Judge vs Gurdial Singh Mann
2022 Latest Caselaw 1841 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.410 of 2021

JUDGMENT:

Assailing the judgment and decree dated 27.08.2019 in

A.S.No.8 of 2017 on the file of IV Additional District Judge,

Nellore, confirming the judgment and decree dated 14.11.2016

in O.S.No.144 of 2012 on the file of III Additional Junior Civil

Judge, Nellore.

2. For the sake of convenience and brevity, the parties herein

are referred to as they are arrayed in the suit.

3. Plaintiff filed suit O.S.No.144 of 2012 against Syed

Sandani Basha, sole defendant seeking perpetual injunction.

Pending suit, sole defendant and his legal representatives were

brought on record as defendants 2 to 6.

4. The brief averments, in the plaint are that plaintiff is the

absolute owner of plaint schedule property, having purchased

the same under a registered sale deed dated 31.03.1980; that

plaintiff and his family members have been residing by raising

house in some extent and left some vacant place for air and

light; that 1st defendant filed suit O.S.No.3 of 2009 against the

plaintiff seeking injunction restraining him from interfering with

his construction of house and the said suit was decreed on

26.12.2011; that 1st defendant shown his northern boundary in

O.S.No.3 of 2009 as vacant site belonged to the plaintiff herein;

that 1st defendant and his men attempted to raise new

constructions in the vacant site belonged to the plaintiff and

hence, the suit was filed.

5. Defendants 3 and 4 remained ex parte.

6. Written statement filed by 1st defendant was adopted by

defendants 2, 5 and 6. It was contended interalia that 1st

defendant purchased southern side portion of Door No.505/1,

Ward No.18, an extent of 8 Ankanams from Taburunissa Begum

and others under a registered sale deed dated 01.04.1980; that

1st defendant constructed house in 4 Ankanams, out of 8

Ankanams; that there is joint passage of four feet leading to

main road for plaintiff and defendant; that when 1st defendant

intended to construct new house in 8 Ankanams, the plaintiff

raised objection and hence, he filed suit O.S.No.3 of 2009 and

the same was decreed ; that present suit was filed by plaintiff for

4 Ankanams, which is part and parcel of land purchased by

defendant and hence, prayed the Court to dismiss the suit.

7. During the trial, plaintiff examined himself as P.W.1 and

got examined P.W.2. Exs.A-1 to A-7 were marked. On behalf of

defendants, 5th defendant was examined as D.W.1 and

examined D.Ws.2 and 3. No documents were marked. Through

D.W.3 (Advocate Commissioner) Exs.C-1 to C-9 were marked.

8. Trial Court after framing necessary issues decreed the suit

with costs vide judgment dated 15.11.2016. Aggrieved by the

said judgment and decree, defendants 2 to 6 filed A.S.No.8 of

2017. Lower appellate Court on consideration of oral and

documentary evidence, dismissed the appeal vide judgment

dated 27.08.2019. Assailing the same, the above second appeal

is filed.

9. Heard Sri V.Siva Prasad Reddy, learned counsel for

appellants.

10. Learned counsel for the appellants would contend that the

Courts below failed to consider Exs.A-2 and A-6 in proper

perspective. He would also contend that suit for bare injunction

is not maintainable without seeking declaration of title, in view

of cloud over the schedule property. He would also contend that

suit O.S.No.144 of 2012 is barred by res judicata.

11. The following substantial questions of law arise for

consideration in the second appeal:

1) Whether the plaintiff proved title to the schedule property? If so, whether the benefit of presumption that possession follows title would apply, since the schedule property is vacant land?

2) Whether the plaintiff is entitled for injunction as prayed for?

12. Dealing with the scope of Section 100 of CPC, the Hon'ble

Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann

(Dead) By Lrs. and Ors.1 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives

1 (2001) 4 SCC 262

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 dealt 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."

13. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane

Vs. Nanilal Harakchand Shah (Dead) and Ors.2 held thus:

"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 mis- interpretation 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

2002 (6) SCC 404

documentary evidence threadbare in the light of law relating to their admissibility and relevance."

14. In Leela Soni vs. Rajesh Goyal3, the Hon'ble Apex Court

held thus:

"21. 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."

