Telangana High Court
G.S.N.Prasad, vs M.A. Jabbar, on 14 August, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Second Appeal No. 1713 OF 2011
Between:
G.S.N.Prasad ... Appellant
G.Madhusudhan Reddy and others ... Respondents
DATE OF JUDGMENT PRONOUNCED: 14.08.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
_____________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ Second Appeal No. 1713 OF 2011
% Dated 14.08.2024
# G.S.N.Prasad ... Appellant
$ G.Madhusudhan Reddy and others ... Respondents
! Counsel for the Appellant: Sri K.V.Bhanu Prasad, learned Senior
Counsel representing
Sri Kothapalli Sai Sri Harsha
^ Counsel for the Respondents: Sri P.Venugopal, learned Senior Counsel
representing Y.Ashok Raj, learned counsel
>HEAD NOTE:
? Cases referred
1.(2007(3) ALT 6);
2. (2018 SCC OnLine Bom 12002);
3.(2015(2) CivilLJ 324)
4.(2019(9) SCC 358)
5.(1981) 2 SCC 414)
6.(1997) 5 SCC 438)
7.(2004) 5 SCC 762)
8.(2005) 10 SCC 553)
9. (2020) 19 SCC 57
10. (AIR 2023 SC 379)
11. (2003) 8 SCC 752 Supreme Court
3
THE HON'BLE SRI JUSTICE K.SURENDER
SECOND APPEAL No.1713 of 2011
JUDGMENT:
1. The plaintiff being unsuccessful in both the Courts below,
has filed the present Second Appeal.
2. Appellant is the plaintiff in the trial Court and respondents
are defendants. For the sake of convenience, the parties
hereinafter will be referred to as arrayed in the trial Court. Suit
was filed by plaintiff vide OS No.1715 of 2003 and thereafter AS
No.259 of 2009, questioning the judgment and decree passed in
O.S.No.1715 of 2003.
3. The plaintiff filed Suit for grant of perpetual injunction
restraining the defendants from interfering with the peaceful
possession of the plaintiff over the suit schedule property.
Plaint's schedule property is part of Plot no. 7.
4. Briefly, the case of the plaintiff is that he purchased 1,479
square yards in old Survey No. 129/71 (new no. 144) of Shaikpet
village, Road No. 2, Banjara Hills from Kamal under a registered
sale deed dated 5.9.1968 (Ex.A1). Subsequently, the municipal
corporation acquired 257 square yards for road widening, leaving
the plaintiff with the remaining 1,222 square yards.
5. The defendants claimed no knowledge of the location of the
land as claimed by plaintiff. They asserted that the plaintiff
mistakenly claimed the suit property as part of the land
purchased by defendants under the sale deed dated 5.9.1968.
Defendants contended that the suit property was not part of the
land in the plaintiff's sale deed but was instead part of Acs.3.15
guntas in Plot No. 7. Plot No. 7 had been assigned by the
Government to their ancestor, Narayan Bhavanani, after
acquiring their Plot No. 18 (Acs.3.36 guntas) in Jubilee Hills for
the development of a nala. Plot No. 18 was subsequently
cancelled and replaced with Plot No. 7, which was given to
defendant No. 3's husband.
6. It is the claim of plaintiff that he had mortgaged his
property under Ex.A1 to secure a loan of Rs 25 lakhs from
Syndicate Bank but failed to repay it. Consequently, the Bank
/creditor filed case OA No.1279 of 1999 before Debt Recovery
Tribunal for recovery. The Tribunal passed final orders and
issued execution warrant for the sale of the mortgaged property.
7. Defendants 3 to 5 filed Claim Petition No. 31 of 2004, in the
OA claiming the property, with the bank and the plaintiff as
respondents in the claim petition. The Tribunal, recognizing the
importance of the property's location, appointed a Deputy
Director of Survey and Land Reforms to locate the land and
submit a report (Ex.B2). The surveyor attempted to locate the
property in the presence of an Advocate-Commissioner, the
parties, and their counsels. The report concluded that the
property shown by the plaintiff did not match the land purchased
under the sale deed (Exhibit A1). The Surveyor and
Commissioner provided three reasons for their findings, which
led to the conclusion that the plaintiff's land could not be
identified. The surveyor's report was accepted while allowing the
defendants' claim petition. The Tribunal concluded that the
property shown by the plaintiff was not the one purchased under
the sale deed (Ex.A1). Thus, the plaintiff failed to identify his own
land.
