Telangana High Court
Cherukumalli Govinda Rao Died vs Grampanchayath Office Kodad on 13 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.446 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 23.06.2023 passed in A.S.No.2 of 2019 on the file
of the Principal District Judge, Suryapet, wherein the judgment
and decree dated 20.12.2018 passed in O.S.No.480 of 2014 on
the file of the Senior Civil Judge, Huzurnagar, 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 filing of the present Second Appeal
are that plaintiff No.1 (died) was in exclusive possession with
ownership over the land situated in survey No.1 and 2, Kodad
revenue village (hereinafter referred to as the "suit schedule
property") and he had purchased the suit schedule property
about 30 years back in oral transaction and the person, who
sold the property to the plaintiff, also acquired the same in the
oral transaction from its owners. Therefore, there are no
documents in respect of suit schedule property with plaintiff
No.1 except the property tax receipts.
LNA, J
4. It is contended that the Wakf Board of A.P. is also
claiming the entire land of Ac.7.09 gts, in survey Nos.1 and 2 of
Kodad revenue village, which includes suit schedule property;
that as a matter of fact, the Wakf Board of A.P. has no right
over the said property, since it was the service inam land and
the inam holders alienated the said property to different
individuals and that those individuals constructed houses,
shops and other structures. The Wakf Board of A.P. issued
notice to several persons in the year 2002 itself, but notice was
not served on plaintiff No.1. The A.P. Wakf Board filed writ
petition vide W.P.No.24702/2002 and obtained interim
direction from the erstwhile High Court for the States of
Telangana and Andhra Pradesh, Hyderabad in W.P.M.P.No.
31095 of 2002 and the defendant herein is a party to the
petition and the said writ proceedings are still pending.
5. It is further contended that four days prior to filing of the
suit, the defendant started demolishing certain very old
structure claiming that the land belongs to the defendant; that
the structures were raised in the land in survey Nos.1 and 2 of
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Kodad revenue village, over which, the defendant has no right.
Hence, the plaintiffs filed the suit.
6. The defendant had filed written statement denying the
averments of the plaint inter alia contending that Ac.0-36 gts in
survey No.1 of Kodad belongs to Grampanchayat, Kodad. Before
the merger of Hyderabad State into Union of India, the said
area was used by Nizam Government for customs and exchange
of currency purposes in the name of 'Karodgiri' and ' Naka' and
subsequent to formation of A.P. State, the Government of
Andhra Pradesh vide G.O.Ms.No.1936, dated 07.08.1959 of
Public Works Department, the entire customs naka building
area was transferred to Panchayat Office, Kodad. Subsequently,
the Gram Panchayat, Kodad had constructed two new buildings
and using third old building and the remaining area which is
part and parcel and abutting to it, is kept vacant. Further, in
the open place of Grampanchayat, Kodad, several small and
petty vendors with the permission of Gram Panchayat, Kodad,
carried on their petty business by paying land rent to Gram
Panchayat, Kodad. Plaintiff No.1 was one among them and he is
running his petty shop Nos.38 to 40.
LNA, J
7. It is further contended that after receipt of the report of
the Executive Engineer (PR), Miryalguda, the Grampanchayat,
Kodad, on 22.12.2006, in their council meeting, decided to
construct a shopping complex building after demolition of the
structure bearing Gram Panchayat door No.2-232/2 of Kodad
and for which, they obtained permission from the District
Collector (Pt. Wing), Nalgonda, vide office proceedings
No.373/07. B3(Pts), dated 16.04.2007 and dismantled the
same.
8. While the matter stood thus, the Wakf Board put up a
claim contending that the area proposed to build shopping
complex by Grampanchayat, Kodad, is part of their Wakf
property. The Grampanchayat, Kodad contested their claim.
The Gram Panchayath, Kodad, and the then Sarpanch had filed
a W.P.No.8524/2008 before the Hon'ble High Court of Andhra
Pradesh claiming that right and title over Ac.0.36 gts of land in
survey No.1 of Kodad and the matter is pending for enquiry;
that the entire property including the suit land is part and
parcel of property of Gram Panchayat, Kodada, now it is the
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property of Municipality, Kodad. Hence, the defendant prayed
to dismiss the suit.
9. Before the trial Court, on behalf of the plaintiffs, PW1 to
PW3 were examined and Exs.A1 to A12 were marked. On
behalf of the defendant, DW1 to DW3 were examined and no
document was marked.
10. The trial Court, after considering the entire material
available on record, dismissed the suit with costs vide judgment
and decree dated 20.12.2018. Aggrieved by the judgment and
decree dated 20.12.2018, the plaintiffs have filed A.S.No.02 of
2019. The first appellate Court on re-appreciation of the entire
evidence and perusal of the material available on record vide
judgment and decree dated 23.06.2023 dismissed the appeal
confirming the judgment and decree passed by the trial Court.
Hence, the present second appeal.
11. Heard Sri Pasham Ravindra Reddy, learned counsel for
the appellants. Perused the record.
12. A perusal of the record discloses that both the Courts
below concurrently held the defendant has not filed any
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document in proof of their claim and that at the same time the
Wakf Board is also claiming right over the said property and the
writ petitions vide Ex.A11 and A12 are pending before the
Hon'ble High Court of Andhra Pradesh. Further, the Courts
below held that in view of the pending litigation with regard to
title to the suit schedule property, the suit filed by the plaintiff
for perpetual injunction is not maintainable without seeking
relief of declaration of title.
13. Learned counsel for the appellants 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.
14. However, learned counsel for the 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.
LNA, J
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.
17. 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
appellants are factual in nature and no question of law, much
less, a substantial question of law arises for consideration in
this Second Appeal.
(2007) 1 Supreme Court Cases 546
LNA, J
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: 13.02.2024
Dua
