Shaik Mohammed vs Omprakash
2024 Latest Caselaw 3200 Tel

Telangana High Court

Shaik Mohammed vs Omprakash on 12 August, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

       THE HONOURABLE DR.JUSTICE G.RADHA RANI

                    SECOND APPEAL No.421 of 2009


JUDGMENT:

This Second Appeal is filed by the appellants - appellants - plaintiffs

aggrieved by the judgment and decree dated 23.01.2009 passed in A.S.No.156

of 2007 by the Senior Civil Judge, Bodhan in dismissing the appeal, confirming

the judgment and decree dated 25.04.2007 passed in O.S.No.14 of 2003 by the

Junior Civil Judge, Bodhan.

2. The parties are hereinafter referred as arrayed before the trial court.

3. The plaintiffs filed the suit for perpetual injunction in respect of suit

schedule property to an extent of Ac.1-00 guntas of land in Survey No.225 in

Sailampoor shivar of Suleman Nagar Village of Kotagir Mandal, Nizamabad

District.

4. The case of the plaintiffs was that they were the owners and possessors of

dry agricultural land to an extent of Ac.00-20 guntas each abutting each other in

one single block in Survey No.225. They purchased the suit lands under

respective registered sale deeds, both dated 11.11.2002 for a valuable

consideration of Rs.5,000/- each from its original owner A.Bhavani Shankar

Rao. The suit lands were mutated in the names of the plaintiffs in the revenue

Dr.GRR, J sa_421_2009

records. The defendant No.1's family used to run a Khandsari Sugar Mill under

the name and style of 'Om Khandsari Sugar Mill' situated to the further south of

the suit lands. The said Khandsari Sugar Mill was defunct and was not in use

since more than 17 years. The owners of the said mill were using the open land

of Seetharamaswamy towards south and west of the suit lands for drying the

cane pulp, when the said mill was functioning. Since then, the said lands and

the suit lands remained fallow, on which some trees had grown up. The

defendant No.2 was the watchman of the said Sugar Mill. On 03.02.2003 at

about 11:00 AM, some laborers under the supervision of defendant No.2 began

to cut down the trees grown on the suit lands. The plaintiffs having come to

know rushed to the suit lands. With the help of neighboring people, they

managed to stop defendant No.2 and his laborers from proceeding with illegal

felling of the trees on the suit lands. When questioned, the defendant No.2

stated that he was doing so as per the instructions of defendant No.1. The

plaintiffs gave a complaint to the Police Kotagir. But as the matter was

involving the possessory rights of the plaintiffs, which the defendant No.2

infringed as the agent of defendant No.1, the suit was filed against both of them

for a decree of perpetual injunction to safeguard their interest.

5. The defendants 1 and 2 filed written statement submitting that defendant

No.1 was the nephew of one Sri. Ram Swaroop, S/o. Sri Devaram Agarwal,

R/o. Suleman Nagar Village of Kotagir Mandal, who was at present residing at

Dr.GRR, J sa_421_2009

Hyderabad. The defendant No.2 was the watchman of the said uncle of

defendant No.1. Mr. Ram Swaroop was the owner of the Khandsari known as

Om Khandsari Sugar Mill, which was situated on the southern side of the suit

land. The said factory was not functioning and the building of the said factory

was in dilapidated condition. The land measuring Ac.1-10 guntas comprised in

Survey No.224 would fall on the northern side of the factory. The said land of

Ac.1-10 guntas comprised in Survey No.224 of Suleman Nagar of Kotagir

Mandal was purchased by the uncle of defendant No.1 Sri Om Prakash under a

registered sale deed document No.5801 of 1971 dated 24.07.1971 for a

consideration of Rs.2,000/- from its previous owner and possessor M/s. Deccan

Plantation Private Limited, Anand Nagar through its Special Director and

General Power of Attorney Sri. Laxmi Chand, S/o.Kunvarji, R/o.Anand Nagar.

