Telangana High Court
K. Swamy vs Smt. N. Laxmi on 15 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.482 of 2023
JUDGMENT:
This Second Appeal is filed against the judgment and decree dated 16.03.2023 in A.S.No.8 of 2022 on the file of the Principal District Judge, Siddipet, wherein and whereunder the judgment and decree dated 12.07.2018 in O.S.No.114 of 2011 on the file of the Principal Junior Civil Judge, Gajwel, was confirmed.
2. For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the trial Court.
3. Brief facts leading to filing of the present second appeal are that the originally, one Enkaiah was the owner of the land admeasuring to an extent of Ac.1-31gts in Survey No.16 situated at Madaram village, Warangal Mandal (herein after referred to as 'suit property'). The said Enkaiah had four sons viz., Vishwanatham, Laxminarayana, Laxminarsaiah and Ramaiah. The suit property has been divided into four parts and the said Vishwanatham, who is father of plaintiff got Ac.0- 26 gts., one Laxminarsaiah got Ac.0-12 gts and the remaining land went to Ramaiah and Laxminarayana. The suit property 2 LNA, J S.A.No.482 of 2023 appeared in the name of Vishwanatham for the year 2003-04, 2004-05 and 2009-10.
4. It is further contended that as per the revenue records, the defendants are not having any title or right over the suit property. Further, defendant No.1 without any consent or knowledge of other family members sold the property to one Shoura Rayulu, who in turn sold the property to defendant No.2. On coming to know such fact, the plaintiff had approached defendant No.2 with the elders regarding the fate of the property. The defendant No.2 came to suit property and pressurized him to dispose of property and he also made attempt on 05.11.2022 and 15.12.2022. Hence, the suit for declaration and perpetual injunction.
5. Defendant No.2 had filed written statement denying averments made by the plaintiff inter alia contending that defendant No.1 being a family member, with consent and knowledge of other family members sold the property to Shoura Rayulu vide document No.565/2007, dated 18.01.2007. The said Shoura Rayulu in turn sold the said property to defendant No.2 vide document No.2282/2008. It is contended that the 3 LNA, J S.A.No.482 of 2023 cause of action alleged to be pleaded in the plaint is false; that the father of defendant No.1 viz., Laxminarsaiah was the pettadar and owner of the land Ac.1-31 gts in Survey No.16/AA in Madaram village, who gifted the land Ac.0-35 gts out of Ac.1- 31 gts and other lands to defendant No.1 vide gift deed No.1326/1988 and defendant No.1 also succeeded the remaining land Ac.0-36 gts. out of Ac.1-31 gts.; that the plaintiff has sold away his land to an extent of Ac.0-22 gts in Survey No.16/E to Sri Kammari Mallesham and his name was also mutated in the revenue records. Hence, prayed to dismiss the suit.
6. Before the trial Court, on behalf of the plaintiff, PW1 was examined and Exs.A1 to A3 were marked. On behalf of the defendants, DW1 was examined and Exs.B1 to B4 were marked.
7. The trial Court, after considering the entire material available on record, vide its judgment and decree dated 12.07.2018 dismissed the suit by observing as under:
"(i) This is a suit for declaration of title, hence the burden lies on the plaintiff to establish Enkaiah was the pattedar and he had 4 sons and the land divided into 4 parts.4
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(ii) The case of the defendant is that the defendant No.1 being a family member and with the knowledge of plaintiff sold land to Shouri Rayalu. The PW1 oral evidence clinches his pleadings that he stated in his cross-examination that he do not know whether defendant No.1 sold the land to an extent of Ac.1-31 gts to M. Shoura Rayalu in the year 2007 in turn Rayalu sold the same to Vadakattu Srinivasu. Once the plaint pleadings are that his family member sold to Soura Rayalu, how he pleaded ignorance before this Court therefore, his oral evidence is disbelieved in any fact.
