The Union Of India, Ministry Of ... vs Mohammed Saleem Died Per L.Rs
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     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.355 of 2015

JUDGMENT :

This appeal is arising out of the judgment dated 24.01.2015

in A.S.No.284 of 2009 on the file of X Additional Chief Judge,

City Civil Court, Hyderabad, which arose out of the judgment

dated 11.09.2009 in O.S.No.6042 of 2000 on the file of X Junior

Civil Judge, City Civil Court, Hyderabad.

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

arrayed in the original suit.

3. The appellant/Union of India, Ministry of Defence, is the

defendant in the suit. The suit was filed by the plaintiffs for

mandatory injunction directing the defendant to incorporate the

names of the plaintiffs/agreement holders/title holders, namely, C.

Bharatamma W/o. Buchaiah Choudhari, B. Jansi Laxmi W/o.

P.S.Rao and C.Sesha Rao S/o. Buchaiah Choudhari in the General

Land Register maintained by the defendant in respect of the suit

schedule lands. During the pendency of the suit, a further prayer

was made to issue injunction restraining the defendant' authorities

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from interfering with the peaceful possession and enjoyment

together with the development activities over the suit schedule

land. The original plaintiff is one Mohd. Saleem. The case of the

plaintiff is that originally, one Dawar Ali was the owner of the suit

schedule property from 1930 A.D., who in turn sold the land to one

Late Buchaiah Choudhary, by delivering the vacant possession of

land through a deed dated 12.03.1946. During the life time of

Buchaiah Choudhary, the boundaries of the said land were fixed on

02.11.1954 at his request and the revenue authorities conducted

panchanama. Further, Buchaiah Choudhary used to pay land tax.

After his death, his wife and children succeeded to the said land by

survivorship and they continued to pay the taxes. The suit

schedule property was improved by Buchaiah Choudhary by

constructing a farm house, which have become dilapidated later,

but they paid taxes by way of challans dated 17.01.1974 and under

receipt from MTO of the then Hyderabad, dated 08.04.1987 and

letter dated 24.10.1984 of the Tahsildar, Golconda Mandal, who

gave 'No due certificate' also in the month of August, 1986. The

Commissioner, Municipal Corporation of Hyderabad, Town

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Planning addressed a letter dated 29.07.1986 to Buchaiah

Choudhary calling upon him, to submit documents in respect of

1514 square yards out of the land sought to be acquired for road

widening on payment of compensation. Subsequently, the

compensation was also paid to the family of Buchaiah Choudhary

by proceedings dated 30.09.1986 by way of cheque, in the name of

plaintiff No.4 who is the son of Buchaiah Choudhary. Plaintiff

Nos.2 to 4, who are the heirs of the deceased Buchaiah Choudhary,

proposed to entrust the land for development with A.Narsimha

Reddy, A. Niranjan Reddy, Mohd. Ibrahim, M.Ravi Varma,

S.Venkat Rao and Shaik Salahuddin by entering into a

Memorandum of Understanding on 06.03.1996. Pursuant to the

said Memorandum of Understanding, they deposited Rs.3,00,000/-,

which was paid to plaintiff Nos.2 to 4 as security deposit out of

Rs.5,00,000/-, and balance amount of Rs.2,00,000/- to be paid after

the completion of survey and determination of the total extent of

land by metes and bounds. In the month of October 2000, when

plaintiff No.1 undertook the work of development and started to

remove the structures, the defendant-authorities under a baseless

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claim that the land belongs to the Defence, interfered with the work

of the plaintiffs and caused obstruction as if, the land belongs to

them. The defendant did not produce any document nor have any

right over the suit schedule property. It is the specific averment in

the plaint that the plaintiffs are in continuous possession of the suit

property since 70 years by legitimate transfer and that the

defendant stand barred on the face of law and facts. The original

pattadar/Dawar Ali and Buchaiah Choudhary have perfected their

title by way of adverse possession. The partners, except one

A.Narsimha Reddy, who was not available in the city, executed a

letter of authorization to co-operate and pursue the activities in

their common commercial interest, plaintiff No.1 filed the original

suit.

