence, the suit seeking the relief of permanent injunction restraining the defendants and their followers, etc., from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.
4. The defendants filed the written statement denying all the plaint averments except their relationship with the plaintiff. They contended that the name of defendant No.1 is 'Rajabose' but not 'Bose', therefore, the plaintiff ought to have filed a suit for declaration. They further contended that the suit schedule property is not a vacant land, as stated by the plaintiff, since there is a house bearing No.1-64 situated in the suit schedule property and the 3 LNA, J S.A.No.435 of 2023 boundaries given in the suit schedule are incorrect. They specifically contended that defendant No.2, who is the absolute owner and possessor of the said house, had gifted the same to his wife-defendant No.1 vide Doc.No.1364/2009 and the boundaries of the said property are entirely different from the boundaries shown in the plaint schedule. As such, the plaintiff is not the owner of the suit schedule property. They further contended that the alleged sale deed, dated 18-08-2011, was brought into existence by the plaintiff, in collusion with Vaddemanukota Ramesh and his brother Rajkumar, to grab the suit schedule property of defendant No.2. Therefore, the alleged vendors of the plaintiff were also not the owners of the suit schedule property nor they have got marketable title or transfer in the suit schedule property. The House bearing No.1-64 is situated in the land measuring 502-50 square yards belonging to defendant No-2, whereas the plaintiff filed the above suit in respect of the land measuring 92.36 square yards and not a single boundary shown in the plaint schedule is tallied with boundaries of the property belonging to the defendant No-2. 4.1. The defendants further contended that the defendant No.1 constructed a tin shed bearing G.P.No.1-64 way back in the year 4 LNA, J S.A.No.435 of 2023 1983 and have been residing therein with and also have been paying property tax since the last 30 years.
4.2. It was further averred that the property bearing G.P.No.1-64 is measuring '502-50' square yards and not '92-36' yards as shown in the plaint schedule. That on obtaining permission from Grama Panchayat, Paidipally, the defendants got constructed compound wall around the said house in the year 2012. Hence, the defendants prayed to dismiss the suit.
5. Basing on the above pleadings, the trial Court framed the following issues:-
"1. Whether the plaintiff is in lawful possession of suit schedule property as on the date of filing of the suit?
2. Whether the defendants herein causing interference to such possession of the plaintiff over the suit schedule property?
3. If so, whether the plaintiff herein is entitled to relief of permanent Injunction against the defendants, as prayed for?
4. To what relief?"5
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6. To substantiate his case, the plaintiff himself got examined as PW1 and also examined one D.Venu as PW2 and got marked Exs.A-1 to A-9. On behalf of defendants, defendant No.1 got himself examined as DW1 and got marked Exs.B-1 to B-18.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment dated 25.6.2019, dismissed the suit observing that the plaintiff failed to prove his right over the suit schedule property and accordingly, held that the plaintiff is not the owner of the property.
8. On an appeal being filed, the first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed that except the pahanies, no documents were field by the plaintiff to show that his vendors' family was in possession of the suit schedule property. The first Appellate Court further observed that the plaintiff failed to prove his possession and enjoyment over the suit schedule property and accordingly, dismissed the appeal vide judgment dated 01.8.2023. 6
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9. Heard Sri Venkatram Narsaiah, learned counsel for the appellant, and Sri Yadagiri Mailaram Rao, learned counsel for the respondents. Perused the record.
10. Learned counsel for appellant 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.
11. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff failed to prove his possession and enjoyment over the suit schedule property and accordingly, negatived the relief sought for by him.
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 7 LNA, J S.A.No.435 of 2023 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 fall for consideration.
15. 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 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. 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.435 of 2023
17. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY 15.02.2024 dr