% 08.08.2023 vs Counsel For
2023 Latest Caselaw 3819 AP

    HIGH COURT OF ANDHRA PRADESH :: AMARAVATI


                +SECOND APPEAL No.742 of 2018



Between:


#Baludula Chinna Edukondalu, S/o Beerappa.
                                                      ... Appeallant

                                And

$ Komati Nagarjuna S/o late Nagabhushanam
                                                     .... Respondent




JUDGMENT PRONOUNCED ON 08.08.2023



        THE HON'BLE DR.JUSTICE K. MANMADHA RAO



   1. Whether Reporters of Local newspapers
      may be allowed to see the Judgments?              -   Yes -

   2. Whether the copies of judgment may be marked
      to Law Reporters/Journals                         -   Yes -

   3. Whether Their Ladyship/Lordship wish to see
      the fair copy of the Judgment?                    -   Yes -




                              ___________________________________
                              DR.JUSTICE K. MANMADHA RAO
                                   2




        * THE HON'BLE DR.JUSTICE K. MANMADHA RAO



                    +SECOND APPEAL No.742 of 2018


% 08.08.2023


Between:


#Baludula Chinna Edukondalu, S/o Beerappa.
                                                         ... Appeallant

                                And

$ Komati Nagarjuna S/o late Nagabhushanam
                                                        .... Respondent




! Counsel for the Appellant :    Sri P. Durga Prasad




Counsel for Respondent:          Sri P. Prabhakar Rao




<Gist :


>Head Note:


? Cases referred:


   1.     (2001 (4) SCC 262
                                 3




       HON'BLE DR. JUSTICE K. MANMADHA RAO

               SECOND APPEAL No.742 of 2018

JUDGMENT:

The present Second Appeal is preferred by the

appellant aggrieved by the Decree and Judgment dated

10.04.2018 passed in A.S.No.26 of 2017 on the file of XVI

Additional District and Sessions Judge, Nandigama Krishna

District, confirming the decree and judgment dated

06.03.2017 passed in O.S No.135 of 2014 on the file of

Principal Junior Civil Judge, Nandigama.

2. The appellant is the plaintiff and the respondent is

the defendant in O.S.No.135 of 2014 on the file of Principal

Junior Civil Judge, Nandigamai.

3. For convenience the parties are hereinafter referred

to as arrayed before the XVI Additional District and Sessions

Judge, Nandigama, Krishna District in A.S.No.26 of 2017.

4. Brief facts of the case are that the plaintiff is the

absolute owner of the vacant site in an extent of Ac 0.05

cents out of Ac 8.50 cents in R.S.No.616/1 of Nandigama

Village and Mandal, and he acquired the same under

registered sale deed document No.2487/2004. Since the

date of purchase he is in peaceful possession and enjoyment

of the same without any interruption from anybody. The

plaintiff resides in Vijayawada and even prior to the

purchase of the plaint schedule property he used to reside

in Vijayawada, but the defendant who is not having any

right over the subject land, trying to occupy the same

illegally. Hence the plaintiff filed suit in O.S No.135 of 2014

before the trial Court .

5. The defendant filed written statement denying the

allegations made in the plaint. He further contended that

the plaintiff is not the owner of the Ac 0.05 cents site and he

is not in possession of the total extent of site as on the date

of filing of the suit, the plaintiff sold away Ac 0.02 cents of

site out of the subject property to the defendant under a

registered sale deed dated 9.4.2007, as such the plaintiff is

the owner and possessor of Ac 0.03 cents of land as on the

date of filing of the suit. Thereafter, both the parties agreed

to exchange their plots orally due to good relation in

between the parties, after exchange of plots, the defendant

constructed a house in the year 2008 in the year 2008 in

the site of Ac 0.02 cents on the southern side of the total

extent of Ac 0.05 cents and the defendant is in possession

on the northern side portion of the property thereafter the

defendant settled Ac 0.02 cents of site in his wife‟s favour

under a settlement deed dated 23.11.2009 and since then

she was in peaceful possession and enjoyment of the

property. It is further stated that the plaintiff also

constructed a house in the year 2011 in his extent of

Ac.0.03 cents which was taken by him orally exchanged but

the plaintiff suppressed the facts of construction made by

both parties but filed the suit with false allegations. As such

the suit is bad and not maintainable and hence prayed to

dismiss the suit.

