Telangana High Court
Katala Raji Reddy, vs Jillala Vijaya, on 2 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.244 of 2023
JUDGMENT:
Aggrieved by the judgment and decree, dated 16.02.2023,
passed in A.S.No.2 of 2018 on the file of the Court of Principal
District Judge, Jagtial, whereunder and whereby the judgment and
decree dated 20.11.2017 passed by the Senior Civil Judge, Jagtial,
in O.S.No.96 of 2007, was set aside, the present Second Appeal is
filed.
2. The appellant is the plaintiff and the respondent is the
defendant in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff and the defendant are
near relatives and that one Ponnala Trilochan Reddy, S/o Rajaiah,
is maternal uncle of plaintiff, and defendant is son of sister of
Trilochan Reddy; that said Trilochan Reddy and defendant
approached the plaintiff in last week of March, 2007 and asked
him about availability of land for purchase, for which, plaintiff told
them that he has 0-02 guntas land in Sy.No.228 for sale; that after
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negotiations, the price of land was settled at Rs.40,000/- per gunta;
that later, both of them went to the house of plaintiff on 19.04.2007
and asked him to register the land; that when plaintiff asked for
amount, both of them told that they will bring the amount on the
next day and went away; and that again on 20.04.2007, when the
plaintiff was in his agricultural fields, the defendant and Trilochan
Reddy came there at 11 am and asked the plaintiff to consume
wine which was brought with them and then the plaintiff and
defendant consumed wine and later, they took the plaintiff to
Registration Office, Jagtial at afternoon and asked the plaintiff to
execute register deed and again plaintiff asked for consideration
amount of Rs.80,000/-, but Trilochan Reddy promised that they
would pay the consideration amount after registration at the house
of plaintiff and that plaintiff trusted him and executed registered
sale deed vide document No.1207 of 2007 dated 20.4.2007 and
that after registration, the defendant and Trilochan Reddy did not
pay consideration amount till today.
3.1. It was further averred that when the plaintiff asked the
defendant and Trilochan Reddy about payment of sale
consideration amount, they evaded payment on one pretext or the
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other. After going through the contents of sale deed, the plaintiff
was surprised and got shock to know that sale deed is nominal,
sham and without delivery of possession and consideration, and
that defendant and Trilochan Reddy played fraud and mischief on
him and that plaintiff did not deliver the possession of land to the
defendant. When the plaintiff asked the defendant and Trilochan
Reddy on 04.10.2007 about fraud and mischief and also non-
payment of consideration amount of Rs.80,000/-, they threatened
him with dire consequences. Hence, the plaintiff filed the suit
seeking the relief of declaration and cancellation of registered sale
deed bearing No.1207/2007, dated 20.04.2007.
4. The defendant filed written statement stating that plaintiff
was the owner of 0-08 guntas land in Sy.No.228, but at present, he
has no land. The plaintiff himself approached the defendant and
Trilochan Reddy in October, 2006, during Vijayadasami festival
and told that he is having 0-08 ½ guntas of land in Sy.No.228 and
offered to sell the same to the defendant for Rs.75,000/-, but the
defendant declined to purchase as the price is high and thereafter,
after bargaining, finally, in the month of February, 2007, the price
was settled at Rs.4,11,500/- for 0-08 ½ guntas of land and that
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defendant sought one month time for securing consideration
amount. But, he could not secure full consideration amount and he
was in short of Rs.90,000/-, for which he requested Trilochan
Reddy to advance the amount and accordingly on 20.4.2007, he
paid Rs.3,21,500/- in cash to the plaintiff and got issued post dated
cheque bearing No.864062 of SBII Korutla Branch for Rs.90,000/-
dated 24.4.2007 in favour of plaintiff by Trilochan Reddy and that
after receiving cash and cheque and having delivered possession of
land, plaintiff executed registered sale deed vide document
No.1207/2007 in favour of the defendant by transferring land
admeasuring 0-08 ½ guntas in Sy.No.228.
4.1. It was further averred that subsequently, plaintiff went to
Karimnagar to encash the cheque, but bank officials asked to
furnish his PAN number. Since the plaintiff has no PAN Card, he
was advised to take two cheques of Rs.50,000/- and Rs.40,000/-
and thereupon, the plaintiff again approached the defendant to
issue two cheques and returned earlier cheque and accordingly, the
maternal uncle of the defendant i.e., Trilochan Reddy received the
earlier cheque and issued two cheques bearing Nos.864063 for
Rs.50,000/- and 864064 for Rs.40,000/- of SBH Korutla dated
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27.04.2008 and they were encashed by the plaintiff and that
plaintiff, having received the entire consideration amount from this
defendant, executed registered sale deed and no fraud was played
by the defendant and Trilochan Reddy.
4.2. It was also averred that since the date of sale, this
defendant has been in exclusive possession and enjoyment of the
said land; that the value of land has been increased abnormally, the
plaintiff developed ill-intention and demanded another sum of
Rs.50,000/-, for which the defendant refused; that when this
defendant failed to yield to the pressure exhorted by plaintiff, he
got filed another suit in OS.No.124 of 2008 on the file of Junior
Civil Judge, Jagtial through one Chandra Pruthvidhar Rao and
thus, the entire allegations of plaintiff are wrong and there are no
bonafides in the suit and prayed to dismiss the suit.
5. Basing on the above pleadings, the following issues are
framed by the trial Court:-
"1. Whether the defendant played fraud and mischief and
thereby got more extent of land registered by the
plaintiff?
2. Whether the registered sale deed is liable to be
cancelled as null and void?
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3. To what relief?"
