Telangana High Court
V.Balanarsaiah vs D.Mallamma And Another on 19 April, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
SECOND APPEAL No.1080 OF 2000
J U D G M E N T:
This Second Appeal is filed under Section 100 of the
Code of Civil Procedure by unsuccessful plaintiff aggrieved
by the concurrent findings recorded in Judgment and
decree dated 20.07.2000 passed in A.S.No.7 of 1995 by the
learned Senior Civil Judge, Bhongir (for short 'the learned
first Appellate Court') in confirming the Judgment and
decree dated 10.02.1995 passed in O.S.No.173 of 1990 by
the learned Principal District Munsif, Bhongir, (for short
'the learned trial Court') in a suit filed seeking perpetual
injunction.
02. For the sake of convenience, hereinafter, the
parties will be referred to as per their array before the
learned trial Court.
03. Plaintiff has purchased the suit land i.e., Ac.0-
12 guntas dry land at Hussainabad Village, Bhongir
Mandal, Nalgonda District from one Dandaboina Yaddaiah
for Rs.10,000/- along with some other land under
Registered Sale deed dated 27.06.1981 and he purchased
Ac.1-28 guntas on one side and the suit land on the other
side of the road situated in the suit survey number and he
erected stone pillars and constructed mill in Ac.1-28
guntas on one side of the road and used to raise vegetables
in the suit land and he has been in possession and
enjoyment of the entire land including the suit land
covered by the registered sale deed and that in the year
1983 there arose some disputes between the main share
holders of Sy.No.134 and by way of mutual understanding
registered exchange deeds were executed between him,
Venkat Reddy and Manda Mallaiah, defendant claimed the
suit lands as their own land and in the year 1990
defendant tried to remove the stone pillars. Therefore,
plaintiff filed suit for perpetual injunction against
defendant.
04. Defendant No.2 filed written statement which
was adopted by defendant No.1 denying the right, title and
possession of plaintiff over suit land. It is contended that
Ac.2-00 guntas of land purchased by plaintiff out of suit
survey No.134 on 20.06.1991 is not located on either side
of Hussainabad Grampanchayath road, but is located on
eastern side of the road. Plaintiff constructed Balaji Power
Mill on Northern side of said Ac.2-00 guntas land
purchased by plaintiff but not in Ac.2-00 guntas,
purchased from Dandeboina Yellaiah and that suit land is
not at all part and parcel of Ac.2-00 guntas purchased by
plaintiff from Dandeboina Yellaiah. Defendant No.1 being
exclusive owner and possessor of suit land has sold the
same to defendant No.2 through Registered Sale deed
dated 30.07.1990 for a sum of Rs.43,560/-. Name of
defendant No.1 continuing in all revenue records as owner
and pattedar of suit land. Land purchased by plaintiff is
purely on the eastern side of Grampanchayath road and is
nothing to do with the land on Western side of road
including the suit land. On 08.09.1991 one Gomari
Mallareddy got executed Registered Sale deed from
husband of defendant No.1 transferring Ac.3-17 guntas of
Sy.Nos.116 to 119, 133 and 134 of Hussainabad including
the suit land in his favour my misrepresenting the title and
possession of defendant No.1 and prayed to dismiss the
suit.
05. The learned trial Court framed the following
issues for trial:
i. Whether plaintiff is entitled for relief of perpetual
injunction as prayed for?
ii. To what relief?
06. On behalf of plaintiff, PW1 to PW6 were
examined and Exs.A1 to A27 were marked. On behalf of
defendants, DW1 and DW4 were examined and got marked
Exs.B1 to B13.
07. After conducting full-fledged trial, the learned
trial Court dismissed the original suit vide the Judgment
and decree dated 10.02.1995 passed in O.S.No.173 of
1990. Aggrieved by the same, plaintiff preferred appeal
before the learned first Appellate Court and the same was
also dismissed vide Judgment and decree dated
20.07.2000 passed in A.S.No.7 of 1995 confirming the
decree and Judgment of the learned trial Court.
08. Aggrieved by the concurrent findings recorded
by learned trial Court as well as learned first Appellate
Court, appellant-plaintiff filed this Second Appeal before
this Court.
09. The learned trial Court by way of impugned
decree and Judgment dismissed the original suit. On
appeal, being filed by plaintiff, the first Appellate Court
after reevaluating the entire evidence dismissed the appeal
confirming the findings of the learned trial Court.
10. As seen from record, this Court vide Order
dated 07.02.2001 considered ground No.6 of memorandum
of this Second Appeal, as substantial question of law,
which is as follows:
a. Whether for the non-examination of the
vendors by plaintiff in respect of certified copies of
Registered Sale deeds under Ex.A25 dated
17.03.1990 and Ex.A26 dated 16.02.1990 is fatal
and can be ignored by the Court for want of proof of
the contents of the said public documents.
b. Whether basing upon the oral evidence
of defendants, the Courts below discard the
voluminous evidence of plaintiff and gave a perverse
finding on probabilities against plaintiff.
c. Whether the Courts below can ignore the
admission of DW1 (defendant No.1) to the effect that
she has no land in Sy.No.134 after admission made
by the Government and still insist proof of the claim
of plaintiff.
