M/S. Varuna Hatcheries Pvt Ltd., ... vs Sri. Bitchareddy, R.R.Dist 10 ...
2021 Latest Caselaw 225 Tel

           THE HONOURABLE JUSTICE G. SRI DEVI

                 SECOND APPEAL No.708 of 2017

JUDGMENT:

This second appeal is filed, under Section 100 of C.P.C.,

against the judgment and decree of the learned III-Additional

District Judge, Ranga Reddy District at L.B.Nagar, dated 04.05.2017,

passed in A.S.No.264 of 2013, whereunder the learned Judge

dismissed the said appeal with costs by confirming the judgment

and decree, dated 28.06.2013, passed in O.S.No.1787 of 2004 on the

file of the VIII-Additional Senior Civil Judge, Ranga Reddy District

at L.B.Nagar, Hyderabad.

Appellant is the 8th defendant, respondent Nos.1 to 4 herein

are the plaintiffs and respondent Nos.5 to 11 are defendant Nos.1 to

7. For the sake of convenience, the parties would be referred to as

they were arrayed in the suit.

Necessary facts for disposal of this second appeal are as

follows:

Plaintiff Nos.1 to 4 filed O.S.No.1787 of 2004 for declaration of

their title to the suit schedule land admeasuring Ac.1.12 guntas in

Sy.No.4 situated at Kothagudem Village, Serilingampally Mandal,

Ranga Reddy District, and also for permanent injunction restraining

the defendants and their henchmen from interfering with their

peaceful possession and enjoyment over the said land. It is stated in

the plaint that the plaintiffs are absolute owners and possessors of

the suit schedule property having purchased the same from the 1st

defendant under a registered sale deed bearing document

No.1133/2004, dated 30.01.2004. The 1st defendant had acquired the

suit schedule property along with other properties through a

compromise decree, dated 20.10.2003 passed by this Court in

A.S.No.1857 of 1995 and since the date of purchase, the plaintiffs are

in peaceful possession and enjoyment of the same and have started

their efforts in developing the land and made construction of

compound wall and gate to the suit schedule property. It is further

stated that the 4th defendant, who is in no way concerned with the

suit schedule property, started interfering with peaceful possession

and enjoyment of the plaintiffs over the suit schedule property

under the guise of registered sale deed bearing document

No.9942/2003, dated 14.08.2003, having purchased the same from

defendant Nos.2 and 3. The plaintiffs came to know that defendant

Nos.2 and 3 have purchased the suit schedule property from the

coparceners of the 1st defendant under the registered document

No.3170 of 1994 dated 13.04.1994, which was executed during

pendency of O.S.No.473 of 1988 filed by the 1st defendant for

partition, and after final decree the suit schedule land was not

allotted to the share of one R.Advaiah and as such said transaction is

hit by lis pendency. It is also stated that the 4th defendant with an evil

eye to usurp the land of the plaintiffs came to the suit schedule

property on 19.07.2004 along with anti social elements and declared

that legal heirs of late R.Advaiah sold an extent of 990 square yards

and demanded the plaintiffs to vacate the suit schedule land and as

such the plaintiffs filed the above suit.

The aforesaid suit was contested by defendant Nos.1, 2, 4 and

8 by filing different written statements. The 1st defendant in her

statement admitted each and every averment of the plaint. The 2nd

defendant, while denying the averments of the plaint, contended

that there is no cause of action for the suit and the 4th defendant did

not come to the suit schedule property on 19.07.2004. The 4th

defendant contended that defendant Nos.2 and 3 purchased the suit

schedule property in the year 1994 through registered sale deed and

in the year 1995 they have constructed a compound wall and erected

a gate. It is further contended that at no point of time the 1st

defendant and her family members made any objection when they

constructed compound wall. It is further contended that the 4th

defendant had purchased the suit schedule property from defendant

Nos.2 and 3 through valid registered sale deed dated 14.08.2003 and

since then he has been in possession of the suit schedule property

and that there is a dispute with regard to the identity of the

property. It is further contended that as per the case of the plaintiffs,

the suit schedule land is admeasuring Ac.1.12 guntas in Sy.No.4 of

Kothagudem Village, whereas the property owned and possessed by

the 4th defendant is in Sy.No.2 and 4 of Kothaguda Village and that

the plaintiffs with a mala fide intention got defective registered sale

deed with survey numbers of their choice and hence the suit is liable

to be dismissed.