4. It is further averred in the plaint that the Statutory notice

under Section 80 of CPC could not be issued and a separate

petition was filed under Section 80(3) of CPC, to dispense with the

same for filing the suit. It is also averred in the plaint that on the

threat of being dispossessed by force, by the defendant-authorities

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and against the inaction of the revenue authorities, the plaintiffs

approached the Court without issuing the mandatory notice.

5. The gist of the written statement reveals that without

complying Section 80 of CPC, the suit cannot be instituted against

the Government and therefore, the suit is liable to be dismissed. It

is the specific contention of the defendant that the land

admeasuring 104.65 acres popularly known as 'Old Cantonment

Garden', situated opposite to and near Quli Qutub Shahi Tombs, at

Shaikpet village, Golconda Mandal, Hyderabad, which was taken

over by the Government of India, Ministry of Defence through

local military authorities as Ex-State forces property. The transfer

was effected through a Board Proceedings dated 19.03.1958 in

pursuance of Government of India, Ministry of Defence letter

No.707342/Q3(Plg)Vol.II/168-S/D(Qtg), dated 11.03.1957 and

Government of Andhra Pradesh, General Administration (Military)

Department No.2733/57-2, dated 24.08.1957 and that the land is

under the control and management of the defendant. The land

devolved to the share of the Central Government (Ministry of

Defence) consequent to the financial integration of Princely States

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with Indian Union. They recognized the rights in the land

originally of erstwhile Hyderabad State, but has been assigned to

the Central Government and the same belong to Government of

India in full rights by virtue of Article 295(1) of the Constitution of

India. Out of the total extent of land, 1033 acres was transferred by

the Ministry of Defence to the P & T Department on 28.06.1971 on

outright sale for establishing a telephone exchange. But, out of the

remaining land, about 10 acres was under the occupation of

Municipal Corporation of Hyderabad and the said land was given

to the State Tourism Department. Approximately 40 acres is

occupied by the State Archaeology and Museums Department.

The erstwhile Executive Officer, Hyderabad leased out Ac.52.25

gts. to one Lt. Col. T.E.Ross for a period of 25 years commencing

from 13.01.1951 for agricultural purpose and it is inclusive of the

entire Ac.104.65 of land but the said Lt. Col. T.E. Ross entered

into a partnership deed with Buchaiah Choudhary without the

knowledge and approval of the erstwhile Hyderabad Cantonment

Authority. After the expiry of the lease period on 12.01.1976,

Lt.Col.T.E.Ross failed to deliver back the possession of the lease

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land to DEO, Secunderabad. On enquiry, his whereabouts were

not known but Buchaiah Choudhary was in enjoyment of the land.

Then, Buchaiah Choudhary was prosecuted under the Public

Premises (Eviction of unauthorised Occupants) Act, 1971 for his

unauthorised occupation of the defence-owned land, but the said

proceedings could not be finalized in view of the death of Buchaiah

Choudhary. The wife of Buchaiah Choudhary continued to be in

the unauthorised occupation of the land, who was also prosecuted

under the said Act. The State Government also initiated separate

action under the A.P. Land Grabbing (Prohibition) Act, 1982,

which was registered as LGC.No.65 of 1989, but the same was

challenged by the wife of Buchaiah Choudhary by filing

W.P.No.11174 of 1989 before this Court, which was disposed of

on 08.03.2000 with an observation that if it is found that the wife

of Buchaiah Choudhary is a grabber or unauthorised occupant, it

has to be decided by the Tribunal as a preliminary issue. Later, the

Special Court under A.P. Land Grabbing (Prohibition) Act,

Hyderabad dismissed LGC.No.65 of 1989 on 02.08.2000 by

holding that the same was not maintainable.

