Telangana High Court
Labi Shetty Krishna Murthy vs Aitha Balaji on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.201 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 05.12.2022 passed in A.S.No.3 of 2018 on the file of the Principal District and Sessions Judge, Kamareddy whereby and where under the judgment and decree dated 06.03.2018 passed in O.S.No.29 of 2014 on the file of the Court of the Principal Junior Civil Judge at Kamareddy was confirmed.
2. The appellant herein is plaintiff 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 plaintiff filed suit for perpetual injunction in respect of the suit schedule property. It was averred that he purchased the same under registered sale deed bearing No.3088 of 2005, dated 11.11.2005, while so, the defendants tried to interfere with the suit schedule property on 24.02.2014 and tried to remove the boundary stones with a desire to grab the land of the plaintiff and hence, the suit. 2
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4. The defendants have filed written statement denying the plaint averments and inter alia stated that defendant No.1 is the holder of the open plot No.69 in Sy.No.52/1, 53, 55, 56, 129/1/2C vide G.P.L.P.No.01/2003 admeasuring 316.38 sq. yards having purchased it under registered sale deed bearing Doc.No.4581 of 2013 and prior to it, his predecessor were in possession and enjoyment as absolute owners. The plaintiff is wrongly identifying the said plot No.69 belonging to defendant No.1 and triangular shape plot of P.Soujanya, w/o Defendant No.3 admeasuring 123.33 sq. yards as suit plot and trying to come into the possession of the said lands. The suit property claimed by the plaintiff is not in existence and identifiable. That the boundaries given in sale deed No.3088 of 2005 is contradictory with that of the boundaries mentioned in link sale deed No.2114/81. The plaintiff under the guise of orders of this Court, approached revenue authorities and attempting to occupy the plot No.69 by misrepresenting it as suit land. The defendants immediately filed protest petition requesting the authorities not to accord permission for conversion in favour of the plaintiff without considering their grievances. It is further stated that the plaintiff was never in possession of the suit land 3 LNA, J S.A.No.201 of 2023 and therefore, the question of interference by the defendants on 24.02.2014 does not arise and the suit is filed only to trespass and damage of the property of the defendants and prayed to dismiss the suit.
5. Basing on the pleadings the trial Court framed two issues for trial:-
1) Whether the plaintiff is entitled for relief of perpetual injunction as prayed?
2) To what relief?
6. Before the trial Court, on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A.6 were marked. On behalf of the defendants, D.Ws.1 to 3 and Exs.B1 to B.16 were marked.
7. The trial Court, after considering the oral and documentary evidence placed on record, dismissed the suit with the following observations:-
"i) PW1 could not establish his possession over the suit schedule property as on the date of filing of the suit. When PW1 has not established his possession, the said fact of alleging interference by the defendants does not arise. Further PW1 in his cross examination admitted that 20 to 25 days prior to filing of this suit, he was called by the police of PS Kamareddy on the complaint lodged by Defendant 4 LNA, J S.A.No.201 of 2023 No.2 in respect of the suit land and he was advised by the police to approach the Court to resolve the dispute. He also admitted that since the date of approaching police, there is no interference in the suit land by the defendants. This suit was filed on 11.03.2014. If the defendants have interfered on 20-25 days prior to filing of this suit, they would have interfered only before 15-02-2014 and there is no interference by defendant No.2 after 15.02.2014. But as per the pleadings, the plaintiff submitted that the defendants have interfered with the peaceful possession and enjoyment of the plaintiff over the suit schedule property on 24.02.2014 and the same would not be possible. The evidence of PW1 is found not in corroboration with the plaint filed by him. Hence it can be said that the defendants have not interfered with the peaceful possession of the plaintiff as on the date of alleged cause of action. Hence the plaintiff also failed to establish the interference of the defendants.
ii) The evidence of DWs 1 to 3 shows that they are in possession of land in different survey number and not related to suit survey number.
