Telangana High Court
Sama Malla Reddy vs Smt.M.Bharathi on 19 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.125 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 22.01.2024 in A.S.No.405 of 2015 on the file of the II Additional District Judge, Ranga Reddy District, L.B.Nagar, wherein the judgment and decree dated 06.08.2015 in O.S.No.103 of 2015 on the file of the Principal Junior Civil Judge, Ranga Reddy District, L.B.Nagar, was confirmed.
2. Petitioner Nos.1 to 3 herein are defendant Nos.2, 3 and 4; petitioner Nos.4, 5 and 6 herein are the legal heirs of deceased petitioner No.2 herein; respondent No.1 herein is the plaintiff and respondent No.2 herein is defendant No.1 in the suit. For convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the plaintiffs are the absolute owners and possessors of the suit schedule property i.e., plot bearing No.44/B & 44/A, admeasuring 400 sq.yds in Survey 2 LNA, J S.A.No.125 of 2024 No.132, situated at Rajya Laxmi Nagar, Phase - 1, Gurramguda Village, Saroornagar Mandal, R.R.District, having purchased the same by way of registered sale deed bearing document No.280 of 2006 dated 05.01.2006 from its owner. The plaintiffs have constructed a compound wall around the suit schedule property by duly obtaining the permission from Gram Panchayat. The plaintiffs came to know that the father of defendant Nos.1 and 2 have already alienated their entire extent of land in survey No.132 situated at Gurramguda village and that defendant No.2 himself purchased plot No.42 admeasuring 400 sq.yds; that the defendants with malafide intention on 21.02.2012 came to the suit schedule property and tried to dismantle the compound wall; that based on the complaint given by the plaintiffs, a case was registered in Crime No.104 of 2022 against the defendant Nos.1, 3 and 4. The plaintiffs have filed a suit in O.S.No.103 of 2012 before the Principal Junior Civil Judge, Ranga Reddy District, L.B.Nagar, for perpetual injunction against defendant Nos.1 to 4. 3
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4. The defendants have filed their written statement denying the averments in the plaint inter alia contending that their father owned totally Ac.6-00 guntas of land in Survey No.132, out of which, they have executed an extent of Ac.5-00 gts in favour of one G.Ramulu, by retaining Ac.1-00 gts of land and the said G.Ramulu in turn executed a sale deed to an extent of Ac.5-00 gts to P.Narayan Reddy. Subsequently, defendant Nos.1 and 2 and their father alienated an extent of Ac.0-18 gts in favour of Jayaben Patel and another on its western side to an extent of Ac.0-02 gts of land is effected in Gurram guda village road and thus, retaining an extent of Ac.0-20 gts of land facing Gurramguda Village road in which defendant Nos.1 and 2 are having equal shares i.e., Ac.0-10 gts each. It is contended that the plaintiff under the guise of injunction orders, trying to grab the land of the defendants. Hence, they prayed to dismiss the suit.
5. Before the trial Court, on behalf of the plaintiffs, PW1 and PW2 were examined and Exs.A1 to A25 were marked. 4
LNA, J S.A.No.125 of 2024 On behalf of the defendants, DW1 and DW2 were examined and Exs.B1 to B7 were marked.
6. The trial Court, after considering the entire material available on record, decreed the suit vide judgment and decree dated 06.08.2015 by observing as under:
"(i). If the plots were sold out without obtaining the sanctioned layout the Municipal authorities or concerned department will not allow the construction upon the un approved plots. But as seen from Ex.A4 permission has been given for the plaintiff herein to raise construction of compound wall and two rooms in the schedule property in the year 2011 itself. Whereas the present suit has been filed in the year 2012. Therefore Ex.A4 need not be looked with suspicion. The defendant do not dispute the sale transaction of five acres of land but they claim to be owners of Ac.0.20 Gts of land in Sy.no.132 it is for the defendant's to demarcate and got survey done where the Ac.0.20 Gts lies because there is no demarcation that has been done for the said Ac.0.20 Gts as it was unbarrened land no one had showed any interest at that relevant point of time when the entire land in Sy.no.132 was used for the purpose of cultivation. And when the nature of land was changed from agriculture to commercial the said Ac.0-20 Gts of land had gained prominence. As far as the plaintiff is concerned she had established her flow of title and possession, right from the original pattedars.