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6. It is further averred in the written statement that one Hyder

Ali Khan and others have filed a suit in O..S.No.1113 of 1991 on

the file of IV Additional Judge, City Civil Court, Hyderabad

against the Union of India and others for declaration and perpetual

injunction in respect of land comprising Sy.Nos.246, 247, 264, 268

to 273 in respect of Ac.38-06 guntas situated at Shaikpet village,

Golconda Mandal, Hyderabad, restraining the Government from

interfering with the plaintiffs right and possession. Further, one

Mir Pasha Ali and others filed LGC.No.31 of 1990 before the

Special Court under A.P. Land Grabbing (Prohibition) Act,

Hyderabad claiming Ac.52-25 gts., but the same was dismissed on

07.05.1993 as not maintainable and with an observation that the

petitioners therein should seek relief of declaration of title in a

Civil Court. Further, a Review Petition No.231 of 1994 was filed

before the Land Grabbing Court but the same was also dismissed

on 22.06.1994, thereafter, he filed a writ petition vide W.P.No.610

of 1998, which was also dismissed on 29.01.1998 at the stage of

admission with the same observation that the petitioners may seek

remedy from the Civil Court.

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7. It is also averred in the written statement that the wife of

Buchaiah Choudhary in her affidavit in W.P.No.11174 of 1989,

had in unequivocal terms, admitted the proprietary rights of the

Government of India, Ministry of Defence over the land which was

originally leased out to Lt. Col. T.E. Ross. During his life time, her

husband has been repeatedly representing to the authorities

concerned for extension of the lease in his favour and the plaintiff

also filed W.P.No.11571 of 2001, before the High Court of Andhra

Pradesh, against the respondents for a Writ of Mandamus directing

the defendants to act in accordance with law and forebear from

demolishing any of the structures existing in the schedule land

admeasuring Ac.47-21 gts., at Shaikpet village and that the

plaintiff is not having any right or interest over the suit schedule

property and therefore, prayed to dismiss the suit.

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

following issues for trial:

"1. Whether the plaintiffs are entitled to the mandatory injunction against the defendant as prayed for ?

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2. Whether the plaintiffs are entitled to the relief of consequential relief of permanent injunction against the defendant ?

3. Whether the plaintiffs have complied the mandatory notice U/s.80 of CPC ?

4. To what relief ?"

9. On behalf of plaintiffs, PWs.1 to 4 were examined and got

Exs.A-1 to A-49 marked. On behalf of defendant, DW-1 was

examined and got Exs.B-1 to B-11 marked. The trial Court, after

considering rival contentions and the material on record, decreed

the suit, restraining the defendant from interfering with the

peaceful possession and enjoyment of plaintiffs over the suit

schedule property. However, the trial Court has not discussed

issue No.1, as the learned counsel for plaintiffs has mentioned in

the written arguments that he was not pressing for issue No.1. It is

the specific finding of the trial Court that the plaintiffs are in

possession of the suit schedule property and they cannot be evicted

even though they are encroachers without due process of law and

that the cause of action arose suddenly by the defendants,

therefore, the Statutory notice under Section 80 of CPC could not

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be issued, for which, a separate application was filed by the

plaintiffs under Section 80 (c) of CPC with a request to dispense

with said notice and the trial Court has dispensed with issuance of

notice under Section 80 of CPC in view of the urgency.

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

Court, the defendant in the suit has preferred an appeal before the

Court of X Additional Chief Judge, City Civil Court, Hyderabad.

The appellate Court, on hearing the rival contentions of the parties

and on perusal of the record, framed the following points for

consideration :

"1. Whether the decree and judgment dt.11-09-

2009 on the file of X Junior Civil Judge, City Civil Court, Hyderabad suffers from any infirmity either on facts or on law and whether the same is liable to be set-aside ?

2. To what relief ?"

11. The first appellate Court, after considering the entire

material on record, has dismissed the appeal holding that the

judgment and decree of the trial Court does not suffer from any

infirmity either on facts or on law and the findings with regard to

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the possession therein, and that there is no need to interfere with.