But as per the evidence of these witnesses, the plaintiff is said to be trying to interfere into the plots owned by showing the suit survey number though the suit survey number is not in existence. The defendants though were examined in length, they could not produce any evidence to substantiate their plea that the plaintiff fabricated false documents to encroach into the plot and could not establish that the plots is not in existence.
8. Aggrieved by the above judgment, the appellant herein preferred appeal vide AS. No.3 of 2018 and the first appellate 5 LNA, J S.A.No.201 of 2023 Court duly considering the grounds and on re-appreciation of the entire evidence and material available on record dismissed the appeal vide order dated 05.12.2022 with the following observations:-
"i) PW1 in the course of his cross examination admits that about 4 guntas of land in Sy.No.129/1/6 and about one gunta of land in Sy.No.54/1 was acquired by the government for the purpose of road widening at the time of his vendor holding the land. Therefore, it is clear that the boundaries of the plot claimed by Ex.A1 should change.
The plaintiff has not chosen to obtain a rectification deed from his vendor. The fact stated in his evidence with regard to acquisition, does not find place in the plaint pleadings. Plead and lead is the settled rule. When such being the case of the plaintiff, the burden is heavily on the plaintiff to prove and establish the identity of the suit plot on ground, more particularly when the defendants have denied the title and possession of the plaintiff over the suit schedule property. Therefore, the preponderance of the probability is drawn in favour of the defendants case.
ii) By virtue of all clear pleading in the written statement that the plaintiff in the guise of this suit wrongly showing the boundaries, he is wrongly claiming part of the defendants plot which is triangular piece of land i.e. plot No.69 and 70. PW1 has also categorically admitted in the course of his cross examination that the plaint schedule map annexed to the plaint shows the open plot of Nagaraju is on the southern side of the suit schedule property whereas the boundaries shown in the plaint southern side discloses as open plot of Ganga Raju and that Ganga Raju and Naga Raju are admittedly two different persons. It is also the admission of PW1 that he cannot say on what basis the sketch map is prepared while submitting the plaint.
iii) On two sides of the suit schedule property there is property of the defendant. The boundaries in the sale deeds are different from the 6 LNA, J S.A.No.201 of 2023 boundaries shown in the plaint schedule. It is an undisputed fact that the suit schedule property is an agriculture land and not an open plot as stated by the plaintiff. The plaintiff cannot have a better title than what his vendor has. On perusal of the link document marked Ex.A2 no map is annexed to the sale deed. No measurements are shown whether the plot is rectangular or triangular, it is not clear. The plaintiff cannot have a better title than what his vendor has.
iv) The evidence of DW1 to DW3 shows that they are in possession of land in different survey number and not related to the suit survey number. But as per the evidence of these witnesses, the plaintiff is said to be trying to interfere into the plots owned by showing the suit survey number though the suit survey number is not in existence.
v) It is gathered from the entire material on record that the total area of Ac.4.11 ½ guntas of land is of the defendants pertaining to Sy.No.52/1, 53, 55, 56 and Sy.No.129/1/C and all the said lands were purchased by the father of the defendants. It is the case of the defendants that the 2nd defendant got the lands converted into the non agricultural lands and then made them into plots. That about 100 plots were made in the said land apart from internal roads, drainage and there were many houses constructed in various plots by different purchasers and one such plot is of the defendant Nos. 1 and 2 i.e. plot Nos.69 and 70.
9. Heard Sri K.Venumadhav, learned counsel for the appellant and Sri Janardhan Reddy Kotha, learned counsel for the respondents and perused the record.
10. Learned counsel for appellants argued that the trial Court decreed the suit without proper appreciation of the evidence 7 LNA, J S.A.No.201 of 2023 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 below concurrently held that the plaintiffs failed to establish their actual possession or interference by the defendants over the suit schedule property and accordingly, declined to grant the reliefs sought for by the plaintiff.
12. The 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 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.
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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.
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. 1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.201 of 2023
17. Pending miscellaneous applications, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 11.03.2024 BV