22. 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."

15. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal4,

held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at,

2001 (7) SCC 494

AIR 2009 SC 1481

by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

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

on the scope of interference 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

qua 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.

17. Undisputed facts are that plaintiff purchased the house

site under Ex.A-1 registered sale deed dated 31.03.1980, an

extent of 8 Ankanams. 1st defendant also purchased 8

Ankanams of land from same vendors. Since the defendant

purchased the property at later point of time, Northern

boundary in the defendant's document is shown as vacant land

of plaintiff. 1st defendant filed suit O.S.No.3 of 2009 when the

plaintiff in the present suit tried to interfere with his

construction of new building and the said suit was decreed.

18. According to the plaintiff, he purchased 8 Ankanams of

land under a registered sale deed dated 31.03.1980 and raised

constructions in part of land i.e. Northern side and left nearly

four Ankanams of land on the Southern side, which has been

shown as ABCD in the plaint plan. The case of plaintiff is that

1st defendant under the guise of decree in O.S.No.3 of 2009, is

trying to interfere with the vacant land belonged to the plaintiff.

Plaint schedule property is shown as vacant site admeasuring

four Ankanams. According to defendants, previously there were

latrines in the suit schedule property, which were being used by

all with the permission of 1st defendant and after removal of

latrines it became vacant land, which is part of their property.

19. A careful perusal of Ex.A-1 shows that the plaintiff

purchased 8 Ankanams of land with clear boundaries. When 1st

defendant purchased property a month later, his Northern

boundary is described as vacant land of plaintiff. The schedule

property in O.S.No.3 of 2009 on the file of III Additional Junior

Civil Judge, Nellore, Northern boundary is shown as vacant land

of plaintiff in the present suit. Therefore, according to

defendants also, plaintiff owned land situated towards their

North.

20. Though it was contended by defendants that suit O.S.No.3

of 2009 is decreed and the schedule property therein and the

schedule property in the present suit are one and the same,

they failed to establish the same. Suit O.S.No.3 of 2009 was

filed on the cause of action when the defendant therein is

interfering with demolition of old house. It is also admitted that

even after passing of decree in O.S.No.3 of 2009, 1st defendant

neither demolished nor reconstructed the house in its place. The

evidence of P.Ws.1 and 2 is clear and nothing contra was elicited

in the cross examination to the effect that ABCD is not part of 8

Ankanams claimed by the defendants.

21. In the suit, advocate commissioner was appointed at the

behest of defendants in the suit and he filed report along with

rough sketch. Sketch issued by the Town Surveyor, Municipal

Corporation, Nellore and the Commissioner report, are marked

as Exs.C-8 and C-9. A perusal of sketch filed into the Court

indicates that 1st defendant constructed house in an extent of

7.46 Ankanams. According to 1st defendant, he constructed

house in an extent of 4 Ankanams and left some place, which is

factually incorrect in the light of Advocate Commissioner's

report. At the same time, commissioner report also reflects that

the plaintiff constructed house in part of his property and the

vacant site comes to 3.42 Ankanams and after vacant site, four

feet way is existed.

22. The other circumstance to believe the case of plaintiff and

to disbelieve the case of defendants is to the effect that way

existed in between the property of plaintiff and defendants. The

property of plaintiff is situated to the Northern side of way and

the property of defendants is situated to the Southern side of

way.

23. ABCD schedule property i.e.4 Ankanams is vacant land.

Plaintiff proved title as well as possession over the schedule

property. Since the schedule property is vacant land, the

principle "the benefit of presumption that possession follows

title" would be applicable to the facts of the case. 4 ankanams

claimed by the plaintiff is part and parcel of 8 ankanams land

purchased by him under a registered sale deed.

24. The findings recorded by the Courts below are basing on

oral and documentary evidence. Such findings wound not be

disturbed unless they are perverse or without any material on

record etc., under Sec 100 CPC. Hence, the second appeal is

liable to be dismissed, however, without costs.

25. Accordingly, the second appeal is dismissed at admission

stage. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 19th April, 2022

PVD

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.410 of 2021

19th April, 2022

PVD