8. Litigation between the parties (defendants and Kamal- the
vendor) predates the plaintiff's purchase from Kamal. Defendants
3 to 5 had a history of litigation with Kamal, in suit (OS No. 118
of 1968) where Narayana Bhavanani claimed the suit property,
resulting in a decree in his favour.
9. The defendants in OS No. 1715 of 2003 relied on a Supreme
Court judgement in Civil Appeal No. 5024/91 (Ex.B19), which
stated that a triangular portion measuring 16 guntas, jutting into
Survey No. 144, should be in the possession of and treated as the
property of the defendants herein- i.e., Kamal. The judgement
further clarified that the plaintiff/respondent had no claim to this
portion, and the land in Plot No. 7 in survey no. 151/4 shall
belong to defendants 3 to 5( Ac.2.39 guntas).
10. According to defendants plot no. 7 in survey no. 151/4 and
Survey no. 144 are adjacent to each other. Hence, defendants
contend that besides the triangular piece of land- plaintiff cannot
lay any claim over land in survey no. 151/4 pertaining to plot no.
7. Further, plaintiff has nothing to do with plot no. 7 in survey
no. 151/4 - since his site is covered by survey no. 144, old
survey no. 129/71 and that Kamal wrongly showed location of
his plot.
11. The defendants argued that the plaintiff did not provide any
record showing that the title to Survey No. 144 or Plot No. 7 was
ever declared in his favour by the Supreme Court or any other
court.
12. Basing on the above pleadings, the Trial Court considered
the following issue:
"Whether Plaintiff is entitled for perpetual injunction?"
13. The defendants claimed that Kamal, the vendor, who was
the owner of the old Survey No. 129/71 (new Survey No. 144),
sold the site to the plaintiff by providing incorrect boundary
numbers and location. They relied on the Supreme Court
judgment (marked as Exhibit B19) in Civil Appeal No. 5024/91.
Based on the judgment, the defendants in OS No. 1715 argued
that the plaintiff failed to submit any record showing that his title
to Survey No. 144 or Plot No. 7 was ever recognized in his favour
by the Supreme Court or any other court. Consequently, the
plaintiff did not provide any evidence to prove his title to Survey
No. 144 or that Plot No. 7 was ever declared in his favour.
14. Trial Court's Consideration and Findings:
The trial court, considered the evidence placed on record by
both parties. According to trial Court, the main evidence
indicated that the plot claimed by the plaintiff could not be
identified on the ground on the basis of the boundaries provided
by the plaintiff under Exhibits B1 and B2. The Court concluded
that it was clear that the plaintiff had no information about the
location of his site and that it could be safely inferred that the
plaintiff was never in possession or enjoyment of the plaint
schedule property.
15. Furthermore, the Court held that the plaintiff failed to
prove the identity of the plaint schedule property and had
approached the Court while suppressing material facts, including
the suit proceedings initiated by Defendant No. 3's husband,
which went up to the Supreme Court and culminated in the
judgment under Exhibit B4. The plaintiff also suppressed the
results of the OA Proceedings before the tribunal and failed to
identify the plot on the ground with reference to the boundaries
provided by him under the Exhibit B2 plan. Consequently, the
Trial Court determined that the plaintiff was not entitled to the
equitable relief of perpetual injunction and dismissed the suit.
16. Aggrieved by the said judgment, AS No.259 of 2009 was
preferred before the XI Additional Chief Judge (FTC), City Civil
Court, Hyderabad. The learned District Judge observed that it
was not the defendants' position that the plaintiff did not own
any site at all. Rather, the defendants argued that the disputed
property was not the one purchased under the sale deed, Exhibit
A1. Thus, the primary dispute concerned the location of the
property, and the burden of proof was on the plaintiff, which he
failed to discharge.
17. The First Appellate Court found that since the plaintiff failed
to prove the location of the suit property and his right over it, he
was not entitled to a permanent injunction. The plaintiff
contended that Defendants 1 and 2 were representatives of
Defendants 3 to 5, and that the main parties, Defendants 3 to 5,
were not examined. Only Defendant No. 2, who was the general
power of attorney holder, was examined as DW1. The plaintiff
argued that the evidence of a GPA holder could not be considered
as that of a party, citing a Supreme Court judgment. The court
responded by stating that if the burden of proof was on
Defendants 3 to 5, then DW1's evidence could be considered.
