Faqeer Syed Alias Syed Died vs Rabia Begum
2022 Latest Caselaw 4024 Tel

        THE HONOURABLE SRI JUSTICE M.LAXMAN

                 SECOND APPEAL No.229 OF 2022

JUDGMENT:

1. The present appeal assails the judgment and decree

dated 25.01.2022 in A.S.No.6 of 2015 on the file of the Court

of the IX Additional District Judge at Kamareddy (for short,

lower appellate Court), whereunder the appeal was allowed

reversing the judgment and decree dated 24.10.2013 in

O.S.No.46 of 2004 passed by the Court of the Senior Civil

Judge at Kamareddy (for short, trial Court) and

consequently the suit filed by the plaintiff for declaration of

title and perpetual injunction was dismissed.

2. The appellants herein are the plaintiffs and the

respondents herein are the defendants in the suit.

Originally, plaintiff No.1 herein filed the above suit as

against defendant Nos.1 to 7. During the pendency of the

suit, both plaintiff No.1 and defendant No.1 died and their

legal heirs were brought on record as plaintiff Nos.2 to 5 and

defendant No.8, respectively. For the sake of convenience,

the parties hereinafter are referred to as they are arrayed in

the suit.

                                 2                            ML,J
                                                      SA_229_2022

3. The sum and substance of the case of the plaintiffs is

that plaintiff No.1 is the only son of late Chiman Ali, who

was the absolute owner of the suit properties. He married

one Hussain Bee, after the death of his first wife. Defendant

No.1 was born to Hussain Bee through her first husband.

Defendant No.1 was brought up along with the plaintiff.

After the death of Chiman Ali, plaintiff No.1 inherited the

suit properties, being the sole legal heir. After succession,

he was in physical possession and enjoyment of the suit

properties. According to plaintiff No.1, defendant No.1 is his

half-sister. Defendant No.1, without any title over the suit

properties, tried to interfere with the possession of plaintiff

No.1, he filed the present suit.

4. The case of defendant No.1 is that she is the real sister

of plaintiff No.1 born through late Chiman Ali. During the

life time of late Chiman Ali, he partitioned the properties

orally by allotting half share in the suit properties to plaintiff

No.1 and defendant No.1. The husband of defendant No.1

was taken in illitom and defendant No.1 was staying in the

same village. Plaintiff No.1 filed declaration before the Land

Reforms Tribunal, Kamareddy to the effect that defendant

No.1 is his sister and oral partition took place between them.

                                  3                             ML,J
                                                        SA_229_2022

Therefore, defendant No.1 is having interest and right over

the suit properties and prayed to dismiss the suit.

5. The trial Court, on the basis of the above pleadings,

has framed the following issues:

"1. Whether the plaintiff is the absolute owner and possessor of the suit land?

2. Whether defendants 1 to 6 are the owners and possessors of ½ share in suit lands as per oral partition?

3. Whether defendant No.1 is the real sister of plaintiff?

4. Whether plaintiff sold away Ac.1-00 guntas in Sy.No.520 along back to Gondla Sayanna and Mittapally Balraj who is the father of defendant No.7 and they are in possession of said land since the date of purchase?

5. Whether defendant No.1 and her husband are illitom daughter and son in law of late father of plaintiff?

6. Whether the plaintiff is entitled to perpetual injunction as prayed for?

7. To what relief?"

6. The plaintiffs, to support their case, examined P.Ws.1

to 5 and relied upon Exs.A-1 to A-11. The defendants, to

support their case, examined D.Ws.1 to 4 and relied upon

Exs.B-1 to B-21.

7. The trial Court, basing on admission of D.W.2 - son of

defendant No.1 (Ex.A-11) in a criminal case to the effect that 4 ML,J SA_229_2022

Chiman Ali married Hussain Bee after divorce from her first

husband; that by the time of divorce, defendant No.1 born to

Moulana and that defendant No.1 is not the real sister of the

plaintiff, came to the conclusion that defendant No.1 is not

the real sister of plaintiff No.1. Accordingly, the trial Court

decreed the suit granting declaration of title and perpetual

injunction in favour of the plaintiffs. Challenging the same,

the defendants filed A.S.No.6 of 2015 and the lower

appellate Court, by relying upon Exs.B-1, 13 and 15 to 21,

came to the conclusion that defendant No.1 is the real sister

of plaintiff No.1, and accordingly, reversed the judgment and

decree passed by the trial Court and dismissed the suit.