Sanction of permission for raising the construction over the schedule property also reveals the demarcation, 5 LNA, J S.A.No.125 of 2024 identity of the schedule plots. And defendants nowhere alleged that they also converted the said Ac.20.00 Gts of land into plots. As far as the schedule property is concerned it is part of five acres of land that has been admittedly sold away by the original pattedars.
(ii). So the defendants herein have no right or title over the schedule property. There is absolutely no document that has been let in by the defendants to rebut the evidence of plaintiff. The oral evidence of Pw2 which has supported the plaintiff's case in all ways coupled with the documentary evidence adduced by the plaintiff clearly goes to establish the possession of the plaintiff over the schedule property and also the interference by the defendants. An adverse inference needs to be drawn against the first and second defendants as they did not enter in witness box. Dw.1 in his examination in chief categorically stated the land that was purchased by the Vendors of the plaintiff is nothing to do with the land possessed by the defendant. Which itself shows that the schedule property and the land being claimed by the defendants is separated. As there is serious litigation going on in between, there is every need to the plaintiff to protect her plot."
7. Aggrieved by the above judgment, the defendants had preferred appeal vide A.S.No.405 of 2015 before the II Additional District Judge, Ranga Reddy District, L.B.Nagar. The first appellate Court on re-appreciation of the entire evidence and perusal of material available on record vide 6 LNA, J S.A.No.125 of 2024 judgment and decree dated 22.01.2024 dismissed the appeal, by observing as under:
"(i). the suit is filed by the plaintiff is for permanent injunction wherein the possession is the criteria. The existence of the plot since the year 1993 onwards is proved by the sale deed under Ex.A14 and pahanies filed by the defendants, thereby no reliance can be placed on the entries in pahanies, at the same time the registered sale deeds clearly shows title of the plaintiff over the suit schedule property and further the link documents, title of his vendor, vendors vendor. In respect of plots, the possession follows the title. Further the possession of the plaintiff over the suit plot is also supported by the sanction permission under Ex.A4 and oral testimony of PW2.
(ii). The defendants examined DW2 in support of their contention, but he deposed that the property was made into plots twenty years back. The suit schedule property is situated within 5 ½ Acres, the sold away property of Ac.0-18gts is also under 5 ½ acres etc., which clearly support the case of the Plaintiff i.e., suit property is within Ac.5-00gts. The defendants failed to prove their possession over the suit schedule property but the plaintiff proved her possession thereby entitled for permanent injunction.
(iii). On clear evaluating oral and documentary evidence and after going through judgment of lower court, this court is of the view that there are no merits in the appeal and the lower court has rightly decreed the suit, 7 LNA, J S.A.No.125 of 2024 hence this court find no reason to interfere with the findings given by the lower court in this appeal."
8. Heard Mrs.V.Sanjana, learned counsel for the appellants. Perused the record.
9. A perusal of the record discloses that the trial Court as well as first appellate Court concurrently held that as per the deposition of DW2 the property was made into plots twenty years back. The suit schedule property is part of 5 ½ acres and the sold away property of Ac.0-18 guntas is also part of 5 ½ acres etc., which clearly supports the case of the plaintiff that the suit schedule property is part of Ac.5-00 gts. Hence, the plaintiff proved her possession and thereby she is entitled for permanent injunction and the defendants failed to prove their possession over the suit schedule property.
10. Learned counsel for the appellants vehemently argued that the trial Court decreed 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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11. However, learned counsel for the 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.
12. 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.
13. 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.125 of 2024
14. 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.
15. 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: 23.02.2024 Dua