Since the date of purchase, the uncle of defendant No.1 being the absolute

owner was in possession and enjoyment of the suit land. The defendants 1 and

2 were looking after the land on behalf of Sri Om Prakash. The plaintiffs

having knowledge that Sri Om Prakash was the owner and possessor of the suit

land malafidely failed to implead the said Om Prakash as defendant in the suit

filed by them. The plaintiffs with an ulterior motive filed the suit against

unconcerned persons. The plaintiffs were not only guilty of non-joinder of

necessary parties but also guilty of misrepresenting the real facts. The plaintiffs

having colluded with their vendor got registered Ac.1-00 guntas of land in

Dr.GRR, J sa_421_2009

Survey No.224 of Suleman Nagar showing it to be as land in Survey No.225.

They had shown the boundaries of Survey No.224 as that of the land in Survey

No.225. The boundaries of land in Survey No.224 measuring to an extent of

Ac.1-10 guntas situated at Suleman Nagar were as under:

East: Passage for Om Khandsari Sugar Mill.

West: Open site of Hind Khandsari Mill.

North: Boundary of PWD Road leading to Kotagir. South: Om Khandsari Mill.

Mr. Om Prakash was in possession of the land covered under the said

boundaries and the defendants 1 and 2 were looking after the land on behalf of

Mr. Om Prakash. Mr. Om Prakash with an intention to go ahead with the

construction of the Om Khandsari Sugar Mill collected bricks and kept on the

land. The suit land was in possession and enjoyment of the uncle of defendant

No.1. Since the date of its purchase, the plaintiffs were not in possession of the

suit land more specifically shown under the boundaries. The plaintiffs were

malafidely trying to misuse the process of law to usurp the suit land of the uncle

of defendant No.1 and they were not entitled for the discretionary relief and

prayed to dismiss the suit.

Dr.GRR, J sa_421_2009

6. Basing on the said pleadings, the trial court framed the issues as follows:

(i) Whether the plaintiffs are in lawful possession and enjoyment of the suit schedule property?

(ii) Whether the suit schedule boundaries are true and correct?

(iii) Whether the defendants tried to interfere with the peaceful possession and enjoyment of the suit schedule land on 03.02.2003?

(iv) Whether the plaintiffs are entitled to perpetual injunction as prayed for?

(v) To what relief?

7. The plaintiff No.1 was examined as PW.1 and the plaintiff No.2 was

examined as PW.2. The farm labor of plaintiffs 1 and 2 was examined as PW.3.

An Advocate Commissioner appointed in the suit was examined as PW.4.

Exs.A1 to A9 were marked on behalf of the plaintiffs. The defendant No.1 was

examined as DW.1 and his uncle Sri. Ram Swaroop was examined as DW.2.

The registered sale deed document bearing No.5801 of 1971 dated 24.07.1971

was marked as Ex.B1. The Advocate Commissioner's report, warrant, notices

dated 13.06.2003 and 27.06.2003, report of Mandal Surveyor, the panchanama

of Mandal Surveyor and the tounch map of Survey Nos.224 and 225 were

marked as Exs.C1 to C7 respectively.

8. The learned Junior Civil Judge, Bodhan on considering the oral and

documentary evidence on record dismissed the suit filed by the plaintiffs on

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25.04.2007. Aggrieved by the said dismissal of the suit, the plaintiffs preferred

an appeal. The appeal was heard by the Senior Civil Judge, Bodhan and vide

judgment and decree dated 23.01.2009 in A.S.No.15 of 2007 dismissed the

appeal confirming the judgment of the trial court. Aggrieved by the said

judgments of the courts below, the plaintiffs preferred this Second Appeal

raising the following substantial questions of law:

(i) Whether the trial court as well as the Lower Appellate Court were justified in dismissing the suit and the appeal, when a clear finding was given by the Mandal Surveyor that the appellants were in possession of the suit land in Survey No.225?

