Telangana High Court
M. Aslesha vs Kotha Srinivasa Rao Died on 20 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.333 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 18.01.2023 passed in A.S.No.41 of 2018 on the file of the Principal District Judge, Khammam, wherein the judgment and decree dated 01.06.2016 passed in O.S.No.586 of 2010 on the file of the Principal Junior Civil Judge, Khammam 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 plaintiff Nos.1 to 3 are having housing plots side by side comprising one block. Plaintiff No.1 got her plot through registered gift deed vide document bearing No.1912 of 2009 from her mother viz., Ch.Varalaxmi, who in turn along with plaintiff Nos.2 and 3 purchased their plots to an extent of 254.50 sq.yds, 109 sq.yds and 235 sq.yds respectively in Survey No.136 situated at Burhanpuram, Khammam (herein after referred to as 'suit 2 LNA, J S.A.No.333 of 2023 schedule property'), vide document Nos. 2653/1998, 2654/1988 and 2652/1988 respectively, from one V.Sandhya Laxmi, who in turn purchased from one M.Bixmaiah vide sale deed document No.3742/1981. All the above deeds reflects 30 feet road towards eastern side to the plaintiffs' plots. Plaintiff Nos.2 and 3 being the residents of U.S.A., appointed their father as GPA holder to deal with the suit schedule property.
4. It is contended that initially the lands in Survey No.136 stand in the name of Talari Babulu, Venkaiah, Laxmaiah, who were pattedars and possessors of their joint family property. Later Talari Babulu and Venkaiah jointly sold their respective shares to S.Rama Laxmamma, who in turn sold the entire land to M.Bixamaiah. The said Bixamaiah made the said land into house plots and alienated to Rama Laxmamma and others.
5. It is further contended that defendant No.1 is claiming some land in Survey No.136, which was acquired by the Government for the purpose of water works for 3 LNA, J S.A.No.333 of 2023 laying pipe line. The document bearing No.3252/73 executed by T.Laxmaiah reflects the eastern boundary as land acquired by Government. Further, said M.Bixamaiah made the Survey No.136 into house plots by leaving the suit schedule property for water works. The plaintiffs were using the surface of the pipe line, to enter into their houses, during the time of their purchase. Further, it is contended that defendant No.2 laid a pakka cement road from Mamillagudem to by-pass road, which was being used by the plaintiffs to enter into their property. Therefore, except the plaintiffs and the public, no other person have any right to enjoy the property by raising structures. Defendant No.2 is the custodian of the property. While the matter stood thus, on 21.04.2009, defendant No.1 without having any right tried to raise structure in the suit schedule property claiming that he had purchased the suit schedule property, in which, defendant No.2 erected 450 mm diacase iron pumping. The claim of defendant No.1 is null and void since Babulu has no land in Survey No.136 after 1973. Hence, the suit.
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6. Defendant No.1 has filed written statement denying the averments made in the plaint inter alia contending that he filed O.S.No.827 of 2005 seeking perpetual injunction against mother of plaintiff No.1, plaintiff No.3 and father of plaintiff No.2 on the file of the I Additional Junior Civil Judge, Khammam. The defendants in O.S.No.827/2005 also filed a suit in O.S.No.134 of 2005 against him for perpetual injunction. While pending the said suits, the plaintiffs have filed present suit with a false and baseless plea that the schedule property exclusively belongs to defendant No.2. As per the Advocate Commissioner's report in O.S.No.134 of 2005, the plaintiffs herein have no road on the eastern side abutting their sites and that the plaintiffs herein cannot reach the cement road from their respective sites without trespassing into the present suit schedule property, which is exclusively owned by defendant No.1 herein.
