Kurakula Vasantharayudu vs Kurakula Arjunudu
2024 Latest Caselaw 9419 AP

Andhra Pradesh High Court - Amravati

Kurakula Vasantharayudu vs Kurakula Arjunudu on 17 October, 2024

APHC010275392012
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                           [3397]
                           (Special Original Jurisdiction)

            THURSDAY ,THE SEVENTEENTH DAY OF OCTOBER
                 TWO THOUSAND AND TWENTY FOUR

                                   PRESENT

        THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
                          KRISHNA RAO

                       SECOND APPEAL NO: 324/2012

Between:

Kurakula Vasantharayudu                                          ...APPELLANT

                                      AND

Kurakula Arjunudu                                              ...RESPONDENT

Counsel for the Appellant:

1. CHANDRA SEKHAR ILAPAKURTI

Counsel for the Respondent:

1.

The Court made the following:

Judgment:

This second appeal is filed aggrieved against the Judgment and decree dated 24-11-2011 in A.S.No.21 of 2008 on the file of the Senior Civil Judge, Pithapuram, East Godavari District, confirming the Judgment and decree dated 06-8-2008 in O.S.No.3 of 2001 on the file of the Junior Civil Judge, Pithapuram.

2. The appellant herein is the plaintiff and the respondent herein is the defendant in O.S.No.3 of 2001 on the file of the Junior Civil Judge, Pithapuram.

3. The plaintiff initiated action in O.S.No.3 of 2001 on the file of the Junior Civil Judge, Pithapuram, with a prayer to grant permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaint schedule property and for costs of the suit.

4. The learned Junior Civil Judge, Pithapuram, dismissed the suit without costs. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Senior Civil Judge, Pithapuram, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff/appellant approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.

6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.3 of 2001, is as follows:

The plaint schedule property is the ancestral property of the plaintiff fell to his share, since then he is enjoying the same with absolute rights. His right also recognized by the Revenue authorities for the land in existence of Ac.1-33 cents of land in Survey No.59/5 while enjoying the same, the plaintiff mortgaged the said property in Primary Agricultural Cooperative Society, P. Rayavaram, in the year 1996. Subsequently, on 07-7-2000, an extent of Ac.0-70 cents of land was sold by the plaintiff to one Karedla Chandra Rao under a registered sale deed, the remaining extent shown in the plaint schedule is in exclusive possession and enjoyment of the plaintiff. He is paying land revenue to the said land including 1409 fasli. The defendant tried to trespass into the plaint schedule property without any manner of right. The defendant bore grudge against the plaintiff since the plaintiff obtained interim injunction in another suit filed against the defendant. The defendant is no other than the plaintiff's elder brother. Plaintiff is not having any other way, except to present the said suit to restrain the brutal force of the defendant. Hence, the present suit is filed.

7. The defendant filed written statement denying the contents of plaint averments and further contended as follows:

The defendant admitted his relationship with the plaintiff. He further stated that he is not aware that the plaintiff mortgaged the above said land to Primary Agricultural Cooperative Society, P. Rayavaram, in 1996. The pass books etc., under mortgage are make believe transactions and they got fabricated with the connivance and collusion of the Revenue officials. The Revenue authorities carelessly and recklessly issued pass books to the properties that are not entitled to those properties. They cannot be taken cognizance in the face of clear documents of title, tax receipts and other. The defendant came to know that the plaintiff, with a view to grab the property of the defendant, executed a sale deed dated 07-7-2000 in favour of Karedla Chandra Rao. The plaintiff is entitled to the northern Ac.0-66½ cents of land alone. The title deed of the plaintiff is a registered settlement deed dated 29-5-1974 which is executed by the grandfather of plaintiff and defendant, by name Kurakula Vasantha Rayudu, in favour of the plaintiff for Ac.0-66½ cents of land on the north, during his minority represented by his brother Kurakula Gangadhara Rama Rao. Item No.1 of the said settlement deed is Ac.0-66½ cents of land on the north. The southern boundary is described as other sharer's land of Arjunudu i.e., defendant. So, in the said Survey No.59/5, total extent of which is Ac.1-33 cents of land, the plaintiff is entitled to Ac.0-66½ cents of land on the south in the same Survey number. The plaintiff got issued a registered notice dated 14-7-2000 and the defendant sent a reply on 05-9-200 through his Advocate. The plaintiff suppressed the same as otherwise he had to file a suit for declaration and a mere suit for injunction is to fail. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.

8. On the basis of above pleadings, the learned Junior Civil Judge, Pithapuram, framed the following issues for trial:

(1) Whether the plaintiff is having title, possession and enjoyment of plaint schedule property extent of Ac.0-63 cents ?

(2) Whether the suit for injunction filed is maintainable without seeking declaration ?

(3) Whether the plaintiff is entitled to the relief claimed ? and (4) To what relief ?

9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-9 were marked. On behalf of the defendant, D.W.1 was examined and Exs.B-1 to B-11 were marked.

10. The learned Junior Civil Judge, Pithapuram, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit without costs. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.21 of 2008 before the learned Senior Civil Judge's Court, Pithapuram, wherein, the following points came up for consideration.

(1) Whether the plaintiff is entitled for relief of permanent injunction in respect of plaint schedule property as prayed for ? and (2) Whether the decree and judgment of trial Court dated 06-8-2008 warrants any interference by way of this appeal ?

11. The learned Senior Civil Judge, Pithapuram, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiff/appellant and in favour of the defendant/respondent and dismissed the appeal filed by the plaintiff. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.3 of 2001 filed the present second appeal before this Court.

