Telangana High Court

G. Lingam vs Gorisetty Anand Kumar on 8 July, 2022

Bench: A.Venkateshwara Reddy

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

                 SECOND APPEAL No.321 OF 2016

JUDGMENT:

1. This second appeal is filed under Section 100 of the Civil

Procedure Code, 1908 (for short 'CPC') by the unsuccessful

defendants assailing the concurrent findings of the trial Court in

O.S.No.3 of 2009 and the first appellate Court in A.S.No.23 of

2014.

2. The plaintiffs have filed the original suit in O.S.No.3 of

2009 on the file of the learned Principal Junior Civil Judge,

Shadnagar for perpetual injunction against the defendants from

interfering with their peaceful possession and enjoyment over

the suit schedule property house bearing No.5-43 and

dilapidated house bearing No.5-45 total admeasuring 2602.56

square yards and constructed house in area 594 square feet

RCC roof situated at Kondurg Village and Mandal,

Mahabubnagar District. The trial Court after issuing summons

to the defendants received their written statement and framed

issues. During the trial, on behalf of plaintiffs PWs.1 & 2 are

examined and Ex.A.1 to A.9 documents are marked. The 2 AVR,J SA_321_2016

defendants did not choose to cross-examine both the witnesses-

PWs.1 & 2 and thus their oral evidence and the contents of

Exs.A.1 to A.9 remained un-impeached. On behalf of the

defendants, both the defendants themselves got examined

DWs.1 & 2 and no documents are marked on their behalf.

3. The trial Court after hearing both sides and on careful

appreciation of the oral and documentary evidence available on

record decreed the suit of the plaintiffs and perpetual injunction

is granted in favour of the plaintiffs and against the defendants

restraining them and their men from interfering with peaceful

possession and enjoyment of the plaintiffs over the suit schedule

property. The trial Court has observed that though the

defendants 1 & 2 got examined as DWs.1 & 2, they failed to file

any such document to show that their mother-S. Buchamma @

Shyamala Devi has purchased the land in Survey No.277/1

admeasuring Ac.4.09 guntas in which the suit schedule house is

situated. In fact, as per the pleadings in the written statement,

it is averred by the defendants that their mother has purchased

the land in Survey No.277/1 through registered sale deed 3 AVR,J SA_321_2016

document No.129 of 1983, dated 04.02.1983, but no such

document is filed and exhibited on behalf of defendants.

4. Feeling aggrieved by the judgment and decree dated

15.09.2014 of the trial Court, the defendants have preferred an

appeal in AS No.23 of 2014. The learned first appellate Judge

having heard both sides formulated the required points as

contemplated under Order-41 Rule-31 CPC. The first appellate

Judge has re-appreciated the evidence in detail. In fact, in para-

9 of the judgment, it is held by him that in catena of citations of

the Hon'ble Supreme Court of India, it is held that the first

appeal is a valuable rights of the parties and unless restricted by

law, the whole case is thereon open for rehearing both on

question of fact and law and that the appellate Court has

jurisdiction to reverse or confirm the findings of the trial Court

and keeping in mind the guiding principles of the Hon'ble

Supreme Court the first appellate court has proceeded further to

decide that case.

5. The learned first appellate Judge after re-appreciation of

the oral and documentary evidence adduced on both sides held

that the particulars of schedule of property as mentioned in 4 AVR,J SA_321_2016

Ex.A.1 tallies with the particulars of plaint schedule. Though

the particulars of survey numbers are not mentioned, the

recitals of Ex.A.1 disclose that the plaintiffs have purchased the

house and vacant site. Ex.A.2 is the ownership certificate

issued by the Sarpanch, Kondurg Gram Panchayat and this

document discloses that the house bearing No.5-45 situated at

Kondurg Village and Mandal belongs to Smt. Shyamala Devi.

Whereas Exs.A.3 to A.5 are the tax receipts. Thus, the oral and

documentary evidence adduced on behalf of the plaintiffs shows

that the plaintiffs have purchased the schedule of property and

their names were mutated in Gram Panchayat Records.

Whereas, there is no material to show that the plaint schedule

property is part and parcel of the land purchased by mother of

defendants. Accordingly, all the points formulated in the appeal

are answered in favour of the respondents/plaintiffs and against

the appellants/defendants, consequently, the appeal was

dismissed with costs confirming the judgment and decree of the

trial Court in OS No.3 of 2009 dated 15.09.2014 in its entirety.

6. Feeling aggrieved by the concurrent findings recorded by

the trial Court and the first appellate Court, the unsuccessful 5 AVR,J SA_321_2016

defendants preferred this second appeal. As per the

Memorandum of Second Appeal, the following substantial

questions of law are formulated:

i) Whether the appellants are not entitled share in the suit schedule property being the sons of the vendor when the property was admittedly purchased by the respondents/plaintiffs which is belongs to the appellants?

ii) Whether the appellants are not entitled share in the suit schedule property where their mother purchased the property from Srinatha Rao with the income acquired from the ancestral property or joint family?

iii) Whether the basis of stray admissions in revenue records; changed door numbers and suit schedule property wrongly decided by the courts below and rights over the property to the respondents?

iv) Whether an injunction can be granted against the true owner?

v) Whether the courts below can disbelieve the existence of the share in the suit schedule property in favour of the appellants. When they claim the share by virtue of succession and the mother of the appellants acquired the property with the joint family funds?

vi) Whether the appellants had perfected any right by adverse possession against the respondents/ plaintiffs over the suit schedule property also by virtue of the invalid sale deed and whether any possession pursuant to which with animus possidendi, peaceful 6 AVR,J SA_321_2016

and uninterrupted for more than the statutory period and that extinguished the plaintiffs right and title otherwise over the property as the respondents/plaintiffs are original owners not in dispute in the factual scenario?