The 8th defendant company, who is the appellant herein, filed

written statement contending that it had purchased the properties in

Sy.Nos.2, 4, 29, 30, 31, 32, 34 and house bearing No.2-44 from

different persons such as legal heirs of R.Advaiah and other persons

through registered sale deeds bearing Nos. 1074/1990, 10411/1991,

365/2004, 781/2004, 2134/2004, 2135/2004, 2991/2004, 3042/2004,

3473/2004, 3474/2004, 8455/2004, 10013/2004, 10014/2004,

11605/2004, 3611/2005, 3612/2005, 12798/2005, 8789/2006,

18022/2006, 11107/2007 and 5468/2008. It is contended that after

receiving the notices in the suit, when the 8th defendant made

enquiries with the 1st defendant whether the suit schedule property

is covered by the land held and purchased by the 8th defendant from

R.Advaiah and others, she informed that the holdings of the 8th

defendant and land sold to the plaintiffs are different and separate

entities and she further stated that the land held by 8th defendant is

not part of the share of the 1st defendant. It is further contended that

the 8th defendant being a bonafide purchaser through lawful owners

under different sale deeds is in absolute possession and enjoyment

of land admeasuring 11,448.22 square yards in Sy.Nos. 2, 4, 11 and

12 of Kothaguda Village and hence the suit is liable to be dismissed.

On the basis of the aforesaid pleadings, the trial Court framed

the following issues:-

1. Whether the plaintiffs are absolute owners and possessors of the suit schedule property?

2. Whether the plaintiffs entitled for permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule property?

3. To what relief?

During trial, on behalf of the plaintiffs, P.W.1 was examined

and Exs.A1 to A33 were marked. On behalf of the defendants,

D.W.1 was examined and Exs.B1 to B6 were marked.

The trial Court, on a careful consideration of the rival

contentions and also the entire material available on record, decreed

the suit holding that the plaintiffs are entitled to a declaration of

their title as absolute owners and possessors of the suit schedule

property and also entitled to a permanent injunction against the

defendants. Against the said judgment and decree, the 8th defendant

carried the matter in appeal and the lower appellate Court, by its

judgment and decree, dated 04.05.2017, dismissed the appeal,

confirming the judgment and decree passed by the trial Court.

Aggrieved by the same, the present second appeal has been

preferred by the 8th defendant.

This Court, on 26.12.2017, admitted the second appeal on the

following substantial questions of law:

1. Whether both the judgments of the Court below are perverse?

2. Whether the Courts below were justified in decreeing the suit, especially post the application for impleadment of the appellant herein was ordered and thereafter having made no averment or shown no cause of action by filing additional plaint?

3. Whether the Courts below were justified in not looking properly the registered documents namely sale deeds, especially the boundaries and the boundaries stated by the Advocate-Commissioner in the earlier suit have been wrongly stated and they are distinct and separate?

Heard Sri P.Sri Raghuram, learned Senior Counsel appearing

for the appellant/defendant No.8 and Sri D.Devender Rao, learned

Counsel appearing for respondent Nos.1 to 4/plaintiffs.

