Telangana High Court
Abdul Raheem vs Syed Sadullah Shah Quadri Died on 19 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.17 of 2024
JUDGMENT:
The present Second Appeal is filed aggrieved by the judgment and decree, dated 17.08.2023, passed in A.S.No.203 of 2016 on the file of the Court of IX Additional Chief Judge, City Civil Court, Hyderabad, whereunder the judgment and decree dated 01.06.2016 passed by the XVII Additional Senior Civil Judge, City Civil Court, Hyderabad, in O.S.No.1699 of 2012 was confirmed.
2. The appellant is the defendant and respondent No.1 is the plaintiff in the suit. Since respondent No.1 died, he is represented by his legal heirs i.e., respondent Nos.2 to 4 herein. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in nut-shell leading to filing of the present Second Appeal are that the suit was filed for recovery of possession of the suit schedule property. The plaintiff inter alia stated in the plaint that one Syed Shah Ismail Quadri was the owner and possessor of the suit schedule property and he died issueless. As such, the father of the plaintiff succeeded to his property by virtue of a decree in O.S.No.3829 of 1983 on the file 2 LNA, J S.A.No.17 of 2024 of X Assistant Judge, City Civil Court, Hyderabad. Subsequently, on the death of his father on 06.07.1993, the plaintiff and his two brothers succeeded to the said property.
3.1. It was further averred that during the life time of the said Syed Shah Ismail Quadri, the father of the defendants by name Shaik Bande Ali was engaged as a servant to sweep and keep clean the Dargah apart from pulling cycle rickshaw and on his request, the plaintiff's father with the consent of the said Syed Ismail Shah Quadri provided a shelter in the said house having two rooms, admeasuring an extent of 50 square yards. Even after the death of the defendant's father, the defendant with his family was permitted to continue the occupation of the said house only on the consideration that his father-Shaik Bande Ali served the Muthawalli-Syed Shah Ismail Quadri, the father of the plaintiff and also served the Dargah.
3.2. The plaintiff stated that since the life time of Syed Shah Ismail Quadri and Moinuddin Shah Quadri, the portions of said house were let out to various tenants and most of the tenants were evicted through process of law and lastly, one tenant in collusion 3 LNA, J S.A.No.17 of 2024 with one Shaik Mahaboob Ali claimed ownership of the entire house and filed Civil Suit in O.S.No.5784 of 1987 and the said suit was dismissed. The two appeal preferred against the said judgment and decree were also dismissed and as such, the said portions were vacated after informing to the plaintiff who took possession as the elder son and the plaintiff is serving Dargah and maintaining the house.
3.3. It was further averred that as the plaintiff felt necessity of the suit premises, he demanded the defendant to vacate the possession by the end of January 2012, but defendant did not comply the demand and as such, the plaintiff got issued the legal notice dated 15-06-2012 demanding the defendant to vacate, but as the defendant did not vacate even after receiving the notice, the present suit was filed.
4. The defendant filed written statement inter alia denying the ownership and possession of the suit schedule property by the father of the plaintiff and later on his death, the plaintiff along with his two brothers succeeded to the said property. 4
LNA, J S.A.No.17 of 2024 4.1. It was specifically pleaded that the defendant along with his family was residing in house bearing H.No.13-2-1234/A/2, whereas the Municipal Number of the suit schedule house is 13-1-1234/A. Thus, the suit schedule property and the property of the defendant are very much different. Hence, he prayed to dismiss the suit.
5. Basing on the above pleading, the trial court framed the following issues for trial:-
"(1) Whether he plaintiff is entitled for the relief of eviction as prayed for?
(2) To what relief?
6. During trial, the plaintiff got himself examined as PWI and marked Exs.A-l to A-7 and on the defendant's side, DW1 was examined and Exs.B1 to B-3 were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, vide judgment dated 01.06.2016, decreed the suit by observing as under:-
"The defendant failed to prove that the suit schedule property is different from the property in his possession as he failed to prove the existence of house No.13-1- 5 LNA, J S.A.No.17 of 2024 1234/A/2 as he failed to file any documents and municipality records to show that he is the owner of the said property and he succeeded the same and in the absence of any documents filed by the defendant to establish that the property in his possession is different from the suit schedule property, I am of the opinion that in the absence of any documents filed by the defendant, the property which is in possession of the defendant is the suit schedule property which is the portion of 13-1- 1234/A and as the plaintiff proved to be the successor of the property from the father along with his brothers, he is entitled to issue Ex.A1 legal notice for possession of the suit schedule property from the defendant and as such I hold that the plaintiff proved the suit claim against the defendant and the defendant is liable to handover the possession of the suit schedule property to the plaintiff.""
8. The first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and observed that though the defendant contended that he is residing in H.No.13-1-1234/A/2, he did not file any title deed or any property receipt or electricity receipt pertaining to the said house. It further observed that even in Ex.A-7-Gift settlement deed executed by the defendant in favour of his wife, the House number is shown as 13-1-1234/A, but in Exs.B-1 and B-2-Aadhar Cards of 6 LNA, J S.A.No.17 of 2024 the defendant and his wife, distinct house property is shown. Ultimately, the first Appellate Court held that the defendant totally failed to establish the existence of house bearing H.No.13-1-1234/A/2, whereas the plaintiff established that his father was declared as owner of the suit schedule property and accordingly, dismissed the appeal filed by the defendant.
9. Heard Sri Zulfaquar Alam, learned counsel for the appellant and Sri D.Rama Krishna Reddy, learned counsel on record for the respondents. Perused the record.
10. A perusal of the record discloses that both the Courts below concurrently held that the oral and documentary evidence adduced by both the parties goes to show that the defendant failed to establish his case that he is residing in a different house than that of the suit schedule property and the plaintiff has succeeded in establishing that his father was declared as owner of the suit schedule property.
11. 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. 7
LNA, J S.A.No.17 of 2024
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 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 fell for consideration.
15. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.17 of 2024 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.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 19.02.2024
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