Telangana High Court
Kallem Bharathamma , Bharathavva vs Kutikala Lingaiah on 22 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.242 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree, dated 14.12.2022, passed in A.S.No.221 of 2018 on the file of the Court of Principal District Judge, Karimnagar, confirming the judgment and decree dated 12.10.2018 passed by the II Additional Junior Civil Judge, Karimnagar in O.S.No.95 of 2012, the present Second Appeal is filed.
2. The appellant is plaintiff No.1, respondent Nos.1 and 2 are defendant Nos.1 and 2 in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present Second Appeal, are that Suit Schedule-A property was originally owned and possessed by Deeti Hanmaiah, father of plaintiffs No.3 and 4 and defendant No.2 and grandfather of plaintiff No.2. He was also pattadar of plaint schedule land. Though he died 20 years ago, patta of suit Schedule-A land continued in his name. Deeti Hanmaiah died leaving behind four sons, namely, late Deeti Ramulu/father of plaintiff No.2, Deeti Shankaraiah/defendant No.2, Deeti Narahari/plaintiff No.3 and Deeti Rajaiah/plaintiff No.4. Deeti Ramulu, the eldest son of Deeti Hanmaiah, died about two years back leaving behind plaintiff No.2 as his sole legal heir.
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LNA, J S.A.No.242 of 2023 3.1 It was averred that after the death of their father, plaint Schedule- A land devolved with equal share on late Deeti Ramulu/father of plaintiff No.2, Deeti Narahari/plaintiff No.3, Deeti Rajaiah/plaintiff No.4 and Deeti Shankaraiah/defendant No.2 and it was jointly owned and possessed by four sons of late Deeti Hanmaiah. Without knowledge of late Deeti Ramulu and without knowledge of plaintiffs No.3 and 4, defendant No.2 executed a registered sale deed bearing document No.766/2003 dated 18.06.2003 in favour of defendant No.1 in respect of total land described in plaint A-Schedule. Coming to know about the same, they questioned defendant No.2 about his competency to sell total plaint schedule-A land, including their 3/4th undivided share. Defendant No.2 told that he has sold only his 1/4th share to defendant No.1, that defendant No.1 fraudulently got the entire Ac.0-27 guntas of plaint schedule-A land included in the registered sale deed. 3.2. It was further averred that late Deeti Ramulu and plaintiffs No.3 and 4 jointly sold their 3/4th share in Sy.No.20/D i.e., Schedule-B property to plaintiff No.1 through registered sale deed bearing document No.1606/2008 dated 04.08.2008 and delivered vacant possession of plaint schedule-B property to plaintiff No.1.
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LNA, J S.A.No.242 of 2023 3.3 It was further averred that the entire land measuring Ac.0-27 guntas described in plaint schedule-A is vacant land and no cultivation is being made since last many years. Defendant No.1 having colluded with VRO of the village Ragampet and wrongly got his name mutated in his favour in the year 2005-06 and since then the name of defendant No.1 is recorded in the pahanies in respect of total extent of Ac.0.27 guntas in Sy.No.20/D although defendant No.1 got only Ac.0.07 guntas in oral settlement made in the year 2003. On the strength of wrong entries in the pahanies, defendant No.1 wrongfully occupied total area of Ac.0.27 guntas in suit Sy.No.20/D, including 3/4th share of father of plaintiff No.2 and plaintiffs No.3 and 4 described in plaint schedule-B about six months back. Hence, the plaintiffs filed the suit for declaration and recovery of possession.
4. Defendant No.1 filed written statement inter alia contending that he purchased the B-Schedule property from sons of Deeti Hanmaiah through a simple sale deed dated 20.05.1990 for a valid consideration of Rs.4,340/- and since then defendant No.1 has been in possession and enjoyment uninterruptedly. He requested the sons of late Deeti Hanmaiah for execution of registered sale deed for better confirmation of title to him. Defendant No.2 executed a registered sale deed with the consent and under the instructions of his other brothers, who are residing 4 LNA, J S.A.No.242 of 2023 at Godavarikhani by doing jobs in SCC Ltd., in favour of defendant No.1 vide document No.766/2003 dated 18.06.2003 and he was issued pattadar passbook and title deed book and has been in peaceful possession and enjoyment of suit land and also perfected his title by way of adverse possession. Since the year 1990, plaintiffs never claimed rights over the suit land. The suit is barred by limitation. Accordingly, he prayed the Court to dismiss the suit.
