Telangana High Court
Habeeb Zainulabdin Abid vs Mirza Asad Baig on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.347 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 06.06.2023, passed by the XXVI Additional Chief Judge, City Civil Court at Hyderabad, in A.S.No.69 of 2019, confirming the judgment and decree dated 05.03.2019 passed by the VII Junior Civil Judge, City Civil Court, Hyderabad, in O.S.No.683 of 2015.
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 respondent No.1/plaintiff filed the suit vide O.S.No.683 of 2015 seeking perpetual injunction restraining the defendants and their men, servants, agents representatives or any other person claiming under/through them from interfering with the peaceful possession or attempting to dispossess the plaintiff from the suit property.
4. It is contended that the plaintiff that Mrs. Zainab Bee had purchased property admeasuring Acs.4.20 guntas in Survey No.300, Qila Mohammed Nagar, Golconda, Hyderabad, in an open auction conducted by the office of the District Collector, Hyderabad. After depositing the sale consideration, a patta certificate was issued in her favour on 9th Aaban 1357 Fasli, 2 LNA, J S.A.No.347 of 2023 corresponding to 3rd September, 1946 A.D. The office of the District Collector vide letter dated 13th Aaban 1357 Fasli, corresponding to 7th September, 1946 A.D, confirmed the said sale transaction in favour of Mrs. Zainab Bee and included her name in Jamabandi Records i.e., Revenue Records. However, due to her domestic necessity, Mrs. Zainab Bee sold 400 Square Yards of land out of the said Acs.4.20 guntas of land, in favour of Master Mirza Khusro Baig (the father of the plaintiff), by simple sale deed dated 15.05.1975. Since the father of the plaintiff was minor at that time, he was represented by his father viz., Mirza Osman Ghani of Risal Bazaar, Golconda, Hyderabad.
5. It is stated that only Photostat copies were furnished to the father of Master Mirza Khusro Baig, and the original documents i.e., Patta Certificate, Letter issued by the District Collector were retained by Mrs. Zainab Bee for herself, as she was holding the remaining vast extent of property in her name. It is further stated that Mirza Khusro Baig was in possession and enjoyment of the said property ever since he was child till he transferred the same in favour of the plaintiff by a registered instrument. It is stated that till the transfer of the suit property, it remained as banjar open land with dilapidated room over it.
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6. It is also stated that Mirza Khusro Baig, the father of the plaintiff, wanted the plaintiff to live separately after his marriage. On the assurance of the plaintiff that he would construct a house on the suit property and would shift immediately thereafter, Mirza Khusro Baig transferred the suit property in favour of the plaintiff by a registered gift deed dated 20.03.2015. Thus, the plaintiff became absolute owner and possessor of the suit property. It is further stated that on 21.03.2015, the plaintiff had dug the trenches on all sides of the suit property and also raised a compound wall on the trenches with an intention to start construction after securing building permission from the competent authority. While making construction, the plaintiff had removed the dilapidated room, which was constructed by his grandfather.
7. It is further stated that the defendants have demanded money and interfered with the construction work of the plaintiff on 23.03.2015 and 26.03.2015 and made attempts to dispossess the plaintiff forcibly from the suit property on 27.03.2015, but the plaintiff resisted their attempts with the help of neighbours and well wishers. It is stated that again on 28.03.2015, the defendants interfered with the possession of the 4 LNA, J S.A.No.347 of 2023 plaintiff, demanded money and tried to dispossess him. Hence, the suit.
8. The defendant No.1 filed written statement (which was adopted by defendant Nos.2 to 4) opposing the relief claimed in the suit and inter alia stating that one, Mrs.Afzalunnisa Begum had purchased the property bearing Door No.9-11-247/1/A, admeasuring 405 square yards, situated at Ex-Servicemen Lane, Golconda Fort, Hyderabad, from one Mr. M. Ibrahim Baig, under a notarized agreement of sale dated 18.06.2001, for valid sale consideration and since then, she was in possession and enjoyment of the same. It is further stated that the said Afzalunnisa Begum executed registered gift deed dated 14.02.2013 in favour of the defendant No.1 and since then, the defendant No.1 is in possession and enjoyment of the said property. The property under the suit claimed by the plaintiff is bearing H.No.9-11-247/1/C, which is quite different from the property of the defendant No.1 i.e., H.No.9-11-247/1/A. It is further stated that the plaintiff did not file any document pertaining to the property claimed by him, and prayed to dismiss the suit.
9. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 and A.2 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B12 were marked. 5
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10. The trial Court, after considering the entire material available on record vide judgment and decree dated 05.03.2019, decreed the suit by granting perpetual injunction as prayed for. Aggrieved by the same, the appellant/defendant No.1 filed A.S.No.69 of 2019. 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 06.06.2023. Hence, the present Second Appeal.
11. Heard Sri Mohd. Adnan, learned counsel for the appellant and Sri Mohd. Ilyas, the learned counsel for the respondent No.1. Perused the record.
12. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff has established his possession over the suit schedule property, which has not been successfully rebutted by the defendant No.1.
13. The learned counsel appearing for the appellant vehemently argued that the trial Court decreed the suit without proper appreciation of the evidence and the first Appellate Court erred in confirming the same.
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14. Per contra, the learned counsel for the respondent No.1/plaintiff would submit that in the written statement filed by the defendants they categorically mentioned that they are no way concerned with the property of the plaintiff. Therefore, on this ground alone, the suit deserves to be decreed. He further submitted that the documents filed by the defendants under Exs.B.4 to B.9 i.e., service connection, property tax receipts and electricity bills are subsequent to the filing of the suit, and therefore, they cannot be looked into. He finally contended that the trial Court has rightly decreed the same and the same was rightly confirmed by the first Appellate Court.
15. However, the learned counsel 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.
16. It is well settled principle by a catena of decisions of the Hon'ble 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.
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17. 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.
18. 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.
19. 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: 22.01.2024 va 1 (2007) 1 Supreme Court Cases 546