Andhra Pradesh High Court - Amravati

Pragada Rama Rao vs Balide Vidyanandam on 17 August, 2022

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                   SECOND APPEAL No.183 of 2022

JUDGMENT:-

      The unsuccessful plaintiffs filed the above second appeal

against the judgment and decree, dated 10.12.2021 passed in

A.S.No.35 of 2017 on the file of learned VI Additional District

Judge, Sompeta, confirming the judgment and decree, dated

01.11.2017 passed in O.S.No.65 of 2011 on the file of learned

Junior Civil Judge, Tekkali.


2.    Plaintiffs    filed   O.S.No.65   of   2011   for   permanent

injunction. The parties to the appeal shall be referred to as they

are arrayed in O.S.No.65 of 2011.


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

schedule land and other properties are ancestral properties of

Pragada Narayana Naidu and his sons, Rama Rao and Krishna

Rao; that Narayana Naidu died in the year, 1988 leaving behind

him, his wife, Mahalakshmamma and sons, Rama Rao and

Krishna Rao as his legal heirs; that after the death of Narayana

Naidu, all the properties were divided between plaintiff No.1 and

his brother Krishna Rao, husband of plaintiff No.2; that plaint

schedule dry land admeasuring Ac.0-26 cents was divided

between plaintiff No.1 and his brother, Krishna Rao wherein

plaintiff No.1 got Ac.00-13 cents; that the partition is oral one;

that plaintiff No.1 was issued pattedar passbook and title deed
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in respect of Ac.0-13 cents of land as also husband of plaintiff

No.2; that pattedar passbook and title deed issued in favour of

husband of plaintiff No.2 were misplaced; that plaintiff No.2 is

working as employee in Hyderabad; that defendants, who are

strangers to the plaintiffs' family are spreading rumours in and

around the village that they would trespass into the plaint

schedule      property.   Hence,       suit        was   filed    for   perpetual

injunction.


4.    Defendant      Nos.1   to    4       filed    written      statement   and

contended inter alia that plaint schedule property is ancestral

property of the defendants; that revenue authorities issued

pattedar passbook and title deed in favour of defendants' father;

that they laid foundation in part of the plaint schedule property

towards Eastern side, long back; that now it is totally in

dilapidated condition and during course of time, foundations are

being covered with other material; that father of the defendants

filed C.O.P.No.22 of 2011 on the file of learned Junior Civil

Judge, Tekkali on 11.10.2011; that plaintiff No.1 received

Caveat and suppressing the said fact, he along with plaintiff

No.2 filed the above suit; that physical boundaries of the plaint

schedule property are not correct; that plaintiff No.1 worked in

Revenue Department and he created some documents and filed

false case. Thus, prayed to dismiss the suit.
                                        3




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

following issues are framed for Trial:


     1.

Whether plaintiffs are in possession and enjoyment of the

suit schedule property as on the date of the suit?

2. Whether the plaintiffs are entitled for permanent

injunction against the defendants, as prayed for?

3. To what relief?

6. During the course of trial, on behalf of the plaintiffs,

plaintiff No.1 examined himself as PW1 besides examining PW2

and Exs.A1 to A11 were marked. On behalf of the defendants,

defendant No.1 examined himself as DW1 besides examining

DWs2 and 3 and Exs.B1 to B6 were marked.

7. The trial Court on consideration of both oral and

documentary evidence, as also legal aspects, dismissed the suit

with costs by judgment, dated 01.11.2017.

8. Against the said judgment, plaintiffs filed A.S.No.35 of

2017 on the file of VI Additional District Judge, Sompeta. The

lower Appellate Court, on consideration of oral and

documentary evidence dismissed the appeal by judgment and

decree, dated 10.12.2021. In the appeal, plaintiffs filed

I.A.No.198 of 2021 to receive certain documents and the same

was dismissed on consideration.

9. Aggrieved by the said judgments and decrees of the Courts

below, the above second appal is filed.

10. Heard Sri T. Nageswara Rao, learned counsel for the

appellants.

11. Learned counsel for the appellants/plaintiffs would

contend that plaintiffs proved their possession and title by

marking Exs.A1 to A11. He contends that Exs.A1 and A2 are

pattedar passbook and title deed respectively and the Courts

below failed to consider them in proper perspective. He also

contends that the Lower Appellate Court being final fact finding

Court, without framing points for consideration, dismissed the

appeal.

