Telangana High Court
Amatulgaffar vs Md. Sadiq on 27 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.442 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 29.03.2023 passed in A.S.No.31 of 2016 on the file
of the I Additional District Judge at Karimnagar, confirming the
judgment and decree dated 30.12.2014 passed by the learned
Additional Senior Civil Judge, Karimnagar, in O.S.No.214 of
2005. 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 respondents/plaintiffs filed a suit vide O.S.No.214
of 2005 for declaration that the preliminary decree dated
26.10.2005 passed in O.S.No.40 of 2003 is null and void and
not binding on the plaintiffs, and also perpetual injunction
retraining the defendants 1, 2 and 4 from encroaching and
raising any constructions in the suit schedule land.
4. It was contended that plaintiff No.1 purchased house
bearing No.3-5-137 from one Mohd. Khan, Narseen Rahana and
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Mehajabeen Farhana through a registered sale deed in the year
2004; that the plaintiff No.2 purchased house bearing
No.3-5-136 from Mahajabeen Farhana through a registered sale
deed dated 28.04.2005; that the vendors of the plaintiffs are the
legal heirs of Moin Mohd. Khan and that the original owner
Moin Mohd.Khan died in the year 2001.
5. It was further contended that the father of the vendor of
the plaintiffs filed a suit vide O.S.No.72 of 1976 against
defendant No.4 and it was decreed and the First Appeal and the
Second Appeal preferred by defendant No.4 were also dismissed;
that defendant Nos.1 and 2 filed O.S.No.40 of 2005 against
defendant Nos.3 and 4 for partition including a public way i.e.,
the suit property which was used by the plaintiff and other
adjoining owners and the said suit was decreed. As the plaintiffs
are not parties to O.S.No.40 of 2005, the judgment and decree
passed in the said suit is not binding on them. Therefore, the
plaintiff filed the suit vide O.S.No.214 of 2005 against the
defendants seeking perpetual injunction and also to declare that
the judgment dated 26.10.2005 passed in O.S.No.40 of 2005 as
null and void and not binding on the plaintiffs.
6. The defendant Nos.1 and 2 and defendant No.4 filed
written statements denying the plaint averments and inter alia
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stating that the plaintiffs neither have any right over the suit
schedule property nor have any right to use the suit land as
public way.
7. On behalf of the plaintiffs, P.Ws.1 and 2 were examined
and Exs.A1 to A.13 were marked. On behalf of the defendants,
D.W.1 was examined and Exs.B1 to B7 were marked.
8. The trial Court, after considering the entire material
available on record, decreed the suit. Aggrieved by the same,
the defendant Nos.1, 2 and 4 filed A.S.No.31 of 2016. The first
Appellate Court on re-appreciation of the entire evidence and
considering the material available on record, dismissed the
appeal vide judgment and decree dated 29.03.2023 confirming
the judgment and decree passed by the trial Court. Hence, the
present second appeal.
9. Heard Sri Arshad Ahmed, learned counsel for the
appellants and perused the record.
10. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiffs are using the suit
schedule passage since long time; that there was a decree
against defendant No.4 restraining him from interfering and
making any constructions; that the defendants are trying to
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interfere with the possession of the plaintiffs over the suit
schedule property and trying to raise construction across the
suit schedule passage and obstructing the plaintiffs from using
the suit schedule passage.
11. Learned counsel for appellants vehemently argued that
the trial Court decreed 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.
12. However, learned counsel for appellants 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.
13. It is well settled 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.
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14. 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.
15. 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
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.
16. 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
(2007) 1 Supreme Court Cases 546
