Rizwana Fathima, vs Vadla Laxman,

Telangana High Court

Rizwana Fathima, vs Vadla Laxman, on 3 May, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             SECOND APPEAL No.1407 of 2017

JUDGMENT:

The Second Appeal is filed against the judgment and decree dated 22.06.2017 in A.S.No.33 of 2013 on the file of the District Judge, Adilabad, wherein the judgment and decree dated 16.08.2013 in O.S.No.33 of 2010 on the file of the Senior Civil Judge, Adilabad, was confirmed.

2. The appellant herein is the defendant and the respondent herein is the plaitiff in the suit. For convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.

3. Brief facts leading to file the present Second Appeal are that the plaintiff belongs to Dalith community and he worked as a carpenter. In the year 1977, the Government allotted house sites to the members of Dalith community in Khanapur locality of Adilabad town, later it is named as Ambedkar Nagar and the plaintiff got allotted plot admeasuring 33' x 86'. The plaintiff constructed a hut (herein after referred to as "suit schedule property") in the said plot and used to reside therein. Later, the Government LNA, J S.A.No.1407 of 2017 2 issued patta in favour of the plaintiff vide proceeding No.A1/2446/85 dated 31.10.1985 and the original patta certificate was with A.P. Housing Corporation, Adilabad. The plaintiff became the owner of the suit schedule property and it was assigned house number as M.No.2-2-

253.

4. It is contended that the Municipal Council, Adilabad first time levied property tax in the year 1989, since there was dispute in between the tax payers and municipal council with regard to revision of property tax in the year 1988, nobody paid tax till the resolution of dispute in the year 1996. The plaintiff was in possession and enjoyment of the suit schedule property from 1977 to July, 2009 and on account of his work, he temporarily shifted to Laxmipur village in the year 2005, but now and then he used to visit his house. Taking advantage of the absence of the plaintiff, one S.Subhash misrepresented the facts to municipal authorities and got mutated the aforesaid hut in his name in the year 2005. The plaintiff came to know about the said misrepresentation, when he went to Municipal office for LNA, J S.A.No.1407 of 2017 3 payment of property tax in the year 2008. Immediately, he filed petition for retransfer of ownership of the suit schedule property in his name and the Municipal authorities after conducting enquiry retransferred the ownership of the suit schedule property in the name of the plaintiff on 07.07.2009.

5. However, in the meanwhile the said S.Subhash sold the suit schedule property to the defendant under registered sale deed dated 04.07.2009 and inducted her in possession of the suit schedule property in the second week of July 2009. When the plaintiff questioned the defendant about her possession, she refused to give any answer and later the plaintiff came to know about the sale through caveat dated 06.10.2009. The said S.Subhash in collusion with the defendant brought the aforesaid sale deed into existence with a mala fide intention to grab the suit schedule property of the plaintiff and the possession of the defendant is illegal and unauthorized and hence, she is liable to be evicted from the said hut. Hence, the suit for LNA, J S.A.No.1407 of 2017 4 declaration of title, delivery of possession and to award future mesne profits at Rs.1,000/- per month.

6. The defendant had filed the written statement denying the averments made by the plaintiff. It is contended that one S. Subhash and his mother are the owners of the suit schedule property bearing Municipal No.2-2-253 and the alleged patta filed by the plaintiff is forged and fabricated. The Municipal authorities colluded with the plaintiff and retransferred the ownership without verifying the records from the Government; that said S.Subhash and his mother sold the above said hut to the defendant under registered sale deed dated 04.07.2009 and inducted her in possession of the suit schedule property and since then she has been in possession of the same; that she filed objection petition before the municipal authorities stating that the said patta certificate produced by the plaintiff is a fabricated, but the municipal authorities colluded with the plaintiff and did not consider the certificates filed by the Tahsildar, Adilabad, who stated that no such patta certificate was granted to the plaintiff LNA, J S.A.No.1407 of 2017 5 with regard to the suit schedule property. Hence, prayed to dismiss the suit.

7. Based on the above pleadings, the trial Court has framed the following issues:

"i) Whether patta issued to the plaintiff by government vide proceedings bearing No.A1/2446/85, dated 31.10.1985 is genuine?

ii) Whether the sale deed dated 04.04.2009 by Subhash in favour of defendant is binding on the plaintiff?

iii) Whether the plaintiff is entitled for relief of declaration of title over the suit property as prayed for?

iv) Whether the plaintiff is entitled for delivery of possession of suit property as prayed for?

v) Whether the plaintiff is entitled for future mesne profits from the date of filing of the suit at Rs.1,000/- per month as prayed for?

vi) To what relief?"

8. Before the trial Court, on behalf of the plaintiff, PW1 to PW3 were examined and Exs.A1 to A5 and Exs.A5/A to A5/F were marked. On behalf of the defendant, DW1 was examined and Exs.B1 to B8 were marked.