11. In Narayanan Rajendran and another v.
Lekshmy Sarojini and others 1 the Honourable Supreme
Court of India held that:
"24. Similarly, before amendment in 1976, this Court
also had an occasion to examine the scope of Section
100 C.P.C. In Deity Pattabhiramaswamy v. S.
Hanymayya and Others 2, the High Court of Madras
set aside the findings of the District Judge, Guntur,
while deciding the second appeal. This Court
observed that notwithstanding the clear and
authoritative pronouncement of the Privy Council on
the limits and the scope of the High Court's
jurisdiction under Section 100, Civil Procedure Code,
"some learned Judges of the High Courts are
disposing of Second Appeals as if they were first
appeals. This introduces, apart from the fact that the
High Court assumes and exercises a jurisdiction
which it does not possess, a gambling element in the
litigation and confusion in the mind of the litigant
public. This case affords a typical illustration of such
interference by a Judge of the High Court in excess of
his jurisdiction under Section 100, Civil Procedure
Code. We have, therefore, no alternative but to set
aside the Judgment of the High Court which had no
jurisdiction to interfere in second appeal with the
findings of fact arrived at by the first appellate Court
based upon an appreciation of the relevant evidence.
2 AIR 1959 SC 57
30. In Bholaram v. Amirchand 3 a three-Judge
Bench of this court reiterated the statement of law.
The High Court, however, seems to have justified its
interference in second appeal mainly on the ground
that the judgments of the courts below were perverse
and were given in utter disregard of the important
materials on the record particularly misconstruction
of the rent note. Even if we accept the main reason
given by the High Court the utmost that could be said
was that the findings of fact by the courts below
were wrong or grossly inexcusable but that by itself
would not entitle the High Court to interfere in the
absence of a clear error of law.
31. In Kshitish Chandra Purkait v. Santosh
Kumar Purkait 4, a three judge Bench of this Court
held: (a) that the High Court should be satisfied that
the case involved a substantial question of law and
not mere question of law; (b) reasons for permitting
the plea to be raised should also be recorded; (c) it
has the duty to formulate the substantial questions
of law and to put the opposite party on notice and
give fair and proper opportunity to meet the point.
The court also held that it is the duty cast upon the
High Court to formulate substantial question of law
involved in the case even at the initial stage.
32. This court had occasion to determine the
same issue in Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Marnor 5. The court stated that the High
Court can exercise its jurisdiction under Section 100
C.P.C. only on the basis of substantial questions of
law which are to be framed at the time of admission
of the second appeal and the second appeal has to
be heard and decided only on the basis of the such
duly framed substantial questions of law.
3 (1981) 2 SCC 414
(1997) 5 SCC 438
5 (1999) 2 SCC 471
33. A mere look at the said provision shows
that the High Court can exercise its jurisdiction under
Section 100 C.P.C., only on the basis of substantial
questions of law which are to be framed at the time
of admission of the second appeal and the second
appeal has to be heard and decided only on the
basis of such duly framed substantial questions of
law. The impugned judgment shows that no such
procedure was followed by the learned Single Judge.
It is held by a catena of judgments by this court,
some of them being, Kshitish Chandra Purkait v.
Santosh Kumar Purkait 6 and Sheel Chand v.
Prakash Chand that the Judgment rendered by the
High Court under Section 100 C.P.C. without
following the aforesaid procedure cannot be
sustained. On this short ground alone, this appeal is
required to be allowed."
12. In the backdrop of above settled principle of law
on the scope of Section 100 of CPC, this Court is not
inclined to go into the merits and demerits of the case as
this is a Second Appeal. At the stage of admission, this
Court treated the ground No.6 of the memorandum of
appeal as substantial question of law. As seen from the
entire record, plaintiff relied upon the exchange deeds
through which cause of action of the main suit arose for
filing the suit for perpetual injunction by plaintiff.
Surprisingly, plaintiff has not filed those exchange deeds or
6 (1997) 5 SCC 438
7 (1998) 6 SCC 683
copies of those exchange deeds, which were allegedly lead
for causing interference to the possession of plaintiff by
defendant. It is also apparent on face of record that
plaintiff depended upon the admission made by DW1 to
prove that defendant No.1 has no land after acquisition by
the Government. It is relevant to mention here that
defendant's name was still reflecting in all pahanies in
respect of Sy.No.134. It is settled law that in civil cases,
documentary evidence always prevails over oral evidence.
It is also relevant to state that plaintiff cannot depend upon
the weakness of defendant to prove his case and that
plaintiff has to stand on his own legs and the burden is on
plaintiff to prove his case. Therefore, this Court is of the
considered opinion that the ground No.6 of memorandum
of appeal which was considered as substantial question of
law, is of no use to appellant and it is not a valid ground
for reversing the concurrent findings of learned trial Court
as well as learned first Appellate Court.
13. It is also well settled principle by a catena of
decisions of the Honourable 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
learned trial Court as well as learned first Appellate Court,
which are based on proper appreciation of the oral and
documentary evidence on record. It is also to be placed on
record that this Second Appeal is of the year 2000
challenging the concurrent findings recorded in the suit
filed seeking perpetual injunction in the year 1990 and
decided in the year 1995, the first appeal was preferred in
the year 1995 and the same was decided in the year 2000.
Further, learned counsel for appellant has submitted that
the parties are not intended to proceed further and prayed
to dispose of the case on merits.
14. Further, in Gurdev Kaur v. Kaki 8, 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.
(2007) 1 Supreme Court Cases 546
15. Having considered the entire material available
on record and the findings recorded by the learned trial
Court as well as the learned first Appellate Court, this
Court finds no ground or reason warranting interference
with the said concurrent findings recorded by both the
Courts under Section 100 of C.P.C. Moreover, the grounds
raised by appellant are factual in nature. Hence, this
Second Appeal deserves to be dismissed as devoid of
merits.
16. Accordingly, this Second Appeal is dismissed.
There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if
any, shall stand closed.
_________________________________
JUSTICE M.G.PRIYADARSINI
Date: 19-APR-2024
KHRM
