Banoth Mandass, vs Banoth Ram Murthy,
2022 Latest Caselaw 5078 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.201 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment dated

17.11.2014 in A.S.No.78 of 2005 on the file of II Additional

District Judge, Khammam, confirming the judgment and decree

dated 22.09.2005, passed in O.S.No.26 of 1984 on the file of

Senior Civil Judge, Khammam.

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

arrayed before the trial Court.

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

counsel for the respondents and perused the record.

4. The appellant is the plaintiff No.1. The plaintiffs filed the

suit for declaration that they are the absolute owners of an extent of

Ac.2-35 gts. of land in Sy.No.134/E, within the boundaries as

mentioned in the plaint schedule and for recovery of vacant

possession from the defendants.

GAC, J S.A.No.201 of 2015

5. It is the case of the plaintiffs that they filed a suit for

partition and separate possession of joint family properties in

O.S.No.35 of 1974 on the file of Sub-Court, Khammam while they

are minors, represented by their mother, as their father, namely,

Devadas was addicted to bad vices and the said suit was

preliminarily decreed and an Advocate-Commissioner was

appointed in the final decree proceedings in E.P.No.32 of 1975,

and further, the Bailiff of the Court delivered the possession of the

property to them and they were put in possession of the property

and plaintiffs cultivated the land. It is the further case of the

plaintiffs that defendant No.1 had illegally occupied Ac.0-25 gts.,

and defendant No.2 had illegally occupied Ac.2-10 gts. of land in

Sy.No.134/E and further, the 2nd defendant transferred the land in

favour of defendant Nos.3 to 5, and therefore, the plaintiff was

constrained to file the suit for declaration of title and recovery of

possession.

6. On the other hand, the defendants filed a detailed written

statement contending that Sy.No.134 is comprising 20 acres of land

and some extent of land was purchased from Devadas, who is the

GAC, J S.A.No.201 of 2015

father of the plaintiffs and the defendants are bona fide purchasers

for a valuable consideration and further, they constructed their

houses in the suit schedule land. Defendants 2 to 5, who are

brothers, purchased Ac.1-18 gts. of land out of Sy.No.134/E from

Devadas in the year 1976 for a valid consideration and that the

plaintiffs were never in possession of the suit schedule land and the

boundaries mentioned in the suit schedule pertains to Ac.20-00 gts.

of land but not to Ac.2-35 gts., as claimed by the plaintiffs, and

therefore, prayed to dismiss the suit.

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

following issues for trial :

"1. Whether the plaintiffs are entitled for the recovery of possession of the plaint schedule property ?

2. To what relief ?

8. During the course of trial, on behalf of the plaintiffs, PWs.1

and 2 were examined and Exs.A-1 to A-7 were marked. On behalf

of the defendants, DWs.1 to 7 were examined and Exs.B-1 to B-5

and X-1 to X-3 were marked.

GAC, J S.A.No.201 of 2015

9. On considering the oral and documentary evidence on

record, the trial Court has dismissed the suit with a specific finding

that the 2nd plaintiff died pending the suit and the 1st plaintiff has

not taken any steps to bring the legal heirs of the 2nd plaintiff as the

claim of the plaintiffs is joint and further the suit is filed seeking to

declare the plaintiffs as owners of the suit schedule property. In

the absence of the legal heirs of the 2nd plaintiff, the suit cannot be

decreed and therefore, dismissed the suit.

10. Being aggrieved by the judgment and decree of the trial

Court, the plaintiffs have filed an appeal in A.S.No.78 of 2005 on

the file of II Additional District Judge (FTC-I), Khammam, along

with interlocutory applications in I.A.Nos.67 of 2007, 906 of 2010

and 192 of 2014.

11. On perusal of record, it is evident that I.A.No.67 of 2007

was filed under Order 26 Rule 9 of CPC to appoint an Advocate

Commissioner and I.A.No.192 of 2014 was also filed under Order

26 Rule 9 r/w. Section 151 of CPC to appoint an Advocate-

Commissioner by directing the Assistant Director, Land and

GAC, J S.A.No.201 of 2015

Survey to depute Mandal Surveyor to demarcate the schedule

property with the help of Naksha and for proper adjudication of the

matter, but the Commissioner's warrant was returned on

09.06.2010 in I.A.No.67 of 2007 was not executed. Further,

I.A.No.906 of 2010 is filed by the defendants/respondents under

Order 22 Rule 3 r/w. Section 151 of CPC to dismiss the appeal as

not maintainable for not impleading the legal heirs of Late Banoth

Prathap Rao/plaintiff No.2.

