Telangana High Court
Syed Mohiuddin Afzal vs Syed Shah Anwar Ali on 20 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.130 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 26.06.2023 in A.S.No.187 of 2014 on the file of the XXV Additional Chief Judge, City Civil Court, Hyderabad, wherein and whereby the judgment and decree dated 23.01.2014 in O.S.No.1714 of 2005 on the file of the IX Junior Civil Judge, City Civil Court, Hyderabad, was confirmed.
2. The petitioner herein is the plaintiff and the respondent herein is the defendant in the suit. It is pertinent to mention that during the pendency of the first appeal sole plaintiff died and his legal heirs were brought on records as appellant Nos.2 to 6 herein. 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 originally mother of the defendant viz., Vazeera Begum was the owner of the plot No.27-A, part of 2 LNA, J S.A.No.130 of 2024 survey No.67, Mallepally Village, Vijaya Nagar Colony, Hyderabad (hereinafter referred to as 'suit schedule property') having purchased the same through a registered sale deed vide document No.1817 of 1962, dated 07.12.1962. Thereafter, an agreement of sale/Ex.A1 was executed between the plaintiff and mother of the defendant for a sale consideration of Rs.50,000/- and as per which, the plaintiff has paid an amount of Rs.15,000/- to mother of the defendant in three different dates and she handed over possession of the suit schedule property to the plaintiff.
4. Whileso, the mother of the defendant died leaving behind sole defendant as her legal heir. Thereafter, the defendant issued legal notice dated 27.10.1987 to the plaintiff calling upon him to pay balance sale consideration of Rs.35,000/- and get registered sale deed. Upon receipt of the same, the plaintiff issued reply notice on 20.02.1987, through his counsel expressing his readiness and willingness subject to obtaining required permissions by the defendant from Urban Ceiling, Income Tax Clearance 3 LNA, J S.A.No.130 of 2024 for such transactions. Since then, the defendant postponing the registration of sale deed and later, he remained silent. In the year 2004, the plaintiff constructed boundary around the suit schedule property and finally on 01.02.2005, the plaintiff asked the defendant for execution of sale deed however, there was no response. Hence, the suit for specific performance and perpetual injunction.
5. The defendant has filed the written statement denying the allegations made in the plaint inter alia contending that the plaintiff is not in possession and enjoyment of the suit schedule property and that there is no cause of action for filing the suit. It is contended that mother of the defendant was the absolute owner of the suit schedule property; that one Vazera Begum, Kubra Fathima and Khaza Azeemuddin were the joint owners of the property admeasuring 10000 sq.yds in survey No.67, Mallepally Village, Vijay Nagar Colony, Hyderabad, having purchased the same through registered sale deed document No.1817 of 1962 dated 12.12.1962. The suit schedule property is the part and parcel of the land 4 LNA, J S.A.No.130 of 2024 covered under the said document, as such mother of the defendant has no right, title or interest to alienate or transfer the suit property independently without the consent of other two co-owners and therefore, the alleged agreement of sale has no legal validity. Moreover, the alleged document was never executed by mother of the defendant and the plaintiff has fabricated the documents. When the plaintiff is not at all in possession of the suit schedule property, the question of arising cause of action does not arise. Hence, prayed to dismiss the suit.
6. Basing the above pleading, the trial Court has framed the following issues:
"1. Whether the plaintiff is entitled for specific performance of contract dated 23.10.1983 as prayed for?
2. Whether the plaintiff is entitled for perpetual injunction as prayed for.
3. To what relief?"
7. Before the trial Court, on behalf of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A12 were marked. On behalf of the defendants, DW1 was examined and Ex.B1 was marked.
5
LNA, J S.A.No.130 of 2024
8. The trial Court, after considering the entire material available on record, dismissed the suit vide judgment and decree dated 23.01.2014 by observing as under:
"(i). The plaintiff failed to prove the exclusive title and ownership of Vazera Begum over the suit plot and he failed to prove the Agreement of Sale under Ex.Al and receipts under Ex.A2 to A4. The plaintiff further failed to prove the signature of Vazera Begum on Ex.A1. So, also the plaintiff failed to prove the cause of action. Though the burden of proof lies on the plaintiff, plaintiff failed to prove the above facts. Plaintiff cannot rely on the pits and falls and weakness of the defendant's case. By Ex.B1, defendant showed that Vazera Begum was not the exclusive owner of the suit schedule property. Further the defendant denied the signature on Ex.A1 to A3. Since the plaintiff failed to prove Ex.A1, he is not entitled for specific performance of Agreement of sale under Ex.A1.
(ii). The original delivery of possession of the suit schedule property was not proved by the plaintiff. Plaintiff also did not prove his possession and enjoyment by filing the municipal tax receipts or electricity bills or other relevant documents as on the date of the filing of the suit, as such I hold this issue as against the plaintiff."
9. Aggrieved by the above judgment, the plaintiff had preferred appeal vide A.S.No.187 of 2014 before the XXV Additional Chief Judge, City Civil Court, Hyderabad. The 6 LNA, J S.A.No.130 of 2024 first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 26.06.2023 dismissed the appeal, by observing as under:
"(i). Assuming even for a moment that Ex.A1 is a valid document and A2 to A4 receipts are issued by mother of defendant receiving part sale consideration of Rs.15,000/- on 3 occasions, as per the recitals of Ex.A1 the registered sale deed was supposed to be executed on 3.11.1983 and as per the recitals of Ex.A4, it was supposed to be executed by July 1984; as contended by plaintiff either mother of defendant or defendant himself did not come forward to comply their part of contract, plaintiff could have initiated legal proceedings either by issuing notices, or by filing suit for specific performance of agreement of sale, but no such steps have been taken by plaintiff and suddenly he introduced Ex.A5 legal notice said to have been issued by defendant calling for plaintiff to perform his part of contract. Plaintiff also failed to prove that Ex.A5 legal notice was issued by defendant through his counsel, plaintiff had further failed to discharge his burden to prove the cause of action dated 01.02.2005, thus the suit is also barred by limitation.
(ii). Considering the evidence and material adduce on record the Trial Court had rightly answered all the issues against plaintiff and rightly dismissed the suit, this Court holds that plaintiff has failed to prove Ex.A1 and his possession over the same as on the date of suit.
Whereas defendant could prove that plaintiffs vendor i.e.. 7
LNA, J S.A.No.130 of 2024 mother of defendant do not have exclusive right and title over the suit schedule property to enter into agreement of sale with plaintiff, and had not executed Ex.A1. Plaintiff also failed to prove his possession over suit schedule property as on the date of filing of suit. Thus the trial Court did not commit any error in appreciating evidence, oral and documentary and was right in dismissing the suit. This Court finds no reasons to interfere into the findings and Judgment passed by IX Junior Civil Judge, City Civil Court, Hyderabad dated 23.01.2014 in O.S.No.1714/2005."
10. Heard Mr.K.Jamali, learned counsel for the appellants. Perused the record.
11. A perusal of the record discloses that the trial Court as well as first appellate Court concurrently held that burden lies upon the plaintiff to prove Ex.A1/agreement of sale and Exs.A2 to A4/receipts, but he failed to prove the same and that the plaintiff cannot rely on the weakness of the defendant's case and therefore, the plaintiff is not entitled for specific performance of agreement of sale under Ex.A1.
12. Learned counsel for the appellants vehemently argued that the trial Court dismissed the suit without 8 LNA, J S.A.No.130 of 2024 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.
13. 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.
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 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 1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.130 of 2024 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 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.
17. 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: 20.03.2024 Dua