(iii) The plaintiff neither participated in the proceeding nor cross- examined DW1, therefore the evidence of defendants taken into consideration as kept unchallenged. Ex.B1 is executed by defendant no.1 in favour of Shouri Rayalu. The plaint itself pleaded the fact. There is no denial as such Ex.B1 is proved. Ex.B2 is the 1-B namoona clearly shows the name of defendant No.2 to an extent of Ac.1-31 gts. in Sy.No.16/A/4. Ex.B3 is pahani reflecting the defendant No.2 as owner and possessor. Ex B3 is the subsequent to the filing of suit. However, the defendants able to establish their title by way of filing Ex.B1 in the year 2007 therefore Ex.B3 is a continuation of such document. Ex.B4 is the original pattedar pass book is also corroborating Ex.B1
(iv) The plaintiff filed the suit for declaration of title. There is no positive denial from the defendants denying the title of the plaintiff. The plaintiff himself filed suit referring registered sale deeds stating that the defendant No.1 sold to Shoura Rayalu and whereas the plaintiff pleaded his ignorance in his oral evidence about such sale.
(v) The plaintiff further failed to establish the cause of action that the defendants interfered on 05-11-2011 and 15- 12-2011 without any right."
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8. The first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 16.03.2023 dismissed the appeal by observing as under:
"(i) As per the version of the plaintiff, his father has four brothers namely Laxminarayana, Laxminarsaiah and Ramaiah. But Exs.A1 to A3 only show that his father Vishwanatham Lofer is pattadar and possessor of Ac.0-22 guntas in Sy.No.16/E1. Had the plea of the plaintiff is true and correct, these exhibits should have shown the name of Vishwanatham's brothers Laxminarayana, Laxminarsaiah and Ramaiah. But these exhibits do not show their names instead names of Kammari Mallesham and others are shown. It is pertinent to note, PW1 in his cross-examination, stated that Laxmi is the daughter of Laxminarsaiah. As per his version Laxmi was given Ac.0-12 guntas in suit survey number. But Exs.A1 to A3 do not show that Laxmi has Ac.0-12 guntas of land in suit survey number. Further in his cross- examination, he also stated that he does not know whether defendant No.1 sold the land to an extent of Ac.1-31 guntas to M.Soura Rayulu in the year 2007.
(ii) This being a suit for declaration of title and perpetual injunction, the plaintiff has to prove his title and he cannot depend on the weakness of the defendant's case.
Except Exs.A1 to A3, no other document is filed by the plaintiff. Mere entries in revenue records would not confer title. In a suit of this nature, plaintiff has to prove his title over the suit land by a series of documents tracing his title to the original owner. The plaintiff should have filed 1-B Namuna and also other documents which show that Ac.1-31 guntas of land in Sy.No.16/E originally belongs to his father Enkaiah and in a 6 LNA, J S.A.No.482 of 2023 partition his father and his paternal uncle each got Ac.0-22 guntas. In the absence of any such document on the mere ground some pahanies show the plaintiff as patradar of the suit land, his title cannot be declared and the defendants whose land is in a different survey number cannot be restrained from alienating the suit land. The Trial Court has considered all these aspects and rightly dismissed the suit."
9. Heard Mr.S.A.Subbarao, learned counsel for the appellant. Perused the record.
10. A perusal of the record discloses that both the trial Court as well as the first appellate Court concurrently held that in a suit for declaration and perpetual injunction, the plaintiff has to prove title as well as possession and cannot depend on the weakness of the defendants and that the plaintiff failed to prove his title and also interference by the defendants and hence, dismissed the suit.
11. 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 also committed an error in confirming the judgment and decree passed by the trial Court.
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12. However, learned counsel for the 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 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.
15. Having considered the entire material available on record and the findings recorded by the trial Court as well as the Appellate Court, this Court finds no ground or reason 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.482 of 2023 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.
Pending miscellaneous applications, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 15.03.2024 Dua