Telangana High Court
Potta Laxmaiah vs Narsimulu on 14 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
INTERLOCUTORY APPLICATION No.1 OF 2024
IN/AND
SECOND APPEAL No.355 OF 2002
J U D G M E N T:
This Second Appeal is filed under Section 100 of the Code of Civil Procedure (for short 'C.P.C') by unsuccessful plaintiff aggrieved by the concurrent findings recorded in Judgment and Decree dated 17.03.2001 passed in A.S.No.40 of 1999 by the learned Senior Civil Judge, Narayanpet (for short 'the learned first Appellate Court') in confirming the Judgment and decree dated 31.01.1998 passed in O.S.No.81 of 1992 by the learned Junior Civil Judge, Kodangal (for short 'the learned trial Court') in a suit filed seeking recovery of possession.
02. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the learned trial Court.
03. Plaintiff is the owner of suit lands and he purchased the same from one Sri Giri Rao S/o. Dathatriya Rao with the consent of protected tenant Nagaram 2 Narsaiah of Bomraspet for a consideration of Rs.4,000/- under Registered Sale Deed dated 06.04.1988. The next day of the delivery of the possession of the suit land, defendants illegally occupied the suit lands and wrongfully gained profits of Rs.1,000/- per year. Plaintiff is the owner of suit land and his name has been mutated in the Revenue records, defendants are in illegal possession of the suit lands. Hence, plaintiff sought for recovery of possession.
04. It is the case of defendants that defendant No.1 purchased suit land from the original owner Giri Rao under an Agreement of Sale dated 05.02.1987 for a sale consideration of Rs.5,000/- and he paid Rs.4,000/- and agreed to pay remaining consideration of Rs.1,000/- at the time of registration. The said Giri Rao vendor of the suit land delivered possession of suit land in favour of defendant No.1 and since then he is in possession over the suit land. Plaintiff never in possession of the suit land. Hence, defendants sought for dismissal of the suit. 3
05. The learned trial Court framed the following issues for trial:
i. Whether plaintiff is entitled to delivery of possession as prayed for?
ii. Whether plaintiff is entitled to the mesne profits? and if so, at what relief?
iii. Whether Agreement of Sale dated 05.02.1987 set up by defendants is true, valid and binding on plaintiff? iv. Whether plaintiff has no cause of action?
v. To what relief?
06. On behalf of plaintiff, PW1 to PW5 were examined and Exs.A1 to A4 were marked. On behalf of defendants, DW1 to DW4 were examined and got marked Exs.B1 to B5.
07. After conducting full-fledged trial, the learned trial Court dismissed the original suit vide the Judgment and Decree dated 31.01.1998 passed in O.S.No.81 of 1992.
Aggrieved by the same, plaintiff preferred appeal before the learned first Appellate Court and the same was also dismissed vide Judgment and Decree dated 17.03.2001 passed in A.S.No.40 of 1999 confirming the decree and Judgment of the learned trial Court.
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08. Aggrieved by the concurrent findings recorded by learned trial Court as well as learned first Appellate Court, appellant-plaintiff filed this Second Appeal before this Court.
09. The learned trial Court by way of impugned decree and Judgment dismissed the original suit. On appeal, being filed by plaintiff, the first Appellate Court after reevaluating the entire evidence dismissed the appeal confirming the findings of the learned trial Court.
10. As seen from record, this Court vide Order dated 07.02.2001 considered ground Nos.1 and 2 of memorandum of this Second Appeal, as substantial questions of law, which is as follows:
a. Whether Ex.A1-Sale Deed, which was registered would operate against Ex.B1-Agreement of Sale, which was not registered in relation of the same property?
b. Whether respondents-defendants were entitled to protect their possession under Section 53-A of the Transfer of Property Act from plaintiff who had no knowledge of the sale agreement between defendants and his vendors?
