Telangana High Court
Nazeema Begum vs Cheema Venkatamma on 6 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.44 of 2024
JUDGMENT:
The Second Appeal is filed against the judgment and
decree dated 05.06.2023 in A.S.No.18 of 2016 on the file of the
Principal District Judge, Vikarabad District, wherein the
judgment and decree dated 06.05.2016 in O.S.No.13 of 2004 on
the file of the Junior Civil Judge, Pargi, Ranga Reddy District,
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 the plaintiff is the owner and exclusive possessor of the
agricultural land in Survey No.39 admeasuring Ac.2-00 gts
situated at Thiammipally village Doma Mandal, R.R.District
(herein after referred to as 'suit schedule property') and the
same is succeeded to the plaintiff through her ancestors under
proceeding No.B/297/2003 dated 30.01.2003 of MRO, Doma
Mandal. The defendants, being unconcerned with the said land,
tried to occupy the said land illegally on 12.03.2004, however,
the same was resisted by the plaintiff. Therefore, the plaintiff
has filed a suit vide O.S.No.13 of 2004 on the file of the Junior
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Civil Judge, Pargi, Ranga Reddy District, for perpetual
injunction against defendant Nos.1 and 2 in respect of the suit
schedule property.
4. Defendant Nos.1 and 3 have filed the written statement,
inter alia, contending that one late Khaja Moinuddin, who is the
husband of defendant No.1, had purchased a plot measuring
750 sq.yards in Survey No.39 of Thimmaipally Village through
an unregistered sale deed dated 10.03.1973 for construction of
house. The said plot is situated towards Southern side of the
suit schedule property and it is separate from the suit schedule
property. Further, defendant Nos.1 and 3 erected a hut in part
of the said plot and in the remaining plot, they raised
eucalyptus trees.
5. It is contended that late Khaja Moinuddin, during his life
time, had obtained permission dated 10.06.1999 from the
Grampanchayat Utwally, for construction of a house and
subsequent to his death, defendant No.1 had obtained renewal
permission dated 25.04.2003 from the said Grampanchayat.
However, the plaintiff having no right illegally tress passed into
the said plot on 29.03.2004 and cut down the eucalyptus trees
and set them fire. Therefore, defendant No.1 lodged a complaint
against the plaintiff and others in Doma Police Station and the
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same was registered as Crime No.12 of 2004. It is contended
that the plaintiff, with a mala fide intention to grab the land of
defendant No.1, is trying to occupy the said land. Hence, they
prayed to dismiss the suit.
6. Defendant No.2 had also filed her written statement
alleging that she had purchased Ac.0-02 gts of land under a
registered sale deed in the year 1992 in Survey No.39 of
Thimmaipally village and Ac.0-06 gts of land under private sale
deed in the year 1983 in Survey No.39 of Thimmaipally Village,
which was validated through a proceeding under the Record of
Rights Act, 1993. Thus, defendant No.2 is in possession and
enjoyment of Ac.0-08 gts of land in Survey No.39 of
Thimmaipally Village. Thereafter, she had constructed two
houses in a part of the said land and kept the remaining land
vacant and using the same for storing wood etc. Further, she
had denied the remaining case of the plaintiff and prayed to
dismiss the suit.
7. Before the trial Court, on behalf of the plaintiff, PW1 and
PW2 were examined and Exs.A1 to A3 were marked. On behalf
of the defendants, DW1 to DW6 were examined and Exs.B1 to
B4 were marked.
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8. The trial Court, after considering the entire material
available on record, vide its judgment and decree dated
06.05.2016, observed that the plaintiff established his
possession in respect of suit schedule property as on the date of
filing of the suit and thus, the plaintiff is entitled to the
perpetual injunction as prayed for.
9. The first appellate Court on re-appreciation of the entire
evidence and perusal of the material available on record vide
judgment and decree dated 05.06.2023 dismissed the appeal by
observing as under:
"As rightly held by the learned Trial Judge, when
in Ex.B-3 pass book at Sl.No.2 the land is described as
39-A to an extent of Ac.0-08 gts, it is the bounden duty of
the defendant No. 2 to explain that the said land and the
land claimed by the plaintiff in survey No. 39 are one and
the same. There is no pleading to that extent and also the
defendant No.2 failed to explain how the sub number 'A'
was suffixed.
Thus, from the evidence let in by the plaintiff as
P.W-1 coupled with Exs. A-1 to A-3, the plaintiff could
successfully prove his possession as a rightful owner and
on the other hand, the defendant No. 2 miserably failed to
produce any documentary evidence as to purchase of
land to an extent of Ac.0-06 gts under a private sale deed.
It is the contention of defendant No.2 that the court below
failed to ignore the fact that the authorities under ROR Act
will validate the unregistered sale deeds by receiving the
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originals and issue the certificate under Rule 13(B) and
13(C) of the Act. But it is significant to note that the
defendant No. 2 though produced Ex.B-2/13-B form
showing that she purchased Ac.0-06 gts from Chandraiah
and Lalaiah, but Ex.B-2 does not disclose the boundaries
of Ac.0-06 gts and the sketch which is said to be annexed
to Ex.B-2 at the time of issuing the same. Therefore, in the
absence of showing any topography or boundaries in
Ex.B-2, the said document is no way helpful to the case of
the prosecution.
Thus, upon scrutiny of the judgment of the trial
court, the learned trial judge having considered the oral
and documentary evidence in a right perspective and
came to a right conclusion that the plaintiff is in peaceful
possession and enjoyment of the suit schedule land and
on the other hand the defendants failed to make out any
case against them. Therefore, there is nothing coming on
record to interfere with the finding of the trail court in
granting perpetual injunction in favour of the plaintiff."
10. Heard Mr.Suresh Kumar, learned counsel for the
appellant. Perused the record.
11. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiff established her
possession in respect of the suit schedule property as on the
date of filing of the suit and thus, the plaintiff is entitled to the
perpetual injunction. Further, it has been held that the
defendants are failed to establish their case.
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12. Learned counsel for appellant vehemently argued that the
trial Court dismissed 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.
13. 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.
14. 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.
15. 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
(2007) 1 Supreme Court Cases 546
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only where a substantial question of law is raised and fell for
consideration.
16. 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.
17. 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:06.02.2024
Dua
