Mirza Azmath Ali Baig vs Megharaj Laxmi
2023 Latest Caselaw 2536 Tel

     THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

              SECOND APPEAL No.819 of 2017

ORDER:

Appellant has filed this second appeal under section 100

of Code of Civil Procedure questioning the finding of the first

appellate Court where-under his appeal vide A.S.No.50 of 2007

was also dismissed by confirming the judgment of trial Court in

O.S.No.786 of 2004.

2. The appellant has filed the above said original suit for

perpetual injunction in respect of plot of 500 square yards in

survey No. 1368 at Subashnagar, Karimnagar. According to his

plaint filed before the trial Court, he claimed ownership over the

said property, through the registered gift deed executed by one

Mahemooda begum and also by claiming possession by virtue of

Ex.A2 certificate. The claim of appellant herein was resisted by

the defendants No.1 and 2, and first defendant in the suit while

disputing the relationship between the above said Mahemooda

Begum and appellant herein and about her right over the

property for executing a gift deed in favour of the appellant,

further contended before the trial Court that an extent of

Ac.10.00 guntas of land in survey No.1368 originally belonged SA.No.819 of 2017

to one Abdul Rahaman who sold an extent of Ac 0.13 guntas to

one Megharaju Pochamma, mother in law of first defendant

under a registered document on 4.3.1950. The said Pochamma

obtained a rythu passbook and inspite of the claim the

defendants filed certified copy of Pahani, the trial Court having

framed proper issues came to the conclusion that the donor of

the appellant herein had no right over the property thereby she

could not have conveyed any title in respect of the suit plot even

by virtue of Ex.A1. As such, the appellant/plaintiff cannot claim

title and his possession was also not believed by the trial Court.

3. Being not happy with the said findings the appellant

herein filed first appeal vide A.S.No.50 of 2007 before the III

Additional District Judge, Karimnagar. The first appellate Court

having appreciated the contentions of the parties dismissed the

appeal and confirmed the judgement of the trial court.

4. This second appeal has been filed by the plaintiff who is

appellant in this appeal mainly on the ground that the Courts

below could have believed Ex.A1 being a registered document

and since the plaintiff filed Ex.A2 possession certificate the

appellant further claimed that the Courts below could not have SA.No.819 of 2017

accepted the contention of defendants which is based on Ex.B1,

an unregistered document.

5. While filing this second appeal the appellant has

formulated the following substantial questions of law:

a) Whether the Courts below are right in discarding Ex.A1 though the same was proved by examining attestors i.e. PW's 3 and 4?

b) Whether the defendants are entitled to question Ex.A1 being the 3rd parties to Ex.A1 document?

c) In the absence of proof of Ex.B1 under which the defendants claiming rival title whether the Courts below are right in rejecting the injunction in favour of the plaintiff?

d) Whether the stray sentences in the cross examination of PW2 with regard to the execution of Ex.A1 can be a ground to reject the claim of plaintiff?

6. After the amendment of Code of Civil Procedure, in order

to get the second appeal admitted the unsuccessful party who

filed the appeal has to prove that there is a substantial question

of law involved and the appeal can be admitted only on the said

substantial question of law. The failure of the Courts below in

appreciation of evidence or the concurrent findings of the trial

Court on first appellate Court on facts cannot be questioned in

a second appeal.

7. As could be seen from the material placed before this

Court, the second appeal is filed mainly on the ground that the SA.No.819 of 2017

first appellate Court did not consider the contention of plaintiff

which is based on a registered gift deed. As could be seen from

the judgment of the trial Court and the judgement of the first

appellate Court, it is made clear that the appellant herein was

not able to prove the right of Mahemooda Begum from whom he

said to have obtained property under Ex.A1. Since the suit is

filed for a perpetual injunction, even in the absence of title, the

plaintiff can seek such a relief provided, he is able to prove

possession over the property. The Courts below did not accept

the right of donor of the appellant herein to execute Ex.A1 and

also did not accept the claim of plaintiff about his possession on

the property.

8. The findings of the trial Court and first appellate Court on

facts cannot be questioned in the name of substantial question

of law. Absolutely there are no substantial questions of law that

can be decided in this appeal. Therefore this appeal is liable to

be dismissed at the stage of admission.

9. In the result, appeal is dismissed before admission. No

order as to costs.

SA.No.819 of 2017

Miscellaneous applications, if any pending, shall also

stands closed.

_________________________________ JUSTICE SAMBASIVARAO NAIDU Date: 20.09.2023 BV