Telangana High Court
Kamati Dhanunjay vs Dornala Sathaiah Died on 12 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.282 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 28.02.2022, passed by the V Additional District Judge, Bhongir, in A.S.No.22 of 2017, confirming the judgment and decree dated 10.02.2017 passed by the Junior Civil Judge, Ramannapet, in O.S.No.247 of 2008.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the appellant/plaintiff filed the suit vide O.S.No.247 of 2008 against the respondents/defendants for perpetual injunction. It is stated that the plaintiff is the absolute owner and possessor of the land, admeasuring Acs.0.20 guntas of dry land situated in Survey No.13 of Choutuppal Village and Mandal, Nalgonda District, having purchased the same from its original owner under registered sale deed dated 03.06.1994. The name of the plaintiff was also recorded in the revenue records. It is further stated that out of said Ac.0.20 guntas of land, the plaintiff 2 LNA, J S.A.No.282 of 2023 sold Ac.0.15 guntas of land to Sargam Harahari and Thota Yadaiah and the remaining Ac.0.05 gutnas of land is in his possession. The defendants, having no manner of right or interest over the suit schedule property, have tried to enter into the suit schedule property on 18.12.2008 by removing the boundary stones illegally.
4. The defendant No.1 filed a written statement and the same was adopted by defendant Nos.2 to 5. The defendants denied the averments made in the plaint and stated that the plaintiff purchased Ac.0.20 guntas of land in Survey No.13 and thereafter, converted it into house plots and sold them to several persons and he is left with no piece of land.
5. On behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A1 and A.14 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B4 were marked.
6. The trial Court, after considering the entire material available on record, held that the appellant failed to prove his possession over Acs.0.05 guntas of land and therefore, he is not entitled for the relief of perpetual injunction, and accordingly 3 LNA, J S.A.No.282 of 2023 dismissed the suit vide judgment and decree dated 10.02.2017. Aggrieved by the same, the plaintiff filed an appeal vide A.S.No.22 of 2017. The first Appellate Court on re-appreciation of the entire evidence and perusal of the material available on record, dismissed the appeal confirming the judgment and decree passed by the trial Court vide judgment and decree dated 28.02.2022. Hence, the present Second Appeal.
7. Heard Sri T.V. Kalyan Singh, the learned counsel for the appellant and Sri D. Srinivas Reddy, the learned counsel for the respondents. Perused the record.
8. The learned counsel for the appellant vehemently argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court erred in confirming the same. He further contended that both the Courts below wrongly interpreted Exs.A2 to 8 and came to the conclusion that the appellant/plaintiff failed to prove his possession over the suit schedule property as on the date of filing of the suit. In support of the said contentions, the learned counsel 4 LNA, J S.A.No.282 of 2023 placed reliance on the judgment of the Hon'ble Supreme Court in Sk. Bhikan v. Mehamoodabee 1.
9. In Sk. Bhikan's case, the Hon'ble Supreme Court held that having regard to issues involved regarding inheritance and ownership based on interpretation of documents (exhibits), the questions concerned did constitute substantial question of law.
10. There is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the above judgment. However, the facts of the said case and the facts of the present case are completely different and thus, the above judgment has no application to the present case.
11. As seen from the record, the appellant/plaintiff has taken a plea that he is in possession of Ac.0.05 guntas of land, after alienating Ac.0.15 guntas of land, out of Ac.0.20 guntas of land owned by him. However, the evidence let in by the appellant is contrary to the pleadings. Further, the documents marked on behalf of the appellant would show that the appellant converted the agricultural land of Ac.0.20 guntas into house plots and sold the plots to various parties, which is evident from the documents 1 (2017) 5 SCC 127 5 LNA, J S.A.No.282 of 2023 executed by the appellant under Exs.A.10 and A.11. Therefore, it is clear that the appellant had approached the Court with unclean hands by suppressing and misrepresenting the facts.
12. It is settled principle that any amount of evidence is of no use, if there are no pleadings, as held by the Apex Court in Mohammad Mustafa vs Sri Abu Bakar 2.
13. Further, the learned counsel failed to raise any substantial question of law to be decided by this Court in this Second Appeal and 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.
14. 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.
15. Further, in Gurdev Kaur v. Kaki 3, the Apex Court held that the High Court sitting in Second Appeal cannot examine the 2 AIR 1971 SC 361 3 (2007) 1 Supreme Court Cases 546 6 LNA, J S.A.No.282 of 2023 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.
16. 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.
17. 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.
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LAXMI NARAYANA ALISHETTY, J
Date: 12.01.2024
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