Being aggrieved by the judgment of the first appellate Court, this

Second Appeal is filed, raising the following substantial questions

of law:

"(i) Whether the judgments of the courts below are vitiated in law for improper appreciation of evidence on record ?

(ii) Whether in the absence of any plea and proof of title and possession by the plaintiffs, the courts below are justified in dismissing the appeal filed by the appellant ?

(iii) Whether the lower courts below are wrong in not considering the documents filed by the appellant herein under exhibit B-1 to B-11 and dismissed the appeal filed by appellant herein in a mechanical manner without application of mind, confirming the Judgment and decree dated 11-09-2009 in OS No.6042 of 2000 passed by trial Court ?

(iv) Whether the Trial Court acted legally in granting perpetual injunction in favour of the plaintiffs restraining the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property inspite of the fact that counsel for the plaintiff submitted that he is not pressing issue no.1 i.e. whether the plaintiffs are entitled to mandatory injunction against the defendants as prayed for, and therefore the Trial court ought to have dismissed the suit as there was no other relief

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since the 2nd relief is to grant injunction during the pendency of the suit ?

(v) Whether the civil suit originally filed by Mod.Saleem/Plaintiff No.1, alleging that there were 07 partners including himself who entered into Memorandum of Understanding (Ex-A4) alleging that the other partners except A. Narasimha Reddy authorized him in (Ex-A1) to file the suit, is maintainable in law ?

(vi) Whether the trial court acted legally in believing the contents of the Ex-A6, un- registered sale deed, in the absence of examining any person/s with regard to same ?

(vii) Whether the trial court acted legally in believing the contents of Ex-A14, Panchanama, in the absence of specified boundaries and extents of land in each Survey number ?

(viii) Whether the trial court as well as the appellate court below have acted legally in partly decreeing the suit in favour of the plaintiff, restraining the appellants from interfering with the peaceful possession and enjoyment of suit schedule property inspite of the fact that, the suit land was already taken possession by the appellants herein, on expiry of lease period from its lessee ?

12. Heard learned counsel for the appellant as well as the

learned counsel for respondents. Perused the record.

The points for consideration in this Second Appeal are :

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1. Whether the judgments of both the Courts below are

liable to be set aside basing on the substantial

questions of law as raised in para 40 of the grounds of

appeal ?

2. Whether this Court can interfere with the findings of

fact of the Courts below under Section 100 of CPC ?

13. It is the specific contention of the learned counsel for

appellant that the original plaintiff Sri Mohd. Saleem is a total

stranger to the suit schedule property and he has no right to claim

the suit schedule property. It is contended that the plaint disclose

that the legal heirs of one Buchaiah Choudhary have executed

MoU/Ex.A-4 in his favour along with six others for development

of the suit schedule property, the said MoU authorized him to

prosecute the case on behalf of Buchaiah Choudhary and six

others, but the said MoU does not give any authorization to Mohd.

Saleem and further, the alleged MoU is an unregistered document

and no right or interest could accrue over the property, under the

said document and therefore, the plaintiff has no locus standi to file

the suit. It is the further contention that having realized that the

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suit is not maintainable on the name of Mohd. Saleem, the plaint

was amended in the year 2007 adding the legal heirs of Buchaiah

Choudhary as plaintiffs and the trial Court ought not have granted

injunction in their favour. It is the contention of the learned

counsel for appellant that in a suit for injunction simplicitor with

respect to an immovable property, the plaintiff is required to prove

that he is in possession of the suit schedule property as on the date

of filing the suit and if the land is an open land, then the law

envisages on the presumption that possession follows title and

plaintiff is required to prove his possession on the basis of title and

in the present case, absolutely there is no authenticated document

to prove that the plaintiffs are the owners and possessors of the suit

schedule property and the unregistered sale deed dated 12.03.1946

did not confer any title over the suit schedule property in favour of

defendant and there is no identification of the property within the

specific boundaries and prayed to allow the second appeal by

setting aside the orders of the trial Court as well as the lower

appellate Court. It is the further contention of the learned counsel

for appellant that as per the request of Sri Buchaiah Choudhary,

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survey department has conducted panchanama and fixed

boundaries, but as on that date, Buchaiah Choudhary was no more

and the said land is in the jurisdiction of the Cantonment area and

therefore, notices have to be issued to the military authorities,

therefore, the alleged panchanama is not binding on the defendant

as no notice was given to them. It is further contended that Exs.