12. Basing on the contentions of appellants, the following

substantial questions of law are involved in this second appeal:

1. Whether the judgments of Court below are vitiated in not

considering the evidence on record properly which

establishes the possession of plaintiffs over the schedule

property on the date of filing of the suit?

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

considering Exs.A1 and A2 i.e. pattedar passbooks and

title deed in a proper manner?

3. Whether the judgment and decree of the lower appellate

court are vitiated in not framing points for consideration

as contemplated under Order XLI Rule 31 of CPC?

13. Before delving into the matter, since the appeal filed under

Section 100 CPC, this Court must see the scope of Section 100

of CPC.

14. The Hon'ble Apex Court 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 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

Appeal (Civil) 1287 of 1990

adjudication what is required is a categorical finding on the part of the High Court as to perversity."

15. In Yadavarao Dajiba Shrawane vs. Nanilal Harakchand

Shah (Dead) and Ors.2 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 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.

16. In Leela Soni vs. Rajesh Goyal3, the Hon'ble Supreme

Court held as under:

2002 (6) SCC 404

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."

17. Ishwasdas Jain vs. Sohan lal4 the Hon'ble Supreme

Court held that it is essential for the High Court to formulate a

substantial question of law under section 100 CPC, after the

2001 (7) SCC 494

2000 (1) SCC 434

1976 amendment and it is not permissible to reverse the

judgment of the first appellate Court without doing so.

18. Further the Hon'ble Apex Court in Hero Vinoth Vs.

Seshammal5, 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 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

AIR 2009 SC 1481

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."

19. In the light of the expressions of Hon'ble Apex Court in

various judgements qua the scope of interference of the High

Court in second appeal, this Court while exercising jurisdiction

under Section 100 of the CPC, must 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 Courts 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.

20. Coming to the facts of the present case, plaintiffs filed the

above suit for injunction. The plaint schedule property is Ac.0-

26 cents of land. According to plaintiff No.1, there was partition

between himself and his brother while their father was alive.

However, admittedly no partition deed was placed before the

trial Court. Further wife of brother of plaintiff No.1 alone is

shown as plaintiff No.2.

21. By filing written statement, defendants denied title of the

plaintiffs and asserted that they are in possession and

enjoyment of the plaint schedule property. Revenue authorities

also issued pattadar passbook and title deed in favour of

defendants' father. Thus, defendants denied the title of the

plaintiffs.

22. When the defendants denied title of the plaintiffs even

before filing of the suit, plaintiffs ought to have filed suit for

declaration. However, suit was filed for injunction basing on title

and possession. Plaintiffs must prove their title incidentally and

possession over the plaint schedule property. Apart from that

the suit is one filed for injunction, it being equitable relief,

plaintiffs must also prove that they came to the Court with clean

hands.

23. Exs.A1 and A2 filed by the plaintiffs i.e. pattadar passbook

and title deed are with a number of corrections and over

writings. There is no initial of any authentic person regarding

the said corrections or over-writings. Plaintiffs also did not file

any single scrap of paper or document to show that father of

plaintiff No.1 acquired plaint schedule property.

24. Deputy Tahsildar, Nandigama issued Ex.A3 in favour of

plaintiff No.1 in respect of Ac.0-13 cents of land and also in

favour of his brother in respect of another extent of Ac.0-13

cents of land. The same Deputy Tahsildar also issued Ex.B3 in

respect of the plaint schedule land in favour of the defendants'

father. Before filing of the suit, defendants' father filed caveat

and disputed the title of the plaintiffs. Plaintiff No.1 being PW1

admitted regarding receipt of caveat. Having received the caveat,

plaintiffs ought to have sought for declaration of title instead of

filing suit for injunction. In the opinion of this Court since there

is serious dispute regarding title of the property suit for mere

injunction is not maintainable.

25. In Ananthula Sudhkar vs. P.Butchi Reddy (dead) by

LRs and others6 the Hon'ble Apex Court observed as under:

"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession

2008 (4) SCC 594

or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.",

26. As pointed out supra, defendants denied the title of the

plaintiffs even before filing of the suit, by filing caveat. In such a

case, suit for injunction simplicitor is not maintainable and the

plaintiffs ought to have filed the suit for declaration.

