Telangana High Court
Peddula Yelladas vs Ramsagaram Sathireddy Died Pr Lrs. on 27 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.180 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 28.10.2022 passed in A.S.No.28 of 2019 on the file of the Principal District Judge, Siddipet, wherein and whereby the judgment and decree dated 21.06.2019 passed in O.S.No.65 of 2011 on the file of the Senior Civil Judge, Siddipet, was confirmed.
2. The appellants herein are plaintiffs and respondents are defendants 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 one Peddula Siddaiah, who is the father of plaintiff Nos.1 to 3, had purchased suit schedule property i.e., Ac.1.03 guntas of land in survey No.1000, situated at Nangunoor village and Mandal of the present Siddipet District, out of Acs.2.00 guntas of land, from Anireddi Kishta Reddy in the year 1968 and thereafter, he made 2 LNA, J S.A.No.180 of 2023 eight plots in Ac.0-11 guntas out of Ac.1-03 guntas of land and sold those plots to several persons under separate sale deeds.
4. While so, defendant No.1 in collusion with defendant Nos.2 to 5 and father of defendant No.6, filed O.S.No.33 of 2000 on the file of the Junior Civil Judge, Siddipet for partition of Ac.1.00 guntas of land in survey No.1000 against 31 persons including the plaintiffs, contending that the suit land therein (Ac.1.00 in Survey No.1000 abutting to road) is in joint possession of sharers, who were shown as defendants 1 to 8 herein. In the said suit, written statement was also filed, however, it was dismissed. Against the said dismissal, the defendants have filed A.S.No.10 of 2004 before the IV Additional District Judge (Fast Track Court), Siddipet, and the same was dismissed.
5. It is further contended that name of the father of plaintiff Nos.1 to 3 was recorded as possessor of Ac.1.03 guntas for some years and was discontinued without any basis; that in Form No.1 ROR for the year 1989-90 name of 3 LNA, J S.A.No.180 of 2023 the Peddula Siddaiah is shown as occupant for the land to an extent of 19 gts in survey No.1000; that one of the tenants Jangiti Laxman dumped earth on Ac.0-02 gts of land which is situated in backside of the plot of Sirikonda Ramachandram and also construction of shops in the plots sold by the father of plaintiffs Nos.1 to 3 falsifies the entries in revenue records. The defendants on 03.07.2011 tried to encroach the suit lands, hence, the suit for perpetual injunction.
6. Defendant Nos.1 to 7 contended that the land claimed to have been purchased by the father of plaintiff Nos.1 to 3 is adjoining Survey No.994 on the eastern side which belongs to Sri Radhakishan Rao. A road was laid through the land of plaintiffs' father and as such only 8 to 10 guntas remained, which was sold to others by the palintiffs' father during his life time under various simple deeds.
7. It is contended that the father of plaintiff Nos.1 to 3 filed suit viz., O.S.No.33 of 2000 in respect of land in 4 LNA, J S.A.No.180 of 2023 survey No.1000 to an extent of Ac.0.32 gts, whereas it is the case of the plaintiffs that one Anireddy Kistareddy had land admeasuring Acs.2.00 gts in Survey No.1000 and the father of plaintiff Nos.1 to 3 purchased the land admeasuring an extent of Ac.1-03 gts in survey No.1000 abutting to Siddipet-Nangunoor Road in the year 1968 from Anireddy Kistareddy.
8. It is contended that the dismissal of suit in O.S.No.33 of 2000 does not create any obligation or right to the plaintiffs in the suit land as the plaintiff and their father were out of possession of the suit land and they did not claim right over the suit land prior to institution of O.S.No.33 of 2000 and after its dismissal the claim of the plaintiffs is time barred. Hence, they prayed to dismiss the suit.
9. Before the trial Court, on behalf of the plaintiffs, PW1 to PW4 were examined and Exs.A1 to A25 were marked. On behalf of the defendants, DW1 to DW4 were examined and Exs.B1 to B27 were marked.
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10. The trial Court, after considering the entire evidence and material available on record, dismissed the suit vide judgment and decree dated 21.06.2019 by observing as under:
"(i). The plaintiffs failed to discharge the burden that is casted upon them to prove their possession and enjoyment and in such case onus does not shift to the defendants to substantiate their plea. Nothing material could be elicited from mouth of DW-1, which is favourable to the case of plaintiffs. As the plaintiffs failed to discharge the burden in such event there is no need to discuss further.
(ii). Plaintiffs have shown cause of action to file this suit arose on 03-07-2011 when the defendants allegedly tried to encroach the suit land. Limitation to file suit for perpetual injunction is three years from the date when the right to sue accrues as per Article 113 of Limitation Act, 1963. The plaintiffs have shown that cause of action arose on 03-07-2011 and the suit was filed on 14-07-
2011 as such the suit is within period of limitation. Hence, issue is answered accordingly.
(iii). No specific plea is taken by the defendants as to why the suit is not maintainable as per section 41 of Specific Relief Act. The plaintiffs have filed suit on the ground that defendants threatened to dispossess plaintiffs from suit schedule property. Whereas section 41 of Specific Relief Act deals with injunction when refused. The claim of 6 LNA, J S.A.No.180 of 2023 plaintiffs does not fall under any of the grounds enunciated under section 41 (a) to (j) to say that suit is not maintainable under section 41 of Specific Relief Act. This issue is answered accordingly."
11. On appeal, the first Appellate Court on re- appreciation of the entire evidence and perusal of the material available on record vide judgment and decree dated 28.10.2022 dismissed the appeal, by observing as under:
"(i). It is pertinent to note no where in Ex.A12, it is stated that Anireddi Kistareddy owns Ac.2-00 acres land in Sy.No.1000 and out of that Ac.2-00 guntas he is selling Ac.1-03 guntas under Ex.A11. Further, plaintiffs not examined any person who can speak about the plaintiffs' possession of the suit.
(ii). It is pertinent to note PW1 himself admitted in his cross-examination, his name was recorded in as pattadar of the suit land after the death of his father. These proved facts show that the plaintiffs failed to prove that the vendee in Ex.A11 is their father Peddula Siddaiah and that they are in possession of the suit land as on the date of filing of the suit, as such, they are not entitled for perpetual injunction.
(iii). Further Exs.B12 to B18 and Exs.B23 to B26 and also Exs.B19 to B22 show that purchasers of land in Sy.No.1000 are in possession of extent of the land purchased by them. I, therefore, opine the plaintiffs failed 7 LNA, J S.A.No.180 of 2023 to prove that they are in possession of the suit land. The Trial Court has considered all these facts and came to right conclusion and dismissed the suit. For these reasons, I opine that there is no need to interfere with the Judgment and Decree of the Trial Court. The point is accordingly answered."
12. Heard Mr.L.Preetham Reddy, learned counsel for the appellants, Mr.Sanjeev Gillela, learned counsel for the respondents. Perused the record.
13. A perusal of the record discloses that the trial Court as well as the first appellate Court concurrently held that the plaintiffs failed to prove that they were in possession of the suit land as on the date of filing of the suit, as such, they are not entitled for perpetual injunction.
14. Learned counsel for the appellants vehemently 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.
15. However, learned counsel for the appellants failed to raise any substantial question of law to be decided by this 8 LNA, J S.A.No.180 of 2023 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.
16. 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.
17. 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.
18. Having considered the entire material available on record and the findings recorded by the trial Court as well 1 (2007) 1 Supreme Court Cases 546 9 LNA, J S.A.No.180 of 2023 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.
19. 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: 27.03.2024 Dua