(ii) In view of Exs.A1 to A9, which would establish the title of the appellants -

plaintiffs over the suit lands, whether the trial court and the Lower Appellate Court were justified in dismissing the claims of the appellants - plaintiffs?

(iii) Whether the trial court and the Lower Appellate Court properly appreciated the evidence on record with respect to the land of Ac.1-00 acre in Survey No.225, wherein the appellants got title over the said land by virtue of registered sale deeds?

(iv) Whether the trial court and the Lower Appellate Court properly appreciated the Advocate Commissioner's Report and the Mandal Surveyor's report, in which the possession of the appellants was proved and the same was not challenged by the defendants?

(v) Whether the findings of the trial court and the First Appellate Court were perverse?

Dr.GRR, J sa_421_2009

(vi) Whether both the courts below properly appreciated the evidence, in view of the documents of title of the plaintiffs followed by their possession over the suit land?

(vii) Whether a pure question of law which does not require any re-appreciation of evidence can be permitted to be urged even for the first time in Second Appeal?

9. The Second Appeal was admitted on 25.06.2010 on the above substantial

questions of law.

10. Heard the learned counsel for the appellants and the learned counsel for

the respondents.

11. Learned counsel for the appellants contended that the appellants

purchased the lands to an extent of Ac.00-20 guntas each in Survey No.225

situated at Sailampur Shivar of Kotagir Mandal, Nizamabad District through

registered sale deeds dated 11.11.2002 from its original owner A.Bhavani

Shankar Rao and filed the sale deeds and marked them as Exs.A1 and A4

respectively. But the courts below without considering the said evidence in a

proper manner dismissed the claim of the appellants. The concerned Mandal

Revenue Officer of Kotagir issued pattedar pass books to the appellants, which

would show that the appellants were in possession of the suit land to an extent

of Ac.1-00 gunta and inspite of the said evidence, the courts below dismissed

the suit as well as the appeal without appreciating the evidence in a proper

Dr.GRR, J sa_421_2009

perspective. As per the orders of the trial court, the Mandal Surveyor along

with the Advocate Commissioner, appointed for this purpose had gone and

demarcated the suit land in the presence of both the parties and their advocates

and prepared the panchanama. The Advocate Commissioner as well as the

Mandal Surveyor submitted their report. All the documents exhibited before the

trial court would prove that the appellants were in possession of the suit lands.

The courts below without considering these aspects negatived the contention of

the appellants, which was contrary to the evidence on record and hence liable to

be set aside. The report of the Mandal Surveyor was marked as Ex.C5 and the

panchanama conducted by him was marked as Ex.C6 and the tounch map of

Survey Nos.224 and 225 was marked as Ex.C7. All these documents would

clearly show that the appellants were in possession of the suit land. The trial

court granted ad interim injunction in favor of the appellants, which was also

subsequently confirmed by the trial court after filing the counter by the

defendants till the disposal of the suit. The respondents - defendants neither

challenged the Advocate Commissioner's Report nor the report of the Mandal

Surveyor, wherein a categorical finding was given that the appellants were in

possession of the suit land.

11.1. He further contended that that the First Appellate Court had not properly

framed the points for consideration. Without recording whether the plaintiffs

were in possession of the property or not, the suit could not be disposed of.

Dr.GRR, J sa_421_2009

Except answering issue No.2, the First Appellate Court had not answered all the

issues framed by the trial court and relied upon the judgment of the Hon'ble

Apex Court in H.K.N.Swami v. Irshad Basith (Dead) by LRs. 1 on the aspect

that the first appeal has to be decided on facts as well as on law. In the first

appeal, parties had the right to be heard both on questions of law as well as on

facts and the First Appellate Court was required to address itself to all issues

and decide the case by giving reasons. He also relied upon the judgment of the

Composite High Court of Andhra Pradesh and Telangana in Ch.Rukma Reddy

and Others v. K.Dharma Reddy and Others 2 on the aspect that framing of

points for consideration in an appeal is an obligation imposed under Order XLI

Rule 31 of CPC. Failure to frame points by an Appellate Court may prove to be

fatal for the outcome of the appeal.

