Telangana High Court
Mohd Riazuddin vs Challa Nirmala on 27 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL Nos.479 & 481 of 2023
COMMON JUDGMENT:
The parties and the subject matter of the property involved in both these Second Appeals are one and the same and hence, they are heard together and disposed of by this common judgment.
2. Second Appeal No.479 of 2023 is filed questioning the judgment and decree, dated 13.09.2023, passed by Principal District Judge, Hanumakonda in AS.No.194 of 2022. 2.1. Second Appeal No.481 of 2023 is filed questioning the judgment and decree, dated 13.09.2023, passed by Principal District Judge, Hanumakonda in AS.No.193 of 2022.
3. The said A.S.Nos.193 and 194 of 2022 were dismissed by the first Appellate Court by common judgment, dated 13.09.2023, whereby the judgment and decree dated 12.07.2018 passed by the VII Additional Junior Civil Judge, Warangal, in O.S.No.1173 of 2009, dismissing the said suit and allowing the counter-claim filed by the defendants, was confirmed.
4. The appellant is the plaintiff and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
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5. The factual matrix of the case, in brief, shorn off unnecessary details, as narrated in the plaint, which led to filing of the Second Appeals are that One Thumma Showreddy was pattedar, owner and possessor of land in Survey No.25/A of Kazipet Jagir. The suit schedule property of 266 square yards is part and parcel of the said survey number. The said Showreddy sold the suit property to one Surender Suksena under a registered sale deed of 1981 and delivered possession. The said Surender Suksena sold the same in favour of Nidadavolu Rama Krishna through a registered sale deed of 1982 for valuable sale consideration and delivered possession of the land. The said Rama Krishna sold the same in favour of father of plaintiff by name Mohd Rafiuddin under an agreement of sale dated 19.09.1988, notarized in the office of one V.Rajeshwar Rao, for valid sale consideration and delivered possession of the land. The said agreement of sale was impounded with Registrar of Warangal and Collector under Indian Stamp Act on 30.06.2003 giving authentication to the said document.
5.1. It was further stated that the father of plaintiff died leaving behind him, his son-the plaintiff and his wife-Zubeda Begum as 3 LNA, J S.A.Nos.479 & 481 of 2023 legal heirs and successors of his estate. After death of father of the plaintiff, the mother of plaintiff being the next elder member gifted the suit property to the plaintiff under the gift deed dated 15.09.2009. Since then, the plaintiff has been in possession and enjoyment of the suit schedule property without any interruption from anybody. The plaintiff resisted the acts of the defendants when they tried to interfere with his possession without any right. On 16.12.2009, when the plaintiff was levelling the suit property, the defendants along with about 15 anti-social elements came to the suit property and tried to dispossess the plaintiff and threatened him with dire consequences posing danger to his life and property. In this connection, the plaintiff lodged a report to police Kazipet, but Police did not register any case. Hence, the suit for perpetual injunction in respect of the suit schedule property.
6. The first defendant filed written statement denying the averments made in the plaint and she also made a counter-claim for the relief of injunction. She inter alia contended that she is the owner of plot No.262 which is part and parcel of land in Sy.No.25/A of Kazipet Jagir of Warangal District, having purchased the same under the registered sale deed bearing 4 LNA, J S.A.Nos.479 & 481 of 2023 document No.5445/2005 dated 04.06.2005 from one Thumma Rojamma and others, who are legal heirs of Thumma Showreddy- the original pattedar of above said survey number and since then, she has been in possession and enjoyment of land purchased by her. It was further stated that the said Rojamma and others have executed a registered General Power of Attorney in favour of one Thumma Papireddy, S/o Showreddy, the elder son. On 06.02.2010, the plaintiff and his men tried to interfere with her possession over the said property without any right and tried to start making illegal constructions. Hence, she prayed to dismiss the suit and allow the counter-claim.
7. The plaintiff filed rejoinder to the written statement-cum- counter-claim of defendant No.1 and contended that defendant No.1 is no way concerned with the suit schedule property and is trying to grab the suit schedule property by taking advantage of name 'Show' and he also denied execution of G.P.A in favour of T.Papi Reddy by contending that Thumma Rojamma and children of T.Show Reddy have sold the property to her another son-T.Papi Reddy and as such, the vendors of defendant No.1 are no way 5 LNA, J S.A.Nos.479 & 481 of 2023 concerned and are not in possession of Plot numbers mentioned in the GPA.
8. Defendant No.2 did not chose to contest the suit.
9. Based on the above pleadings, the trial court framed the following issues for trial:-
"(1) Whether the plaintiff is in lawful possession of suit schedule property as on the date of filing of the suit ? (2) Whether the defendants herein are causing interference to such possession of the plaintiff over the suit schedule property?
(3) If so, whether the plaintiff herein is entitled to relief of permanent injunction against the defendants as prayed for ?
(4) Whether defendant No.1 is entitled to relief of permanent injunction in respect of counter-claim schedule property by way of counter-claim against plaintiff ? (5) To what relief, if any either parties to the suit entitled?"
10. During trial, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-12 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-4 were marked.