A-11, A-12, A-20 and A-21 though proves that the plaintiffs are in

possession of the property, the said documents do not disclose

identity of the suit schedule property on spot and therefore, it is not

binding on the defendant, and therefore, prayed to set aside the

orders of the trial Court, as well as the orders of first appellate

Court.

14. It is further contended by the learned counsel for the

appellant that the burden is always on the plaintiffs to prove that

they are in possession of the suit schedule property and as there is

no proper oral and documentary evidence to prove their possession,

the trial Court ought to have dismissed the suit and allowed the

appeal of the defendant. It is the further contention of the learned

counsel for the appellant that the 1st plaintiff has no locus standi to

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file or prosecute the case on behalf of the plaintiffs and admittedly,

he is not the GPA holder of the plaintiffs and that mere marking the

documents does not amount to proof. Plaintiff Nos.2 to 4 are

competent to speak and prove the documents filed by them, but

they have not entered into witness box to prove the documents. As

such, the documents marked before the Court cannot be relied upon

and that both the Courts below have delivered judgments on the

self-serving evidence of PWs.1 to 4. The documents filed by the

plaintiffs under Exs.A-1 to A-49 are fictitious and fabricated and

were brought into existence for the purpose of filing of the false

suit. PWs.1 to 4 are strangers to the suit and the suit cannot be

decreed in their favour. It is further contended by the learned

counsel for appellant that Exs.B-1 to B-11 filed in this case were

already marked in O.S.No.1113 of 1991 on the file of IV Senior

Civil Judge, City Civil Court, Hyderabad and the said Court, on

considering the said documents, held that the defendant is in

possession of the land and it is the contention of plaintiffs that the

suit lands in both the suits are not same and that they are not parties

to the said suit in O.S.No.1113 of 1991, and therefore, the

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defendant is to be treated as the owner of the suit schedule

property. Furthermore, it is contended that the documents relied

upon by the defendants were not properly appreciated by the

Courts below and if they are properly perused, the Courts ought to

have concluded that the defendant alone had title and possession

over the suit schedule property and that the documents filed by the

plaintiffs are fictitious and fabricated and are brought into

existence only to knock-away the property of the Government and

therefore, it ought to have allowed the appeal.

15. On the other hand, it is the contention of the learned counsel

for respondents that both the Courts have appreciated the evidence

on record, considered the rival contentions of the parties and

decreed the suit, which was confirmed by the appellate Court and

there is no substantial question of law in this Second Appeal, and

therefore, the second appeal has to be dismissed as it is devoid of

merits. It is the specific contention of the respondents that a plain

reading of Section 100 of CPC makes it clear that the Second

Appeal primarily requires (i) the Court is satisfied that the case

involves a substantial question of law (ii) the order impugned is

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passed ex-parte, and (iii) precise statement of substantial question

of law involved in the appeal. Then only, the High Court can

interfere, but it cannot re-appreciate the evidence and interfere with

the findings of fact by the lower appellate Court. The only limited

ground on which the High Court can interfere in the Second

Appeal is that the decision of the lower Court is contrary to law. It

is only an error of law which can be corrected by the High Court in

exercise of its jurisdiction in the Second Appeal.

16. The learned counsel for the respondents has relied on the

judgment of Hon'ble Supreme Court in Mattulal v. Radhe Lal1,

wherein, it is held as under:

"It is settled law that the High Court in second appeal cannot re-appreciate the evidence and interfere with findings of fact reached by the lower appellate court. The lower appellate court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond

AIR 1974 SC 1956

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the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse."