12. Learned counsel for the respondents on the other hand contended that the

defendants denied the very existence of the suit schedule property in the written

statement itself. No plan was enclosed to Ex.A1 sale deed. The defendants

denied the title of the plaintiffs. As such, a simple suit for injunction was not

maintainable and relied upon the judgment of the Hon'ble Apex Court in

Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs and Others 3. He also

contended that it was the defendant, who filed the petition to appoint an

(2005) 10 SCC 243

2004 (3) ALD 772

(2008) 4 SCC 594

Dr.GRR, J sa_421_2009

Advocate Commissioner for localization of the suit schedule property. The

Advocate Commissioner's report was not in favor of the plaintiffs. The

plaintiffs had to prove the interference by the defendants. No cause of action

was there to file the suit. No interference was proved as per the judgments of

the courts below. No substantial questions of law would arise in this matter.

No pahanies for the relevant period showing cultivation was filed by the

appellants. Both the courts below observed that there was a boundary dispute

between the parties. Hence, the suit for simple injunction is not maintainable.

The revenue records would not create or extinguish title over the property nor

has any presumptive value on the title and relied upon the judgment of the

Hon'ble Apex Court in Bhimabai Mahadeo Kambekar (Dead) through

Legal Representative v. Arthur Import and Export Company and Others4.

13. On considering the contentions of both the learned counsel and the

substantial questions of law raised by the appellants, which were admitted by

this Court, the same can be confined to the aspects that:

(1) Whether a simple suit for injunction is maintainable or a suit for declaration of title is required to be filed by the appellants when there is a boundary dispute?

(2019) 3 SCC 191

Dr.GRR, J sa_421_2009

(2) Whether there is any perversity in the judgments of the courts below in appreciating the evidence or framing the points for consideration or answering any issues?

14. The Hon'ble Apex Court in Suresh Lataruji Ramteke v. Sau.

Sumanbai Pandurang Petkar and Others 5, held that:

"32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v.

Ramalingam Chettiar, AIR 1963 SC 302]. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."

(Emphasis Supplied)

"... if the findings returned are to be upturned on perversity, the same should unmistakably be reflected from record. If this is not so done, the Court of first appeal being the "final Court of fact" would be reduced to a mere saying, of no actual effect. After all, a second appeal is not a "third trial on facts", and so, for re-appreciation of evidence to be justified, and for the same to be required as well as being demonstrably, at a

AIR 2023 SC 4794

Dr.GRR, J sa_421_2009

different threshold from merely, a "possible different view", perversity or the other conditions of "no evidence" or "inadmissible evidence" ought to be urged, and subsequently, with the Court being satisfied on the arguments advanced, of such a possibility, the Court would then, proceed to call for the record. That is to say that accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the Court of first appeal.

27.2 In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below.

Substantial Question No.1:

Whether a simple suit for injunction is maintainable or a suit for declaration of title is required to be filed by the appellants when there is a boundary dispute?

Dr.GRR, J sa_421_2009

15. As seen from the pleadings of the parties, the appellants - plaintiffs filed

the suit for injunction showing the schedule of property as Ac.1-00 guntas of

land in Survey No.225 in Sailampoor shivar of Suleman Nagar Village of

Kotagir Mandal, Nizamabad District with boundaries as follows:

East: Land of Hyder Sab.

West: Land of Seetharamaswamy.

North: Road.

South: Land of Seetharamaswamy.

Though the plaintiffs 1 and 2 purchased an extent of Ac.00-20 guntas

each in Survey No.225, both of them had shown common boundaries

for Ac.1-00 gunta of land without showing them separately. Ex.A1, the sale

deed of plaintiff No.1 would show the boundaries of his property of Ac.00-20

guntas as:

East: Land of Hyder Sab.