27. Exs.A4 to A11 relied upon by the plaintiffs are post litem

motam documents. These post litem documents were pressed

into service by plaintiffs to show that they are in possession of

the plaint schedule property. However, while considering post-

litem documents, they must be considered very cautiously. A

perusal of the documents prima facie shows that P.W.1 could

secure those documents since he worked in Revenue

Department. In fact, plaintiff No.1 as P.W.1, deposed that he

worked in Revenue Department as VRO. Hence, no reliance can

be placed on those documents.

28. The suit is filed for perpetual injunction and hence

conduct of PW1 is also to be considered. PW1 in his evidence

admitted that he is seeking relief for Ac.0-13 cents out of Ac.0-

26 cents of the plaint schedule property. He further admitted

that he himself filed suit against the defendants. Wife of his

brother Krishna Rao is shown as plaintiff No.2. However, neither

Krishna Rao nor his children are shown as parties/plaintiffs to

the suit. Plaintiff No.2 did not choose to come to witness box.

29. It is also pertinent to mention here that brother of plaintiff

No.1 i.e. Krishna Rao is said to have been residing in Hyderabad

by doing coolie work and since he is not in possession to attend

the Court from Hyderabad, he executed General Power of

Attorney in favour of his wife, plaintiff No.2 to prosecute the

case on his behalf and the same was attested by Advocate on

31.10.2011. The said GPA was filed along with suit. Plaintiff

No.1, during his cross-examination as PW1, deposed that

whereabouts of his younger brother are not known. They did not

give any Police report to know whereabouts of his brother. Going

by the same, it can be concluded that plaintiff No.1 along with

his brother's wife filed the above suit. Thus, filing of alleged

GPA/SPA allegedly executed by the husband of 2nd plaintiff may

not be true and this instance makes the thing clear that

plaintiffs came to the Court with unclean hands by suppressing

facts. PW1 in fact, in his cross-examination, admitted that

partition was reduced into writing. However, no such document

was filed before the Court. He also admitted that Exs.A1 and A2

do not contain the year, in which they were issued. Thus, this

Court is of the opinion that plaintiffs did not come to the Court

with clean hands.

30. Pending the appeal, plaintiffs also filed application vide

I.A.No.198 of 2021 under Order XLI Rule 27 of CPC to receive I-

B register for the years, 2017 and 2021. Lower appellate Court,

dealt with the same and eventually dismissed the petition since

they are of post litem documents.

31. The findings of fact recorded by the trial Court confirmed

by the first appellate Court regarding the plaintiffs' failure to

prove their possession is based on evidence available on record.

Having filed suit for injunction, the plaintiffs must succeed on

the strength of their own case, but they cannot rely upon the

weakness of the defendants.

32. In ACE-III BC Private Limited, Rep. By its Authorized

Signator Mr. Vellore Venkat Kamal Kumar and others v.

Sana Lakshmi Devi and others7 the Division Bench of

Telangana High Court held that it is well established principle of

law that in any case, plaintiff must stand or fall on the basis of

the pleadings made by the plaintiff/petitioner, who has

approached the Court and not on the weaknesses of the

defendants/respondents.

33. It was argued by the learned counsel that the lower

Appellate Court being the final fact finding court did not frame

points for consideration as contemplated under XI Rule 31 CPC.

The judgement of appellate court must reflect conscious

application of mind. Appellate court must record findings on all

issues arising out of the lis.

7 2020 (4) ALD 392

34. In B.V. Nagesh v. H.V. Sreenivasa Murthy8 while dealing

with the issue, this Court held as under:

"4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.

35. In H. Siddiqui v. A. Ramalingam9 the Hon'ble Apex Court held as under:

"Order 41 Rule 31 CPC

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that

8 (2010) 13 SCC 530 9 (2011) 4 SCC 240

the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."

36. A perusal of judgement of lower Appellate Court indicates

that Appellate Court, being the final fact finding court

considered entire evidence on record and recorded findings. In

fact, appellate court dealt with all the issues involved in the

matter and hence the judgment of appellate court is in

consonance with Order XI Rule 31 CPC.

37. Both the Courts below considered evidence on record in a

proper perspective and recorded findings. In view of the findings

recorded by the Courts below, since they are not perverse or

misconstrued or misleading evidence, this Court opines that the

findings recorded by the Courts below do not call for

interference of this Court under Section 100 CPC. No question