Telangana High Court

Kondapuram Kishan Kondapuram ... vs Chintala Krishna Murthy on 29 June, 2022

Bench: A.Venkateshwara Reddy

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

               Second Appeal No.548 of 2012

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 first appellate Court in A.S.No.5 of 2009 and the trial

Court in O.S.No.20 of 2004.

2. The plaintiffs have filed the original suit in O.S.No.20

of 2004 on the file of the learned Senior Civil Judge at

Medak for perpetual injunction in respect of the land

bearing Survey No.411 admeasuring Ac.3.11 guntas

situated at Jogipet Village of Andole Mandal, Medak

District with precise boundaries as mentioned in the

schedule of property. The learned Senior Civil Judge,

Medak after full length trial and on appreciation of the oral

and documentary evidence adduced on both sides decreed

the suit without costs granting perpetual injunction

restraining defendants and their men from interfering with

the peaceful possession and enjoyment of the plaintiffs

over the suit schedule property.

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3. Feeling aggrieved by the said judgment and decree

dated 18.11.2008 in O.S.No.20 of 2004, the defendants

have preferred an appeal before the District Court, Medak

at Sanga Reddy, vide A.S.No.5 of 2009. The learned V

Additional and Sessions Judge, Medak at Sanga Reddy, as

per the judgment and decree dated 27.01.2012 dismissed

the said appeal filed by the defendants confirming the

judgment and decree of the trial Court in its entirety.

4. Thus, the unsuccessful defendants have filed the

Second Appeal against the concurrent findings recorded by

the trial Court and the first appellate Court, as indicated

above, in a suit for perpetual injunction. As per the

Memorandum of Second Appeal, the following substantial

questions of law are formulated by the appellants/

defendants:

A) Whether a suit for perpetual injunction filed by the plaintiffs can be decreed on the ground that the defendants failed to prove their possession over the land claimed by them between the suit schedule property and the road and on the premise that Ex.B.7 plan has not been proved by examining the authorities

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ignoring the fact that it is a public document on the evidence of DW.1 and DW.2 to that effect?

B) Whether the suit filed by the plaintiffs can be decreed solely basing on the Gram Panchayat Resolution and the plan approved by Gram Panchayat more so when they do not confer any title?

C) Whether, when it is the specific case of defendants that the plaintiffs under the guise of having title over suit schedule property is trying to encroach upon the land in Survey No.202 belonging to defendants, the plaintiffs are entitled for grant of perpetual injunction when the defendants are very much in physical possession of property in Survey No.202 and there are structures as observed by lower court and more so when PWs.1 & 2 have admitted that defendants are having sheds or tinsheds in the said property and house property tax receipts being filed to that effect?

D) Whether, when there is a dispute with regard to identity of Survey Nos. claimed by the plaintiffs the courts below were right in decreeing the suit for perpetual injunction where the only question that falls for

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consideration is as to whether the plaintiffs were in possession of the suit schedule property on the file of filing of the suit?

5. Heard learned counsel for the appellants/defendants

and respondents/plaintiffs. Perused the material available

on record. The submissions made on either side have

received due consideration of this Court.

6. The plaintiffs in O.S.No.20 of 2004 have filed the

original suit for perpetual injunction in respect of the suit

schedule land in Survey No.411 admeasuring Ac.3.11

guntas situated at Jogipet Village, Andole Mandal, Medak

District. The suit was decreed by the trial Court and it was

confirmed by the appellate Court. However, the case of the

appellants herein is that under the guise of injunction

orders in respect of the suit land in Survey No.411, the

plaintiffs are trying to interfere with the possession of the

defendants in Survey No.202 of Jogipet Village, Andole

Mandal.

7. On a studied examination of the judgment of the trial

Court and the first appellate Court, though the trial Court

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has not framed specific issue, it was discussed at length

that the plaintiffs under the guise of injunction orders in

respect of the suit Survey No.411 trying to interfere or

encroach into the land in Survey No.202 by showing the

wrong boundaries. Though the appellants/defendants

failed to argue the matter before first appellate Court, on a

perusal of the judgment of the first appellate Court in AS

No.5 of 2009 it shows that the learned Judge has

formulated such points based on the submissions made by

the learned counsel for the plaintiffs and answered in the

negative.

8. Be it stated that if really the plaintiffs under the guise

of injunction orders in respect of the suit schedule property

interfering with the possession of the defendants in respect

of Survey No.202, the remedy lies elsewhere for the

defendants as no such injunction order is granted in

respect of land in Survey No.202. But, the learned counsel

for the appellants strenuously contends that both the

Courts below have failed to appreciate the oral and

documentary evidence and this Court in the Second Appeal

has to re-appreciate the evidence available on record to

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ascertain whether the plaintiffs under the guise of

injunction orders in respect of the suit schedule property

in Survey No.411, they are trying to interfere or encroach

into the land in Survey No.202 belonging to the

defendants.

9. I have given my thoughtful consideration to the

substantial questions of law that are proposed in the

Memorandum of Second Appeal, as indicated above at

Point Nos.A to D.

i) Point No.A deals with the factual aspects

stating that whether the plaintiffs are entitled for a decree

on the ground that the defendants failed to establish their

possession over the land claimed between the suit schedule

property and the road ignoring the oral evidence of DWs.1

& 2. It is pertinent to mention that the plaintiffs have filed

the suit in respect of the suit schedule property. As per

the case of the defendants, they have no claim, right or

interest in respect of the suit schedule property and they

are claiming the land in Survey No.202, the plaintiffs are

nothing to do with the said land in Survey No.202 and

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perpetual injunction is only granted in respect of suit land

and not in respect of land in Survey No.202. Thus, viewed

from any angle, I do not find any merit in the contention of

appellants and there is no question of law, much less

substantial question of law made out in Point No.A.

ii) Point Nos.B & C deals with the appreciation of

oral and documentary evidence with reference to Gram

Panchayat Resolution and also encroachment into the land

in Survey No.202. It is pertinent to mention that in a suit

for injunction filed by the plaintiffs, the Court below and

the first appellate Court on careful analysis of the oral and

documentary evidence have granted perpetual injunction

in respect of the suit schedule property wherein the

defendants are not claiming any right and their claim is

elsewhere in Survey No.202 for which the plaintiffs have no

claim at all. In such facts and circumstances of the case,

the remedy for the defendants lies elsewhere and there is

no question of law, much less any substantial question of

law in Point Nos.B & C or for that matter in Point No.D, as

extracted above.

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10. 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 jurisdiction under the amended

provisions of Section 100 CPC. The jurisdiction of the High

Court is now confined only to entertain such appeals

wherein substantial question of law specially set out in the

Memorandum of Appeal and formulated by the Court.

11. In this context, I may refer to the judgment of the

Hon'ble Supreme Court of India in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs1 wherein the Apex

Court 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

AIR 2019 SC 1441

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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."

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

touchstone of the principles laid down in the above

decision with reference to scope of Section 100 CPC, the

answer is in the negative. There is no substantial question

of law is involved or made out either from grounds of

appeal or from a copious reading of the judgments of trial

Court and first appellate Court. Such concurrent findings

on facts recorded by the trial Court and the first appellate

Court based on the material available on record are

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binding on the second appellate Court and normally such

findings cannot be interfered or disturbed in the Second