West: Land of Abdul Kareem (plaintiff No.2) South: Land of Seetharamaswamy.

North: Dambar Road.

Ex.A4, the sale deed of plaintiff No.2 would disclose the boundaries of

his land as follows:

East: Land of Shaik Mohammed (plaintiff No.1)

West: Land of Seetharamaswamy.

Dr.GRR, J sa_421_2009

South: Land of Seetharamaswamy.

North: Dambar Road.

16. The defendants in their written statement contended that the uncle of

defendant No.1 was the owner of Ac.1-10 guntas of land in Survey No.224 of

Suleman Nagar, Kotagir Mandal, he purchased the same under registered sale

deed document No.5801 of 1971 dated 24.07.1971 with the following

boundaries:

East: Passage for Om Khandsari Sugar Mill. West: Open site of Hind Khandsari Mill.

North: Boundary of PWD Road leading to Kotagir. South: Om Khandsari Mill.

They contended that the plaintiffs were showing the property of their

uncle in Survey No.224 as that of their property in Survey No.225 and that they

were claiming the same property.

17. When the plaintiffs filed the simple suit for bare injunction, it is for them

to prove their possession over the suit schedule property within the boundaries

as shown by them. The plaintiffs filed the sale deeds, pattedar pass books and

pahanies of the years 1999-2000 and 2005-2006 for Survey No.225. They

stated in their plaint that the land was kept fallow without any cultivation. As

such, the pahanies would not be of much use, as the pahanies would disclose as

Dr.GRR, J sa_421_2009

to who was cultivating the land. The sale deeds and pattedar pass books would

only prove their title.

18. On the petition filed by the defendants for localization of the suit

schedule property, an Advocate Commissioner was appointed. The Advocate

Commissioner was examined as PW.4. He stated that with the help of Mandal

Surveyor, Village Administrative Officer (for short "VAO") and in the presence

of both the parties and their counsel, he proceeded to the suit schedule property

on 29.06.2003. The Survey Nos.224 and 225 were demarcated by the Mandal

Surveyor by fixing the boundaries. The Mandal Surveyor prepared sketch,

conducted panchanama and gave the report. The report of the Mandal Surveyor

was marked as Ex.C5. The panchanama conducted by the Mandal Surveyor

was marked as Ex.C6. The Tounch Map of Survey Nos.224 and 225 was

marked as Ex.C7.

19. In his cross-examination by the learned counsel for the defendants, the

Advocate Commissioner admitted that as per Ex.C7, the road leading to Kotagir

goes through Survey Nos.223 and 224. The northern side boundary of Survey

No.225 was shown as Kotagir Road. The suit schedule land was shown in red

color in Ex.C7. It did not completely touch the road leading to Kotagir and it

touched only at one point. He further stated that in between the land in Survey

No.225 and the road leading to Kotagir, there was the land pertaining to Survey

Dr.GRR, J sa_421_2009

No.224 but there was no mention about the extents of the land in Survey No.225

and Survey No.224 in Ex.C7.

20. The trial court on considering the said evidence of PW.4, observed that

the boundaries given by the plaintiffs were not tallying with the boundaries

given by the Advocate Commissioner. No sketch / plan were affixed to the sale

deeds filed by the plaintiffs marked under Exs.A1 and A4. The boundaries

prevail over the survey numbers and the extents mentioned when it comes to the

identity of the land and came to the conclusion that the plaintiffs were not in

possession of the suit lands, as the suit schedule boundaries shown by the

plaintiffs were incorrect.

