Gutta Venkatramana, vs Gutta Siddappa Naidu ,
2022 Latest Caselaw 5110 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.94 of 2022

JUDGMENT:-

      The above second appeal is filed against the judgment and

decree, dated 11.06.2019 passed in A.S.No.13 of 2016 on the

file of learned Senior Civil Judge, Punganur, allowing the appeal

by granting permanent injunction in favour of the plaintiff.


2.    The parties to the appeal are referred to as per their array

in O.S.No.219 of 2011. Plaintiff filed O.S.No.219 of 2004 for

permanent injunction.


3.    The averments in the plaint, in brief, are that the plaint

schedule property originally belonged to the Government; that

plaintiff, his father and defendant No.1 spent huge amounts and

made the land fit for cultivation along with other properties; that

the revenue authorities granted D-form patta in the name of the

plaintiff in respect of plaint schedule property and in favour of

defendant No.1 in respect of other properties; that during

partition effected among plaintiff, his father and defendant No.1,

ancestral properties were partitioned with a condition that the

properties in whose name D-Form pattas stand be allotted to

respective individuals; that registered partition deed, dated

29.07.1989 was executed among the parties; that plaint

schedule property was assigned to plaintiff by way of D-form
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patta;     that plaintiff has been in peaceful possession and

enjoyment      of   the   suit   schedule   property;   that   revenue

authorities also issued pattadar passbook to the plaintiff and

plaintiff also obtained loans by hypothecating the suit schedule

property and other properties to the bank; that plaintiff raised

crops using well water and that the defendants without any

right or title are trying to dispossess the plaintiff from the suit

schedule property. Hence, the suit was filed seeking permanent

injunction.




4.       Defendant No.1 filed written statement and the same was

adopted by defendant Nos.2 to 5. In the written statement, it

was contended inter alia that in the year, 1970 defendant No.1,

his father and plaintiff lived together as joint family and

occupied the suit schedule property; that they spent huge

amount and made it fit for cultivation; that in the year, 1997,

father filed application on behalf of the plaintiff as joint family

manager to issue D-form patta in the name of the plaintiff; that

D-form patta was granted in the name of the plaintiff; that in

the partition deed effected on 29.07.1989 'A' schedule property

was allotted to the share of the plaintiff's father; that 'B'

schedule property was allotted to defendant No.1 and 'C'

schedule property was allotted to the share of the plaintiff; that
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in 'C' schedule property, it was mentioned that out of Ac.2-00,

plaintiff   is   allotted   Ac.0-50       cents;   that   the   boundaries

mentioned in the document show that the defendant No.1 got

property on Northern side in the same survey number; that

plaintiff was never enjoying the plaint schedule property as

mentioned in partition deed, dated 29.07.1989; that the

defendant has been enjoying the suit schedule property since

long time; that plaintiff filed a number of civil suits and criminal

cases against defendant No.1 and his family members; that

plaintiff also filed O.E.P.No.86 of 2002 in O.S.No.242 of 1999

and collected E.P. amount; that defendant No.1 filed application

before RDO, Somala regarding possession and enjoyment of the

suit schedule property; that after enquiry MRO, Somala reported

that plaintiff violated condition Nos.2 and 3 of DKT Patta Rules

and hence, RDO, Madanapalle vide proceedings in L.Dis

No.B1/4636/2004, dated 15.02.2005 directed the MRO, Somala

to take necessary action and to grant DKT patta according to

enjoyment and reassign the same; that when the plaintiff

refused to give willingness to reassign the plaint schedule

property, MRO cancelled D-form patta in favour of the plaintiff

and the said order became final; that D-form patta granted in

favour of the plaintiff is of no value in the eye of law. Eventually

he prayed the Court to dismiss the suit.
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5.      Basing on the above pleadings, trial Court framed the

following issues for consideration:


     1. Whether the plaintiff is in peaceful possession and

         enjoyment of the suit schedule property on the date of

         filing of the suit?


     2. Whether plaintiff is entitled for permanent injunction, as

         prayed for?