However, since the burden was not on the defendants to prove
the location of the property or the plaintiff's right, the non-
examination of Defendants 3 to 5 did not affect the plaintiff's
claim and did not support the plaintiff's case. Consequently, the
first appellate court dismissed the appeal.
18. Sri K.V.Bhanu Prasad, learned Senior Counsel appearing
for Kothapalli Sai Sri Harsha, learned counsel appearing for the
plaintiff/appellant submits that the defendants while admitting
the vendor of the plaintiff is the owner of the property and he has
every right to sell the property, however claimed that the map
location was wrongly shown. Both the Courts below, failed to see
the difference whether there is any difference in the schedule to
the sale deed and map annexed to Ex.A2, i.e., copy of plan
annexed to Ex.A1 sale deed. The said aspect goes to the root of
the case and both the Courts below without considering the
documents went on to arrive at their own conclusions. Further,
the entire basis for believing the version of the defendants is the
Commissioner's report which was filed in the suit. Such report of
the Advocate Commissioner which was filed in OA No.1279 of
1999 by the Bank against the plaintiff, cannot be relied on unless
the Commissioner was examined in the Court. Merely marking
Commissioner's report would not suffice. Learned counsel relied
on the following judgments: i) Haridasyam Srinivasa Murthy v.
M.Nanardhan Reddy (2007(3) ALT 6); ii) Vijay A.Mahatre and
others v. Yashwant B.Mhatre and others (2018 SCC OnLine
Bom 12002); iii) Seethalekshmi v. Lekshmi (2015(2) CivilLJ
324) in support of his argument that Commissioner's report
cannot be looked into unless the Commissioner was examined.
19. Learned Senior counsel further argued that the Hon'ble
Supreme Court in Civil Appeal No.5024/1999 in between vendor
of the plaintiff and the defendants, respondents herein) dated
08.12.1991 held that there was no controversy about the
triangular portion. The said triangular portion shall be in
possession and shall be treated as property of defendants and
appellant and plaintiff would have no claim thereto. Similarly, the
defendants have no claim in respect of rest of plot to an extent of
Acs.2.39 guntas said to be comprised in Sy.No.151/4 which has
been decreed in plaintiff's favour by the High Court.
20. Learned Senior Counsel also submitted that the GPA
holder's evidence cannot be permitted in view of judgment of
Hon'ble Supreme Court in the case of Mohinder Kaur v. Sant
Paul Singh (2019(9) SCC 358), since the defendants in the Trial
Court did not enter into the witness box to substantiate their
claim. However, GPA holder was only examined, whose evidence
cannot be considered. Learned Senior Counsel submits that
following substantial questions of law arise for consideration.
i) Whether the appellate Court is right in confirming the
judgment and decree of trial court ignoring/not considering
Ex.B4-B8 which do not support the case of respondents.
ii) Whether the courts below are right in accepting the
evidence of GPA holder when the real owners did not speak
about their own case?
iii) Whether the courts below are justified in denying the relief
to the appellants when the respondents failed to make out
prima facie case of assigning the land at least in plot No.7,
Jubilee Hills?
iv) Whether the Courts below are right in accepting the
surveyors report ignoring the other evidence on record and
thereby misread the evidence?
21. After the case was heard at length and reserved for
Judgment, petition was filed to reopen the case for further
hearing and also for consideration of the additional substantial
question of law according to the appellant, which is as follows:
"(v) Whether the Courts below are right in dismissing the suit on
the ground appellant/plaintiff failed to prove the location of his
plot (Suit Schedule) in Sy.No.144 basing on the report of the
Advocate Commissioner, when the Hon'ble Supreme Court
decided both survey No.144 and 151/4 are adjacent to each other
in Civil Appeal No.5024/1991 (Ex.B19)."
