Gurudwara Saheb Barambala Sikh ... vs Shankarlal Agarwal
2022 Latest Caselaw 3551 Tel

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

               SECOND APPEAL No.782 OF 2016

JUDGMENT:

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

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

defendant assailing the concurrent findings of the trial Court in

O.S.No.1958 of 2006 and the first appellate Court in A.S.No.125

of 2011.

2. The plaintiff has filed the original suit in O.S.No.1958 of

2006 on the file of the learned VII Additional Senior Civil Judge,

Ranga Reddy District at L.B. Nagar for perpetual injunction

against the defendant in respect of the suit schedule house

bearing door No.4-9-294/4 (old No.6-97/1/3) situated at

Attapur Village, Rajendranagar Mandal. The trial Court on

receiving the written statement of the sole defendant framed

three issues, recorded the evidence of PW.1 and marked Exs.A.1

to A.4 on behalf of plaintiffs and also recorded the evidence of

DWs.1 and 2 and marked Exs.B.1 to B.6 on behalf of

defendants. After hearing both sides, the trial Court has

answered the issues in favour of the plaintiff and the suit of the 2 AVR,J SA_782_2016

plaintiff was decreed with costs, perpetual injunction is granted

against the defendant restraining him from interfering with the

peaceful possession and enjoyment of the plaintiff over the suit

schedule property.

3. Feeling aggrieved by the judgment and decree dated

07.09.2010 in OS No.1958 of 2006, the defendant has preferred

an appeal in AS No.125 of 2011 on the file of the IV Additional

District Judge, Ranga Reddy District at L.B. Nagar. As per the

judgment and decree dated 05.08.2014, the learned first

appellate Judge has confirmed the judgment and decree of the

trial Court in its entirety. Consequently, the appeal was

dismissed.

4. Feeling aggrieved by the concurrent findings recorded by

the trial Court and the first appellate Court, the unsuccessful

defendant has preferred this second appeal. As per the

Memorandum of Second Appeal, the following questions of law

are formulated:

i) When the land is a Government land, even if the plaintiff got the sale deed registered in his favour 3 AVR,J SA_782_2016

contrary to Section 22-A of the Indian Registration Act, whether it confirms any title to him or not?

ii) When the plaintiff's vendor himself has no title or no sale deed, but only an allotment letter, whether he can transfer a better title than what he has?

iii) When plaintiff did not approach with clean hands whether any injunction can be granted to him basing on the weakness of the defendant?

5. Heard the learned counsel for the appellant/defendant and

respondent/plaintiff. Perused the material placed on record.

The submissions made by both sides have due consideration of

this Court.

6. I have carefully perused the judgments of the trial Court

and the first appellate Court. The trial Court has framed two

issues with regard to possession and enjoyment of the plaintiff

over the suit schedule property as on the date of filing of the suit

and also plaintiff's entitlement for perpetual injunction. The

trial Court has clearly observed that the plaintiff cannot depend

on the weakness of the defendant or failure of defendant to

establish his case. The plaintiff claiming his title through Sukdev

Singh @ Baldev Singh, through his son (Mangal Singh) under 4 AVR,J SA_782_2016

registered sale deeds Exs.A.1 & A.2 is able to establish his title

and possession through the oral evidence of PW.1 and the

contents of Exs.A.1 to A.4.

7. It is further observed in the judgment of trial Court that

the defendant society in its written statement at paragraph No.7

and also in the evidence of DW.1 has categorically admitted that

the suit schedule property was allotted to Baldev Singh with an

area of 720 square yards and that the defendants have not filed

bye-laws of the society which empower them to cancel the

allotment made in favour of the Baldev Singh and to re-allot the

same in favour of DW.2 and held that when a plot is allotted to a

member of the society, it shall be to the benefit of a member or

his family and there cannot be any obstruction for the beneficial

enjoyment of the property by the owner of the property including

the power of alienation. It was further observed that no notice

was given to Baldev Singh or his son Mangal Singh before the

alleged cancellation of allotment by the defendant-society and

re-allotment in favour of DW.2. Accordingly, considering the oral

and documentary evidence available on record the issue No.1 5 AVR,J SA_782_2016

was answered in favour of the plaintiff and against the

defendants.