6. Basing on the above pleadings, the trial Court

framed the following issues:

1. Whether the plaintiff is in possession and enjoyment of the plain schedule property as on the date of suit?

2. Whether the plaintiff is entitled for permanent injunction against the defendant as agreed for?

3. To what relief?

7. During course of trial, on behalf of the plaintiff, he

himself was examined as PW.1 and Ex.A1 to Ex.A4 were

marked and on behalf of the defendant, DWs.1 and 2 were

examined and Ex.B1 to Ex.B5 were marked. Through the

Advocate Commissioner Exs.C1 to C3 were marked.

8. After considering the oral and documentary

evidence, the trial Court came to a conclusion that the

plaintiff failed to make out a case for grant of permanent

injunction as prayed for. Therefore, the suit was

dismissed. Aggrieved by the same, the plaintiff preferred an

appeal in A.S No.26 of 2017 before the XVI Additional

District and Sessions Judge, Nandigama (for short "the first

appellate Court") . After hearing the both sides, the first

appellate Court has framed point for consideration as under:

i) Whether the trial Court judgment in O.S No.135 of 2014 on the file of Principal Junior Civil Judge, Nandigama requires any interference by this Court or not?

9. Basing on the above circumstances the first

appellate Court has dismissed the Appeal suit with costs by

confirming the decree and judgment in O.S.No.135 of 2014.

Challenging the same, the present second appeal came to be

filed.

10. Heard Sri P. Durga Prasad, learned counsel

appearing for the appellant and Sri P. Prahakar Rao, learned

counsel appearing for the respondent.

11. This Second Appeal is filed under Section 100

CPC on the ground that the judgment and decree of both

courts below is totally basing on the presumption, surmises

and conjectures, ignoring the material facts available on

record and interpretation of law.

12. There cannot be any dispute that, under the

amended Section 100 C.P.C., a party aggrieved by the decree

passed by the first appellate court has no absolute right of

appeal. He can neither challenge the decree on a question of

fact or on a question of law. The second appeal lies only

where the High Court is satisfied that the case involves a

substantial question of law. The word „substantial‟ as

qualifying „question of law‟, means and conveys - of having

substance, essential, real, or sound worth, important,

considerable, fairly arguable, in contradiction with -

technical, formal, or no substance, no consequence or

academic only. A substantial question of law should directly

and substantially affect the rights of the parties. A question

of law can be said to be substantial between the parties if

the decision in appeal turns one way or the other on the

particular view of law. But, if the question does not affect

the decision, it cannot be said to be substantial question

between the parties. Recording a finding without any

evidence on record; disregard or non consideration of

relevant or admissible evidence; taking into consideration

irrelevant or inadmissible evidence; perverse finding- are

some of the questions, which involve substantial questions

of law.

13. According to Section 100 CPC, 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 introduced such an

embargo for such definite objectives and since the Courts

are required to further probe on that score and the Courts

while detailing out, but the fact remains in second appeal

finding of fact, even if erroneous, will generally not be

disturbed but where it is found that the findings stand

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 will be within its

jurisdiction to deal with the issue. The High Court can

interfere with such finding recorded by the trial Court

though not on law in view of judgment reported in Kulavant

Kaur v Gurdial Singh Mann1

14. Keeping in mind the scope of Section 100 CPC, I

would like to decide the present appeal at the stage of

admission.

