Bekkem Ravindra Reddy vs Bekkem Shankar Reddy,
2021 Latest Caselaw 2593 AP

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

               SECOND APPEAL No.301 of 2020

JUDGMENT:

This second appeal is filed under Section 100 of Code of

Civil Procedure, 1908 (for short "CPC") by the plaintiff assailing

the decree and judgment dated 09.11.2020 in A.S.No.76 of 2018

on the file of V Additional District Judge, Allagadda, whereby

while allowing the appeal, the lower appellate Court has set

aside the decree and judgment dated 09.08.2017 in O.S.No.243

of 2007 on the file of the Court of Junior Civil Judge, Allagadda.

2. The parties in this second appeal are referred to as they

are arrayed in the original suit for the sake of convenience.

3. The facts of the case in a nutshell are that the plaintiffs

filed the suit seeking permanent injunction restraining the

defendant and his men from dispossessing the plaintiffs from

the plaint schedule property.

4. Plaint schedule property originally belongs to one Bekkam

Pedda Venkata Reddy @ Thota Pedda Venkata Reddy, who is the

father of the defendant. The said Pedda Venkata Reddy gifted

the schedule property to the plaintiffs under a registered gift

deed dated 14.05.2007. By virtue of said gift deed, the plaintiffs

came into possession of the schedule property. But the

defendant, who is junior paternal uncle of the plaintiff, without

any manner of right, trying to interfere with their possession.

On 21.08.2007 when the defendant tried to dispossess the

plaintiffs from the schedule property, the plaintiffs with the help

of elders resisted the same. Hence, the suit.

5. The defendant filed written statement denying the material

allegations in the plaint. It is stated that the defendant is not

aware of the gift deed and the plaintiffs intentionally mentioned

the wrong boundaries with an intention to grab the property of

the defendant. In the gift deed dated 14.05.2007 Bekkem Pedda

Venkata Reddy i.e. father of defendant put his left thumb mark,

instead of signature, but he is educated and able to sign and

prayed to dismiss the suit.

6. Basing on the above pleadings, the trial Court framed the

following issues:

1) Whether the boundaries in the suit schedule are correct?

2) Whether the Gift Deed dated 14.05.2007 executed by Bekkem Pedda Venkata Reddy @ Thota Venkata Reddy in favour of plaintiff is true, valid and binding on defendant?

3) Whether the plaintiffs are entitled for relief of suit claim?

4) To what relief?

7. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and

got marked Ex.A-1. On behalf of defendant D.W.1 was examined

and got marked Ex.B-1.

8. After considering the evidence on record, the trial Court

decreed the suit. Aggrieved thereof, the defendant preferred

appeal and the 1st appellate Court has allowed the appeal by

setting aside the decree and judgment of the trial Court.

Assailing the same, the present second appeal is preferred by

the plaintiff.

9. Heard Sri Challa Siva Sankar, learned counsel for the

appellants/plaintiffs and Sri P.Nagendra Reddy, learned counsel

for respondent/defendant.

10. Learned counsel for the appellants would submit that the

first appellate Court committed manifest error in allowing the

appeal without considering the reasoned judgment of the trial

Court. He submits that the first appellate Court erred in

allowing the appeal without framing a point on Ex.A-1, which is

the core issue and goes to the root of the matter, as such the

decree and judgment of the first appellate Court is liable to be

set aside. Learned counsel while pointing out the judgment in

appeal suit, submits that it was mentioned that R1 and R2

remained exparte. In this regard, clarification was sought from

the learned V Additional District Judge, Allagadda, who

submitted that it was purely a typographical mistake and the

appeal was disposed of on merits.

11. Learned counsel for the appellants submits that the

following questions of law fall for consideration before this

Court:

1) Whether the first appellate Court is right in passing the impugned judgment by placing reliance on exparte decree and judgment in O.S.No.361 of 2006, ignoring the scope of Section 11 of CPC?

2) Whether the first appellate Court is right in reversing the decree and judgment of the trial Court on the ground that the trial Court finding on issue No.2 with regard to validity of Ex.A-1 is beyond the scope of suit ignoring the settled law as envisaged in Section 38 of Specific Relief Act, that the Court while deciding the injunction suit has to look into title also?