5. On the above pleadings, the trial Court framed the following issues for trial:-
"1. Whether the plaintiffs are entitled for a declaration of title and recovery of possession of plaint schedule-B property?
Alternatively:
1. Whether the plaintiffs are entitled for a declaration that the registered sale deed bearing document No.766/2003 dated 18.06.2003 executed by defendant No.2 in favour of defendant No.1 in respect of plaint Schedule-A land, is not binding on them?
2. Whether the plaintiffs are entitled for a preliminary decree of partition and separate possession of their 3/4th share in the suit schedule-A land?
3. To what reliefs the parties are entitled?"5
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6. On behalf of plaintiff, PWs.1 to 3 were examined and Exs.A1 to A5 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B1 to B15 were marked.
7. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, dismissed the suit, vide judgment dated 12.10.2018, by observing as hereunder:-
"It also appears from the material on record, the plaintiffs No.2 to 4 and defendant No.2 intentionally taken the false pleas to defeat the legitimate rights of the defendant No.1 herein, who is bonafide purchaser under Ex.B1. The defendant No.1 is entitled for protection of his rights as a bonafide purchaser.
Further the trial Court held that the contents of simple sale deed has been proved by DW1. The simple sale deed dated 20.05.1990 was executed in favour of defendant No.1, later for the better confirmation of title, the defendant No.2 executed Ex.B1 in favour of defendant No.1 on authorization of his other brothers. From the evidence available on record, this Court is of the considerable opinion that the defendant No.2 executed registered sale deed in favour of defendant No.1 much prior to the registered sale deed of plaintiff No.1, and even before that, there was simple sale deed dated 20.05.1980 in favour of defendant No.1 in respect of the suit schedule property, and that the suit schedule property is in possession and enjoyment of defendant No.1. Since the date of simple sale deed till today.6
LNA, J S.A.No.242 of 2023 The defendant No.1 is having better title than the plaintiffs. Therefore, the plaintiffs herein are not entitled for the declaration of title.
As the plaintiffs themselves failed in producing either oral or documentary evidence to substantiate the pleadings that, without knowledge of his brothers Deeti Shankaraiah executed registered sale deed bearing doc.no.766/2003 dated 18.06.2003 in favour of defendant No.1 in respect of the total land described in plaint schedule-.A The defendant No.1 is entitled for protection of his rights as a bonafide purchaser."
8. On appeal being filed, the first Appellate Court, being the final fact-finding Court, re-appreciated the entire evidence and the material available on record and vide its judgment dated 14.12.2022 observed that in Ex.B1 there is no reference to any earlier transaction, more particularly simple sale deed dated 20.05.1990 under which defendant No.1 claims to have purchased the property from defendant No.2 and his three brothers. It is further held that the documents discussed above, more particularly pahanies, show that the name of defendant No.1 was recorded in possession column from the year 1992-93 and the nature of possession is shown as Sada Bainama for entire Ac.0.27 guntas if at all there was an oral settlement and under that settlement only Ac.0.07 guntas was earmarked towards share of defendant No.2 sold to 7 LNA, J S.A.No.242 of 2023 defendant No.1, the same should have been entered in the revenue records. Contrary to it, the entire Ac.0.27 guntas is shown to be in possession of defendant No.1 from the year 1992-93 till 2004 continuously and his nature of possession is recorded as "Sada Bainama". The learned trial judge had rightly observed that the plaintiffs No.2 to 4 and defendant No.2 have intentionally taken a false plea of oral settlement to defeat the legitimate right of defendant No.1, who was bonafide purchaser under Ex.B1, and that defendant No.1 is entitled for protection of his right as bonafide purchaser.
9. Heard Ms.B.Namrata Reddy of M/s. Chandrasen Law Offices, learned counsel for the appellant and Sri Palle Nageswar Rao, learned counsel for respondent No.1. Perused the record.
10. Learned counsel for appellant 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.
11. 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.
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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 on facts 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.
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 appellant 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.
1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.242 of 2023
16. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:22.03.2024 BV