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11. In Narayanan Rajendran and another v. Lekshmy Sarojini and others 1 the Honourable Supreme Court of India held that:
"24. Similarly, before amendment in 1976, this Court also had an occasion to examine the scope of Section 100 C.P.C. In Deity Pattabhiramaswamy v. S. Hanymayya and Others 2, the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. This Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under Section 100 of Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the Judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate Court based upon an appreciation of the relevant evidence.
30. In Bholaram v. Amirchand 3 a three-Judge Bench of this court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important 1 Civil Appeal No.742 OF 2001 2 AIR 1959 SC 57 3 (1981) 2 SCC 414 6 materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.
31. In Kshitish Chandra Purkait v. Santosh Kumar Purkait 4, a three judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.
32. This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor 5. The court stated that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of the such duly framed substantial questions of law.
33. A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 C.P.C., only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such (1997) 5 SCC 438 4 5 (1999) 2 SCC 471 7 procedure was followed by the learned Single Judge.
It is held by a catena of judgments by this court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait 6 and Sheel Chand v. Prakash Chand 7 that the Judgment rendered by the High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed."
12. In the backdrop of above settled principle of law on the scope of Section 100 of CPC, this Court is not inclined to go into the merits and demerits of the case as this is a Second Appeal. At the stage of admission, this Court treated the ground Nos.1 and 2 of the memorandum of appeal as substantial questions of law.
13. As seen from the entire record, plaintiff contended that he was in possession after execution of Ex.A1-registered sale deed but on the next day itself defendants occupied the suit lands illegally and defendants are in possession over the suit lands. On the other hand, defendants contended that they purchased suit lands vide Ex.B1-Agreement of Sale dated 05.02.1987 and the vendor of the suit land delivered possession on 05.02.1987 i.e., 6 (1997) 5 SCC 438 7 (1998) 6 SCC 683 8 more than one year prior to the alleged purchase of suit land by plaintiff. During the course of cross-examination, PW1 categorically admitted that the vendor of the suit land was not in possession as on the date of alleged purchase by plaintiff. DW4 who is son of Giri Rao categorically stated that his father never sold the suit land in favour of plaintiff. Even though Ex.B1-Agreement of Sale does not create any interest in the property, still in view of doctrine of part performance under Section 53-A of the Transfer of Property Act, 1882 defendants are entitled to protect their possession. It is also pertinent to note here that during the course of cross-examination, PW1 admitted that no document was executed for payment of consideration amount. Both the learned trial Court as well as learned first Appellate Court had dismissed the claim of plaintiff by virtue of their respective Judgments.
14. At the stage of this Second Appeal, defendants had filed I.A.No.1 of 2024 praying this Court to receive additional evidence i.e., certified copy of Judgment and 9 Decree dated 25.08.2000 passed in O.S.No.91 of 1996 by the learned Junior Civil Judge, Kondangal.
15. While dealing with the aspect of receiving additional evidence, in Union of India v. K.V.Lakshman 8, the Honourable Supreme Court of India held that:
"Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence."
16. In the above authority, the Honourable Supreme Court of India has made it clear that the additional evidence at the first and second appellate stages should be accepted if the party is able to persuade the Appellate Court that there was a valid reason for not submitting such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties that are the subject of the lis. 8 AIR 2016 Supreme Court 3139 10
17. In the present case on hand, respondents have prayed this Court to receive the additional evidence i.e., certified copy of Judgment and Decree dated 25.08.2000 passed in O.S.No.91 of 1996 by the learned Junior Civil Judge, Kondangal. It is pertinent to note that O.S.No.81 of 1992 which is the subject matter in this Second Appeal, was filed seeking recovery of possession by plaintiff in the year 1992. Subsequently, defendants have filed O.S.No.91 of 1996 seeking specific performance of Agreement of Sale dated 05.02.1987, which is the subject matter in I.A.No.1 of 2024. The suit in O.S.No.81 of 1992 was dismissed on 31.01.1998. As seen from the Judgment dated 31.01.1998 there was mention of filing of suit in O.S.No.91 of 1996 by defendants. Aggrieved by the dismissal of suit in O.S.No.81 of 1992, defendants preferred appeal suit in A.S.No.40 of 1999. The said A.S.No.40 of 1999 was also dismissed vide Judgment dated 17.03.2001 confirming the Judgment dated 31.01.1998 passed in O.S.No.81 of 1992. As seen from the Judgment dated 17.03.2001 passed in A.S.No.40 of 1999, there was mention of filing of O.S.No.91 of 1996 by defendants. It is apparent on the face of record 11 that both the learned trial Court as well as learned first Appellate Court in their respective Judgments, had taken note of the fact with regard to filing of suit in O.S.No.91 of 1996 by defendants seeking specific performance of Agreement of Sale dated 05.02.1987.
