Telangana High Court
Kalakonda Ashalatha vs Ponnam Laxmi on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.508 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 13.07.2023 passed in A.S.No.235 of 2018 on the
file of the Principal District Judge, Karimnagar, confirming the
judgment and decree dated 12.10.2018 passed in O.S.No.429 of
2012 on the file of the learned II Additional Junior Civil Judge,
Karimnagar, whereby the suit filed by the plaintiff was
dismissed. Thus, the present Second Appeal is filed against the
concurrent findings of trial Court as well as first Appellate
Court.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to filing of the present second appeal
are that the appellant /plaintiff herein has filed the suit i.e.,
O.S.No.429 of 2012 against the defendants for perpetual
injunction restraining them from interfering with peaceful
possession and enjoyment of house bearing No.7-3-331 (Old No.
7-3-257/1) including open place to an extent of 250 square
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yards situated at Kashmeergadda locality of Karimnagar
(hereinafter referred to as 'suit schedule property').
4. It is contended that originally, the suit schedule property
was LIGH Quarter and it was allotted to one Smt. Katla
Kousalya by the Municipal Commissioner, Karimnagar, in the
year 1971; that the Municipal Commissioner, Karimnagar, after
obtaining permission from the erstwhile Government of Andhra
Pradesh, executed a sale deed in favour of Katla Kousalya vide
document No.3814/2000 dated 14.07.2000 for a consideration
of Rs.3,461/- in respect of the suit schedule property including
open place in an extent of 250 square yards.
5. It is further contended that Katla Kausalya dismantled
the quarter and executed gift settlement deed in favour of the
plaintiff in respect of open place in an extent of 250 square
yards vide document No.5583/2003 dated 26.06.2003.
Thereafter, the plaintiff obtained permission and constructed a
building in an extent of 160 square yards leaving the open place
towards western side i.e., back side of the house admeasuring
90 square yards and has been living in the said house by paying
the tax to the Municipality. It is further stated that defendant
Nos.1 and 2, who are wife and husband, illegally tried to
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encroach the suit schedule property and tried to erect a wall to
some extent in the suit schedule property claiming that they
purchased the suit schedule property from Katla Kousalya.
Aggrieved by the same, the plaintiff filed the suit.
6. The defendant Nos.1 and 2 filed their written statement
denying the plaint averments and stating that the defendant
No.2 purchased the suit schedule property in the name of his
wife-defendant No.1 through a registered sale deed dated
20.04.2006. It is stated that before purchasing the said
property, paper publication was also issued calling for
objections, if any, from general public. It is further stated that
defendant No.1 started construction before filing the suit itself.
7. On behalf of plaintiff, P.Ws.1 to 4 were examined and
Exs.A1 to A.9 were marked. On behalf of the defendants,
DWs.1 and 2 were examined and Exs.B1 to B15 were marked.
8. The trial Court, after considering the entire material
available on record, dismissed the suit holding that the plaintiff
failed to produce material, evidence to show that she is the
lawful possessor of the suit schedule property, whereas the
defendants proved their possession over the suit schedule
property by adducing oral and documentary evidence.
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9. Aggrieved by the same, the plaintiff filed A.S.No.235 of
2018. The said appeal was clubbed with A.S.No.136 of 2019,
which was filed by the respondent No.1 herein against judgment
and decree dated 18.07.2019 passed in O.S.No.266 of 2013, by
which, the suit filed by respondent no.1 for mandatory and
recovery of possession with regard to land admeasuring 18
square yards in H.No.7-3-330 was dismissed. In the said suit,
respondent no.1 claimed that she is owner and possessor of the
house bearing No.7-3-330, admeasuring 165 square yards,
situated at Kashmeergadda locality of Karimnagar, having
purchased the same from her vendor Nalimela Subashini vide
registered sale deed dated 20.04.2006 and contended that
appellant herein and her husband have illegally occupied the
land admeasuring 18 square yards belonging to her by raising
compound wall.
10. The first Appellate Court on re-appreciation of the entire
evidence and perusal of the material available on record, vide
common judgment and decree dated 13.07.2023 dismissed both
the appeals confirming the judgments and decrees passed by
the trial Court. In the common judgment and decree dated
13.07.2023, the first Appellate Court had specifically recorded
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that trial Court rightly observed that parties failed to prove
their respective cases and thus, rightly declined to grant reliefs
in favour of the plaintiffs in both the suits. The first Appellate
Court also further observed that dismissal of one suit does not
lead to an automatic inference that the plaintiff in other suit
established his/her right. It is further observed that O.S.No.429
of 2012 was filed by the appellant herein for perpetual
injunction, whereas, the first respondent herein filed suit in
O.S.No.266 of 2013 for recovery of possession of the land
admeasuring 18 square yards.
11. Aggrieved by the judgment and decree dated 13.07.2023
passed in A.S.No.235 of 2018, the present Second Appeal is
filed.
12. Heard Sri Sankalp Pissay, learned counsel for the
appellant. Perused the record.
13. Learned counsel for appellant vehemently argued that the
trial Court dismissed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error
in confirming the judgment and decree passed by the trial
Court.
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14. However, learned counsel for appellant failed to raise any
substantial question of law to be decided by this Court in this
second appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial
questions of law in terms of Section 100 C.P.C.
15. It is well settled legal principle by a catena of decisions of
the Apex Court that in the Second Appeal filed under Section
100 C.P.C., this Court cannot interfere with the concurrent
findings arrived at by the Courts below, which are based on
proper appreciation of the oral and documentary evidence on
record.
16. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held
that the High Court sitting in Second Appeal cannot examine
the evidence once again as a third trial Court and the power
under Section 100 C.P.C. is very limited and it can be exercised
only where a substantial question of law is raised and fell for
consideration.
17. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the
Appellate Court, this Court finds no ground or reason
(2007) 1 Supreme Court Cases 546
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warranting interference with the said concurrent findings,
under Section 100 C.P.C. Moreover, the grounds raised by the
appellants are factual in nature and no question of law much
less a substantial question of law arises for consideration in this
Second Appeal.
18. Hence, the second appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 27.12.2023
va