7. Heard the learned counsel for the appellants/defendants

and respondents/plaintiffs. Perused the material placed on

record. The submissions made on either side have received due

consideration of this Court.

8. The learned counsel for the appellants contends that this

Court in the second appeal is justified in interfering with the

findings recorded on factual basis also when perverse findings

are recorded either by the trial Court or the first appellate Court

and such perverse findings also amounts to substantial

questions of law and relied on the principles relied in the

following decisions:

i) Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others1;

         ii)    Sebastiao Luis Fernandes (dead) through LRs
                and others2; and




    (2008) 4 SCC 594

    (2013) 15 SCC 161
                                  7                                AVR,J
                                                            SA_321_2016

iii) Azgar Barid (dead) legal representatives and others v Mazambi alis Pyaremabi and others3.

9. I have carefully perused the principles laid in the above

decisions. In Sebastiao Luis Fernandes's case (2nd supra) and

Azgar Barid's case (3rd supra), the Hon'ble Supreme Court has

enlisted the circumstances wherein the High Court in the second

appeal is entitled to interfere in the concurrent findings recorded

by the Courts below based on wrong assumption of facts or non-

appreciation of pleadings and evidence on record and wrong

placement of burden of proof on the defendant instead of on

plaintiff. Such perverse approach of the trial Court or the first

appellate court in arriving at findings would give rise to a

substantial question of law, thereby justifying the High Court to

interfere with the findings of the first appellate Court.

10. Be it stated that in the case on hand, as discussed above,

the plaintiffs have filed a suit for perpetual injunction against

the defendants in respect of the suit schedule property. In

support of their claim, the plaintiffs have relied on the oral

evidence of PWs.1 and 2 and the recitals in Exs.A.1 to A.9. It is

(2022) 5 SCC 334 8 AVR,J SA_321_2016

pertinent to note that the defendants did not choose to cross

examine PWs.1 & 2 and they did not question Exs.A.1 to A.9-

documents. Thus, the entire oral and documentary evidence

adduced on behalf of the plaintiffs remained un-impeached or

unchallenged. The defendants have pleaded in the written

statement that their mother has purchased the land in Survey

No.277/1 admeasuring Ac.4.09 guntas, through registered sale

document No.129 of 1983 dated 04.02.1983 wherein the suit

schedule house is also situated. The defendants did not choose

to file the said document-registered sale deed bearing No.129 of

1983, dated 04.02.1983 nor any independent evidence is

adduced on behalf of defendants to show that the suit schedule

house is part of land in Survey No.277/1 admeasuring Ac.4.09

guntas which was purchased by their mother.

11. In that view of the matter, both the trial Court and the

appellate Court have recorded categorical findings on

appreciation of the oral and documentary evidence to the effect

that the defendants did not choose to cross-examine PWs.1 & 2

and did not dispute Exs.A.1 to A.9 and that though the

defendants have pleaded that they have filed sale deed 9 AVR,J SA_321_2016

document No.129 of 1983 dated 04.02.1983 in respect of land in

Survey No.277/1, they did not file any such documents nor

anything is elicited to show the suit schedule property is part of

land in Survey No.277/1 or it is part of the property purchased

by their mother from Srinath Rao and they did not file any scrap

of paper to show their possession over the suit schedule

property as on the date of filing of the suit. The trial Court in a

suit for bare injunction while considering the title of the

plaintiffs incidentally, looking into the exclusive legal possession

of the plaintiffs over the suit schedule property decreed the suit

for perpetual injunction, which was confirmed in the appeal. In

such facts and circumstances of the case, in my considered

opinion, there is no perversity or irregularity in the appreciation

of oral and documentary evidence available on record and also in

the findings recorded by the trial Court and the first appellate

Court.

12. Section 100 of CPC deals with second appeals. The

existence of a substantial question of law is the sine qua non for

the exercise of the jurisdiction under the amended provisions of

Section 100 of CPC. The jurisdiction of the High Court is now 10 AVR,J SA_321_2016

confined only to entertain such appeals wherein substantial

question of law has specifically set out in the memorandum of

appeal and formulated by the Court.

13. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs4 while dealing with the

scope of Section 100 of CPC held at para-18 as under:

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."





    AIR 2019 SC 1441
                               11                            AVR,J
                                                      SA_321_2016

14. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Supreme Court

in Gurnam Singh's case (4th supra) with reference to the

scope of Section 100 of CPC, the answer is in the negative.

No question of law much less substantial question of law is

made out either from the grounds of Second Appeal or from

a perusal of the judgments of the Courts below. I do not

find any irregularity or perversity in the appreciation of

evidence by both the Courts below. No material has been

over looked nor any inadmissible evidence has been considered

by the Courts below for recording such findings. Therefore, in

my considered opinion, there is no scope for interference in such

concurrent findings recorded by the trial Court and the first

appellate Court. On a plain reading of judgments of both the

Courts below, no question of law much less substantial question

of law is made out in the second appeal.