Telangana High Court
Kunta Ravinder vs Vemula Venkateshwarlu on 4 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.406 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 30.06.2023, passed by the Senior Civil Judge,
Manthani in AS.No.24 of 2018, whereunder and whereby the
judgment and decree dated 28.06.2018 passed by the Principal
Junior Civil Judge, Manthani, in O.S.No.71 of 2011 was set aside.
2. The appellant is the defendant and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present
Second Appeal, are that the plaintiff is the absolute owner and
possessor of the suit schedule property having acquired the same
by way of a gift settlement executed by his wife-Vemula Jayamma
on 05.09.2008, vide Document No.1690/2008. The said Jayamma
acquired the suit land through one Ganta Gopal Reddy, in the ROR
proceedings, dated 16.07.2006. While so, the defendant, without
having any right whatsoever in the suit land, tried to dispossess the
plaintiff and obstructed the construction work of the plaintiff on the
suit land on 20.06.2011 and the plaintiff, with the help of
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neighbours, could resist the illegal acts of the defendant. Hence, the
suit for perpetual injunction against the defendant in respect of the
suit schedule property.
4. The defendant filed his written statement denying the
averments made in the plaint and submitted that he is the absolute
owner of the suit schedule property having purchased the same
from its original owner-Ganta Gopal Reddy, through a registered
deed dated 17.05.2010, and his name has been mutated in revenue
records and in the Pahanies as pattadar and possessor of the suit
schedule property. Hence, he prayed to dismiss the suit.
5. On the strength of the above pleadings, the trial court framed
the following issues:-
1. Whether the plaintiff is in actual lawful possession of the
suit schedule property ?
2. Whether the plaintiff is entitled for relief of the perpetual
injunction?
3. To what relief?"
6. During the trial, on behalf of the plaintiff, PWs.1 to 4 were
examined and Ex.A-1 to A-17 were marked and on behalf of the
defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-5 were
marked.
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7. After full-fledged trial and upon considering the oral and
documentary evidence and the contentions of both the parties, the
trial Court dismissed the suit, vide judgment and decree dated
28.06.2018. The trial Court categorically observed that on perusal
of the admitted versions of P.Ws.1 to 4, it is clearly established that
there are two plots occupied by the plaintiff. He adduced evidence
regarding only one plot, but he did not adduce any evidence
regarding the other plot. It was further observed that the abuttal
mentioned in the unregistered sale deed/sada bainama of wife of
the plaintiff and the abuttal mentioned in the registered gift deed
which was executed in favour of the plaintiff by his wife are not
one and the same. Thus, the plaintiff failed to adduce any cogent
evidence to prove his possession in respect of the suit schedule
property.
7.1. The trial Court further observed that plaintiff failed to
adduce any evidence with regard to the fact that the plot purchased
by his wife and the plot purchased by the defendant from its
original owner is one and the same and hence, the plaintiff failed to
establish his case beyond preponderance of all probabilities. On the
other hand, the defendant clearly established through Exs.B-1 to
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B-5 that he purchased an extent of 151.25 square yards. By
observing thus, the trial Court held that the plaintiff failed to prove
his possession in respect of the suit schedule property and hence,
dismissed the suit.
8. On appeal, 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 and set aside the
judgment of the trial Court, vide its judgment dated 30.06.2018.
8.1. The first Appellate Court observed as hereunder:-
"As per Exs.A-13 and A-14, the unregistered sale
transaction of the wife of the plaintiff took place in the
year 1994 and the concerned Mandal Revenue Officer
issued proceedings for the same. The defendant
purchased the land under Ex.B-1 in the year 2010,
which was subsequent to Exs.A-13 and A-14 and there
is no evidence available on record to show that the
defendant or his vendor challenged Exs.A-13 and A-14
and they were cancelled by competent authority.
Therefore, it is evident that Ex.B-1 was executed while
Exa.A-13 and A-14 are very much in existence. Thus,
the plaintiff succeeded in proving his case."
8.2. The first Appellate Court further observed as under:-
"From the recitals of Exs.A-13 to A-15, the plaintiff
established his incidental ownership and possession
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over the suit schedule land as on the date of filing of
the suit. On the other hand, the defendant has not filed
any reliable document to show his possession of the
suit plot and hence, he failed to establish that he was in
physical possession of the suit land as on the date of
filing of the suit."
9. A perusal of the record discloses that the trial Court held that
the plaintiff failed to establish his case beyond preponderance of
probabilities and hence, he is not entitled to the relief of perpetual
injunction. However, on appeal, the first appellate Court set aside
the judgment of the trial Court holding that the trial Court has not
considered Exs.A-13 to A-15 and also the possession of the
plaintiff under Ex.B-5 and also erred in considering the simple sale
deed, which is an unmarked document.
10. Heard Sri T.Ramchander Rao, learned counsel for the
appellant and Sri C.A.R.Seshagiri Rao, learned counsel for the
respondent. Perused the entire material available on record.
11. Learned counsel for the appellant contended that the first
Appellate Court failed to take into consideration Ex.B-1 through
which the defendant purchased the suit schedule property and
Ex.B-2 the original proceedings of the Tahsildar, which shows that
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the defendant is the owner and possessor of the suit schedule
property. Learned counsel further contended that the first Appellate
Court, without appreciating the evidence adduced under Exs.B-1 to
B-5, erred in setting aside the judgment of the trial Court. Hence,
he prayed to allow the Second Appeal.
12. Per contra, learned counsel for the respondent contended that
the trial Court failed to take into consideration the evidence
adduced by the plaintiff under Exs.A-1 to A-12, which shows that
the plaintiff is the pattadar and possessor of the suit schedule
property and erred in dismissing the suit. Learned counsel further
contended that in view of recitals of Ex.A-13 and A-15, first
Appellate Court held that the plaintiff established his incidental
ownership and possession in respect of the suit schedule property.
He further contended that the first Appellate Court has appreciated
the evidence adduced by both the parties in proper perspective and
rightly allowed the Appeal and hence, prayed to dismiss the
Second Appeal. In support of his contentions, the learned counsel
relied upon the decision of the Hon'ble Apex Court in Nemai
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Chandra Dey (dead) through Lrs. Vs. Prasanta Chandra (dead)
through Lrs 1.
13. In the said judgment, it was held that the findings of fact
are ordinarily to attain finality at the hands of the Court of Appeal
and it is only on substantial question of law that the High Court can
interfere in the findings of the first Appellate Court.
14. There is no quarrel with the regard to the said ratio laid
down by the Hon'ble Supreme Court.
15. Learned counsel for appellant argued that the trial Court
on appreciation of the evidence on record, rightly dismissed the
suit and the first Appellate Court, on re-appreciation of the
evidence, committed an error in setting aside the judgment and
decree passed by the trial Court.
16. 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.
2022 (3) ALT (SC) 73 (D.B.)
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17. 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 first Appellate Court, which are based on proper
appreciation of the oral and documentary evidence on record.
18. Further, in Gurdev Kaur v. Kaki 2, 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.
19. Having considered the entire material available on record
and the findings recorded by the first 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.
(2007) 1 Supreme Court Cases 546
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20. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:04.04.2024
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