Telangana High Court
Nallabothu Venkanna And 2 Others vs Nallabothu Kashaiah And 4 Others on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.115 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 21.01.2019 passed in O.S.No.216 of 2008 on the file of the Junior Civil Judge at Nalgonda, where under and whereby the judgment and decree dated 10.10.2022 passed in A.S.No.41 of 2019 on the file of the Court of the Principal District Judge at Nalgonda was confirmed.
2. The appellants herein are plaintiffs and the respondents are defendants in the suit. For convenience, the parties are referred to, as they are arrayed in the suit.
3. Brief facts leading to filing of the present Second Appeal are that the plaintiffs filed a suit for permanent injunction against the defendants from interfering with the peaceful possession and enjoyment of suit schedule property. The plaintiffs averred that they are the owners and possessors of the agricultural land in Sy.No.199 to an extent of Ac.12-02 guntas situated at Anantharam village, Nalgonda Mandal and District. Plaintiffs' father purchased above land under simple sale deed dated 28-04-1970 along with cart way in Sy.No.197 2 LNA, J S.A.No.115 of 2023 of Anantharam village. Since the date of purchase, the defendants frequently obstructed the plaintiffs from passing through the suit way. In the year 1988, when the defendants obstructed the plaintiffs, the matter was referred to elders and it was agreed to by both the parties that plaintiffs should give a share in the well dug in their land to the defendants and to the said effect entered into an agreement on 20.06.1988. 3.1 It is contended that again disputes arose in the year, 2006 and the matter was referred to the elders and the elders convened a meeting and advised the plaintiffs to give land equal to the way from their land in Sy.No.211 of Anantharam village and the defendants agreed for the same and entered into an agreement dated 10.07.2006 on the advise of elders from both sides, but the defendants did not come forward to execute the registered sale deed to the exchanged land as per the agreement. Later the plaintiffs filed application before the Tahsildar, Nalgonda, who on enquiry, passed orders and addressed a letter to the Sub-Inspector of Police, Nalgonda Rural, dated 10.07.2008 to give necessary aid in using the suit way by the plaintiffs. However, the defendants are 3 LNA, J S.A.No.115 of 2023 interfering with the peaceful possession and enjoyment of the suit way of the plaintiffs. Hence, the suit.
4. The defendants filed written statement denying the plaint averments and inter alia stated that they are the absolute owners of the agricultural lands in Sy.No.197/1/A admeasuring Ac.1.23 ½ guntas of dry land situated at Anantharam village of Nalgonda Mandal and District apart from the other lands. Originally, the suit lands along with other lands to an extent of Ac.3-07 guntas covered in Sy.No.197/A was purchased by mother of the defendants from Nallabothu Parvathamma, who in turn purchased the same from its original owner namely Ranga Chary about 35 years back and her name was mutated in ROR and pattedar passbook and title deed were also issued in her favour. In the year 2002, the mother of the defendants sold away Ac.1.23 ½ guntas in favour of Nallabothu Eedaiah and kept the remaining land with her. The defendants are in physical possession of suit land along with other lands covered in Sy.Nos.201, 202, 213 and 214, total admeasuring Ac.7.36 ½ guntas and they have spent huge amounts on land to make it 4 LNA, J S.A.No.115 of 2023 cultivable and dug bore well, erected electric motor and converted the land from dry to wet and have been raising paddy and other commercial crops in the said land. Hence, prayed to dismiss the suit.
5. Basing on the pleadings the trial Court framed two issues for trial:-
1) Whether the plaintiffs are entitled to seek declaration of their easementary right in respect of the suit property, as prayed for?
2) Whether the plaintiffs are entitled for grant of perpetual injunction, as prayed for?
3) To what relief?
6. Before the trial Court, on behalf of the plaintiffs, P.W's.1 to 5 were examined and Exs.A1 to A.8 were marked. On behalf of the defendants, D.W's.1 to 3 and Exs.B1 to B.8 were marked.
