Telangana High Court
Odela Ramulu, vs The Commissioner, on 6 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.98 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree, dated 26.08.2022, passed in A.S.No.113 of 2018 on the file
of the Court of Principal District Judge, Sangareddy, wherein and
whereby the judgment and decree dated 06.04.2018 passed by the
Principal Junior Civil Judge, Sangareddy, in O.S.No.290 of 2013,
was confirmed.
2. The appellant is the plaintiff and the respondent is the
defendant in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The case facts, in brief, which led to filing of the present
Second Appeal are that the appellant/plaintiff filed the suit seeking
perpetual injunction. In the plaint, the plaintiff inter alia averred
that he is the owner and possessor of house bearing No.1-1-61/1,
situated at Chenna Basweshwar Mandir area, Sadasipet town,
Medak District and also the land appurtenant to the said house
bearing No.1-1-622, which is the suit schedule property, and he
purchased the same from one Umeth Basappa under registered sale
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deed, dated 15.03.1982. He had installed a water tap connection in
pursuance of Ex.A-6-approved sketch map. In the year 2006, he
constructed toilet with septic tank, having obtained permission and
the defendant had approved the construction of the same by issuing
sanctioned plan. It is further averred that in compliance of the
proceedings dated 20.11.2006, which is marked as Ex.A-10, he
changed the nature of latrine from dry to flush. However, the
defendant issued notice dated 08.11.2013 alleging that the
constructions in the suit schedule property are illegal and had to be
removed. Hence, the suit.
4. The defendant filed the written statement denying the
contentions of the plaintiff and stated that the plaintiff had
encroached upon the open land i.e., the suit schedule property over
which he had no right; that no permission was granted either under
Ex.A-6 or Ex.A-10 to construct the compound wall, latrine and
septic tank in the suit schedule property; that the plaintiff is
misusing the judgments rendered in O.S.No.99 of 1997 and
A.S.No.17 of 2002 and raised unauthorized constructions by
occupying the suit schedule property and therefore, the same have
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to be demolished which is the duty of the defendant; and that the
plaintiff has no right to oppose the same and obtain an injunction.
5. In support of his case, the plaintiff got himself examined as
PW-1 and also examined PW-2 and got marked Exs.A-1 to A-15.
On behalf of the defendant, DW-1 was examined, but no
documents were marked.
6. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 06.04.2018, observed that the suit schedule property in
O.S.No.99 of 1997 and the suit schedule property in the suit are
one and the same and on perusal of Ex.A-7-certified copy of the
judgment passed in O.S.No.99 of 1997, which is filed by the
vendor of the plaintiff i.e., one U.Basappa against the plaintiff
herein, it is evident that a specific finding was rendered therein
against the plaintiff holding that he does not have any right, title or
interest over the suit schedule property. It was further observed that
the notice under Ex.A-11 issued by the defendant basing on the
findings recorded in the judgment in OS.No.99 of 1997, marked as
Ex.A-7, became final as the plaintiff did not prefer any appeal
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against the said finding. It was further observed that the plaintiff
failed to file the registered sale deed through which he purchased
the house and as such, in view of Section 114 of the Evidence Act,
1872, an adverse inference has to be drawn. The trial Court held
that the plaintiff who does not have any right or interest over the
suit schedule property is not entitled for the decree of perpetual
injunction and accordingly, dismissed the suit.
7. 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 judgment passed in O.S.No.99 of
1997, the court found that the plaintiff had no right or title over the
suit schedule property since he had purchased only 195 square
yards under the registered sale deed and the said judgment became
final as the plaintiff did not prefer any appeal. It was also observed
that the plaintiff neither filed the sale deed nor the original
construction permission before the court and further, the record
clearly disclosed that no permission was granted by the defendant
for construction of latrine, septic tank or compound wall in the suit
schedule property. Further, the first Appellate Court observed that
in the face of the specific findings in the judgment in O.S.No.99 of
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1997, marked as Ex.A-7, and in view of lack of any cogent
material produced by the plaintiff to support his claim of
injunction, the same cannot be granted and thus, dismissed the
appeal.
8. The respondent filed counter-affidavit in the present appeal
stating that the appeal grounds do not constitute the substantial
question of law and hence, the appeal is liable to be dismissed as it
is not maintainable.
9. Heard Sri Palle Sriharinath, learned counsel for the appellant
as well as Sri B.Jagan Madhav Rao, learned counsel for the
respondent, and perused the record.
10. A perusal of the record discloses that both the Courts below
concurrently held that the plaintiff does not have any right, title or
interest over the suit schedule property in order to grant the relief
sought for and accordingly, negatived his claim.
11. Learned counsel for appellant 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.
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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.
15. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
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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.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:06.02.2024
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