Learned Senior Counsel appearing for the appellant would

submit that the finding of the trial Court as confirmed by the

appellate Court on the aspect of possession being delivered by bailiff

in execution of the partition suit i.e. O.S.No.473 of 1988 filed

between Narasamma and Advaiah is perverse and arbitrary. He

further submits that the finding of the trial Court that the oral

evidence of P.W.1 in the suit is sufficient proof that plaintiffs are in

possession of the suit schedule property is also perverse and is liable

to be set aside. He further submits that the documentary evidence

on record such as Exs.B4 and B5 clearly establish the possession of

the appellant and their predecessors and not the possession of the 1st

defendant in Sy.No.4 for which no oral evidence is admissible as

against this documentary evidence qua the Court below relied only

on oral evidence which is perverse. That apart, Exs.A1, A14, 15, 18,

22, 25, 26, 27, 30, 31, 32 and 33 marked on behalf of the plaintiffs also

established that the plaintiffs never had possession but without

taking into consideration those documents and openly overlooking

the important pieces of evidence, the Court below gave a contrary

finding. He further submits that the possession was never delivered

to the 1st defendant at any point of time and that the evidence also

points out the possession of R.Advaiah over the entire suit schedule

property and that there is no such document on record to show that

after recording the compromise, the 1st defendant and legal heirs of

R.Advaiah have accepted the delivery of possession of the suit

schedule property, hence the finding of the Court below can be

interpreted as perverse finding of fact and is liable to be set aside.

He also submits that the first appellate Court has not considered the

oral and documentary evidence adduced before the trial Court and

has mechanically confirmed the judgment and decree. He further

submits that the property which devolved upon the 1st defendant in

a partition suit is not the property which is shown in the present suit

and that the present suit schedule property appears to be the

property which fell to the share of Mr.R.Advaiah in the partition suit

and that the appellant had purchased the said property from their

vendors, who in turn purchased the same from the share of

R.Advaiah and, therefore, the appellant is the lawful owner of the

suit schedule property. He also submits that the boundaries

mentioned in the Commissioner's Report, the boundaries mentioned

in the sale deed, through which, the 1st defendant sold the property

to the plaintiffs and the boundaries of the suit schedule property are

different and thus there is a defect in the devolution of title. Since

the 1st defendant herself did not have title over the property, she

could not have sold the property to the 1st plaintiff and, therefore,

the finding of the trial Court as confirmed by the appellate Court

with regard to the possession is perverse and arbitrary. He also

submits that the trial Court and the appellate Court have failed to

consider that the plaintiffs have neither amended the pleadings nor

amended the prayer of the suit after impleading the appellant and

therefore, no relief against the appellant could have been granted by

the Courts below. He further submits that the first appellate Court

has not properly framed the point for consideration in the appeal in

terms of Order 41 Rule 31 C.P.C. In support of the said contentions,

he relied upon the following citations.