9. The trial Court, after considering the entire evidence and material available on record, decreed the suit vide judgment and decree dated 16.08.2013 by observing as under:

LNA, J S.A.No.1407 of 2017 6 "(i). In the case on hand, the defendant/DW1 set up that her, vendor namely Subhash got title to the property in question. On plain reading of application submitted by him, the Municipal Council, Adilbad under Ex.A5/E would clearly disclose that he has no title whatsoever. Therefore, it is clear from his own admission that he does not own any land.

Ex.B7 and B8 are the tax receipts. Under Ex.B7 the vendor of DWI paid an amount of Rs.210/- for the period from 01.10.1988 to 01.09.1993 and under Ex.B8 again he paid the tax from 01.10.1988 tο 01.09.1993. There is no explanation why vendor of DW1 paid amount for the period from 01.10.1988 tο 01.09.1993 twice. Therefore, it is clear from the evidence adduced on behalf of DW1 that she failed to prove that her vendor got possession prior to PW1 so as to say that her vendor possessed the property from the year 1988 to till the date of execution in 2009 in Ex.B1.

(ii). In the case on hand, at the cost of repetition, the vendor of DWI under Ex.5/E stated that he occupied the land and cleansed it and came into possession. He never stated who was his vendor and how he derived the title. In the absence of such specific evidence, I am of the opinion that the DW1 failed to put forth any legal evidence at least to shake the case of plaintiff/PW1. Furthermore, PWI examined PW3, who is none other than brother of vendor of DWI and one of the assignees of Plots in the same locality. PW3 categorically stated about the possession of PWI on the plot. There is nothing elicited from his mouth why he was speaking falsehood against his brother. Therefore, the plaintiff/PWI is entitled for the relief of declaration of title and recovery of possession."

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10. Aggrieved by the judgment and decree dated 16.08.2013, the plaintiff appeal vide filed A.S.No.33 of 2013 on the file of the Principal District Judge, Adilabad District. The first appellate Court on re-appreciation of the entire evidence and material available on record, dismissed the appeal vide judgment and decree dated 22.01.2017 confirming the judgment and decree passed by the trial Court, by observing as under:

"(i). The documents marked on behalf the defendant particularly Exs.B.5 to B.8 do not inspire confidence. The plaintiff could elicit from the cross-examination of DWs 1 and 2 that they purchased the suit-schedule property under Ex.B.1 from S.Subhash without verifying the required documents for purchase and they purchased the property only basing on the entries in municipal records.

The records show that the municipal authorities after thorough enquiry by following due procedure had reentered the name of the plaintiff in their records and the same was proved by the plaintiff by examining PW.2 and by marking Exs.A5/A to A5/F. It is also to be noted that DW.1 in her cross-examination stated that she was residing in Ambedkar Nagar colony prior to the purchase of the suit house whereas her husband as DW.2 stated that he was residing in Vidyanagar colony prior to shifting to suit schedule property. Ex.B.1 shows that the defendant was married to DW.2 by the time of executing Ex.B.1.

(ii). From the entire evidence adduced on both sides, it clearly establishes that the plaintiff is the owner of the suit LNA, J S.A.No.1407 of 2017 8 schedule property having acquired the same through patta certificate under Ex.A.5/B from the government issued by the Government and immediately after getting patta certificate, his name was mutated in Municipality by allotting house No.2-2-253 to the construction made by him in the pasta land and thereafter he again got reentered his name by deleting the name of S. Subhash, who got his name entered in municipal records by misrepresentation. It is also established that the said S. Subhash has no right or title to the suit schedule property, as the defendant failed to prove the same and he having no authority or title to the property executed Ex.B.1 in favour of the defendant, which cannot confer any valid title to the defendant over the suit schedule property.

(iii). The learned Senior Civil Judge, Adilabad has rightly appreciated the oral and the documentary evidence adduced by the parties and rightly held that the plaintiff has established his case and hence decreed the suit. For the reasons now assigned by this court and the findings recorded under points 1 to 4, this court is of the view that the decreetal order and the judgment of the trial court is sustainable under facts and law"

11. Heard Mr.S.Surender Reddy, learned counsel for the appellant and Mr.N.Hari Prasad, learned counsel for the respondent. Perused the record.

12. A perusal of the record discloses that the trial Court as well as the first appellate Court concurrently held that the plaintiff produced Ex.A1/notice issued by Valuation LNA, J S.A.No.1407 of 2017 9 Officer, Municipality, Adilabad and Ex.A3/Property Tax receipt to show that he was in possession of the suit schedule property in the year 1989; and that the defendant has not established any evidence to prove her case. It is further held that the plaintiff proved his case and he is entitled for the relief of declaration of title and recovery of possession and that DW.1 was in wrongful possession of the suit schedule property, the plaintiff is entitled for mesne profits.

13. Learned counsel for the appellant vehemently argued that the trial Court decreed 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.

14. 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.

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15. 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 trial Court as well as first appellate Court, which are based on proper appreciation of the oral and documentary evidence on record.

16. 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.

17. 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 1 (2007) 1 Supreme Court Cases 546 LNA, J S.A.No.1407 of 2017 11 question of law, much less, a substantial question of law arises for consideration in this Second Appeal.

18. 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:03.05.2024 Dua