Telangana High Court
Harijan Kistanna vs Harijan Lazer on 15 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.294 of 2017
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 18.11.2016 in A.S.No.3 of 2015 on the file of the
III Additional District Judge, Gadwal, wherein and where under
the judgment and decree dated 31.12.2014 in O.S.No.203 of
2010 on the file of the Principal Junior Civil Judge, Gadwal was
confirmed.
2. The appellant herein is the plaintiff and the respondents
herein are the defendants in the suit. For convenience, the
parties hereinafter are referred to as they were arrayed before
the trial Court.
3. Brief facts leading to filing of the present second appeal
are that the plaintiff is owner and possessor of the suit
schedule land to an extent of Ac.3-00 gts in survey No.364; that
the defendants asked the plaintiff to sell or lease out his land
and the same was refused by the plaintiff. While so, on
15.12.2010, the defendants, without any right, title and
possession over the suit schedule property, highhandedly tried
to occupy the suit schedule property however, the plaintiff
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averted the acts of the defendants with great difficulty. It is
contended that the defendants are very powerful persons and
having political backup. Hence, the suit for permanent
injunction in respect of suit schedule land.
4. The defendants have filed written statement denying the
averments made by plaintiff inter alia contending that
defendant No.1 got Ac.1.08 gts of land in suit survey No.364
from his ancestors and the Mandal Revenue Officer recognized
the same and issued pattadar pass book and title deed book in
his favour towards the said land; that so far as defendant No.2
is concerned, one Sanjigadu was the owner of the land to an
extent of Acs.6-21 gts in suit survey No.364 and there was a
family settlement between defendant No.2 and the legal
representatives of Sanjigadu namely Santhoshamma and Sham
Sone, wherein defendant No.2 was given Acs.3.06 gts in suit
survey No.364; that the title of defendant No.2 has been
recognized by the Revenue Department and pattadar pass book
and title deed book were issued in his favour. It is contended
that the plaintiff is not the owner of the suit schedule land and
he has never been in possession and that the plaintiff is not
legal heir of the deceased Sanjigadu. Further, the plaintiff
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colluded with the revenue authorities and created the
documents for filing of the suit for wrongful gain. Hence, prayed
to dismiss the suit.
5. Before the trial Court, on behalf of the plaintiff, PW.1 and
PW.2 were examined and Exs.A1 to A5 were marked. On behalf
of the defendants, DW1 to DW3 were examined and Exs.B1 to
B17 were marked.
6. The trial Court, after considering the entire material
available on record, vide its judgment and decree dated
31.12.2014 dismissed the suit by observing as under:
(i) First of all the oral and documentary adduced by the plaintiff is
concerned, plaintiff himself examined as P.W.1 behind examined
P.W.2 another witness on his behalf. It is contention of P.W.1 that
he is the owner and possessor of the suit schedule land and that
defendants no have concerned suit schedule land, that they
demanded him to sell his land or to lease out to them, their
proposal not accepted and keeping the bore grudge they are
trying to interfere into the suit schedule land. It is further stated
that he has not filed any document before the court to show that
this property in the name of his father. Admittedly, he has not
filed ROR how he acquired the suit schedule property. He denied
suggestion that Ex.A1 to A5 were created documents.
(ii) PW.2 admitted that the suit schedule land having total
Acs.15.18 guntas in Sy.No.364, he further stated that the plaintiff
acquired the suit schedule property from their forefathers name
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Sanjigadu, to that effect plaintiff did not file into the court that he
acquired the suit schedule property from his forefather and plea
taken by the plaintiff that he acquired property from his
grandfather he did not file the document pertaining to their
grandfather or ROR and except the Ex.A1 to A5. Ex.A5 shows that
he acquired the title deed wherein mentioned he acquired the
Ex.A5 from their ancestors. But did not file the corresponding
document with regarding Ex.A5. With this evidence of P.W.1, it is
crystal clear that plaintiff is not having title and possession over
suit schedule property.
(iii) Defendants explained in their evidence that they got the
property from their ancestors by virtue of Ex.B.2 subsequently
they proved their possession by virtue of Ex.B3 to B10 and they
having title under Exs.B.1, B.11 and B.12. Exs.B.13, B14 and
B18 these documents showing possession in the name of 2nd
defendant. With these admissions made by the defendants it is
suffice to come to à conclusion that they have been in possession,
enjoyment, right and title. Further Pw.1 not explained in his
evidence no answer has given before the court how he acquired
the properties under Ex.A1 to A5. Viewed from any angle Pw.1
failed to prove his case and Pw.1 does not give any confidence
and trustworthy over his contention and this court unable to
accept his version in the absence of supporting documents.
Accordingly this court is considering view and opinion come to
conclusion that the plaintiff failed to establish his case by filing
Ex.A1 to A5. Thus the defendants established and proved by filing
their documents they have been in possession and enjoyment over
the suit schedule property."
7. The first appellate Court on re-appreciation of the entire
evidence and the material available on record vide judgment
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and decree dated 18.11.2016 dismissed the appeal by observing
as under:
"Admittedly the plaintiff has failed to narrate in his plaint and
also in his evidence as to his source to get the suit schedule
property. However, he produced Ex.A1, which is a document
issued by Tahasildar of Ieeja Mandal. But the said document
lacks in clarity of mentioned aspects. It has not been mentioned in
Ex.A1 as to how the plaintiff got the suit schedule property.
Therefore A1 is a waste piece of evidence to the plaintiff. Ex.A2
which is a pattadar pass book issued in favour of the plaintiff also
turns futile due to the futility of Ex.A1. Likewise Exs.A3 to A5 also
will attract the same fate. Therefore, the conclusion is that the
plaintiff has miserably failed to establish his title as well as
possession over the suit schedule property and consequently he is
not entitled to any relief. On the other hand the defendants could
establish their rightful possession over the said Acs.4.14 gts by
way of Exs.B1 to B18. This court feels it not necessary to
appreciate the oral and documentary evidence of the defendants
as the plaintiff has frankly admitted in his cross examination itself
about the title and possession of the defendants over the said
Acs.4.14gts of land in suit survey No.364."
8. Heard Sri K.Venkatesh Gupta, learned counsel for
appellant and Sri R.Prasad, learned counsel for respondents.
Perused the record.
9. A perusal of the record discloses that both the trial Court
as well as the first appellate Court concurrently held that the
plaintiff failed to prove his title as well as possession over the
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suit schedule property and consequently, held that he is not
entitled to any relief. Further, both the Courts have held that
the defendants could establish their rightful possession over
the said Acs.4.14 gts of land by way of Exs.B1 to B18.
10. Learned counsel for the appellant vehemently argued that
the trial Court dismissed the suit without proper appreciation
of the evidence and the first appellate Court also committed an
error in confirming the judgment and decree passed by the trial
Court.
11. However, learned counsel for the 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.
12. 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.
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13. 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.
14. Having considered the entire material available on record
and the findings recorded by the trial Court as well 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
appellants are factual in nature and no question of law, much
less, a substantial question of law arises for consideration in
this Second Appeal.
15. 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
(2007) 1 Supreme Court Cases 546
