Telangana High Court
Mohammed Ali Imam Najaff vs Ap Housing Board on 15 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.118 of 2019
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 21.10.2013 in A.S.No.137 of 2010 on the
file of the XI Additional Chief Judge, City Civil Court,
Hyderabad, wherein and where under the judgment and
decree dated 17.02.2010 in O.S.No.1550 of 2004 on the file
of the IX Additional Senior Civil Judge (Fast Track Court),
City Civil Court, Hyderabad, was reversed.
2. The appellant herein is the plaintiff and the
respondent No.1 herein is the defendant in the suit.
Respondent No.2 herein is impleaded as party before the
first appellate Court. For convenience, the parties
hereinafter are referred to as they are arrayed before the
trial Court i.e, the appellant herein is referred as plaintiff
and respondents herein are referred as defendants.
3. Brief facts leading to filing of present Second Appeal
are that originally one Zohra Begum was the owner and
pattedar of land admeasuring Acs.660-00 gts and
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Acs.177.03 gts in survey No.162 (old) and new survey
Nos.10, 11 and 6/2 of Mallepally village, Hyderabad
Deccan; that she executed a will deed dated 14.01.1957 in
respect of the said land in favour of (1) Khurshid Ali Khan,
(2) Khulsum Begum, and (3) Sohra Begum and that she
died in the month of December, 1957. The plaintiff as the
legal heir of late Khurshid Ali Khan, later came into
possession of the suit schedule property i.e., 104 sq.yards
situated in survey No.162 (old) and 10 (new) of Mallepally,
Hyderabad, enjoying all rights and title over the land.
Thereafter, when he tried to raise construction in the
schedule property, the defendant interfered with the
possession of the plaintiff under the guise of false and
fabricated documents and threatened the plaintiff with dire
consequences. Hence, the suit for declaration of tile and
for perpetual injunction.
4. On the other side, the defendant filed written
statement denying the allegations of the plaintiff inter alia
contending that the suit schedule property was acquired
for a valuable consideration by the ex-City Improvement
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Board (CIB), which is the predecessor of the A.P. Housing
Board. The plaintiff as well as several other persons in fact
made claims to the said property in earlier rounds of
litigation and lost the same in favour of the defendant. It is
contended that the CIB acquired the land situated at
Mallepally from 1326 Fasli onwards by paying
compensation to the rightful owners. Apart from the suit
schedule property, the CIB acquired various other
properties also in Mallepally area; that the plaintiff has no
right, title over the suit schedule property. The lands at
Mallepally including the suit schedule land were handed
over to the Collector in pursuance of the letter No.6540,
dated 01.12.1956, who in turn handed over the same to
the CIB. The APHB being the successor to the CIB, became
the exclusive owner and possessor of the suit schedule
property. The plaintiff was never in possession of the suit
schedule property. Hence, the suit is liable to be dismissed.
5. Basing on the above pleadings, the trial Court has
framed the following issues:
"1. Whether the plaintiff is entitled to declaration as
prayed for?
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2. Whether plaintiff is entitled to permanent injunction
as prayed for?
3. To what relief?"
6. Before the trial Court, on behalf of the plaintiff,
PWs.1 and 2 were examined and Exs.A1 to A19 were
marked. On behalf of the defendants, DWs.1 and 2 were
examined and no document was marked.
7. The trial Court, after considering the entire material
available on record, decreed the suit vide judgment and
decree dated 17.02.2010 by observing as under:
"Now it is to be seen the claim of the plaintiff, he filed
the Certified Copy of the Will under Ex.A16. He has
examined PW2 Mir Ashafaq Ali Khan who is the son of
Late Riyasal Ali Khan and grand son of Late Kulsum
Begum one of the beneficiaries of the Will, according to
him said Kulsum Begum died and his father died, he
went on to depose the ownership of Zohra in respect of
177 acres 3 guntas in 162 old and new survey nos.