21. The trial court further observed that the Mandal Surveyor had specifically

shown the land comprised in Survey No.225 of the plaintiffs in red color in the

sketch Ex.C7 prepared by him, which was not close or abutted to Kotagir Road,

but on the other hand land in Survey No.224 was abutting to the Kotagir Road

as the boundaries shown by the defendants was in triangular shape. In view of

the said glaring misrepresentation of the boundaries of the suit land, the trial

court was of opinion that the plaintiffs had shown the boundaries of the suit land

of Survey No.224 and filed documents Exs.A1 to A9 in respect of the suit land.

22. The First Appellate Court also observed that there was a boundary

dispute between both the parties. The contention of the defendants was that the

Dr.GRR, J sa_421_2009

plaintiffs wrongly shown the boundaries by showing the part of defendants'

land and got registered malafidely. Therefore, the plaintiffs did not approach

the Court with clean hands. The counsel for the defendants also vehemently

argued that it was a settled principle of law that the boundaries prevail over

survey numbers. He also argued that the plaintiffs failed to prove that the suit

schedule property was in existence within the boundaries mentioned in the suit.

The report filed by the Advocate Commissioner was supporting the version of

the defendants. The Advocate Commissioner who was appointed on request of

defendants in I.A.No.302 of 2003 to demarcate the land in Survey Nos.224 and

225 and filed his report. He was examined as PW.4. PW.4 stated that as per the

warrant, he visited the suit schedule property along with parties and their

respective counsel, Mandal Surveyor and Village Administrative Officer of

Sailampoor Shivar. On 29.06.2003, the Mandal Surveyor demarcated the suit

land and boundaries were fixed. He prepared a rough sketch and conducted

panchanama.

23. It was brought to light in the cross-examination of PW.4 by the counsel

for the defendants that as per Ex.C7, the road leading to Kotagir would go

through Survey Nos.223 and 224. The boundaries of the suit lands were

mentioned in the warrant in Ex.C2. In Ex.C2 warrant, towards northern side,

the boundary was shown as Kotagir Road. He was further cross-examined

about the road touching the suit schedule property. But the Advocate

Dr.GRR, J sa_421_2009

Commissioner deposed that in between the land in Survey No.225 and the road

leading to Kotagir, there was the land pertaining to Survey No.224. The suit

schedule land did not completely touch the road leading to Kotagir. But, it

touched it at only one point. But nothing was elicited that Advocate

Commissioner wrongly executed the warrant without following the procedure.

Ex.C1 was a crucial document, which was not disputed by either side because

no one filed any objection to the Commissioner's report as per record. The said

report would make it clear that the Mandal Surveyor surveyed the two survey

numbers 224 and 225 and fixed the boundaries. Ex.C5 was the survey report. It

would refer that after proceeding, he demarcated Survey No.225 with that of

village map and village pahani. According to him, the demarcation would

reveal that the possession and cultivation of land under Shaik Mohammed and

Abdul Kareem would come under Survey No.225. After demarcation, he

conducted spot panchanama with the help of Village Administrative Officer in

the presence of the Commissioner and fixed the boundaries as:

North: Survey No.224.

South: Land of Seetharamaswamy.

East: VB of Ranampally Shivar and Hyder Sab

West: Land of Seetharamaswamy.

Dr.GRR, J sa_421_2009

24. The panchanama under Ex.C6 would make it clear. The tounch map

Ex.C7 also would support the said fact. The schedule of property mentioned

was different towards northern side boundary. The documents filed by the

plaintiffs would show that in the northern side, there was a road. According to

physical verification by the Advocate Commissioner, the northern boundary

was shown as Survey No.224. The tounch map wherein the suit schedule

property was shown in red color would disclose that some part of Survey

No.224 was located as northern boundary of Survey No.225. Thereafter the

PWD road would lead towards Survey No.224. Hence, it is clear that the

plaintiffs had wrongly shown the northern boundary.