7. The trial Court, after considering the entire evidence and material available on record, dismissed the suit with the following observations -
"i) The plaintiffs failed to prove that Ex.A3 was executed by the defendants in favour of the plaintiffs in the presence of PWs 2 to
5. In view of the specific denial of the defendants that they have not executed Exs.A2 to A4 in favour of the plaintiffs and the signatures on Exs.A2 to A4 does not belong to them and the plaintiffs have created the said documents, the plaintiffs ought to 5 LNA, J S.A.No.115 of 2023 have sent Exs.A2 to A4 to the hand writing expert for comparison of the signatures on Exs.A2 to A4 with that of the admitted signatures of the defendants, but the plaintiffs did not chose to do so. Thus, the plaintiffs failed to prove the execution of Exs.A2 to A4 by the defendants.
ii) The plaintiffs cannot depend on the weakness of the case of the defendants. The weakness, if any, in the case set up by the defendants would not be a ground to grant any relief to the plaintiffs. When the plaintiffs admitted the ownership of the defendants over the suit property, they cannot be allowed to turn around and say that for want of sale deed documents evidencing the purchase of the land in survey No.197 by the defendants, the defendants are not the owners of the suit property etc., when the defendants have got no right over the suit property, the alleged execution of Exs.A2 to A4 for the purpose mentioned therein does not arise.
iii) The plaintiffs failed to prove the existence of the suit way, hence using the suit property as a way by the plaintiffs since 1970 does not arise.
iv) Thus it is to be said in summation that the plaintiff failed to prove the existence of cart way from survey No.197, so also the execution of Ex.A1 sale deed in respect of the cart way in survey No.197 permitting them to use the same to go to the agricultural well called as Maisamma bavi.
v) The plaintiffs did not choose to file the village map also showing the existence of cart way from survey No.197. Though PW1 stated in his chief examination affidavit that they have approached Tahsildar, Nalgonda on 10.6.2008 by way of application for redressal of the dispute between them and the defendants and the Tahsildar entrusted the matter to the revenue inspector to make enquiry and the revenue inspector enquired the matter and submitted his report on 16-6-2008 and basing on the report of the 6 LNA, J S.A.No.115 of 2023 Revenue Inspector, the Tahsildar passed orders and addressed letter to the SI of Police, Nalgonda dated 10.7.2008 to give necessary aid to the plaintiffs in using the suit way and taking cue from the said contention of the plaintiffs though the counsel for the plaintiffs submitted that the said report of the Tahsildar itself shows the existence of the suit way, absolutely there is no such record available before this Court. The plaintiffs did not choose to file any such orders of the Tahsildar before this Court. "
8. Aggrieved by the above judgment, the appellant herein preferred appeal vide AS. No.41 of 2019 and the first appellate Court duly considering the grounds, and on re-appreciation of evidence of material on record dismissed the appeal vide order dated 10.10.2022 with following observations-
"i) PW5 could not say when the parties to the suit purchased their properties. He stated that there is pathway dispute between the parties. He said he did not know whether there was any naksha bata but added that he saw the pathway and said he also used it. He denied the suggestion that there is no such pathway and the plaintiffs forcibly tried to create pathway by destroying the lands of the defendants. He admitted that a quarrel occurred in between the plaintiffs and the defendants, that both the parties beat each other and cases and counter cases were registered against them and that a resolution was passed in the presence of the village elders in connection with the pathway dispute and he along with others attested the resolution as a witness. He denied the suggestion that there was no pathway at the time when the vendor of the parties to the suit executed documents in their favour and that the plaintiffs are high handedly trying to create pathway through the lands of the defendants but added by saying that there is no pathway in existence now. His evidence shows that the parties were at 7 LNA, J S.A.No.115 of 2023 loggerheads for a considerable time over pathway and finally resolved their dispute in the presence of elders.
ii) Further the recitals in Ex.A4 show that the plaintiffs took 5 guntas land in S.No.297 as per the measurements mentioned therein and gave 5 guntas land in S.No.211 to defendant Nos.1 to 3 and that the way to S.No.199 is from the said land in S.No.297. The plaintiffs' claim for the way to their land in S.No.199 is in respect of S.No.197, not in respect of S.No.297.
Therefore, Ex.A4 does not support the plaintiffs but goes against them. "
9. Heard Sri J.C.Francis, learned counsel for the appellants and perused the record.
10. Learned counsel for appellants 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.
11. A perusal of the record discloses that both the Courts concurrently held that the plaintiffs failed to prove their claim for declaration of easement right of way and also perpetual injunction and accordingly, declined to grant the relief sought for by the plaintiffs.
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LNA, J S.A.No.115 of 2023
12. The learned counsel for 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.
13. 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 Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
14. 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 9 LNA, J S.A.No.115 of 2023
15. 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.
16. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 11.03.2024 BV