7. Defendant No.2 has also filed written statement inter alia contending that the suit schedule property is 5 LNA, J S.A.No.333 of 2023 admittedly a municipal land, wherein the water pipe line is laid and the same cannot be used as a road either by the plaintiffs or by any one. It is contended that if the said land is allowed as passage, the plaintiffs will acquire a right for passage lawfully i.e., easementary right and there is every possibility of moving heavy vehicles, which will cause damage to the pipe line underneath a passage. Simply because of registered deeds of plaintiffs reflecting the road, it will not confirm their right to passage over the municipal land. It is contended that no one have right to construct any structure with or without permission on the existing pipe line. Defendant No.2 pleaded ignorance about execution of registered sale deeds in favour of plaintiffs. The plaintiffs in hurried manner filed the present suit while he was taking steps by perusing the documents of plaintiffs and defendant No.1. Hence, prayed to dismiss the suit.
8. Before the trial Court, on behalf of the plaintiffs, PW1 to PW5 were examined and Exs.Al to A27 were marked. On behalf of the defendants, DW1 to DW4 were examined and Exs.B1 to B21 were marked.
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9. The trial Court, after considering the entire material available on record, dismissed the suit vide judgment and decree dated 01.06.2016 by observing as under:
"The Plaintiffs did not file any single document having extent and boundaries to say that the schedule property was acquired land. The evidence of P.Ws 4 and 5 and D.W.4 also not useful in this regard. It is for Defendant No.1 to raise construction in his own land subject to certain conditions imposed by the Municipality and it is not for the Plaintiffs to restrain. As per Advocate Commissioner report it is clear that the Plaintiffs cannot reach their plots from road without entering into the land of Defendant No.1. Therefore, as rightly contended by the Defendant No.1 that the Plaintiffs filed this suit some how to get way through land of Defendant No.1 to reach their plots from 30 feet road. Therefore, the above discussion shows that there is no merit in the case of the Plaintiffs. Even the Plaintiffs have no locustandi to file this suit in respect of land of Defendant No.1. Without having any right or possession, the Plaintiff filed this suit for declaration and injunction by abusing process of law, thereby, caused inconvenience to the original owners."
10. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 18.01.2023 dismissed the appeal, by observing as under: 7
LNA, J S.A.No.333 of 2023 "It is appearing that since the plaintiffs in previous suits were un-successful in establishing their claim against the defendants, they have filed the present suit with a different relief of declaration of title. In a suit for declaration of title, if the plaintiffs were to succeed, they must do so on the strength of their own title irrespective of the question whether the defendant has proved his case or not. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not.
The object of Section 34 of the Specific Relief Act is to declare the status or right of any person entitled to any legal character or to any right as to any property. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
In the present case the plaintiffs have got no right to seek declaration as to suit schedule property for using the same as approach road to enter into their premises from the pakka cement road laid by the defendant No.2 since the suit schedule property is meant for water pipe line. Even if any right, it is only for the government authorities to seek appropriate remedy against the persons who interfered with their property.
Nobody can approach the court for a declaration on a chance or a mere hope entertained. Moreover, there is no specific material to show that it belongs to Municipal Corporation or Government. In view of the above 8 LNA, J S.A.No.333 of 2023 discussion, the appellants are not entitled for any reliefs as prayed for."
11. Heard Mr.Madiraju Prabhakar Rao, learned counsel for the appellants, Mr.M.V.Hanumantha Rao, learned counsel for respondent No.7 and Mr.N.V.Anantha Krishna, learned counsel for the caveator. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held that plaintiffs have filed the suit to get way through land of defendant No.1 to reach their plots from 30 feet road and that the plaintiffs have no locus standi to file this suit in respect of land of defendant No.1. Without having any right or possession, the plaintiffs filed this suit for declaration and injunction by abusing process of law. Therefore, there is no merit in the case of the plaintiffs.
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.
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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.
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.
1 (2007) 1 Supreme Court Cases 546 10 LNA, J S.A.No.333 of 2023
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.
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: 20.02.2024 Dua 11 LNA, J S.A.No.333 of 2023 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.333 of 2023 20.02.2024 Dua