Telangana High Court
Syed Abdul Quddus vs Smt. K. Vijaya Laxmi on 5 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.3 of 2024
JUDGMENT:
The Second Appeal is filed against the judgment and decree dated
29.08.2023 in A.S.No.18 of 2022 on the file of the Court of the I
Additional District Judge, Khammam, wherein the judgment and decree
dated 25.02.2021 in O.S.No.155 of 2005 on the file of the Court of the
Senior Civil Judge, Khammam, was confirmed.
2. For the sake of convenience, the parties hereinafter are referred to
as they were arrayed before the trial Court.
3. Brief facts leading to file the present Second Appeal are that
plaintiff No.1 is the husband and plaintiff No.2 is wife of plaintiff No.1.
Plaintiff No.1 purchased plaint 'A' and 'B' schedule properties through
an un-registered sale deed dated 16.04.1991 for a consideration of
Rs.7,000/- from one Mohd. Issaq Ahmed and since the date of sale,
plaintiff No.1 has been in possession and enjoyment of plaint schedule
properties. The above mentioned unregistered sale deed was scribed by
late A.Subba Rao and the same was attested by Syed Abdullah, who is
father of plaintiff No.1.
4. It is further contended that taking advantage of temporary
absence of plaintiffs, defendant No.1 encroached an extent of 20
sq.yards of land on South-West corner (which is plaint 'B' schedule
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property), in the month of September 2003 and raised a tin sheet shed.
Thus, defendant No.1 had been in illegal occupation of plaint 'B'
schedule property. In spite of several demands made by the plaintiffs,
defendant No.1 did not evict the plaint 'B' schedule property and did not
deliver the vacant possession to him.
5. It is further submitted that defendant No.1 is canvassing in the
area that she is owner of plaint 'A' schedule property and also trying to
interfere in possession of plaint 'A' Schedule property. Hence, the
plaintiffs have O.S.No.155 of 2005 before the Senior Civil Judge,
Khammam, to declare that the plaintiffs as the absolute owners of the
plaint 'A' and 'B' schedule properties and to grant perpetual injunction
restraining the defendants from interfering with peaceful possession
and enjoyment of the plaintiffs over the plaint 'A' schedule property and
also sought for eviction of the defendants from plaint 'B' schedule
property.
6. Defendant No.1 has filed written statement denying the
averments of the plaint inter alia contending that plaintiff No.1 is
nephew of Syed Issaq Ahmed, as such, sale deed was got written in
favour of plaintiff No.1 to suit his case. There is no legality to entertain
sale deed. Plaintiff No.1 created the alleged gift deed in favour of his
wife and in fact in Mohammedan Community, execution of gift deed
that too with registration is not necessary and property can be even
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transferred without any type of consideration by way of Hiba, which is
oral gift and that the gift was executed less than one month prior to
filing of the suit. It is contended that plaintiff No.1 himself was not in
possession of any part of the suit schedule property to deliver its
possession to plaintiff No.2.
7. It is further submitted that the husband of defendant No.1 had a
residential house bearing No.5-2-140/1, which was purchased on
11.11.1982 from Abdul Rashid, who is the elder brother of Issaq
Ahmed, who is vendor of plaintiff No.1. The document of husband of
defendant No.1 was attested by one D.Sangaiah and Inam
Venkateswarlu and scribed by late J.Durga Rao. Thereafter, husband of
defendant No.1 gifted the plaint 'A' and 'B' schedule properties to
defendant No.1 on 07.05.2002.
8. It is further submitted that defendant No.1 made construction on
it, which was shown as 'A' schedule property on South-West corner and
using front eastern place to access the road. It is finally contended that
neighbour viz., Afsar Miya is resident of 5-2-232/2 of Mustafa Nagar,
Khammam and he was never in occupation for the past more than 12 to
15 years and the said house was always let out to the tenants and the
said Afsar Miya never resided in the said house and hence, prayed to
dismiss the suit.
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9. Before the trial Court, on behalf of the plaintiff, PW1 to PW4 were
examined and Exs.A1 and A2 were marked. On behalf of the
defendants, DW1 was examined and Exs.B1 to B7 were marked.
10. The trial Court, after considering the entire material available on
record, vide its judgment and decree dated 25.02.2021, dismissed the
suit. Aggrieved by the judgment and decree dated 25.02.2021, the
plaintiffs filed A.S.No.18 of 2022 on the file of the I Additional District
Judge at Khammam. The first appellate Court on re-appreciation of the
entire evidence and perusal of the material available on record vide
judgment and decree dated 29.08.2023 dismissed the appeal confirming
the judgment and decree passed by the trial Court. Hence, the present
second appeal.
11. Heard Mr.M.V.Venu, learned counsel for the appellants and
Mr.Srikanth Hariharan, learned counsel for respondents. Perused the
record.
12. A perusal of the record discloses that both the Courts below
concurrently held that the plaintiffs failed to prove their title and
possession over the plaint schedule properties as their evidence is no
cogent and convincing and as such plaintiffs are not entitled for any of
the reliefs claimed in the plaint.
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13. Learned counsel for appellants vehemently argued that the trial
Court decreed 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.
14. However, learned counsel for appellants 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.
15. 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.
16. 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
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17. Having considered the entire material available on record and the
findings recorded by the trial Court as well as the 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.
18. 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:05.02.2024
Dua
LNA, J
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
05.02.2024
Dua