6. During the course of trial, to substantiate the case, on
behalf of plaintiff, PWs.1 to 3 were examined and Exs.Al and A2
were got marked. On behalf of defendants, DWs.1 to 4 were
examined and Ex.B-1 was got marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, decreed the suit
vide judgment dated 20.11.2017, by making the observations as
under:-
"There is no consistency in the contention taken by the
defendant in written statement and Ex.A-l regarding
mode of payment of consideration amount. DW2, who is
a witness to the transaction, categorically deposed that
no consideration amount was paid to plaintiff and no
cheque was given in his presence. Therefore, there is no
evidence produced by the defendant regarding payment
of cash of Rs.3,21,500/- to the plaintiff. If really the
defendant paid total consideration amount, he has no
necessity to execute Ex.A2- agreement again. Being
attester DW2 ought to know about mode of payment, but
except the averment under Ex.A-l, there is no proof
regarding payment of consideration amount. Thus, the
defendant failed to prove payment of consideration
under Ex.A-1. Therefore, it can be presumed that the
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defendant did not pay consideration amount to the
plaintiff and that the defendant by playing mischief and
fraud on plaintiff got Ex.A1 for excess land."
7.1. The trial Court further observed that admittedly, one
Ponnam Ganganna has land on eastern side of suit schedule
property. The defendant is son of Rajanna, who is brother of
Ganganna. The defendant is cultivating land of Ganganna. The suit
schedule land is on south of Ponnala Gardens, to which Rajanna is
the Proprietor. Therefore, the defendant has much necessity to buy
the suit schedule land than the necessity of the plaintiff to sell. The
son of Ganganna name by name Raju (DW2) is one of the attestor
of Ex.A1. According to Ex.A-l, the eastern boundary of the suit
schedule property is P.Ganganna's land. Therefore, the contention
of defendant that in between suit land and function hall, there is
land another survey number proved to be false. Ultimately, the trial
Court held that it disbelieved the evidence adduced by the
defendant and found that the defendant by playing fraud and
mischief on plaintiff got registered sale deed dated 20.04.2007 for
excess land without paying consideration amount. Hence, the said
document is liable to be cancelled.
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8. On appeal being filed, the first Appellate Court, being the
final fact-finding Court, re-appreciated the entire evidence and the
material available on record and allowed the appeal, thereby,
setting aside the judgment and decree of the trial Court. The first
Appalled Court observed as under:-
"It is well established and accepted principle that
pleadings form the foundation of the case and the
parties are bound by the pleadings. They can travel
beyond the pleadings or set up a new case which is not
propounded in the pleadings and any amount of
evidence contrary to the pleadings cannot be looked.
Plaintiff failed to explain how he calculated sale
consideration under the original of Ex.A-l-sale deed
and withdrawn Rs.90,000/- through two cheques from
the account of DW3. Plaintiff also failed to explain the
reason for the return of Ex.B-1-cheque which was
reflected in Ex.B-8-Statement of account.
On the other hand, the defendant has relied on
Exs.B2 to B6- documents to prove his possession.
Ex.B-2 mutation proceedings were issued by
Tahsildar, Jagtial on 21.06.2007. Plaintiff, who
alleged that possession was not delivered to the
defendant, failed to file objections before Tahsildar
disputing the possession of defendant and the
consequent mutation proceedings on the basis of sale
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deed dated 20.04.2007 vide document No.1207/2007.
Defendant also paid land revenue for 0-8½ guntas of
land under Ex.B3 and name of defendant was reflected
in pahani copies under Exs.B-4 to B-6 pahanies.
Plaintiff has not placed any material before the court
to show that he was owner and possessor of Ac.0.54
guntas of land in Sy.No.228 before he sold his land in
different extents to different vendees. No evidence is
placed by plaintiff that defendant trespassed into other
extent of his land which was sold to third parties."
8.1. The first Appellate Court further observed as under:-
"Plaintiff, who agreed before registering authority
about sale consideration under the original of Ex.Al
sale deed and who encashed the cheques for
Rs.90,000/- from the account of DW3, now cannot go
back and deny the receipt of sale consideration for
effecting sale in favour of defendant. Plaintiff did not
file any protest petition against mutation of suit
schedule land in favour of defendant. Trial Court
gave wrong interpretation to Ex.A2- agreement and
decreed the suit. The material placed by the
appellant/defendant establishes the consideration
passed to the plaintiff and possession held by the
defendant over the suit schedule property As such this
court finds that the plaintiff is not entitled to the relief
as claimed in the suit and accordingly, allowed the
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appeal and set aside the judgment and decree of the
trial Court.
9. A perusal of the record discloses that the trial Court
disbelieved the evidence adduced by the defendant and found that
the defendant got the registered sale deed dated 20.04.2007 by
playing fraud and mischief on the plaintiff and accordingly,
allowed the suit. However, on appeal, the First Appellate Court
re-appreciated the entire evidence and observed that the defendant
established that the consideration was passed to the plaintiff and
possession was held by the defendant in respect of the suit
schedule property and accordingly, allowed the appeal and set
aside the judgment and decree of the trial Court.
10. Heard Sri G.Madhusudhan Reddy, learned counsel for the
appellant, and Sri B.Mahender Reddy, learned counsel for the
respondent. Perused the record.
11. Learned counsel for appellant argued that the trial Court
decreed the suit on proper appreciation of the evidence, but the
First Appellate Court committed an error in setting aside the
judgment and decree passed by the trial Court.
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12. 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.
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 findings on facts
arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
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 fall for
consideration.
15. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
(2007) 1 Supreme Court Cases 546
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Appellate Court, this Court finds no ground or reason warranting
interference with the said findings, under Section 100 C.P.C.
Moreover, the grounds raised by the appellant 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.
17. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:02.04.2024
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