Challenging the same, the present appeal is filed at the

instance of the plaintiffs.

8. This Court has framed the following substantial

questions of law.

"1. Whether the findings of the lower appellate Court in reversing the findings of the trial Court with regard to status of defendant No.1 suffer from perversity?

2. Whether the findings of the lower appellate Court in reversing the declaration of title and grant of perpetual injunction suffer from perversity?"

                                5                             ML,J
                                                      SA_229_2022

9. Heard learned counsel for the appellants/plaintiffs and

the respondents/defendants on the above substantial

questions of law.

Findings on substantial questions of law:

10. The findings of the trial Court show that D.W.2, who is

the son of defendant No.1, made certain admissions before

the criminal Court admitting that her mother (Hussain Bee)

originally married Moulana and that after giving birth to

defendant No.1 through Moulana, her mother divorced and

married Chiman Ali. This admission coupled with the oral

evidence of the plaintiffs' witnesses is the foundation to hold

that defendant No.1 is not the real sister of plaintiff No.1.

11. The defendants strongly relied upon Ex.B-1, rythu

passbook issued prior to A.P. Rights in Land and Pattadar

Pass Books Act, 1971 and also relied upon Exs.B-15 and B-

16, which are deposition and declaration of plaintiff No.1

before the Land Reforms Tribunal. The defendants also

relied upon Exs.B-17 to B-21 which are pahanis for the

years 1970-71 to 1975-76 and 1977-78 to 1979-80.

                                   6                            ML,J
                                                        SA_229_2022

12.   According      to   the   defendants,    these   documents,

particularly Exs.B-15 and 16, clearly show that defendant

No.1 is the real sister of plaintiff No.1.

13. The trial Court, while giving finding that defendant

No.1 has failed to prove that she is the daughter of Chiman

Ali, has rejected Ex.B-1 holding that it was issued under the

repeal Act, and hence, it has no evidentiary value. This

finding is untenable for the reason that an act done under

the repealed Act is not obliterated and it still holds the

evidentiary value.

14. The trial Court has not considered the effect of Exs.B-

15 and 16. According to the learned counsel for the

plaintiffs, the plaintiffs denied the filing of Exs.B-15 and 16.

However, Exs.B-15 and 16 are certified copies obtained from

the Ceiling Authority. Therefore, they are having

presumptive value. The plaintiffs must rebut such

presumption. Except denial of filing of Exs.B-15 and 16, the

plaintiffs have not taken any further steps to disprove the

said documents. If the effect of all the exhibits, particularly

Exs.B-1 and 16 to 21, go to show that the view adopted by

the lower appellate Court in holding that defendant No.1 is 7 ML,J SA_229_2022

the real sister of plaintiff No.1 is also possible. The view of

the trial Court is also possible basing on the oral evidence of

the plaintiffs' witnesses to the effect that defendant No.1 is

not the real sister of plaintiff No.1.

15. The trial Court, while holding that defendant No.1 is

not the real sister, placed great credence to Ex.A-11, the

admissions of D.W.2 in a criminal case. When the

admissions were made, D.W.2 was not holding any interest

over the suit properties and he acquired interest

subsequently. However, his admission cannot be put to the

disadvantage of defendant No.1, who is claiming that she is

the real sister of plaintiff No.1. At the most, such

admissions bind D.W.2, but not D.W.1 (defendant No.1).

These facts were not considered by the trial Court.

16. Once the interest of defendant No.1 is established in

the suit properties, the suit of the plaintiffs for declaration of

title to the entire extent of land cannot be declared. Further,

injunction cannot be granted for the reason that defendant

No.1 is the real sister and she became the co-owner of the

suit properties. Therefore, the lower appellate Court rightly

denied the relief of declaration and injunction. It is made 8 ML,J SA_229_2022

clear that dismissal of the suit does not confer any exclusive

title to defendant No.1. The remedies are left open to the

parties.

17. It is to be noted that when two views are possible, the

view adopted by the lower appellate Court cannot be

disturbed in the second appeal. Therefore, there is no

perversity in the findings of the lower appellate Court in

coming to the conclusion that defendant No.1 is the real

sister of plaintiff No.1. Accordingly, the substantial

questions of law are answered.

18. In the result, the Second Appeal is dismissed,

confirming the judgment and decree dated 25.01.2022 in

A.S.No.6 of 2015 on the file of the Court of the IX Additional

District Judge at Kamareddy. There shall be no order as to

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

closed.

________________ M.LAXMAN, J Date: 03.08.2022 TJMR