Telangana High Court
Banja Sankarappa, vs The District Collector, on 22 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.80 of 2024
JUDGMENT:
This Second Appeal is filed against the judgment and decree dated 21.11.2023 in A.S.No.5 of 2022 on the file of the Principal District Judge, Kamareddy, wherein and where under the judgment and decree dated 28.03.2019 in O.S.No.40 of 2017 on the file of the Junior Civil Judge, Yellareddy, Kamareddy District, was set aside.
2. The appellant is plaintiff and respondent is defendant. For convenience, the parties are hereinafter referred to as they were arrayed before the trial court.
3. Brief facts leading to filing of the present second appeal are that plaintiff had purchased the plot No.17 in Survey No.456 of Yellareddy Village and Mandal admeasuring 300 sq.yards from the "Church of South India Trust Association", a company registered under the Companies Act, 1913, through its duly constituted General Power of Attorney's Rev. V.J. Dorai Raj and Rev. N.S.Mathew vide registered Sale deed dated 29.06.1979 bearing document No.1141/1979 and since then, the plaintiff has been in actual possession and enjoyment of the suit schedule plot. It is further contended that the Gram Panchayat, Yellareddy vide its order No.26/2017, dated 14.04.2016 has granted permission for 2 LNA, J S.A.No.80 of 2024 construction of the compound wall and a room (5.2 X 4.78) and the plan is also approved vide REC.No.GP/2016, dated 14.04.2016.
4. It was further contended that on 20.09.2017, he had noticed that defendant No.2 started construction of mulgies abutting the road opposite to southern side of the suit schedule property and on the same day, he had got issued a legal notice to the defendants under Section 80 of C.P.C and on 27.09.2017, which was received by the defendants. On 13.10.2017, the plaintiff has addressed a letter to the defendant No.2 directing him to enquire into the matter, to take necessary action and to submit a report. In spite of the same defendant No.2 still continued the construction of mulgies. In these circumstances, there is every apprehension that, the defendant No.2 shall encroach upon the suit schedule property. Hence, the suit for perpetual injunction.
5. Defendant No.2 had filed written statement which was adopted by defendant No.1, denying averments made by the plaintiff, inter alia contended that the plaintiff has no right or title and he is not in possession and enjoyment of the suit schedule property and he has created and fabricated the documents for the purpose of this suit and the Sale Deed vide Document No.1141/1979, dated 29.06.1979 is illegal, void and it does not create any legal right in favour of the plaintiff over the suit schedule property. Hence, prayed to dismiss the suit.
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6. Before the trial Court, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A9 were marked. On behalf of the defendants, DW1 was examined and Exs.B1 to B9 were marked.
7. The trial Court, after considering the oral and documentary evidence available on record, decreed the suit, vide its judgment and decree dated 28.03.2019 by observing as under:
(i) "Before filing of the present suit when the plaintiff had got issued the notices under Section 80 of C.P.C. to the defendant Nos.1 and 2 i.e., Exs. A.4, A.6, A.7 and A.8 and basing on the direction given by the defendant No.1, the District Panchayath Officer with regard to enquire in matter and take for the necessary action and for report as in Ex.A.5 but in disposal of the present suit no steps were taken by the defendants to pay the compensation to the plaintiff as ordered in Ex.B.9. Basing on the evidence of D.W.1 he admitted that, the suit schedule plot belongs to the plaintiff and he is in possession of the said property and they have not taken any steps to disprove the claim of the plaintiff.
(ii) Moreover, it is settled principle that, when the land is acquired concerned Government officials has to comply the relevant provisions under the Land Acquisition Act by giving notice to the concerned parties and compensation has to be paid to the concerned land owners before acquiring the said land. Hence, in the present suit the defendant No.2/D.W.1 himself admitted that he had not issued any notice to the plaintiff nor paid any compensation before acquiring the lands as mentioned in 4 LNA, J S.A.No.80 of 2024 Ex.B.9 and also they have not included the name of the plaintiff in Ex.B.9.
(iii) The plaintiff has established his legal right and his exclusive possession having the relief of perpetual injunction. As well as the plaintiff claiming the relief of perpetual injunction established that the breach of obligation or infringement of legal right. He also showed that there was violation of his right by the act complained of an act is carried into effect will result into infringement of his legal right and his possession was invaded by the defendants who have no title whatsoever, without possessing any legal right, interfered into his possessin.