     3. To what relief?


6.      During the course of trial, on behalf of the plaintiff, PWs1

and 2 were examined and Exs.A1 to A5 were marked. On behalf

of the defendants, defendant No.1 examined himself as DW1

and got examined DWs2 to 4. Exs.B1 to B12 were marked.


7.      The trial Court partly decreed the suit in respect of Ac.0-

50 cents of land out of Ac.1-50 cents of the plaint schedule

property and dismissed the suit in respect of Ac.1-00 cents of

land.


8.      Against the said dismissal of the suit, plaintiff filed

A.S.No.13 of 2016 on the file of learned Senior Civil Judge,

Punganur. The Lower Appellate Court allowed the appeal by its
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judgment, dated 11.06.2019 and granted injunction in favour of

the plaintiff in respect of entire suit schedule property.


9.     Aggrieved by the same, respondent Nos.2 and 4 to 6 filed

the above second appeal.

10. Heard Sri Mahadeva Kanthrigala, learned counsel for the

appellants and Sri S.V. Muni Reddy, learned counsel for

respondent No.1.

11. Learned counsel for the defendant Nos.2 and 4 to 6 would

contend that lower appellate Court failed to consider the

evidence of PW1 in proper perspective. He also contends that

plaintiff did not come to the Court with clean hands and plaintiff

failed to prove his possession over the plaint schedule property.

He contends that appellate Court failed to consider Ex.A5 in

proper perspective.

12. Learned counsel for respondent/plaintiff supported the

judgement of the lower appellate Court.

13. From the pleadings and evidence on record, the following

substantial questions of law would arise for consideration:

1. Whether the judgments of Courts below are vitiated in

ignoring to consider that plaintiff failed to prove

possession over the plaint schedule property on the date

of filing of the suit?

2. Whether the judgments of Courts below are vitiated in not

considering the evidence of P.W.1 and Ex A-5 in a proper

perspective?

14. The suit was filed seeking perpetual injunction. Going by

the pleadings, plaint schedule property is land admeasuring

Ac.1-50 cents in survey No.164/12, Upparapalli village, Somala

Mandal, Chittoor District. The case of the plaintiff is that D-

Form patta was granted in his name and the same was marked

as Ex.A1. He further pleaded that during the partition of joint

family properties, the understanding among the parties is that

lands assigned by way of D-Form pattas is to be enjoyed by the

person in whose name it was assigned. He also filed Ex.A2-cist

receipt and Ex.A3, pattadar passbook issued by the revenue

authorities. Plaintiff also filed 10-I Adangal and the same was

marked as Ex.A4 and certified copy of partition deed was

marked as Ex.A5. The necessity to file the suit arose since

defendants are trying to interfere with his possession.

15. The case of the defendants is that joint family developed

the land and made it fit for cultivation. Father filed petition for

grant of D-form patta in the name of plaintiff. On considering

the possession, the then Tahsildar, Punganur issued D-form

patta in favour of plaintiff. However, defendants have been

enjoying the suit schedule property without any obstruction. It

was further pleaded about partition and allotment of the plaint

schedule property in favour D1. He also filed exhibits with

regard to digging of bore-well, paying of electricity bill,

mortgaging plaint schedule property with the bank. He also filed

notice of MRO as Ex. B12. Defendants also filed Ex.B15,

whereby RDO directed MRO to resume the land. He pleaded that

he is co-owner along with the plaintiff.

16. The trial Court decreed the suit and granted injunction in

favour of the plaintiff in respect of Ac.0-50 cents of the suit

schedule property and negatived the relief in respect of Ac.1-00

cents. The trial Court relied upon Ex.A5, which is equivalent to

Ex.B1, registered partition deed, dated 29.07.1989. The trial

Court further observed that if the plaintiff is seeking exclusive

right over the plaint schedule property, he is at liberty to file

suit for declaration. Having said so, the trial Court granted

injunction in respect of Ac.0-50 cents out of Ac.1-50 cents.

17. Against the said judgment and decree, plaintiff filed

A.S.No.13 of 2016.

18. The lower appellate court being the final factfinding Court,

evaluated the entire evidence both oral and documentary

evidence on record. The lower Appellate Court considered

Exs.B5 to B12 and held that they are post-litem documents and

eventually the lower appellate Court allowed the appeal and

granted injunction.

