Telangana High Court
Kandela Narahari vs Rambathri Bhumanna on 2 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.16 of 2024
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 11.08.2023, passed in A.S.No.51 of 2018 on the file
of the Court of Principal District Judge, Nirmal, confirming the
judgment and decree dated 30.7.2014 passed by the Principal
Junior Civil Judge, Nirmal, the present Second Appeal is filed.
2. The appellant is the defendant and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the
present Second Appeal are that the plaintiff instituted the suit
seeking perpetual injunction in respect of the Open place of
H.No.1-112 and Plot No.209 to an extent of 75' x 27' (feet)
situated at Mujjigi village, Nirmal Mandal, Adilabad District. He
submitted that he is the owner and possessor of houses bearing
G.P.Nos.1-112 (1-111 old) 1-113, 1-114 situated at Mujjigi
Village, Nimal Mandal along with open land and is residing in the
said houses which are situated in the same compound. It was
LNA, J
further averred that originally old Mujjigi village was submerged in
Pochampad Project back water and the Government acquired the
same by allotting house sites which is called as New Mujjigi
village and he constructed two small houses in the allotted house
plots i.e., 1-113, 1-114 (old 1-88, 1-89) by leaving some open
place. Thereafter, he purchased one room with some open place
bearing G.P.No.1-112 (1-111 old) from one Bhumamma on
10.02.2004 and his name was mutated in the records. He further
averred that LA-cum-LOC Unit SRSP Pochampad has allotted
another plot bearing No.299 to an extent of 60' x 30' in the name
of the plaintiff on 01-12-2005 in the same compound. A patta
certificate to that effect was also issued in his name duly delivering
the possession of the said plot to him.
3.1. It was further averred that when he refused the defendant's
request to store animal dung in the open place, the defendant with a
mala fide intention is trying to interfere with the peaceful
possession of the open place situated towards Eastern side by
demanding him that he will store animal dung in the open place.
When the plaintiff refused, the defendant threatened that he will
forcibly occupy the open place and that on 25.03.2009, the
LNA, J
defendant, who has no any right and title, along with his men tried
to interfere with the peaceful possession of the plaintiff over the
open place situated towards Eastern side to an extent of 75' x 27'
(feet) and house No. 1-112, plot No.299 and occupy the same
illegally. over the plaintiff's open place but he is trying to interfere
and to occupy the same high handedly. Hence, the suit.
4. On other hand, the defendant filed his written statement
denying the plaint averments. He contended that the plaintiff is not
the owner and possessor of the alleged house bearing G.P.
Nos.1-112, 1-113, 1-114 along with open place situated at Mujjigi
village. He also contended that the sketch map filed is not correct,
vague, and that there are no measurements of each house and the
open land.
4.1. He further contended that as per the Rules and Regulations
for allotting the house plots and agriculture lands for the displaced
families, each family will be allotted only one house site and not
more than that. Further, he contended that the plaintiff was allotted
one house plot where he constructed the house bearing No.1-42 (1-
47) and residing therein and he also denied the construction of two
LNA, J
small houses by the plaintiff in the house plots which are allotted
bearing No.1-112, 1-113, 1-114 (old 1-88, 1-89) leaving some open
place and also the allotment of the plot by the L.A. Cum LOC Unit
and delivering of the possession to the plaintiff. He submits that the
certificate issued is false, and it has no measurements and that no
vacant possession was delivered to the plaintiff by the above said
L.A. Cum LOC Unit.
4.2. The defendant further pleaded that the plaintiff has not
shown the actual suit land where he is interfering with his
possession and also denied the allegation that the defendant is
trying to store animal dung in the open place and he threatened the
plaintiff to forcibly occupy the suit land.
4.3. He further averred that his father by name Lasmanna,
S/o Narsimlu was allotted the land after taking Rs.300/- for the
road works by the then Sarpanch of Mujjigi on 10.08.1978
admeasuring 22 x 11 yards by executing the document with map
and delivered the possession to the allottee. Hence, the defendant
and his family members are in actual possession and enjoyment of
the same. The portion of the land which is allotted to his father
LNA, J
belong in house No.1-112 wherein he has erected zinc sheet shed
for cattle and dumping cattle dung since more than 35 years and
thus, he has perfected his title by way of description and that he is
in continuous open and peaceful possession of the said land to the
knowledge of the plaintiff and perfected his title by adverse
possession.
5. The plaintiff filed rejoinder to the written statement, wherein
he has denied the contentions of the defendant in the written
statement and averred that suit map is correct and the house tax
receipts clearly show that he is in possession of the house along
with the open place.
6. On behalf of the plaintiff, PWs-1 to 3 were examined and
Exs.A-1 to A-19 were marked and on behalf of the defendant,
D.Ws.1 to 3 were examined and Exs.B-1 to B-4 were marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 30.07.2014, observed that Exs.A-1 to A-17 which are
original ownership certificates go to show that the plaintiff is the
owner of the house bearing Nos.1-112, (1-111 Old), 1-113 and 1-
LNA, J
114 and Ex.A-3 suggests the allotment of house site Plot No.299 in
favour of the plaintiff. The trial Court further observed that the
plaintiff's continuous possession over the suit schedule property is
established by Exs.A-4 to A-15 which are the original House Tax
receipts. It was also observed that under Ex.A-18 the Gram
Panchayat New Mujjigi has certified that the plaintiff is having
house bearing No.1-112 and an open place towards east of the said
house. The trial Court further observed that the evidence of P.Ws.1
and 2, who are neighbours to the plaintiff, supports the claim of the
plaintiff that he is having three houses and an open land is
appurtenant to one of the houses. Thus, the trial Court held that the
exhibits coupled with the oral evidence clinchingly prove and
establish the claim of the plaintiff and on the other hand, the
evidence of D.Ws.1 to 4 is incoherent and inconsistent in every
aspect and further, the documents marked on his behalf i.e.,
Exs.B-1 to B-4 cannot be relied, as they are irrelevant in all aspects
and accordingly, decreed the suit.
8. The first Appellate Court, being the final fact-finding Court,
re-appreciated the entire evidence and the material available on
record and observed that in the light of the fact that the plaintiff
LNA, J
filed map annexed with plaint, which is supported by the record of
the Gram Panchayat, the contention of the defendant that the
plaintiff failed to prove the boundaries and identification of the
property is negatived. Further, the First Appellate Court observed
that the evidence of P.Ws.1 to 3 and Exs.A-1, A-2, A-3, A-17,
A-18 and Ex.A-19 established the possession of the plaintiff over
the suit schedule disputed plot and the tax receipts Exs.A-4 to A-16
established that he has been paying tax to the Gram Panchayat
regularly. Therefore, in the light of the above observations, the first
Appellate Court opined that the trial Court rightly decreed the suit
in favour of the plaintiff and accordingly, dismissed the appeal.
9. Heard Sri P.Animi Reddy, learned counsel for the appellant.
Perused the record.
10. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
by the plaintiff is cogent and thus, he has proved his suit claim.
11. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
LNA, J
the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
12. However, learned counsel for 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.
13. 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 on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
14. 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.
(2007) 1 Supreme Court Cases 546
LNA, J
15. 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 appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
16. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:02.02.2024
dr
