Telangana High Court
Mekamalla Suguna vs Vootla Ram Mohan Rao on 19 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.438 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 08.10.2023, passed by the IV Additional District Judge, Karimnagar in AS.No.135 of 2019, whereunder and whereby the judgment and decree dated 25.01.2018 passed by the Senior Civil Judge, Huzurabad in O.S.No.15 of 2009 was set aside.
2. The appellant is the defendant and the respondent is the plaintiff in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present Second Appeal, are that the plaintiff's father by name V.Kistaiah was in possession and enjoyment of the suit land during his lifetime. His mother predeceased his father. That after the demise of his father in the month of June, 1965, the plaintiff being the sole legal heir had inherited the suit land together with other properties at Jammikunta and had been in exclusive possession and enjoyment of the suit land. The Tahsildar, Huzurabad had issued certificate of protected tenancy in favour of one Komishetti Komuraiah to an extent of Ac.6-12 guntas out of total extent of 2 LNA, J S.A.No.438 of 2023 Ac.9-18 guntas in Survey No.761 and the remaining area to an extent of Ac.3-06 guntas which is shown in Tonch map under Ex.A2 is the suit schedule property. The Survey No.761/1 as mentioned under Ex.A2 is not yet demarcated in the revenue records and as such, the original Survey No.761 is still continuing in the revenue records. While so, in the first week of December, 2008, the defendant illegally and forcibly occupied the suit land from the possession of the plaintiff and had falsely got it mutated in her name in the revenue records. The plaintiff after knowing the said fact requested the defendant to delete her name, but she refused and denied the title of the plaintiff over the suit land and also refused to vacate and deliver vacant possession of the suit property. Hence, the suit for declaration of title and recovery of possession of the suit schedule property.
4. Defendant filed the written statement denying the plaint averments and submitted that the suit land was purchased by her from the plaintiff through simple agreement of sale dated 01.07.1996 after paying the sale consideration of Rs.1,89,000/- and the said agreement was validated under ROR proceedings after due enquiry and the defendant was issued pattadar passbook and title 3 LNA, J S.A.No.438 of 2023 deed and that since the date of purchase of the suit property till the date of filing of the suit, the defendant has been in continuous possession and enjoyment of the suit schedule property. It was further averred that the plaintiff is claiming right, title over the suit property by mentioning false boundaries of suit land. Hence, prayed to dismiss the suit.
5. The plaintiff filed rejoinder to the plaint denying all the averments in the written statement of the defendant and submitted that he had never executed any agreement of sale or any document in favour of the defendant either on 01.07.1996 or at any point of time and that no sale consideration was received by him from the defendant and he had never delivered the physical possession of the suit schedule property to the defendant under the agreement of sale and the said document is a forged and fabricated one.
6. Based on the above pleadings, the trial Court framed the following issues for trial:-
"1. Whether the agreement of sale dated 01.07.2016 alleged to have been execute by the plaintiff in favour of the defendant is true, valid and supported by the consideration?
2. Whether the plaintiff is entitled for declaration of his title 4 LNA, J S.A.No.438 of 2023 over the suit property as prayed for?
3. Whether the plaintiff is entitled to recovery of possession of the suit property as prayed for ?
4. To what relief?"
7. Before the trial Court, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A12 were marked. On behalf of the defendant, DWs.1 to 4 were examined and Exs.B1 to B28 were marked.
8. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court dismissed the suit, vide judgment and decree dated 25.01.2018. The trial Court categorically observed that Ex.B-2 i.e., 13-C Namuna and the pahanies for the years 1997-98 to latest pahaines and 1-B Namuma dated 28.01.2006 clearly shows that the defendant was in possession of the suit schedule property since 1997-98 i.e., more than 12 years prior to filing of the suit and the plaintiff having kept quiet for 12 years, filed the suit. Therefore, it clearly appears that the plaintiff sold the suit property to the defendant through simple sale deed dated 01.07.1996 and the same was validated under ROR proceedings.
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LNA, J S.A.No.438 of 2023 8.1. The trial Court further observed that the plaintiff admitted that since the year 2008 the defendant has been cultivating the suit schedule property and the documents filed by the defendant prove that she is the owner of the suit property.
9. On appeal, the first Appellate Court, being the final fact- finding Court, on re-appreciation of the entire evidence and the material available on record and allowed the appeal setting aside the judgment of the trial Court, vide judgment dated 08.10.2023. 9.1. The first Appellate Court observed that the documents under Exs.A1 to A-8 discloses the source of acquisition of title in the name of father of the plaintiff by name Vootla Kistaiah and the document under Ex.A9 proves that the suit schedule property is the ancestral property of the plaintiff having acquired by the plaintiff from his father Vootla Kistaiah and that plaintiff has been in possession of the suit land. It was further observed that the evidence of P.Ws.1 and 2 discloses that the defendant had forcibly and illegally occupied the suit schedule property by illegally dispossessing the plaintiff and the same was not denied and disputed by the defendant by way of giving any suggestion to P.Ws.1 and 2. Thus, the first Appellate Court held that the plaintiff 6 LNA, J S.A.No.438 of 2023 has proved his valid title in respect of the suit schedule property by virtue of Exs.A-1 to A-9.
9.2. The first Appellate Court observed that the defendant failed to examine the alleged attestors and scribe of the alleged simple sale dated 01.07.1996 and that the defendant herself in her evidence as D.W-1 expressed ignorance about the contents of the said simple sale deed. Therefore, the said document is not true, valid and supported with valid consideration. It was further observed that when the alleged simple sale deed was not exhibited before the trial Court, there is no question of perusal of the same. 9.3. The first Appellate Court further observed that the procedure under ROR Act was not followed for making the necessary changes in the revenue records. Hence, mere filing of the pahanies and the revenue records covered under Exs.B-1 to B-28 does not establish the claim of the defendant that he purchased the suit property from the plaintiff. Accordingly, the first appellate Court adjudicated that the plaintiff by examining herself as P.W-1 and P.W-2 and also exhibiting Exs.A-1 to A-12 proved her lawful ownership and possession in respect of the suit schedule property. Thus, the first Appellate Court held that the trial Court failed to 7 LNA, J S.A.No.438 of 2023 properly appreciate the facts of the case and did not marshal the evidence adduced by the plaintiff and defendant.
10. Heard Sri Pasham Krishna Reddy, learned counsel for the appellant and Sri J.Suresh Babu, learned counsel for the respondent. Perused the entire material available on record.
11. A perusal of the record discloses that the trial Court held that basing on the documents exhibited by the defendant, held that the defendant is the owner of the suit land and he has been in possession of the same since several years prior to filing of the suit. However, on appeal, the first appellate Court after re-appreciating the entire evidence, both oral and documentary, found fault with the judgment of the trial Court and its way of appreciating the facts of the case and marshalling the evidence adduced by both the parties and accordingly, set aside the judgment of the trial Court. Hence, the present Second Appeal.
12. Learned counsel for appellant argued that the trial Court appreciated the evidence on record and rightly dismissed the suit, however, the first Appellate Court failed to appreciate the evidence on record in a proper perspective and committed an error in setting aside the judgment of the trial Court.
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LNA, J S.A.No.438 of 2023
13. However, 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.
14. 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.
15. 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.
16. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first 1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.438 of 2023 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.
17. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
18. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:19.03.2024 dr