10,11 & 6/2. His evidence would go to show that the
plaintiff is the son of Kurshid Ali Khan who is one of the
beneficiaries of Ex.A16 and that he deposed about the
plaintiff's right over the suit property. Admittedly he is
not the attestor of the Ex. A16, even otherwise his
evidence is admissible to the extent of accepting the
plaintiff's claim over the suit property being the legal
heir of Late Khurshid Ali Khan. In his cross examination
it is brought out that one Sugra Begum who is one of the
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beneficiaries of Ex.A16 is no more now. It is seen that
Ex.A16 had come to be executed on 14.01.1957. Already
53 years period elapsed and that Zohara Begum died in
the month of December, 1957. Perhaps none of the
witnesses may have been alive, as such the plaintiff
seems to have inducted the PW2 to speak in respect of
the will. In as much as PW2 is none other than the
grand son of Kulsum Begum (one of the legatees under
Ex. A16) and no other persons disputing the title of the
father of plaintiff in respect of the suit property, the plea
of the defendant is not tenable, as such, the plaintiff can
be declared as the owner of the suit property on the
basis of the Ex A16. No suspicious circumstances either
brought on record or taken as a plea in the written
statement of the defendant in regard to the genuineness
of the Ex. A16. As such it could be held that Ex.A16 is
true, valid and genuine. Accordingly, I hold that the
plaintiff is entitled for declaration of title as prayed for.
In as much as the plaintiff has been able to prove
his title through his father under Ex.A16 and evidence of
PW2 establishes his possession over to suit property as
on the date of the suit, he is entitled for permanent
injunction as prayed for."
8. On appeal, the first appellate Court, on re-
appreciation of the entire evidence and the material
available on record, allowed the appeal vide judgment and
decree dated 21.10.2013 by observing as under:
"(i) The plaintiff failed to prove his possession over the
suit schedule property as on the date of filing of the suit.
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He did not file a single document to show his alleged
long possession over the suit schedule property. Though
he has examined PW-2 in respect of the same but the
self serving statement of PW-1 as well as the oral
testimony of PW-2 are no way helpful in proof of his
case.
(ii) Though the plaintiff mainly based on Ex.A-16 will
deed said to be executed by Zohra Begum which has not
revealed any details of the alleged suit property in any
way. Thereby I cannot rely upon Ex.A-16 in any way in
supporting of plaintiffs contention.
(iii) Therefore after going through the entire evidence it
can be said that the plaintiff has miserably failed to
prove his title over the suit schedule property as well as
failed to prove his possession over the suit schedule
property much less as on the date of filing of the suit. In
such a circumstance, I am of the opinion that the lower
court committed error in decreeing the suit in favour of
the plaintiff which warrants interference of this Court."
9. Heard Mr.B.Suresh, learned counsel for appellant
and Sri C.Buchi Reddy, learned counsel for respondent
No.1-Housing Board. Perused the record.
10. A perusal of the record disclose that the trial Court
decreed the suit only on the basis of the will deed executed
in the year 1957, but the witness to the said will deed has
not been examined; PW.2 is the son of the beneficiary of
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the will deed. Further, the trial Court observed that the
defendant- Housing Board did not file any document to
prove their case.
11. The first Appellate Court, on re-appreciation of
evidence and material placed on record, came to the
conclusion that the plaintiff did not place any evidence on
record in support of his title and further no witness to the
will deed was examined. PW.2 is the son of the beneficiary
and therefore, his evidence cannot be taken into
consideration. Further, the first appellate has observed
that if really, the will was executed, the plaintiff ought to
have taken steps to mutate his name in revenue and other
records; the plaintiff did not place any document except the
will deed. Therefore, in the absence of any other document
to prove the title of the plaintiff, the first appellate Court
allowed the appeal and set aside the judgment and decree
passed by the trial Court.
12. Admittedly, the suit filed for declaration of title and
injunction, therefore, the burden lies is on the plaintiff to
prove his title and possession over suit schedule property.
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However, perusal of the record shows that except will deed,
no other document has been filed by the plaintiff in proof of
his title and possession and no attesting witness of the will
was examined. It is also pertinent to mention that the
plaintiff has not got his name mutated in the revenue
record or any other municipal record pursuant to the
alleged will deed.
13. In the light of above discussion, in considered opinion
of this Court, the plaintiff failed to prove his title and
therefore, this Court does not find any irregularity or
illegality in the judgment passed by the first appellant
Court and thus, the appeal fails and is liable to be
dismissed.
14. Learned counsel for the appellant argued that the
trial Court has rightly allowed the suit, however, the first
appellate Court has committed error in setting aside the
judgment and decree passed by the trial Court.
15. However, learned counsel for the appellant failed to
raise any substantial question of law to be decided by this
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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.
16. 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
concurrent findings arrived at by the Courts below, which
are based on proper appreciation of the oral and
documentary evidence on record.
17. 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 fell for consideration.
18. Having considered the entire material available on
record and the findings recorded by the trial Court as well
(2007) 1 Supreme Court Cases 546
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as the first Appellate Court, this Court finds no ground or
reason warranting interference with the said concurrent
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.
19. Hence, the Second Appeal fails and the same is
accordingly, dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall
stand closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 15.04.2024
Dua/kkm