15. The main contention before the trial Court in the

written statement is that the plaintiff sold away Ac 0.02

cents of site out of subject property to the defendant under a

registered sale deed dated 9.4.2007 and the said site

situated on the northern side of Ac 0.03 cents of site of the

plaintiff. The plaintiff is only having Ac 0.03 cents of site on

the spot and the plaintiff suppressed all these facts filed the

plaint as if he is the owner of Ac 0.05 cents. Thereafter the

plaintiff requested the defendant for exchanging the plots in

between the defendant and that Ac 0.03 cents of site which

was kept by the defendant for his purpose be adjusted on

the northern side of the plaint schedule site i.e., Ac.0.02

cents of site from his own site of Ac.0.03 cents on the

southern side of total extent for which both parties agreed

and changed their plots orally.

2001 (4 SCC 262

16. On a perusal of the material on record, it is

observed that there is no dispute that initially the plaintiff

purchased the entire subject property. As per the plaint the

entire plaint schedule property of Ac 0.05 cents is vacant

land but when coming to evidence of PW.1, he deposed that

when the trial Court granted ad interim injunction on

22.12.2014 the defendant and his men, agents entered into

the southern side of the suit schedule property and stated

repairing the old ruined structure, but it is not the

contention of the PW.1 that the defendant newly constructed

house on the southern side portion. The case of the

defendant is that after exchange of the properties, both

parties constructed the houses in their respective sites, but

the plaintiff shown the plaint schedule property in the plaint

as vacant site and it is also elicited in his cross examination

that there is a dilapidated house in the plaint schedule

property.

17. Learned counsel for the appellant mainly

contended that there is no evidence available on record for

exchange of property and if there is no exchange of property,

the question of execution of sale deed does not arise. He

further submits that the Courts below ought to have seen

that the suit filed by the plaintiff seeking for injunction

therefore both the courts ought to have taken into

consideration that as on the date of filing of the suit who are

in possession for better adjudication of the matter. When

the defendant questioning the title of the plaintiff in respect

of Ac 0.02 cents on Southern side portion of property it is

for the plaintiff to seek declaration but not mere injunction.

If the defendant questioned the title of plaintiff it is the

obligation on the part of the defendant to file a separate suit

for declaration. Therefore the reasons assigned by the

Courts below are neither sustainable nor tenable in the eye

of law.

18. This Court further observed that the suit was filed

for grant of permanent injunction and the appellant/plaintiff

has to prove that he is in possession and enjoyment of the

property on the date of filing of the suit. But, on verification

of the record, the documents filed by the appellant/plaintiff

did not disclose that he was in lawful possession and

enjoyment of plaint schedule property on the date of filing of

suit. Admittedly, a person, who can seek relief of permanent

injunction, it is necessary to prove that plaintiff, was in

lawful possession of the plaint schedule property and the

defendant tried to interfere or disturb such lawful

possession. Moreover, the defendant to prove the exchange

and construction of the houses in the plaint schedule

property. Further, in this case, an Advocate Commissioner

was also appointed and in his evidence clearly falsifies the

contention of the plaintiff.

19. Though the trial Court has held that the

appellant is not entitled to the equitable relief, this Court

need not delve into the said aspect. Even assuming that the

appellant alone is entitled to maintain the suit, as he failed

to establish his plea that he is in possession of the property,

he is not entitled to the relief of injunction. Though the

respondent has claimed that there is exchange and

construction of the houses, he has not produced any

material to that extent. Even if the respondent has no title

over the property, his possession is enough to non-suit the

appellant. Assuming that the appellant is the absolute/true

owner of the property, as he is not in possession of the

same, he is not entitled to the grant of injunction. The

appellant, if so advised, can only file a separate suit for

declaration of title and recovery of possession of the

property.

20. For the above-mentioned reasons, I do not find

any reason to interfere with the well-considered judgments

of the Courts below.

21. Accordingly, the Second Appeal is dismissed at

the stage of admission. No order as to costs.

As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 08 -08-2023 Note : L. R copy to be marked.

(b/o)Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

SECOND APPEAL No.742 of 2018

Date : 08 .08.2023

Gvl