17. It is further contended by the learned counsel for respondents

that it is also settled law that an erroneous finding of fact is a

different thing from an error or defect in procedure and that there is

no jurisdiction to entertain a second appeal on the ground of an

erroneous finding of fact, however gross or inexcusable the error

may seem to be. In 1890, the Privy Council had occasion to

consider this aspect of the matter in Mst. Durga Chawdhrain v.

Jawahir Singh (1890) 17 Ind App 122 (PC). In that case, it was

observed by the Privy Council that an erroneous finding of fact is a

different thing from an error or defect in procedure, and that there

is no jurisdiction to entertain a second appeal on the ground of

erroneous finding of fact, however gross or inexcusable the error

may seem to be. Their Lordships added that nothing can be clearer

than the declaration in the Code of Civil Procedure that no second

appeal will lie except on the grounds specified in Section 584

(corresponding to Section 100 of the present Code) and they

uttered a word of warning that no Court in India or elsewhere has

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power to add to or enlarge those grounds. Since 1890, this

decision has been treated as a leading decision on the question

about the jurisdiction of the High Court in dealing with questions

of facts in second appeal.

18. The learned counsel has relied on the judgment of Hon'ble

Supreme Court in Pattabhiramaswamy v. S. Hanumayya2,

wherein, it is held that, "finding of fact arrived at by the District

Judge on the consideration of all evidence, oral and documentary,

adduced by the parties, cannot be set aside in second appeal".

The said finding of the Hon'ble Supreme Court was followed in the

case of Chunni Lal V. Mehta and Sons Ltd., Bombay v.

Centure Spinning and Manufacturing Co. Ltd., Bombay [AIR

1962 SC 1313]. It was held in that case that an issue of law does

not arise merely because documents which are not instruments of

title or otherwise the direct foundation of rights but are merely

historical documents, have to be construed.

19. The learned counsel for respondents has further relied on the

judgment of Hon'ble Supreme Court in C. Doddanarayana

AIR 1959 SC 57

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Reddy (D) By Lrs. v. C. Jayarama Reddy (Dead) By Lr.3,

wherein, it is held as under:

"The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 (3) SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166], this Court held :

2020 (4) SCC 659

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"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact.

31. In view of the aforesaid enunciation of law and the facts of the present case, we find that the High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court."

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20. The learned counsel for respondents has also relied on

another judgment of Hon'ble Supreme Court in Chandra Bhan v.

Pamma Bai & another4, wherein, it is held as under:

"Since the trial court and the lower appellate court had recorded concurrent findings of fact that Ram Nihore was not in possession at any time over the land in question and that the defendant had acquired the bhumiswami rights under the M.P. Land Revenue Code on account of his long uninterrupted possession. It was not open to the High Court to reverse those findings, particularly when the findings were supported by the own admission of Ram Nihore that at the age of 13 he had left the village and returned after 16-17 years which indicated that he was not in possession over the land in question."

21. Considering the entire evidence on record, the rival

contentions of the parties and the substantial questions of law, this

Court is of the considered view that there is very limited scope

under Section 100 of CPC and this Court can interfere with the

findings of the Courts below, if there is any substantial question of

law. Section 101 (c) of CPC refers to a substantial error or defect

in the procedure. The defect or error must be substantial. The

substantial error or defect should be such as may possibly have

produced error or defect in the decision of the case upon the merits.

[2002 (9) SCC 565]

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The error or defect in the procedure to which the clause refers is, as

the clause clearly and unambiguously indicates, an error or defect

connected with, or relating to the procedure; it is not an error or

defect in the appreciation of evidence adduced by the parties on the

merits. That is why, even if the appreciation of evidence made by

the lower appellate Court is patently erroneous and the finding of

fact recorded in consequence is grossly erroneous, that cannot be

said to introduce a substantial error or defect in the procedure. But

the High Court cannot interfere with the conclusions of fact

recorded by the lower appellate Court, however, erroneous the said

conclusions may appear to be to the High Court, in view of the

observations made by the Privy Council. Furthermore, it can be

construed that High Court can interfere with the findings of fact

under Section 103 of C.P.C., if there is any misreading of evidence

or if there is any perversity of findings.