25. Thus, both the courts below had appreciated the evidence on record and

the Commissioner's report and came to the conclusion that the plaintiffs had

shown the incorrect boundaries and the boundaries as shown by the plaintiffs

and the boundaries as noted by the Mandal Surveyor were not tallying with each

other and as such came to the conclusion that the plaintiffs were not entitled to

be granted injunction to the suit schedule property within the boundaries shown

by them. When there was a boundary dispute and the defendants had

challenged the boundaries given by the plaintiffs as incorrect in their written

statement, the plaintiffs ought to have amended the suit for declaration of title.

Dr.GRR, J sa_421_2009

26. The Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy

(Dead) by LRs and Others (cited supra) while appreciating the principles as to

when a mere suit for permanent injunction would lie and when it was necessary

to file a suit for declaration and / or possession with injunction as a

consequential relief, held that:

"13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

27. As the written statement filed by the defendants poses a challenge to the

plaintiffs' title raising a cloud on the title of the plaintiffs within the boundaries

shown by them, an action for declaration is the remedy to remove the cloud on

the title to the property. As such, a simple suit for bare injunction is not

maintainable.

28. Accordingly, the substantial question No.1 is answered accordingly.

Dr.GRR, J sa_421_2009

Substantial question No.2:

Whether there is any perversity in the judgments of the courts below in appreciating the evidence or framing the points for consideration or answering any issues?

29. The First Appellate Court had framed the point for consideration as

"Whether there are any grounds to interfere with the judgment and decree of the

lower court in O.S.No.14 of 2003, dated 25.04.2007?", without framing any

other points.

30. The Composite High Court of Andhra Pradesh and Telangana in

Ch.Rukma Reddy and Others v. K.Dharma Reddy and Others (cited supra),

held that:

"6. It should not be forgotten that framing of a point in an appeal is an obligation imposed under Order XLI Rule 31 of CPC. It was held by several Courts and the Hon'ble Supreme Court that failure to frame points by an Appellate Court may prove to be fatal for the outcome of the appeal. A semblance of exemption from such requirement was given only in such cases where the Appellate Court undertakes discussion touching on each and every aspect of the matter though, points are not framed. Therefore, if it is evident that the Appellate Court had discussed the matter extensively with reference to each and every

Dr.GRR, J sa_421_2009

aspect of the matter, non-framing of point cannot be said to be fatal."

31. Thus, an exemption was given stating that failure to frame a point by the

Appellate Court would not be fatal, if it discusses the points with reference to

each and every aspect of the matter. In the present case also, the First Appellate

Court discussed the matter extensively as extracted above on the above aspects.

Thus, the failure to frame the points for consideration specifically is not fatal.

32. Learned counsel for the appellants contended that the issue with regard to

the possession of the petitioners over the suit schedule property was not

discussed by the first Appellate Court, which was fatal to the case, when the suit

was filed for permanent injunction.

33. Though the aspect of the possession at the relevant point of time is

material to be decided in a suit for perpetual injunction, the plaintiffs were

claiming that the suit schedule property was a fallow land and that no crops

were cultivated. As such, the pahanies would be of no use. The plaintiffs were

trying to prove their possession basing upon their title and pattedar pass books.

As observed by the courts below, no sketch / plan was annexed to the registered

sale deeds marked under Exs.A1 and A4. The Advocate Commissioner's report

would show that the boundaries shown by the plaintiffs were incorrect towards

the northern side. PW.1 also admitted in his cross-examination that he did not

get the land measured at the time of purchase. As such, this Court does not find

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any perversity in the appreciation of the evidence or documents by the courts

below and in coming to the conclusion that the plaintiffs were not entitled for

injunction within the boundaries as shown by them.

34. Accordingly, the substantial question No.2 is answered holding that there

is no perversity in the judgments of the courts below in appreciating the

evidence or framing the points for consideration or answering any issues.

35. In the result, the Second Appeal is dismissed confirming the judgments of

the courts below.

No order as to costs.

As a sequel, miscellaneous applications pending in this appeal, if any

shall stand closed.

_____________________ Dr. G. RADHA RANI, J

Date: 12th August, 2024 Nsk.