22. On the other hand, Sri P.Venu Gopal, learned counsel
appearing for Sri Y.Ashok Raj, learned counsel appearing the
respondents/defendants would submit that the plaintiff
purchased the suit schedule property vide Ex.A1 sale deed and
having mortgaged the documents with the Syndicate Bank raised
loan of Rs.25.00 lakhs. Since the plaintiff was unable to pay back
the amount, the Bank filed OA No.1279 of 1999. In the said OA,
order was passed and recovery certificate was also issued. In the
said OA, the defendants filed claim petition vide C.P.No.31 of
2004 in R.P.No.506 of 2003 in O.A.No.1279 of 1999 and claimed
ownership of the suit schedule property. The Tribunal appointed
Advocate Commissioner and also the Collector, Hyderabad was
asked to depute the Deputy Director, Land and Survey records to
assist in identifying the suit schedule property. Having
considered the Commissioner's report, the Tribunal found that
the schedule property as claimed by the plaintiff was not tallying
with Ex.A1 sale deed schedule property. Since the plaintiff could
not identify the schedule property in OA, which was in Sy.No.129
of 1971 (old No.144), but plaintiff was showing the schedule
property in JHM Plot No.7, TS No.12/3. The said plot belongs to
the defendants. For the said reason, the OA was dismissed and
claim petition of the defendants was allowed in favour of the
defendants.
23. Learned Senior Counsel further submitted that in fact, there
was a separate proceeding which was prosecuted by the
defendants vide OS No.118 of 1968. The said suit was filed
against Ayub Kamal for perpetual injunction and the same was
decreed. Ayub Kamal preferred CCCA No.94 of 1972 before the
High Court of Andhra Pradesh, which modified the decree for
0.16 guntas. The said dispute went to the Hon'ble Supreme
Court. The Hon'ble Supreme Court held that there was no
controversy about the triangular portion admeasuring 0.16
guntas, which is jutting into Sy.No.129/71(old sy.No.144). The
said triangular portion shall be in possession of and shall be
treated as property of the defendant and the plaintiff shall have
no claim. Similarly, the defendants will have no claim with
respect to JHM plot No.7, TS No.12/3 to an extent of Acs.2.39
gts. However, the Hon'ble Supreme Court held that the triangular
portion in respect 16 guntas shall be treated as property of Ayub
Kamaal and the said Ayub Kamaal cannot claim land in
Sy.No.151/4 pertaining to JHM Plot No.7, TS No.12/3, facing on
road No.2, Banjara Hills.
24. Learned Senior Counsel further submitted that during trial,
the plaintiff stated that he had no knowledge about the
Sy.No.129/71. He further submitted that the Syndicate Bank
filed O.A.No.1279 of 1999 for recovery of loan and he failed to
identify the plot. Plaintiff also failed to provide any document to
show that he was in enjoyment of the plaint schedule property or
paying any taxes in respect of the subject property. On his own
admission, it is clear that the plaintiff did not have any
information regarding location of his site and this property has
nothing to do with the property of the defendants, which is JHM
Plot No.7, TS No.12/3. In view of the documents filed under
Ex.B3-sale deed, Ex.B4-mutation was affected after exchange of
JHM plot No.18 for JHM plot No.7, TS No.12/3 admeasuring
Acs.3.15 gts. Permission for construction of house in JHM plot
NO.7 under Ex.B6, supplementary sethwar issued in favour of
the defendants under Ex.B7, vide Ex.B8, the District Collector,
Hyderabad had confirmed the ownership of JHM Plot No.7, TS
No.12/3 admeasuring Acs.3.15 gts in favour of Narayan
Bhavanani, Ex.B9 is the mutation extract issued by MCH in
favour of defendants and Ex.B10 is the mutation order of
Tahsildar, Golconda dated 07.07.1976. In view of the documents
i.e., mutation proceedings, permission for construction,
supplementary sethwar and other related documents marked
under Exs.B3 to B53 defendants clearly proved that they are the
owners and possessors of the land in question and since the
plaintiff has failed to identify the plaint schedule property, the
suit was dismissed. There are no grounds to interfere with the
concurrent findings of the Courts below.
25. The Hon'ble Supreme Court in the case of Bholaram v.
Amirchand (1981) 2 SCC 414), held that the findings of fact by
the Courts below were wrong or grossly inexcusable that in itself
would not entitle the High Court to interfere in the Second Appeal
in the absence of clear error of law. In Kshitish Chandra
Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438), the
Hon'ble Supreme Court held that (a) 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.
26. In Thiagarajan v. Sri Venugopalaswamy B.Koil (2004) 5
SCC 762), the Hon'ble Supreme Court held that where findings of
fact by the lower appellate Court are based on evidence, the High
Court in second appeal cannot substitute its own findings on re-
appreciation of evidence merely on the ground that another view
was possible. In Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC
553), the Hon'ble Surpeme Court held that the High Court will
not be justified in interfering with the concurrent findings of fact
even if the 1st appellate court commits an error in recording a
finding of fact, that itself will not be a ground for the High Court
to upset the said finding.
