Telangana High Court
Gorige Anjaiah vs Jukanti Ramchander on 26 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.403 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 28.03.2022, passed in A.S.No.223 of 2018 on the file of the Court of V Additional District Judge (II-FTC), Warangal at Jangaon, confirming the judgment and decree dated 02.08.2018 passed by the Principal Junior Civil Judge, Jangaon in O.S.No.204 of 2012, the present Second Appeal is filed.
2. The appellant is defendant No.2 and respondent No.1 is defendant No.1. 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 absolute owner and possessor of the suit schedule property having acquired the same by way of purchase from one Md. Sarwar Miya, S/o. Kaja Miya through registered sale deed vide Document No.41/1978, dated 05.01.1978 and remained in possession thereof. After purchasing the property, he got entered his name in the revenue 2 LNA, J S.A.No.403 of 2023 records and the revenue authorities have assigned Survey Number as 88/2. He left the land fallow for few years and after that gave the same to defendant No.1 on the crop share basis. Defendant No.1 used to pay the share of usufruct to the plaintiff whenever he cultivated the suit land. He further stated that due to drought condition he went to Bombay for eking out his livelihood. Defendant Nos.1 and 2, by taking advantage of his absence, colluded with revenue officials and manipulated the revenue records and illegally got their names entered in the possessory column for the period from 1989-1990 to 1997 and 1997-2009 respectively. In the year 2012, when the plaintiff came to the village, he found that defendant No.2 was claiming ownership over the suit schedule property and refused to vacate the same. Hence, the present suit for declaration of title and recovery of possession of the suit schedule property.
4. The defendants filed their written statement by denying all the averments except some admitted facts and submitted that the plaintiff purchased suit land from Md. Sarvar Miya, but he plaintiff sold away the said property for his family necessities. That 3 LNA, J S.A.No.403 of 2023 defendant No.2 had purchased the suit land in the name of his wife Gorige Anjamma on 05.04.1996 from Dayyala Chandraiah and the plaintiff and after receiving the entire sale consideration, she was put in vacant possession of the suit schedule property 4.1. It was further averred that the plaintiff has joined execution of simple document dated 05.04.1996 in favour of the wife of defendant No.2 and since the date of purchase, defendant No.2 and his family members are in peaceful possession and enjoyment of the said land and prayed to dismiss the suit.
5. After hearing both sides and having regard to the pleadings, the trial Court has settled the following issues for trial:-
"(i) Whether plaintiff is absolute owner and possessor of the suit schedule by purchasing through registered sale deed vide document No. 41/78, dated 05.01.1978?
(ii) Whether the plaintiff is entitled to pass a decree for recovery of possession from the defendant No.2?
(iii) Whether the defendant purchased the suit land from the plaintiff or not?
(iv) To what relief?"4
LNA, J S.A.No.403 of 2023
6. On behalf of plaintiff, PWs.1 and 2 were examined and Exs.A1 to A14 were marked. On behalf of the defendants, DWs.1 to 3 were examined, but no documents were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, in its judgment observed as hereunder:-
"Admittedly, DWI not filed the said alleged simple document before the Court to establish the factum of sale by Dayyala Chandralah and Jukanti Ramchandralah (plaining in respect of the suit schedule property.
D.W-1 further admitted in the cross-examination that he mentined in the written statement that he wife purchased suit schedule property from one Lachamma. Thus, the admission of which establishes that the contention raised by him about purchasing of the property from the plaintiff is out of truth In addition to that, the defendants did not make any effort to examine so-called first vendor by name Dayyala Chandraiah to show that initially, the pf sold the suit land to him and after that, both Dayyala Chandraiah and plaintiff executed the sale deed in favour of defendant No.2."
8. By observing supra, the trial Court held that the defendants utterly failed to rebut the contention of P.W-1 and also failed to 5 LNA, J S.A.No.403 of 2023 prove that the plaintiff sold away the suit schedule property to them and accordingly, decreed the suit, vide judgment dated 02.08.2018.
9. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record and dismissed the appeal, vide judgment dated 28.03.2022. The first Appellate Court observed that the contention of the defendants that the plaintiff sold away the suit schedule property to Chandraiah and later, both of them jointly sold away the said property to the wife of defendant No.2 is completely false. The first Appellate Court further observed that Exs.A-1 to A-14 clearly shows the possession of the plaintiff over the suit schedule property for a period of more than ten years and that reflection of name of defendant No.1 in the pahanies supports the case of the plaintiff that he had given the suit schedule property to defendant No.1, in his absence, on crop share basis.
9.1. The first Appellate Court further observed as under:-
"As seen from the version of the plaintiff, he completely denies the execution of the simple sale deed in favour of third parties and also there is no document on record to show that the said Anajamma has ever purchased the suit 6 LNA, J S.A.No.403 of 2023 property in her name and therefore not adding her as a party will not defeat the suit.
Article 113 of Limitation Act 1963 provided limitations for declaration of suits as three years from the date when the right to sue accrues. Here the version of the plaintiff is that after he returned from Mumbai he came to know that the Defendant no.1 alienated the suit lands to third parties and when questioned, all the defendants threatened him and therefore he filed the suit. As seen from the plaint, the cause of action started in the month of August, 2012 when defendant No.2 denied the title of the plaintiff and claimed the suit land as his won and the plaintiff filed he suit in the month of September, 2012 i.e., within one month. Therefore, the suit is filed within limitation."
10. By observing as above, the first Appellate Court, dismissed the appeal, vide its judgment dated 28.03.2022, thereby, confirming the impugned judgment of the trial Court.
11. Heard Sri D.V.Chalapathi Rao, learned counsel for the appellant. Perused the record.
12. Learned counsel for appellant argued that the trial Court decreed the suit without proper appreciation of the evidence and 7 LNA, J S.A.No.403 of 2023 the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
13. The principal contentions raised by the learned counsel for the appellant that the suit is bad for non-joinder of parties and that the suit is barred by limitation were adverted to and were rejected by the first Appellate Court by recording specific reasons and this Court does not find any reason or ground to interfere with the observations and conclusions of the first Appellate Court.
14. The further contention of the learned counsel for the appellant is with regard to applicability of adverse possession. A perusal of the record would reveal that the plaintiff has not taken the plea of adverse possession and no evidence was let in with regard to the said plea. Therefore, in the absence of any specific plea, evidence and material, the same cannot be canvassed in the Second Appeal.
15. 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 8 LNA, J S.A.No.403 of 2023 and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
16. 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 plaintiff, by producing oral and documentary evidence, clearly established his ownership and possession in respect of the suit schedule property and that he has given the same to defendant Nos.1 and 2 on crop share basis.
17. 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 trial Court as well as the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record.
18. 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 1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.403 of 2023 where a substantial question of law is raised and fell for consideration.
19. 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.
20. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date: 26.02.2024 dr