Thereby it can be held that, the plaintiff has proved essentials of perpetual injunction by producing oral and documentary evidence."
8. On appeal, the first appellate Court on re-appreciation of the entire evidence and perusal of the material available on record, allowed the appeal vide judgment and decree dated 21.11.2023 by making following observations:
"(i) All the said documents i.e., Exs.B.1 to B.9 go to show that the lands including the suit in Survey No. 456 of Yellareddy Village and Mandal admeasuring 300 sq.yards is vested with the Government and with the Agricultural Market Committee, Yellareddy. It is also seen from the Cross examination of P.W.1 that it is his version that he does not know about acquisition of lands by the District Collector, Nizamabad and taking over possession by the Government and that the acquired land was also handed over to the Secretary, Agricultural Market 5 LNA, J S.A.No.80 of 2024 Committee, Yellareddy as per Lr.No.A2/5496/79, dated 28.03.1980 and that the said acquired lands were also the subject matter of W.P.No.5510 of 1982 before the Hon'ble High Court and in compliance of the orders/modified orders of the Hon'ble High Court, Awards were passed awarding compensation to Smt.Lalitha Bai, W/o. Keshava Reddy, and similarly, compensation was awarded to the Church of South India for acquiring Land in Survey No.456 extent Ac.2.03 guntas., compensation was awarded to the Church of South India towards acquisition of the lands in Survey No.647 to the extent of Ac.2.12 guntas., and the compensation is awarded to the South India for acquisition of land in Survey No.646 extent Ac.3.09 guntas and that the plaintiff also does not know that some of the compensation award amounts are in the Revenue Deposits nobody came forward to claim the compensations more particularly the compensation relating to Plot No.17 in Survey No.456 was not disbursed.
(ii) From all the above said circumstances, the preponderance of probability is definitely in favour of the Defendants case that the subject land and other lands have been acquired long back by the Government and handed over to the Agricultural Market Committee, yellareddy way back in 1980 itself as per the Records submitted by the Defendants and the plaintiff being the owner of the suit Plot No.17 in Survey No.456 as per the sale deed Ex.A.1, might not have knowledge about the acquisition proceedings which hae taken place in respect of bulk lands.6
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(iii) The plaintiff has filed the suit claim as an after thought instead of taking steps for getting the compensation whatever is due to him as a owner for an extent of 309 sq.yards of plot No.17 in Survey No.456 of (schedule) Yellareddy. Further, the plaintiff has not chosen to file the layout plan under which the survey No.456 was formed into Open Plots by the Church of South India. The plaintiff having shown to have purdchased the suit property in 1979, did not choose to file any document showing his physical possession over the suit property till 2016 which is the date on which the Gram Panchayath issued permission to the plaintiff for making construction and approved the plan of the plaintiff.
(iv) In the above said circumstances and viewed from any angle, Ex.A.1 to A.9, do not establish that the plaintiff was in actual physical possession of the suit property as on the date of filing the suit. Therefore, the findings of the trial Court in holding that the plaintiff is in possession and enjoyment of the plaint schedule property as on the date of filing of the suit and even prior, requires to be set aside."
9. Heard Mr.S.M.Rafee, learned counsel for the appellant. Perused the record.
10. A perusal of the record discloses that the trial Court decreed the suit against the defendants by granting perpetual injunction in favour of the plaintiff. Whereas, the first appellate Court held that in a suit for perpetual injunction, the plaintiff has to prove title as well 7 LNA, J S.A.No.80 of 2024 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, allowed the appeal setting aside the judgment of the trial Court.
11. Learned counsel for the appellant vehemently argued that the trial Court rightly decreed the suit against the defendants by granting perpetual injunction to the plaintiff but the first appellate Court, without proper appreciation of the evidence, committed an error in setting aside the judgment and decree passed by the trial Court.
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 first appellate Court, 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 1 (2007) 1 Supreme Court Cases 546 8 LNA, J S.A.No.80 of 2024 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 warranting interference with the said concurrent findings of first appellate Court, under Section 100 C.P.C. Moreover, the grounds raised by the respondents 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:22.03.2024 Bw