3) Whether the first appellate Court is right in disbelieving the plaintiffs case that the plaintiffs have not mutated their names in revenue records from 10 years from the date of Ex.A-1 till the pronouncement of judgment ignoring the settled law that even plaintiffs names are mutated after filing the suit, the same cannot be considered and also explained offered by the plaintiff because of the pendency of suit the revenue authorities did not consider for mutation of plaintiffs names?

4) Whether the first appellate Court is right in reversing the well considered judgment of trial Court without appreciating the evidence of P.Ws.1 to 3, which is contrary to the scope of Order 41 Rule 33 of CPC and non-consideration of crucial evidence is fatal to the impugned judgment?

12. Learned counsel for the respondent/defendant submits

that the first appellate Court has rightly appreciated the entire

evidence on record on proper perspective and rightly set aside

the judgment of the trial Court. He submits that the judgment

of the trial Court is not within the parameters of settled

principles of law and the same is passed without application of

mind. He submits that though the plaintiffs did not file any

single scrap of paper to prove their possession over the plaint

schedule property, the trial Court by relying on Ex.A-1 gift deed

has granted decree holding that the plaintiffs are in possession

and enjoyment of the schedule property, which is not valid.

13. Heard the learned counsel for the plaintiffs and learned

counsel for defendant and perused the material on record. This

Court before entertaining a second appeal has to examine

whether any substantial question of law arises in the case which

warrants interference of this Court. It is settled law that the

Courts will entertain the second appeal only if it is satisfied that

the appeal involved a substantial question of law.

14. Before dealing with the merits of this case it is appropriate

to have a look at the catena of judgments of the Hon'ble Apex

Court wherein it was held that even the concurrent findings can

be interfered with when an important piece of evidence is

overlooked by the Court below.

15. Admittedly, Section 100 of CPC has introduced a definite

restriction on to the exercise of jurisdiction in a second appeal

so far as the High Court is concerned. Needless to record that

the Code of Civil Procedure Amendment Act, 1976 introduced

such an embargo for such definite objectives and since we are

not required to further probe on that score, we are not detailing

out, but the fact remains that while it is true that in a second

appeal a finding of fact even if erroneous will generally not be

disturbed but where it is found that the findings stands vitiated

on wrong test and on the basis of assumptions and conjectures

and resultantly there is an element of perversity involved

therein, the High Court in our view will be within its jurisdiction

to deal with the issue. This is, however, only in the event such a

fact is brought to light by the High Court explicitly and the

judgment should also be categorical as to the issue of perversity

vis-à-vis the Concept of justice. Needless to say however, that

perversity itself is a substantial question worth adjudication

what is required is a categorical finding on the part of the High

Court as to perversity.

(Emphasis supplied) in Kulwant Kaur and Ors Vs. Gurdial Singh Mann (Dead) By Lrs. and Ors. Appeal (Civil) 1287 of 1990.

16. From the discussions in the judgment, it is clear that the

High Court has based its findings on the documentary evidence

placed on record and statements made by some witnesses which

can be construed as admissions or conclusions. The position is

well settled that when the judgment of the final Court of fact is

based on misinterpretation of documentary evidence or on

consideration of inadmissible evidence or ignoring material

evidence, the High Court in second appeal is entitled to interfere

with the judgment. The position is also well settled that

admission of parties or their witnesses are relevant pieces of

evidence and should be given due weightage by Courts. A

finding of fact ignoring such admissions or concessions is

vitiated in law and can be interfered with by the High Court in

second appeal. Since the parties have been in litigating terms for

several decades the records are voluminous. The High Court as

it appears from the judgment has discussed the documentary

evidence threadbare in the light of law relating to their

admissibility and relevance.

(Emphasis supplied) in Yadavarao Dajiba Shrawane Vs. Ma&niolrasl 2002 (6) SCC 404.

17. It will be apt to refer to Section 103 of C.P.C. which

enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

(Emphasis supplied) in Leela Soni vs. Rajesh Goyal 2001 (7) SCC 494.

18. It is essential for the High Court to formulate a substantial

question of law under section 100 of CPC, after the 1976

amendment and it is not permissible to reverse the judgment of

the first appellate Court without doing so.

(Emphasis supplied) in Ishwasdas Jain Vs. Sohan lal 2000 (1) SCC 434.

19. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference of by the High Court in second

appeal, this Court while exercising jurisdiction under Section

100 of CPC has to confine to the substantial question of law

involved in the appeal. This Court cannot re-appreciate the

evidence and interfere with the concurrent findings of the Court

below where the Courts below have exercised the discretion

judicially. Further the existence of substantial question of law is

the sine quo non for the exercise of jurisdiction. This Court

cannot substantiate its own opinion unless the findings of the

Court are manifestly perverse and contrary to the evidence on

record.

20. Coming back to the facts of this case, the trial Court held

that on one hand except Ex.A-1 there is no other document filed

by the plaintiffs. On the other hand though defendant filed

Ex.B-1, the trial Court holding that it is inadmissible in

evidence has ignored the same. The trial Court further held that

though there is no document in favour of the plaintiffs, it is

unreasonable to say that they are not at all in possession of the

property. The learned Junior Civil Judge went to the extent of

observing that in some cases always the unfair litigants who are

vigilant enough may secure documents and the fair innocent

litigants may not get the documents and in such a case, it does

not mean that the person who has the document can take

advantage of it. Here is the case that P.W.1 expressed her

inability in getting No.3 adangal, which seems to be

unreasonable. Accordingly, the trial Court decreed the suit.

However, the first appellate Court has set aside the decree and

judgment of the trial Court.

21. As rightly argued by the learned counsel for the

respondent and also as rightly observed by the first appellate

Court the judgment passed by the learned Junior Civil Judge is

purely basing on surmises and conjunctures. The trial Court

observed that Exs.B-2 and B-3 are judgment and decree in

O.S.No.361 of 2006 on the file of Junior Civil Judge's Court,

Allagadda, but the same is an exparte decree, it is not sufficient

to substantiate the contention of defendant and not sufficient to

rebut Ex.A-1. The said finding of the trial Court is perverse,

since whether the decree is passed exparte or on contest, it

holds good, unless it is set aside by the competent appellate

Court. Moreover it is not the case of the plaintiffs that the decree

in O.S.No.361 of 2006 is not with regard to the plaint schedule

property.

22. In a suit for permanent injunction, the burden always lies

on the plaintiffs to prove that they are in actual possession and

enjoyment of the property as on the date of the suit. But except

filing Ex.A-1 gift deed, the plaintiffs failed to file any piece of

document to prove that they are in possession of the schedule

property as on the date of filing of suit. The defendant filed

Ex.B-1 true copy of adangal, which clinchingly proves that the

defendant is in possession of the plaint schedule property. The

first appellate Court rightly observed that Ex.A-1 gift deed is not

a genuine document and there is no explanation from the

plaintiffs what prevented them from mutating their names in the

revenue records from the date of Ex.A-1 to till the date of

pronouncement of judgment i.e. for about 10 years. Thus,

absolutely there is no document filed by the plaintiffs to prove

their possession over the plaint schedule property as on the date

of filing of the suit. However, the possession of defendant over

the schedule property is evident from Ex.B-1 adangal and

decree and judgment in O.S.No.361 of 2006. Therefore, the

decree and judgment passed by trial Court is erroneous and the

first appellate Court has rightly set aside the same.

23. As observed earlier, the first appellate Court disposed of

the appeal suit on merits and mentioning about the R1 and R2

remained exparte is only typographical mistake, as clarified by

the learned V Additional District Judge, Allagadda. Therefore,

the contention of learned counsel for the plaintiffs that the

appeal suit was disposed of exparte has no legs to stand.

24. The judgment of the trial Court is also bad on the ground

that even though the plaintiffs became majors by the time of

pronouncement of judgment, they did not take any steps to

discharge the guardian and allowed the Court to pass judgment

though they became majors. Therefore, the contention of

learned counsel for the plaintiffs that it is a curable defect and

that cannot be a ground to dismiss the suit, is not sustainable.

25. Though the learned counsel for the plaintiffs has pointed

out the grounds which are extracted in the earlier paragraphs as

substantial questions of law, this Court is of the view that there

are no questions of law much less the substantial questions of

law involved in this appeal.

26. In view of the aforesaid reasons and having given earnest

consideration to the facts and submissions, this Court finds

that there is no error or illegality in the findings of the first

appellate Court warranting interference by this Court.

27. In the result, the Second Appeal is dismissed with costs

throughout.

As a sequel, all the pending miscellaneous applications

are closed.

___________________________ LALITHA KANNEGANTI, J 25th June, 2021

PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

Dismissed

SECOND APPEAL No.301 of 2020

25th June, 2021

PVD