18. It is the case of petitioners in I.A.No.1 of 2024 that by the time the suit in O.S.No.91 of 1996 was decreed, the suit in O.S.No.81 of 1992 was dismissed. Hence, they could not file the certified copy of Judgment and decree dated 25.08.2000 passed in O.S.No.91 of 1996 before the learned trial Court.
19. It is to be noted here that plaintiff therein had filed a suit in O.S.No.91 of 1996 seeking specific performance of Agreement of Sale dated 05.02.1987 against defendants therein, before the learned Junior Civil Judge, Kondangal, wherein the suit was decreed directing defendant Nos.1 and 2 to register sale deed in favour of plaintiff therein. The Agreement of Sale dated 05.021987 which was believed to be true and valid by both the learned trial Court as well as learned first Appellate Court, has 12 been directed to be executed. It appears no appeal was preferred before appellate Court challenging Judgment and Decree dated 25.08.2000 passed in O.S.No.91 of 1992 by the learned Junior Civil Judge, Kondangal, therefore, it has become final. Hence, this document further gives strength to the concurrent findings recorded by the learned trial Court as well as learned first Appellate Court and the said document is proper and necessary which has direct and significant bearing on the core issue involved in the case on hand and also much relevant for putting a quietus to the dispute between the parties. Therefore, keeping in view the above settled principle of law laid down by the Honourable Supreme Court of India, this Court deems it appropriate to receive certified copy of Judgment and Decree dated 25.08.2000 passed in O.S.No.91 of 1992 by the learned Junior Civil Judge, Kondangal, as additional piece of evidence by allowing I.A.No.1 of 2024. The learned Courts, after full-fledged trial and on hearing both sides, have held that plaintiff failed to prove that possession was delivered to him. In view of the above, this Court is of the considered opinion that the ground Nos.1 and 2 of 13 memorandum of appeal which were considered as substantial questions of law, are of no use to appellant and they are not a valid grounds for reversing the concurrent findings of learned trial Court as well as learned first Appellate Court.
20. It is also well settled principle by a catena of decisions of the Honourable 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 learned trial Court as well as learned first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. It is also to be placed on record that this Second Appeal is of the year 2002 challenging the concurrent findings recorded in the suit filed seeking recovery of possession in the year 1992 which was decided in the year 1998, the first appeal was preferred in the year 1999 and the same was decided in the year 2001.
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21. Further, in Gurdev Kaur v. Kaki 9, 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.
22. Having considered the entire material available on record and the findings recorded by the learned trial Court as well as the learned first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings recorded by both the Courts under Section 100 of CPC. Moreover, the grounds raised by appellant are factual in nature. Hence, this Second Appeal deserves to be dismissed as devoid of merits.
23. Accordingly, I.A.No.1 of 2024 is allowed. The Second Appeal is dismissed. There shall be no order as to costs.
9 (2007) 1 Supreme Court Cases 546 15 As a sequel, pending miscellaneous applications, if any, shall stand closed.
_________________________________ JUSTICE M.G.PRIYADARSINI Date: 14-JUN-2024 KHRM