27. The Hon'ble Supreme Court in Nazir Mohammed v.
J.Kamala (2020) 19 SCC 57, held that the proper test for
determining whether a question of law raised in the case is
substantial would be to ascertain whether it is of general public
importance or whether it directly and substantially affects the
rights of the parties.
28. Conspectus of the judgments of the Hon'ble Supreme Court
is that the High Court should be satisfied that the case involves a
substantial question of law and not a mere question of law. The
question of law should have material bearing on the decision of
the case. Unless the Courts below have decided the matter
ignoring any legal principle or acting contrary to such legal
principles would be substantial question. The High Court shall
not interfere with the findings of facts arrived at the Court below
unless the Courts below have ignored material evidence or drawn
wrong inferences from proved facts by misapplication of law.
29. The Hon'ble Supreme Court in the case of Smt.Smriti
Debbarma (D) through Lr. V. Sri Prabha Ranjan Debbarma (AIR
2023 SC 379) held as follows:
"31. The burden of proof to establish a title in the present case
lies upon the plaintiff as this burden lies on the party who
asserts the existence of a particular state of things on the basis
of which she claims relief. This is mandated in terms of Section
101 of the Evidence Act, which states that burden on proving the
fact rests with party who substantially asserts in the affirmative
and not on the party which is denying it. This rule may not be
universal and has exceptions, but in the factual background of
the present case, the general principle is applicable.
The plaintiff could have succeeded in respect of the Schedule 'A'
property if she had discharged the burden to prove the title to the
Schedule 'A' property which squarely falls on her. This would be
the true effect of Sections 101 and 102 of the Evidence Act.
Therefore, it follows that the plaintiff should have satisfied and
discharged the burden under the provisions of the Evidence Act,
failing which the suit would be liable to be dismissed."
30. The procedure prescribed under CPC and the Judgment of
Hon'ble Supreme Court in the aforesaid decision, it is clear that a
party which sets up a claim has to prove his case and the burden
is always cast upon the party i.e., the plaintiff herein. The burden
never shifts onto the defendant unless the plaintiff proves his
case.
31. The 1st question raised by the learned counsel is factual in
nature. The 2nd and 4th questions can be answered together. The
GPA holder has entered into witness box and examined himself
as D.W.1. It is not the case that GPA did not have any personal
knowledge regarding transactions in question. Having entered
into the witness box, the relevant documents were brought on
record including surveyor's report. At the time of bringing crucial
documents, which is the surveyor's report on record, no objection
was raised. The Hon'ble Supreme Court in the case of
R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami v.
V.P.Temple (2003) 8 SCC 752 Supreme Court) held that failure
to raise a prompt and timely objection amounts to waiver of the
necessity for insisting proper proof of document, the document
itself which is sought to be proved being admissible in evidence.
The Commissioner's report was filed in the case for recovery by
the Bank in O.A.No.1279 of 1999. The Tribunal found that the
suit schedule land was not the land of plaintiff under Ex.A1.
According to the learned counsel for the appellant, having
accepted the verdict of the Tribunal, no further appeal was filed
and the plaintiff entered into one time settlement with the Bank.
The very same Commissioner's report which was filed in the suit
for recovery by the Bank was filed in the present suit and was not
objected when it was brought on record. The plaintiff cannot at
appellate stage raise ground of admissibility or not to rely on the
contents of the Commissioner's report unless the Commissioner
was examined. When the Commissioner's report was admitted in
Trial Court without objection and such document being
admissible in evidence, the contention of the appellant regarding
inadmissibility of the Commissioner's report is rejected.
32. Insofar as 3rd and 5th questions are concerned, the Hon'ble
Supreme Court in Civil Appeal No.5024 of 1991 by order dated
18.12.1991 gave finding that 16 guntas of land belongs to Ayub
Kamaal. However, the plaintiff failed to prove that the extent of
land that the Hon'ble Supreme Court found as belongs to Ayub
Kamaal is the very same land that was sold to the plaintiff. It
cannot be assumed that 16 guntas of land which was in
possession and property of Ayub Kamaal is the very same
property under Ex.A1. Accordingly, the questions that are raised
by the learned counsel for the appellant are answered.
33. I do not find any substantial questions that arise for
consideration to be framed by this Court.
34. Accordingly, Second Appeal is dismissed.
__________________
K.SURENDER, J
Date: 14.08.2024
kvs
