Abdul Hafeez Mamasan Died vs Smt. Shameemmunnisa Begum
2022 Latest Caselaw 6123 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.128 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment dated

28.08.2014 in A.S.No.100 of 2008 on the file of II Additional

District Judge (FTC), Mahabubnagar, which is arising out of

O.S.No.97 of 1994 on the file of Junior Civil Judge,

Mahabubnagar.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

3. Heard learned Counsel for the appellants as well as the

learned counsel for the respondents and perused the record.

4. The suit was filed by the plaintiff for perpetual injunction

with respect to Item Nos.1 and 2 of Suit schedule properties. The

brief averments of the plaint are that plaintiff No.1 has purchased

Item No.1 of the suit schedule property to an extent of Ac.4-11

gts., from the original owners and pattadars i.e. Smt.Nooirunnisa

Begum and Syed Sayeeduddin under the registered sale deed dated

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17.02.1994. Further, plaintiff Nos.2 and 3 have purchased Item

No.2 of the suit schedule property to an extent of Ac.4-11 gts., on

the same day under the registered sale deed from the original

pattadars Smt.Mahaboob Bee, Khuteeza Begum, Syed Mahaboob

Ali, Syed Ahmed Ali, Syed Khaza and Syed Basheer Ali and since

then, the plaintiffs are in exclusive possession and enjoyment of the

suit schedule properties and the defendants, without any right, were

interfering with their peaceful possession and enjoyment, and

therefore, prayed to grant perpetual injunction.

5. A detailed written statement was filed by defendant No.1,

which was adopted by the other defendants. The defendant No.1

denied all the averments made by the plaintiffs and it is specifically

averred by the defendants that Late Mahabub Ali, who is the

maternal uncle of the 1st defendant, was the owner of the land to an

extent of Ac.12-33 gts. in Sy.No.361. On 18.06.1958, the said

Mahabub Ali orally gifted the suit schedule property to the mother

of defendant No.1 by name Doulat Bee, as they rendered services

to him. On the same day, possession was also delivered and the

gift was accepted upon. Further, Doulat Bee got cultivated the said

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land by her husband and later, defendant No.1 cultivated the same

by paying land revenue taxes. Further, defendant No.1 gave the

said land to several persons on Battai basis and the said persons

also paid Battai and grains to defendant No.1. It is further

contended by defendant No.1 that in oral family settlement, the

entire land was allotted to the share of defendant No.1 as he served

his mother and maintained the entire family. The brothers of

Mahabub Ali by name Syed Ali and Syed Jaffar have also

relinquished their rights over the property. The revenue officials,

without any basis, have subdivided the survey number and allotted

one survey number to each of the three brothers and the said three

brothers never claimed rights and later it was gifted to Doulat Bee.

It is the specific contention of defendants that the plaintiffs and

their vendors were never in possession of the property and the

documents filed by them are all forged, and further, the suit land is

not identifiable and therefore, prayed to dismiss the suit as devoid

of merits.

6. Basing on the pleadings, the trial Court has framed the

following issues:

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"1. Whether the plaintiffs were in lawful possession of the suit schedule property as on the date of suit ?

2. Whether the defendants interfered with the possession of plaintiffs over the suit schedule property without any rights and possession ?

      3.    Whether the plaintiffs are entitled            for
            permanent injunction as prayed for ?

      4.    To what relief ?"

7. During the course of trial, on behalf of plaintiffs, PWs.1 to 3

were examined and Exs.A-1 to A-36 were got marked. On behalf

of defendants, DW.1 was examined and no documents were

marked. On considering the oral and documentary evidence on

record, the trial Court has decreed the suit with costs granting

permanent injunction as prayed for.

8. Being aggrieved by the same, the defendants have preferred

appeal in A.S.No.100 of 2008 before the II Additional District

Judge (FTC), Mahabubnagar. The first appellate Court, on hearing

the appellants and considering the entire oral and documentary

evidence on record, has dismissed the appeal confirming the

judgment and decree in O.S.No.97 of 1994, dated 11.10.2006.

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9. Being aggrieved by the judgment and decree of the first

appellate Court, the defendants have preferred this second appeal

raising the following substantial questions of law:

"a) Whether suit for mere injunction is maintainable when the title is in dispute and denied ?

b) Whether lower appellate court can dismiss the I.A. application when all the documents are filed along with the application ?"

10. It is contended by the learned counsel for appellants that the

appellants have filed an interlocutory application i.e. I.A.No.411 of

1994 along with documents in Exs.B-1 to B-25, but the trial Court

did not mark those documents as exhibits through DW-1. It is the

specific contention of appellants that the documents filed by the

defendants were returned by the office and they were not

resubmitted. But, it is the specific contention of the learned

counsel for appellants that the counsel for the defendants before the

trial Court did not evince any interest in getting the documents

marked, and therefore, the appellants have filed I.A.No.235 of

2012 to receive the documents as additional evidence, but it was

not considered by the appellate Court. On perusal of the record, it

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is evident that no reasons have been assigned by the defendants as

to why the documents were not marked before the trial Court and

the ground/plea taken by the appellants that their counsel did not

evince any interest, is not at all tenable in the eye of law. It is

pertinent to mention that the first appellate Court has gone through

the entire material on record and gave a specific finding that

sufficient opportunity was given to defendant No.1/DW-1 to mark

the documents in the suit, and even after the closure of evidence,

no petition was filed by the defendants before the trial Court for

getting the documents marked and after the lapse of 20 years, the

question of receiving documents as additional evidence does not

arise and therefore, dismissed the said I.A.

11. Admittedly, no application is filed before this Court under

Order 41 Rule 27 of CPC along with this Second Appeal to receive

the documents on behalf of appellants. Further, the appellants have

not filed any revision against the dismissal of I.A.No.235 of 2012,

which was dismissed by the first appellate Court. Both the Courts

below have given concurrent findings that the plaintiffs are in

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

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the suit, basing on the documentary evidence i.e. Exs.A-1 to A-36.

Admittedly, in a suit for injunction, the Courts have to see as to

who is in possession of the suit schedule property as on the date of

filing of the suit and incidentally, the title can be looked upon.

As the suit is filed for injunction simplicitor, the trial Court need

not look into the ownership of the property. Admittedly, there is

not even a single scrap of document before the trial Court to show

that the defendants are in possession of property either as on the

date of filing of the suit or subsequent thereto. Further, while

considering the arguments, it is pointed out by the learned counsel

for appellants that the Joint Collector, Additional District

Magistrate, Mahabubnagar has confirmed that the appellants are in

possession of the property and the said orders were passed on

22.02.2014. Even assuming for a moment that the appellants are in

possession of property as on the date of passing orders by the Joint

Collector on 22.02.2014, the defendants have failed to file any

documents before the first appellate Court to prove their

possession. In the absence of any documentary evidence on

record, this Court cannot now consider the orders of the Joint

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Collector, dated 22.02.2014. Therefore, there is no error or

irregularity in the orders of the Court below so as to interfere with

the same.

12. Further, 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, then only, the Court can interfere with

the orders of the Courts below. On perusal of the entire material,

this Court is of the considered view that the orders of the Courts

below are not perverse and there is no misreading of evidence, and

therefore, it is not proper to interfere with the concurrent fact

findings of the Courts below, in the absence of substantial question

of law. Therefore, the Second Appeal deserves to be dismissed.

13. In the result, the Second Appeal is dismissed at the stage of

admission, confirming the judgment dated 28.08.2014 in

A.S.No.100 of 2008 on the file of II Additional District Judge

(FTC), Mahabubnagar. No order as to costs.

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Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 24.11.2022

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