22. Even on facts, it is the specific contention of the appellant

that the land to an extent of 103 acres belongs to the Government,

but it is admitted by the Government that the land is in possession

of one Buchaiah Choudhary, who is the father of plaintiff Nos.2 to

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4. It is the specific contention of the appellant that the suit itself is

not maintainable as it was filed by the 1st plaintiff initially and

later, plaintiff Nos.2 to 4 were added. On perusal of record, it is

evident that plaintiff Nos.2 to 4 were added to the suit by

impleading them under Order I Rule 10 of CPC and if at all the

defendant had any objection for impleading them as a party, the

Government ought to have opposed the petition in the trial Court

and inspite of opposition, if impleadment is ordered, the

Government had it's right to challenge the impleadment of plaintiff

Nos.2 to 4 by way of revision. In the present case, the Government

has not challenged the impleadment of plaintiff Nos.2 to 4 and at a

belated stage, it cannot raise the said plea and it is not a substantial

question of law that can be discussed in the Second Appeal.

23. It is the specific case of the defendants that the Government

has given the land on lease in favour of Lt.Col.T.E.Ross, who in

turn, leased the land to Buchaiah Choudhary and since then,

Buchaiah Choudhary was in possession of the land. As per the law

of adverse possession, if any Government land is in continuous

possession of third parties for more than 30 years, third parties

GAC, J S.A.No.355 of 2015

perfect title over the property and if it is a private land, then, the

third parties who are in possession for a continuous period of 12

years, can claim right by way of adverse possession. Admittedly,

both the Courts below have come to the conclusion that the

plaintiffs are in possession of the property for more than a period

of 70 years and the Government is not in possession of the

property. Even the land grabbing case filed by the Government

was dismissed as not maintainable and the land grabbing Court has

directed the parties to approach the Civil Court for their rights.

Admittedly, the present case is not filed for declaration of title, but

it was filed for injunction alone. Therefore, the question of looking

into title will not arise at this juncture. Both the Courts have

rightly appreciated the documents filed by the parties and came to

the conclusion that the plaintiffs are in possession of the property.

On perusal of the documents, it is evident that the Government has

not objected for marking of documents before the trial Court. So,

at the stage of Second Appeal, this Court cannot discard the

documents. Though it is contended by the appellants that the

documents are false, fabricated and fictitious, no steps were taken

GAC, J S.A.No.355 of 2015

by the appellant, to disprove the documents of plaintiff. The

appellant/Government itself has admitted the possession of

Buchaiah Choudhary over the property and subsequently the land

was in the hands of wife and children of Buchaiah Choudhary.