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11. The trial Court after perusing the material on record and after hearing both sides, vide its judgment dated 12.07.2018, dismissed the suit while allowing the counter-claim of the defendants. The trial Court observed as under:-
"In view of the evidence placed before the court on behalf of the plaintiff and on perusal of the same, the Ex.A1 does not show the flow of title from whom the donor acquired the property, and Ex.A2 is only agreement of sale from which no one can acquire any rights to claim the property and there is no mention of delivery of possession also. In ExA3 is tampered by inserting a line in Para No.5, hence this document cannot be admissible in evidence as it is tampered. ExsA-.4 and A-9 are Pahanies showing the erstwhile owner as possessor, but actual cultivators are some other persons. In Ex.A5 there is no mention about plot No.262 of Sy.No.25/A, then how the subsequent transfers from the vendors to purchasers, transferred the rights over plot No.262 property and went into the hands of plaintiff herein as claiming having possession, and Ex.A-8 is another document between the same parties as under Ex A5, but showing the plot No.262 and different extent of land in Sy.No.25/A, and the remaining documents are also not supporting the case of plaintiff in clear cut as the main document under Ex.A8 failed to mention the flow of title from whom the donor acquired the property and all the remaining 7 LNA, J S.A.Nos.479 & 481 of 2023 documents, are supporting evidence only, for which the Ex A2 is the link document, but it is an agreement of sale deed from which no rights can be acquired and transferred subsequently. As such, the plaintiff failed to prove his case by virtue of Exs.A1 to A9."
11.1 The trial Court further observed as under:-
"Defendant No.1 to prove her case relied on Ex.B1 in which it is clearly mentioned in page No.2 the flow of title from whom the vendors acquired the property i.e., from Thumma Show Reddy after his demise they acquired the property, hence they transferred their rights to the defendant No.1 herein, and Ex.B2 is another document supporting the case of defendant No.1 that Surender Suxena has sold out his property to one Kondoju Veerapopala Chary to an extent of 266 Sq. yards land in Sy.No.25/A from whom Surender Suxena purchased under doc. No.10708/1981.
The defendant No.1 succeeded in proving her case by virtue of Exs.B1 to B4 and Exs.A-10 to A-12 and as such, held that defendant No.1 is in possession of the same and she is entitled to the relief sought for in the counter claim."
12. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material 8 LNA, J S.A.Nos.479 & 481 of 2023 available on record and confirmed the judgment of the trial order. The first Appellate Court specifically observed as hereunder:-
"From the evidence, it is clear that, as observed by the trial court, there is no mention of plot No 262 in Ex.A-5 which is CC of sale deed executed by Thumma Showreddy in favour of Surender Suksena 15.09.2000. As observed by the trial court, Ex.A-8 was validated in the month of September, 2010, i.e., after filing of the suit. The plaintiff did not mention in the plaint about the existence of Ex.A.8 and about custody by him on the date of suit. The trial court observed that non- mentioning of plot No.262 in Ex A-5 and mentioning of black ink words in Ex.A-3 without any note in Ex.A-3, regarding the words written in black ink, as per the evidence of P.W.1 during cross-examination, show that the plaintiff tried to hide real facts about insertion of black ink words regarding registered sale deed bearing document No.10708/1981, and it is clear tampering of the document."
12.1. The first Appellate Court further observed as under:-
"Ex.A-8 was attested by one T.Rojamma and one T. Papireddy. i.e., G.P.A holder of said Rojamma, i.e., wife of said Showreddy and other legal representatives of said Showreddy. As per original of Ex.A-5, the said T.Showreddy sold 800 square yards in Sy.No.25/A of Kazipet Jagir to one Surender Suksena within the boundaries of 100 feet road, 20 feet road, land bearing 9 LNA, J S.A.Nos.479 & 481 of 2023 No.264 and 263 and 30 feet road on East, West, North and South respectively. As per plan to Ex.A-5, the land under Ex.A-5 is plot Nos.265 to 267. There is no mention of plot No.262 in Ex.A-5."
12.3. As regards the plea of delivery of possession of the suit schedule property to the plaintiff, the first Appellate court observed that P.W.3 deposed that except signing Ex.A-2, he does not know other details of the transaction. He does not know how said Surender Suksena acquired the suit property. He could not give the plot number of the suit property and therefore, the evidence of P.W.3 is not useful to the plaintiff to prove his case. 12.4. The first appellate court further observed that the trial court was right in observing that transferrable right could not be acquired by the purchaser under Ex.A-2 and there is no mention of delivery of possession under Ex.A-2 to father of plaintiff. In Ex.A- 1 there is no mention as to how mother of the plaintiff acquired the property. As there was no delivery of possession under Ex.A-2 and as no registered sale deed was obtained by father of plaintiff from vendor under Ex.A-2, there cannot be any flow of valid title and valid possession. Ultimately, the first appellate court held that the plaintiff failed to establish valid possession and incidental title in 10 LNA, J S.A.Nos.479 & 481 of 2023 respect of the suit schedule property and hence, he is not entitled to the relief of perpetual injunction, however, defendant No.1 proved that she is entitled to counter-claim relief of perpetual injunction.
13. A perusal of record discloses that the trial Court as well as the first appellate court have concurrently held that the plaintiff failed to prove that he is entitled to perpetual injunction in respect of the suit schedule property, however, defendant No.1 proved that she is entitled to counter-claim relief of perpetual injunction.
14. Heard Sri Akkam Eshwar, learned counsel for the appellants. Perused the record.
15. Learned counsel for appellants argued that the trial Court rendered the judgments impugned herein without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgments passed by the trial Court.
16. Learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in these Second Appeals. In fact, all the grounds raised in these appeals are factual 11 LNA, J S.A.Nos.479 & 481 of 2023 in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
17. It is well settled principle by 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.
18. 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.
19. 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 1 (2007) 1 Supreme Court Cases 546 12 LNA, J S.A.Nos.479 & 481 of 2023 in nature and no question of law much less a substantial question of law arises for consideration in these Second Appeals.
20. Hence, both the Second Appeals fail and the same are accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date: 27.03.2024 dr