Khaja Shoukath Ali vs Smt. Khairunnissa Begum
2023 Latest Caselaw 221 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.719 of 2012

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 23.11.2011, in A.S.No.19 of 2010, on the file of the I

Additional District Judge, Nalgonda, which is arising out of the

judgment and decree dated 30.12.2009, in O.S.No.105 of 2004 on

the file of the Senior Civil Judge, Nalgonda.

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

arrayed before the trial Court. The appellants are the plaintiffs.

3. Initially, the suit is filed by the plaintiffs for declaration of

title and injunction against the defendants. The brief facts of the

plaint are that the plaintiffs are absolute owners and possessors of

the land to an extent of Ac.1.10 gts in Sy.No.399/2 of Devarakonda

Village and they were in possession of the said property by virtue

of an agreement of sale, with its owner named Syed Suleman. It is

the further case of the plaintiffs that they have filed O.S.No.54 of

1983 for declaration of title and injunction and the same was

decreed and the said judgment has become final and further, they

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have also got occupancy certificate issued in the year 1992, in

favour of the 2nd plaintiff. The portion purchased by the plaintiffs

was sub-divided as Sy.No.399/2 and accordingly pattadar

passbooks and title deeds were also issued to them. Further, the

plaintiffs obtained permission from Grampanchayat for

construction of building and compound wall. Meanwhile,

defendant Nos.2 to 7 filed a suit vide O.S.No.50 of 1997 seeking

injunction in respect of the land to an extent of 121 sq.yards in 16th

block, claiming right by virtue of sale deed from Suleman and

others.

4. It is further contended in the plaint that the said Suleman has

no right or title to execute a lease deed which was executed for

non-existing land. The defendants mis-represented and have

obtained injunction and further, the appeal filed by the defendants

was dismissed. The property claimed by the defendants in the suit

is different from the property in O.S.No.54 of 1983, as observed

this Court. It is further contended that prior to the lease deed, a

decree was obtained and after dismissal of the Second Appeal, the

plaintiffs got measured the land, fixed the boundaries and they tried

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to interfere with the peaceful possession and enjoyment of the suit

schedule property and as such, the present suit is filed for

declaration of title as well as for injunction.

5. On the other hand, defendant Nos.1 to 3 have filed a detailed

written statement contending that the plaintiffs have not

approached the Court with clean hands and denied the averment

that the plaintiffs are the absolute owners and possessors of the suit

schedule land. It is the specific recital in the written statement that

the land in Sy.No.399 is an Inam land and Suleman cannot sell the

land, without having any title over it. Further, the recitals also

disclose that the plaintiffs have created a rough sketch by making

alterations in the documents and by virtue of the lease deeds, the

defendants were in possession of the property and therefore, the

suit is not maintainable.

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

following issues:-

"1. Whether the schedule property measuring 121 sq.yards is part and parcel of Ac.1.10 gts of plaintiffs in

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Sy.No.399/2 which is the subject matter of O.S.No.54/83?

2. Whether the judgment and decree in O.S.No.50/97 and the plea of the defendants in that case, operates as res- judicata?

3. Whether the plaintiffs are the owners of schedule property and in possession of it?

4. Whether the plaintiffs are entitled to the relief's of declaration and perpetual injunction as prayed?

5. To what relief?"

7. During the course of trial, on behalf of the plaintiffs P.Ws.1

to 3 were examined and got Exs.A-1 to A-16 marked. On behalf of

the defendants D.Ws.1 to 4 were examined and got Exs.B-1 to

B-10 marked.

8. Considering the oral and documentary evidence of both the

parties, the learned Senior Civil Judge, Nalgonda has dismissed the

suit.

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9. Being aggrieved by the same, the plaintiffs have preferred

first appeal contending that the learned Senior Civil Judge has not

properly appreciated the evidence and documents in right

perspective and prayed to allow the appeal by setting aside the

judgment and decree in O.S.No.105 of 2004.

10. The 1st appellate Court after hearing the arguments of both

the counsel has framed the following points for determination:-

"1. Whether the plaintiffs are entitled for declaration of title as prayed for?

2. Whether the plaintiffs are entitled for injunction as prayed for?

3. Whether the judgment and decree in O.S.No.50/97 will operate as res- judicata?

4. To what relief?"

11. On considering the oral and documentary evidence and rival

contention of the parties, the appellate Court has dismissed the

appeal confirming the judgment of trial Court with a finding that

the plaintiffs are not entitled for declaration and also for

consequential perpetual injunction as the plaintiffs have failed to

establish, that they have got title to the suit schedule property and

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also for the reason that they failed to explain properly before the

Court as to when, they have purchased the property, the date of

purchase, mode of purchase and who has purchased the property.

It is also the finding of the 1st appellate Court that the evidence on

one hand discloses that plaintiffs' father has purchased the property

and contrary to it, the evidence also discloses that the 2nd plaintiff

has purchased the property.

12. Being aggrieved by the said judgement of the 1st appellate

Court, the present Second Appeal is filed raising the following

substantial questions of law:-

"(i). Whether the Courts below misread the oral and documentary evidence adduced by the plaintiff and relied on inadmissible evidence and rejected the relevant and admissible evidence?

(ii). Whether the judgments of the Courts below are perverse and contrary to the material available on record?

(iii). Whether the Courts below are right in rejecting the relief of declaration of title when Ex.A-1 decree passed in the

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earlier suit and Ex.A-2 O.R.C. were issued in favour of the plaintiffs?"

13. Heard the learned counsel for the appellants and the learned

counsel for the respondents. Perused the entire record.

14. On perusal of the record as well as the substantial questions

of law, this Court finds that there is no error or irregularity in the

orders passed by the 1st appellate Court. There is no evidence on

record to show that the plaintiffs are the absolute owners and

possessors of the property. As stated supra, it is the specific

finding of both the Courts below that the plaintiffs have failed to

prove that they are rightful owners of the property and therefore,

they are not entitled either for declaration of title or for perpetual

injunction to prove about possession. In a suit for injunction, it is

for the plaintiffs to prove that they are in possession of the

property, as on the date of filing of the suit and the documents/

Exhibits do not prove that they are in possession of the suit

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

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

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

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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 perusal of the

entire material on record, 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 in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

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

admission confirming the judgment and decree dated 23.11.2011 in

A.S.No.19 of 2010 on the file of I Additional District Judge,

Nalgonda. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J

Date: 18.01.2023 dv