12. The first appellate Court, after hearing the rival contentions

of the parties and considering the material on record, has framed

the following points for consideration:

"1. Whether the judgment and decree in O.S.No.26 of 1984, dt.22-09-2005 on the file of Senior Civil Judge Court, Khammam is to be set aside or not ?

2. Whether the suit is liable to be decreed or not ?

3. Whether another Advocate Commissioner is to be appointed in this case or not by allowing I.A.Nos.192 of 2014 and I.A.No.67 of 2007 ?

4. Whether the appeal is abated as the legal representatives of 02nd plaintiff are not joined as parties, by allowing I.A.No.196 of 2010 ?

GAC, J S.A.No.201 of 2015

5. To what relief ?"

13. On considering the contentions of the parties and material on

record, the first appellate Court has passed a common judgment

dismissing the appeal as well as I.A.Nos.67 of 2007 and 192 of

2014, but allowed I.A.No.906 of 2010, which was filed by the

respondents/defendants therein.

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

appellate Court, the present Second Appeal is filed raising the

following substantial questions of law :

"1. Whether the learned appellate Court is justified in dismissing the appeal without formulating proper points as contemplated under Order 41 Rule 19 of CPC ?

2. Whether the learned Appellate Court is justified in rejecting the request of the appellant for appointment of Commissioner despite orders in CRP.No.5137 of 2011 and to enquire about missing of Naksha and disposal of appeal without there being any survey for demarcation of land, which resulted in dismissal of appeal without determination of issues ?

3. Whether both the courts justified in rejecting the prayer of the appellant to adjudicate the issue about boundaries and location of suit property even though suit was filed by the appellant is for recovery of possession and declaration which is a comprehensive one ?

GAC, J S.A.No.201 of 2015

4. Whether learned Appellate Court is justified in dismissing the appeal without appreciating the earlier orders of the Hon'ble High Court in SA.No.1134/2003, and A.S.No.39/97, dt.27-1-2005 which constitutes non-consideration of material evidence on record ?

15. On perusal of the judgment of the first appellate Court, it is

evident that the first appellate Court has formulated the points for

consideration at para 14 of its judgment, which are stated supra.

The appeal was dismissed on merits but not under Rule 11(2) or

Rule 17 of Order 41 CPC. Rule 11 of Order 41 clearly envisage

that the appellate Court, after fixing a day for hearing the appeal,

has to hear the appeal. Admittedly, after hearing the parties only,

the appeal was dismissed by the 1st appellate Court and it was not

dismissed for default. Therefore, Order 41 Rule 19 is in no way

applicable and it cannot be a substantial question of law to be

formulated in this Second Appeal.

16. The further substantial question of law which was mentioned

by the appellant is that despite the orders in CRP.No.5137 of 2011

to enquire about missing of Naksha and disposal of appeal without

there being any survey for demarcation of land, which resulted in

dismissal of appeal without determination of issues. Admittedly,

GAC, J S.A.No.201 of 2015

the order passed in CRP.No.5137 of 2011 are filed along with the

material papers, which disclose that the orders in I.A.No.678 of

2010 in I.A.No.67 of 2007 in A.S.No.78 of 2005 on the file of II

Additional District Judge (FTC-I), Khammam, are set aside and the

trial Court was directed to examine the question of taking these

pleas in the interlocutory application and clarity has to be given on

the boundaries of suit schedule premises and also to consider the

contents of the report of the Advocate Commissioner before taking

necessary measures for the purpose of calling for the Tippon as

required and if necessary an opportunity is to be given to the

parties for taking necessary steps.

17. As orders in CRP.No.5137 of 2011, the judgment in

O.S.No.78 of 2005 on the file of II Additional District Judge (FTC-

I), Khammam was set aside. But the present appeal, which was

being preferred by the plaintiff relates to O.S.No.26 of 1984 on the

file of Senior Civil Judge, Khammam. Therefore, the order in

CRP.No.5137 of 2011 has no relevance to the present case.

Admittedly, the judgment of the first appellate Court clearly

disclose that the orders in CRP.No.5137 of 2011 were not filed

GAC, J S.A.No.201 of 2015

before it nor received by the Court and further, the Second Appeal

filed before this Court vide S.A.No.1134 of 2003 was remanded

back for fresh disposal by the judgment dated 27.01.2005 and

further, the appellants have filed interlocutory applications along

with the appeal.

18. Admittedly, the second appeal is filed in the year 2015 and it

is still coming up for admission, though it underwent numerous

adjournments. Both the Courts below have given concurrent

findings as to the facts.

19. 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

GAC, J S.A.No.201 of 2015

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

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

20. In the result, the Second Appeal is dismissed confirming the

judgment dated 17.11.2014 in A.S.No.78 of 2005 on the file of II

Additional District Judge, Khammam. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 13.10.2022

ajr