8. Similarly, issue No.2 dealing with the entitlement of the

plaintiff for perpetual injunction was also answered in favour of

the plaintiff holding that the plaintiff being the bona fide

purchaser for valuable consideration with a threat of

dispossession is entitled to approach the Court against the

defendants, consequently, held that the plaintiff is entitled for

equitable and discretionary relief of injunction. Accordingly,

issue No.3 was also answered in favour of the plaintiffs holding

that the suit of the plaintiff is decreed granting perpetual

injunction against the defendant retraining the defendant from

interfering with the peaceful possession and enjoyment of the

plaintiff over the suit schedule property.

9. The learned first appellate Court after hearing both sides

formulated the points as contemplated under Order-41 Rule-31

CPC, re-appreciated the entire oral and documentary evidence

available on record. In para-10 of the judgment of the trial

Court, it is clearly held that DW.1 has admitted that he has not

issued any notice to Baldev Singh before cancellation of the 6 AVR,J SA_782_2016

allotment of plot and they have not filed any document to show

that they have been empowered to cancel the first allotment to

Sukdev Singh. DW.2, who is the alleged re-allottee of the plot,

also admitted that he is not aware whether the first allotment

was cancelled by defendant society and whether it was informed

to the late Baldev Singh and any prior notice is given to him

before cancellation of the allotment. It was further observed that

the defendant did not choose to file original allotment letter in

favour of DW.2, but simply filed the extract of resolution alleged

to have been resolved on 08.04.2006 which is marked as Ex.B.6.

10. Thus, on careful appreciation of the oral and documentary

evidence available on record, the first appellate Court has

observed that there are no reasons to disturb the opinion or

findings recorded by the trial Court in the judgment and decree

in OS N o.1958 of 2006, dated 07.09.2010, accordingly,

confirmed the judgment and decree of the trial Court in its

entirety.

11. I have given my thoughtful consideration to the substantial

questions of law that are proposed by the appellant in the

memorandum of second appeal, as extracted above. The first 7 AVR,J SA_782_2016

point read as whether any sale deed executed in favour of the

plaintiff contrary to Section 22-A of Registration Act confirms

title to him and when the plaintiff's vendor himself has no title

or no sale deed and only an allotment letter, whether he can

transfer a better title than what he has?. Point No.3 deals with

the granting of equitable relief. All these points were addressed

by the trial Court and the first appellate Court and they are only

touching factual side, no question of law much less substantial

question of law is involved in any of these points. The defendant

as society has allotted the land to the plaintiff's vendor and

accordingly the plaintiff has purchased the said property for a

valuable consideration and continuing in his lawful possession.

In a suit for injunction simplicitor, the paramount consideration

is only lawful possession of the plaintiff as on the date of filing of

the suit and question of title can only be looked into incidentally.

In that view of the matter, I do not find any perversity or

irregularity in appreciation of the oral and documentary

evidence available on record by the trial Court and the first

appellate Court.

                                    8                                  AVR,J
                                                                SA_782_2016

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

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 (Thiagarajan v.

Venugopalaswamy B. Koil1 and Dharmarajan v. Valliammal2).

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

LRs and others v. Lehna Singh (D) by LRs3 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

(2004) 5 SCC 762

(2008) 2 SCC 741

AIR 2019 SC 1441 9 AVR,J SA_782_2016

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."

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

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

in the above decision 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 appeal or from a plain reading of

the judgments of trial Court and first appellate Court. No

material has been over looked nor any inadmissible evidence

has been considered by the Courts below for recording such

findings. Further, the judgments of the trial Court and the first

appellate Court do not disclose any irregularity or perversity,

there is no scope for interference in such concurrent findings

recorded by the trial Court and the first appellate Court. No

question of law much less substantial question of law is made

out in the second appeal.

                                10                            AVR,J
                                                       SA_782_2016

15. In the result, the second appeal is dismissed at the

admission stage itself confirming the concurrent findings of the

trial Court in O.S.No.1958 of 2006 and the first appellate Court

in A.S.No.125 of 2011. However, in the circumstances of the

case, there shall be no order as to the costs.

As a sequel, miscellaneous applications, if any, pending in

this second appeal, shall stand closed.

________________________________ A.VENKATESWHARA REDDY, J Date: 08-07-2022 Isn