12. After institution of the second appeal by the plaintiff in the suit, this Court ordered notice to the respondent before admission and the said notice is served on the respondent/defendant, but none appeared on his behalf. Heard Sri Chandra Sekhar Ilapakurti, learned counsel for the appellant/ plaintiff.

13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi1, the Apex Court held that 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 namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law.

14. The plaintiff having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law.

(2007) 8 SCC 155

15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court.

16. The appellant is the plaintiff in the suit. He filed the suit for seeking the relief of permanent injunction restraining the defendant and his men from interfering with the possession and enjoyment of the plaintiff in the schedule property. The law is well settled that in a suit for perpetual injunction, the plaintiff has to plead and prove that he is in possession of the suit schedule property as on the date of institution of the suit. The respondent/defendant would contend that the appellant herein is none other than his own brother and the plaintiff herein is not having any title in the plaint schedule property and he is also not in possession of the plaint schedule property as on the date of institution of the suit. The schedule enclosed to the plaint goes to show that the suit schedule property is an extent of Ac.0-63 cents of dry land out of full extent of Ac.1-33 cents of land. The appellant would contend that the schedule property is ancestral property of the plaintiff which fell to his share and he has been enjoying the same with absolute rights and the total extent of property is Ac.1-33 cents of land from out of which, on 07-7-2000 he alienated an extent of Ac.0-70 cents of land to one Karedla Chandra Rao under a registered sale deed, dated 07-7-2000 and in the remaining extent, he is in exclusive possession and enjoyment over the same. The relationship in between the plaintiff and defendant is not at all in dispute by the respondent. The contention of the respondent/defendant is that the plaintiff in the suit is none other than his own brother and originally, the total schedule property of Ac.1-33 cents of land fell to their grandfather and their grandfather executed a registered gift settlement deed in favour of the plaintiff for an extent of Ac.0-66½ cents of land and he also executed another registered gift settlement deed in favour of the defendant for the remaining extent of Ac.0-66½ cents. In order to prove the same, the respondent got exhibited registered gift settlement deed said to have been executed by his grandfather in favour of the plaintiff as Ex.B-2 and registered gift settlement deed said to have been executed in favour of the defendant herein as Ex.B-3 before the trial Court.

17. In the case on hand, both parties are claiming right and possession over the plaint schedule property. In fact, the trial Court also framed an issue that "Whether the plaintiff is having title, possession and enjoyment of the plaint schedule property extent of Ac.0-63 cents ?" The documentary evidence produced by the respondent before the Courts below clearly goes to show that the grandfather of the plaintiff and defendant executed a registered gift settlement deed dated 29-5-1974 in respect of Ac.0-66½ cents of land from out of Rs.1-33 cents of land in Survey No.59/5 and likewise, their grandfather executed a registered gift settlement deed in favour of the defendant on the same date i.e. on 29-5-1974. The plaintiff has been examined as P.W.1 before the trial Court. In his evidence in cross- examination, he admits about the execution of registered gift settlement deeds by his grandfather in favour of the plaintiff and defendant i.e. under Exs.B-2 and B-3. In Ex.B-2, there is a specific recital that their grandfather settled Ac.0-66½ cents of land towards northern side out of Ac.1-33 cents of land in Survey No.59/5 in favour of the plaintiff and the plaintiff further admits that his grandfather also executed another registered gift settlement deed in favour of the defendant on the same date under Ex.B-3 for the remaining Ac.0-66½ cents of land and the plaintiff also admitted about the execution of Exs.B-2 and B-3 registered gift settlement deeds in favour of the appellant and respondent by the grandfather of appellant and respondent. The plaintiff also further admits that in Ex.B-3, the plaintiff was shown as northern boundary holder. The admissions of plaintiff in his evidence in cross-examination clinchingly support the contents of Exs.B-2 and B-3. The contention of the appellant/plaintiff is that his grandfather was having total property of Ac.1-33 cents of land in Survey No.59/5 and from out of it, the plaintiff sold away an extent of Ac.0-70 cents of land to one third party on 07-7-2000 under a registered sale deed. As per the own admissions of plaintiff in his evidence in cross-examination itself, he is having right and title in an extent of Ac.0-66½ cents of land in the plaint schedule Survey number. As per his own admissions, he alienated Ac.0-70 cents of land in the same Survey number. As per his own admissions, his grandfather executed a gift settlement deed for Ac.0-66½ cents of land only. Therefore, there is no substance in the contention of the appellant that the appellant herein is having right, title and possession in the remaining extent of total property of Ac.1-33 cents of land. The material on record reveals that the plaintiff relied on Exs.A-1 to A-3 pattadar pass book and title deeds and also adangal copies issued by the Revenue Department. The law is well settled that the entries in Revenue records are not the conclusive proof of possession and title. Therefore, those documents cannot be relied upon since the respondent herein is seriously opposing the title of the plaintiff herein in the plaint schedule property. The oral and documentary evidence produced by both the parties before the trial Court fail to establish that the plaintiff is in possession of the plaint schedule property as on the date of filing of the suit. On appreciation of the entire evidence on record, the learned trial Judge came to the conclusion that the plaintiff has totally failed to prove his possession as well as title over the plaint schedule property and the same is confirmed by the first appellate Court.

18. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the defendant and against the plaintiff do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law.

19. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki2. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code.

20. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. Pending applications, if any, shall stand closed. No costs.

VENUTHURUMALLI GOPALA KRISHNA RAO,J

AIR 2006 SC 1975