Though it is the contention of the appellant that the Civil Court has

passed the decree in favour of the Government on the ground that

the Government is in possession of the land, it is the specific

contention of the plaintiffs that the said land is different in both the

suits and it was accepted by both the Courts below. On perusal of

the judgment of the first appellate Court, it is evident that the

plaintiffs have filed Ex.A-6, which is an unregistered document in

Urdu, executed on non-judicial stamp paper worth Rs.1/-, the

translation of which is Ex.A-7, under which, Dawar Ali executed

sale deed dated 12.03.1946 with his free will to the effect that an

extent of Ac.52-11 gts., comprising Sy.Nos.246 to 253, 263 to 268,

270 to 273 situated at Shaikpet village, sold for an amount of

Rs.26,125/- as a pattadar and in possession of the said property to

Buchaiah Choudhary. The Courts have come to the conclusion that

even leaving apart Ex.A-6, which is an unregistered document,

GAC, J S.A.No.355 of 2015

there are some other documents on record to prove the possession

of Buchaiah Choudhary over the suit schedule property. Exs.A-11

and A-12 are important documents showing the possession of

plaintiffs over the suit schedule property. Ex.A-11 is Kami Zafa

statement for the year 1982-83, in which, Ac.47-21 guntas was

shown against the names of plaintiff Nos.2 to 4 and one

Bharatamma, who is the wife of Buchaiah Choudhary. Ex.A-12 is

the passbook issued in the names of plaintiff Nos.2 to 4 and wife of

Buchaiah Choudhary, as pattadars in respect of Ac.47-21 guntas

comprising Sy.Nos.246 to 253, 263 to 268, 270 to 273. In Column

No.20 of Ex.A-12, it is clearly mentioned as prior to 1950, which

was identified that the said land belongs to one Dawar Ali as a

pattadar, and he sold away the said land to Buchaiah Choudhary,

and since then, the said land is in possession and enjoyment of

Buchaiah Choudhary. It is also mentioned that as per the Will, the

said land was in possession of his legal heirs i.e. PWs.2 to 4 and his

wife. Exs.A-23 and A-24 relate to the proceedings of Land

Acquisition Act, wherein, the land was acquired for the purpose of

road widening and the Municipal authorities have paid

GAC, J S.A.No.355 of 2015

compensation to the wife of Buchaiah Choudhary, which clearly

proves that the Government has recognized the possession of

plaintiffs over the suit schedule property and paid amount to them

and not to the defendant/appellant. Though it is the contention of

the learned Counsel for appellant that PWs.2 to 4 were not put into

witness box, it cannot be treated as a substantial question of law in

the Second Appeal so as to discard the possession of plaintiffs over

the suit schedule property. Therefore, it needs no interference.

24. On the other hand, it is admitted by DW-1 before the trial

Court that there is no documentary proof for leasing of land

belonging to the defendant in favour of one Lt. Col. T.E.Ross and

no document was filed before the Court and further, even after the

lapse of 25 years of lease, no notice has been issued to Lt. Col.

T.E.Ross. Therefore, both the Courts below have rightly come to

the conclusion that there is no evidence on record showing that

Ac.52-25 gts. of land was leased out to one Lt. Col. T.E.Ross, who

in turn, entered into partnership with Buchaiah Choudhary and that

he was in illegal possession of the land. It is the specific admission

of DW-1 before the Court that there is no explanation as to how

GAC, J S.A.No.355 of 2015

Ex.B-2/letter alleged to have been addressed by Buchaiah

Choudhary to the Collector, came into the hands of the defendant.

Therefore, the appellate Court has also come to the conclusion that

it is a well settled law that in a suit for injunction, the plaintiffs

have established their possession over the suit schedule property as

on the date of filing of the suit. Ex.A-6/sale deed dated 12.03.1946

discloses that the suit land was sold by one Dawar Ali to Buchaiah

Choudhary and Ex.A-14/panchanama disclose that boundaries are

fixed by the revenue authorities, which is conclusive proof and the

documents clearly shows that the plaintiffs are in continuous

possession of the suit schedule land and even the State Government

has recognized Late Buchaiah Choudhary as owner of the land and

further, compensation was also paid to him in the land acquisition

proceedings. Ex.A-29 is the ration card, which clearly shows

H.No.9-4-138/1, Cantonment Garden, Golconda Fort, Hyderabad

and Exs.A-30 to A-32 are electricity passbook and electricity bills,

which clearly reveals that the plaintiffs are in possession of subject

property as on the date of filing of the suit. Therefore, this Court

finds that there is no error or irregularity in the orders passed by

GAC, J S.A.No.355 of 2015

both the Courts below and as no substantial question of law is

involved in this Second Appeal, there is no need to interfere with

the findings of Court below.

25. The Second Appeal is accordingly dismissed, confirming the

judgment in A.S.No.284 of 2009, dated 24.01.2015 on the file of X

Additional Chief Judge, City Civil Court, Hyderabad. No order

as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 01.03.2023

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