19. The scope of Sec 100 CPC has been dealt by the Hon'ble

Apex Court in number of judgments.

20. In Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead)

By Lrs. and Ors.1 held as under:

"Sec 100 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 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

Appeal (Civil) 1287 of 1990

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."

21. In Yadavarao Dajiba Shrawane vs. Ma&niolrasl2 the

Hon'ble Supreme Court held as under:

18. 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

2002 (6) SCC 404

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.

22. In Hero Vinoth Vs. Seshammal3, held thus:

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

AIR 2009 SC 1481

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."

23. In the light of the expressions of 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 the

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 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 nan 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.

24. As noted supra, in a suit for injunction, plaintiff must

prove his possession as on the date when suit was filed in

respect of the plaint schedule property. The extent mentioned in

the suit schedule property is Ac.1-50 cents and Government

granted D-form patta in favour of the plaintiff over the entire

extent. Plaintiff and defendants pleaded that in the partition it

was understood among the parties that respective parties have

to enjoy the property assigned to them under D-form pattas. In

this connection, the evidence of DW1 gains significance.

Defendant No.1 as DW1 admitted in his evidence that prior to

the partition in the year 1989, plaintiff and himself got the

properties under DKT pattas. He was also assigned DKT patta to

an extent of Ac.1-08 cents in survey No. 164 and the plaintiff

was granted patta in respect of the suit schedule property.

Defendant No.1 also admitted that in Ex.B1, partition, it was

clearly mentioned that the above DKT properties have to be

enjoyed by the person in whose favour DKT patta was issued. In

fact, DW1 also admitted that plaintiff mortgaged the suit

schedule property and obtained loan from financial institutions.

25. Thus the evidence of D.W.1 coupled with the documents

filed by plaintiff and the issuance of D-form patta in favour of

the plaintiff prima facie proves that plaintiff established his

possession over the plaint schedule property on the day when

the suit is filed. If the plaintiff violates the conditions of D-form

patta, the appropriate authority after following the procedure,

will initiate the proceedings. Assigning the suit schedule

property in favour of the defendants may not arise. The trial

Court in fact considered the documents filed by the defendant

with regard to possession of the suit schedule property and also

observed that on Ex.B5, there is no office seal. Ex.B6 does not

indicate as to the person who is in possession of the property.

Ex.B7 was issued by the same MRO by striking off the name of

the plaintiff showing the name of the defendant as enjoyer for an

extent of Ac.1-00 cents. Further in Exs.B10 to B12 adangal and

1B, the name of plaintiff was struck off and the name of

defendant No.1 was incorporated. Having commented on the

documents filed by the defendants, trial Court on a wrong

assumption partly decreed the suit and granted injunction in

respect of Ac.0-50 cents out of total plaint schedule property of

Ac.1-50 cents. In fact, as observed supra, the evidence of

plaintiff is consistent regarding assignment of D-form patta,

issuance of pattedar passbook and his enjoyment over the suit

schedule property. The lower appellate Court being the final fact

finding Court evaluated the entire evidence and came to the

conclusion that the plaintiff is entitled for injunction.

26. It is pertinent to mention here that lower appellate Court

considered Exs.B5 to B12 and held that they are post-litem

documents. These post litem documents were pressed into

service by defendant to show that he is in possession of the

plaint schedule property. However, while considering post-litem

documents, they must be considered very cautiously. In fact,

trail court observed the discrepancies in Ex B5, B6 etc.

However, defendant did not explain those discrepancies. Apart

from that Ex B5 to B12, which are post litem motam cannot have

any evidentiary value. They were emanated after filing of the

suit. They cannot decide the possession of the parties on the

date of filing of the suit.

27. The findings recorded by the lower appellate Court, are

neither on misconstruction of documents or misreading of

evidence. The findings recorded by the Courts below do not call

for interference of this Court under Section 100 CPC. No

question of law much less substantial question of law is involved

in the second appeal and the same is liable to be dismissed.

28. Accordingly, this second appeal is dismissed at the stage

of admission. However, no costs.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI Date : 11.08.2022 IKN

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.94 of 2022 Date : 11.08.2022

IKN