Telangana High Court

Chintamalla Narasimha Chary vs Sriramoju Veeranarayana on 10 November, 2022

Bench: G.Anupama Chakravarthy

 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY


          SECOND APPEAL Nos.326 & 362 of 2014

COMMON JUDGMENT :

1.

These Second Appeals are arising out of the judgment and

decree dated 11.12.2013 in A.S.No.6 of 2013 and A.S.No.5 of

2013 (common judgment) respectively on the file of II

Additional District Judge, Warangal, which are arising out of

judgment and decree dated 14.09.2012 passed in O.S.No.286 of

2006 and O.S.No.213 of 2005 respectively on the file of II

Additional Senior Civil Judge, Warangal (common judgment)

2. It is pertinent to note that Chintamalla Narasimha Chary is

the plaintiff in O.S.No.286 of 2006 and he is the defendant in

O.S.No.213 of 2005. O.S.No.213 of 2005 was filed by Sriramoju

Veeranarayana for declaration of title and recovery of possession

whereas O.S.No.286 of 2006 was filed by Chintamalla

Narasimha Chary against S.Veeranarayana for perpetual

injunction.

GAC, J S.A.Nos.326 & 362 of 2014

3. The trial Court after considering the pleadings of both the

parties in both the suits framed the following issues as under:-

O.S.No.213 of 2005:

            "i)    Whether the suit is barred by
                   limitation?
            ii)    Whether the Court has jurisdiction to
                   try the suit?

iii) Whether the plaintiff is entitled for declaration, as prayed for?

iv) Whether the plaintiff is entitled for mesne profits, as prayed for?

            v)     To what relief?"

      O.S.No.286 of 2006:

            "i)    Whether the plaintiff is entitled to

grant of perpetual injunction as prayed by him?

ii) To what relief?"

4. It is relevant to mention that common evidence was led in

both the suits and on behalf of the plaintiff, P.Ws.1 and 2 were

examined and Exs.A-1 to A-9 were marked. On behalf of the

defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-18

were marked.

GAC, J S.A.Nos.326 & 362 of 2014

5. The undisputed facts and pleadings are that the plaintiff is

the owner of the suit schedule property, who purchased the

property vide registered sale deed dated 01.12.1989 and

thereafter, he executed agreement of sale in favour of the

defendant on 18.01.1992. Further, it is the case of the plaintiff

that the agreement of sale was executed only to enable the

defendant to pledge that document with third parties to secure

loan to be used for getting his daughters married. But the

contention of the defendant is that the plaintiff entered into

agreement of sale with a intention to purchase the property and

the defendant received the complete sale consideration and later

put the plaintiff into possession of the suit schedule property. It

is the contention of the plaintiff that the defendant himself

dispossessed the plaintiff on 22.01.2003 with the help of unsocial

elements and after dispossessing, he got the suit schedule

property entered into his name in the municipal record and later

the plaintiff got the entries cancelled vide municipal proceedings

RC.A4/1494/3239/2003 dated 23.05.2003.

GAC, J S.A.Nos.326 & 362 of 2014

6. The trial Court after considering the oral and documentary

evidence dismissed the defendant's/Chintamalla Narsimha

Chary's suit i.e., O.S.No.286 of 2006 which was filed for

perpetual injunction and decreed O.S.No.213 of 2005 declaring

the plaintiff/S.Veeranarayana as the absolute owner of the

property and also granted decree for recovery of possession.

Being aggrieved by the same, the defendant in O.S.No.213 of

2005 preferred two appeals i.e., A.S.No.6 of 2013 against the suit

which was dismissed for perpetual injunction and A.S.No.5 of

2013 against the suit which was decreed declaring

S.Veeranarayana as the absolute owner and also for recovery of

possession.

7. The appellate Court after hearing the arguments framed the

following points for consideration:-

"1. Whether the common judgment and decree of the learned II Additional Senior Civil Judge is perverse being against the facts on record and law?

2. Whether Ex.A2 and Ex.A3 are fabricated documents?

GAC, J S.A.Nos.326 & 362 of 2014

3. Whether Ex.B18 is a genuine document?

4. Whether the suit of the plaintiff is barred by limitation?

5. Whether the suit for declaration is not maintainable without seeking cancellation of Ex.B-1 agreement of sale?"

8. On hearing the rival contentions, the 1st appellate Court

dismissed both the appeals confirming the judgment and decree

of II Additional Junior Civil Judge, Warangal in O.S.No.213 of

2005 and dismissal of the suit in O.S.No.286 of 2006 date

14.09.2012.

9. Being aggrieved by the judgment and decree in A.S.Nos.5

and 6 of 2013 dated 11.12.2013, the present Second Appeals are

filed raising the following substantial questions of law:

"a) Whether a suit for declaration of title and recovery of possession is maintainable without seeking the relief of cancellation of the document i.e., Agreement of Sale (Ex.B.1)?

GAC, J S.A.Nos.326 & 362 of 2014

b) Whether the suit for recovery of possession is maintainable before a civil court, when the case of the plaintiff that the defendant grabbed the property by dispossessing the plaintiff with the help of anti social elements? When a remedy of specific procedure contemplated under A.P.Land Grabbing (Prohibition and Eviction) Act to seek appropriate relief against a land grabber is available.

c) Whether in a suit for permanent injunction, the documents marked by the plaintiff in support of the case to establish his possession over the suit schedule property as on the date of the institution of the suit is not sufficient to decree the suit for injunction?

d) When there are admissions with regard to possession in the pleadings, a specific denial in the written statement to defend the case of the defendant?

e) Whether the courts below can pass the decrees on the basis of assumptions

GAC, J S.A.Nos.326 & 362 of 2014

and presumptions without scrutinizing the oral and documentary evidence available on record?

f) Whether the Courts below can pass a decree of declaration of title and recovery of possession relying on the document i.e., Ex.A-2 and A-3, which are inadmissible in evidence?"

10. On perusal of the substantial questions of law, it is evident

that they all are related to fact findings of both the Courts below

but not law.

11. Heard the learned counsel for the appellant. Perused the

record.

12. Second Appeals are of the year, 2014 and it underwent

numerous adjournments and still coming up for admission.

13. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that

the case involves a substantial question of law, only then, this

Court can interfere with the orders of the Courts below. On