1. Madhukar Nivrutti Jagtap and others v. Smt. Pramilabai Chandulal Parandekar and others1

(2019) SCC Online SC 1026

2. Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others2

3. Khemchand Shankar Choudhari and another v. Vishnu Hari Patil and others3

4. Nagubai Ammal and others v. B.Shama Rao and others4

5. Bishan Singh and others v. Khazan Singh and another5

6. Bondar Singh and others v. Nihal Singh and others6

7. State of Madhya Pradesh v. Nomi Singh and another7

8. Kanchi Subbamma and others v. Mannepalli Penchalaia8

9. Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar and others9

10. B.Santoshamma and another v. D.Sarala and another10

11. Palem Chandra Shekar v. Palem Biskhapathy11

12. State of Rajasthan and others v. Shiv Dayal and another12

Per contra, learned Counsel for the respondents/plaintiffs

would submit that the second appeal is not maintainable in view of

clear findings given by the trial Court as well as the lower appellate

Court in favour of the plaintiffs. He further submits that the

admitted facts need not be proved as per Section 58 of the Indian

Evidence Act and that D.W.1, who was examined on behalf of the

appellant, had clearly admitted that the suit schedule property

belongs to the 1st defendant and that the suit schedule property was

clearly demarcated and delineated by metes and bounds and

(2013) 5 SCC 397

(1983) 1 SCC 18

AIR 1956 SC 593

AIR 1958 SC 838

(2003) 4 SCC 161

(2015) 14 SCC 450

1977 SCC Online AP 115

(2020) 7 SCC 275

Civil Appeal No.3574 of 2009 SC

CMA No.18 of 2019, TSHC

(2019) 8 SCC 637

possession was also delivered thereof by Court bailiff in the

partition suit i.e., O.S.No.473 of 1988 and also admitted that this

Court upheld the partition effected including the suit schedule

property. He also submits that the contentions raised in the second

appeal during arguments were never raised in the suit, even

otherwise those contentions are untenable. He further submits that

both the Courts below clearly and categorically held that the

plaintiffs are in possession of the suit schedule property and there is

an injunction order in their favour all through and that the finding

with regard to possession is unassailable in view of the factual

matrix of the case, which is thoroughly examined by both the Courts

below. He further submits that a perusal of Exs.A1 to A3 would

show that the boundaries mentioned therein and the boundaries

mentioned in the suit schedule property are one and the same and as

such the contention of the appellant is unsustainable. He also

submits that the plaintiffs have clearly proved their title and

possession over the suit schedule property through clear and cogent

evidence, which was taken into consideration by the trial Court, as

such a judgment and decree was passed in favour of the plaintiffs in

the suit and the same was confirmed in an appeal filed by the

appellant. He further submits that concurrent findings given by the

Courts below on appreciation of facts and evidence cannot be

assailed when there is no perversity in those judgments and since

there is no perversity of whatsoever nature in the judgments of both

the Courts below, this second appeal is liable to be dismissed.

Before proceeding further, it would be appropriate to refer to

Section 100 of C.P.C., which reads as under:

"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any

other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

Though Section 100 C.P.C deals with the High Court's

jurisdiction in second appeal, it has the effect of declaring that the

first appellate court is the final court on facts and the High Court in

a second appeal cannot re-appreciate evidence or facts unless the

case involves a substantial question of law.

In Dudh Nath Pandey v. Suresh Chandra Bhattasali13 the

Supreme Court held that the High Court cannot set aside findings of

fact of the first appellate court and come to a different conclusion on

reappraisal of evidence while exercising jurisdiction under Section

100 C.P.C.

Admittedly, the plaintiffs filed suit for declaration of their title

to the suit schedule property and for permanent injunction. It is the

case of the plaintiffs that they have purchased the suit schedule

property from the 1st defendant under a registered sale deed dated

30.01.2004. The 1st defendant filed O.S.No.473 of 1988 before the

Additional Subordinate Judge, Rangareddy District against her

brother-in-law R.Advaiah and others, who are co-parceners, for

partition of the suit schedule property and other properties and in

the said suit, preliminary decree and final decree were passed.

Aggrieved by the same, the defendants therein preferred an appeal

before this Court vide A.S.No.1857 of 1995, which was ended in

(1986) 3 SCC 360

compromise. As per the terms of compromise, the suit schedule

property fell to the share of the 1st defendant and that the 1st

defendant filed written statement, supporting the version of the

plaintiffs, which was not denied by the 8th defendant. Further, the

4th plaintiff, who was examined as P.W.1, stated that the 1st

defendant sold away the suit schedule property, which fell to her

share, to the plaintiffs under Ex.A1-registered sale deed and that the

said fact was not even denied by the appellant/defendant No.8.

D.W.1, who is the authorized signatory of the appellant company,

also admitted that the 1st defendant had acquired the suit schedule

property by virtue of a compromise decree passed in A.S.No.1857 of

1995. It is the case of the appellant/defendant No.8 that he had

purchased the property from the legal heirs of R.Advaiah. Since the

said R.Advaiah himself did not get any right or title over the suit

schedule property, the question of his legal heirs getting right to

alienate the property in favour of the appellant does not arise. That

apart, the appellant/defendant No.8 has not shown cogent reasons

to set aside the findings of the Courts below. Thus, having regard to

the facts and circumstances of the case and in view of the

aforementioned discussion, I am of the firm view that there is no

legal infirmity in the conclusion arrived at by the Courts below with

regard to the title of the suit schedule property and possession held

by the plaintiffs and that there is no perversity in the judgments of

both the Courts below.

Be that as it may, this is a second appeal where concurrent

findings had been recorded to the effect that the plaintiffs are the

absolute owners and possessors of the suit schedule property and

they are in possession of the same. When concurrent findings have

been recorded and discretion had been exercised by both the Courts

below, this Court sitting under Section 100 of C.P.C. is loath to

re-appreciate the evidence and come to a different conclusion. In

such circumstances, the second appeal sans merit and the same is

liable to be dismissed.

Accordingly, the Second Appeal is dismissed. There shall be

no order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.

_____________________ JUSTICE G.SRI DEVI

02.02.2021 Gsn/gkv