Telangana High Court

Hazrath B Rao vs Mirza Hashim Ali Baig on 13 February, 2024

      HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               SECOND APPEAL No.329 of 2023

JUDGMENT:

This Second Appeal is filed challenging the judgment and

decree dated 16.03.2023 passed in A.S.No.21 of 2016 on the

file of the VIII Additional District and Sessions Judge, Ranga

Reddy District, L.B.Nagar, wherein the judgment and decree

dated 06.05.2015 passed in O.S.No.1613 of 2007 on the file of

the I Additional Junior Civil Judge, Ranga Reddy District,

L.B.Nagar 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 plaintiffs are owners of the agricultural land in survey

No.118 admeasuring Ac.3-18 gts situated at Jalpally village

(hereinafter referred to as 'suit property') and they have been

cultivating the land by passing over the lands of the defendant.

The defendant carries the business of real estate and

purchased his lands only a few months back and approached

the plaintiffs to purchase their lands, but the plaintiffs refused

to sell away their lands. Thereafter, the defendant had illegally

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converted the agricultural land for non-agricultural purposes

and started constructing parapet wall on the boundaries

separating his land and the plaintiff's land. The plaintiffs have a

right of easement to pass through the lands of the defendant

and that this right was exercised not only by the plaintiffs but

also their predecessors and further, they have no other

alternative way to reach their land. The plaintiffs approached

the defendant requesting him to leave some space between the

parapet walls for the plaintiffs to have access to their land, but

the defendant refused the same. Therefore, the plaintiffs got

issued registered legal notice dated 19.12.2006 to the

defendant. Hence, the suit.

4. The defendant had filed a written statement denying the

contents of the plaint inter alia contending that the defendant

had purchased a land admeasuring Ac.0-13 gts., in Sy.No.122,

situated at Jalpally Village, Saroornagar Mandal, Ranga Reddy

District through registered sale deed document No.7752/2006,

dated 06.04.2006 and also constructed compound wall

encircling the said land including the other lands. Thereafter,

the plaintiffs mounted pressure on the defendant to part with

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the said land and the same was not entertained by the

defendant. Therefore, the plaintiffs filed the present suit with

false allegations.

5. It is contended that the plaintiff is claiming suit property

and coming to the schedule of property, the plaintiff alleges that

the said land is falling within the ambit of Sy.No.48, which itself

shows that the plaintiffs never enjoyed any right of easement

more particularly the alleged easement right necessity either by

himself or their predecessors in title and when such is the case,

the question of the defendant trying to obstruct or prevent the

plaintiffs from exercising the alleged right, which was enjoyed

by the plaintiffs from the time immemorial, does not arise.

Further, it is contended that the defendant did not receive any

legal notice from the plaintiffs and the plaintiffs also failed to

specify the boundaries of the suit property.

6. It is further contended that the road from Jalpally to

Mamidipally lies on the North-South direction to the land

allegedly owned by the plaintiffs and there is also an approach

road in East-West direction from the main road to the land

owned by the plaintffs and thus, there is abundant access to

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the lands, as such the above suit is liable to be dismissed.

Further, the plaintiff failed to prove any of the ingredients of the

Section 13 of the Easementary Act. Hence, prayed to dismiss

the suit.

7. Before the trial Court, on behalf of the plaintiffs, PW1 to

PW4 were examined and Exs.A1 to A12 were marked. On

behalf of the defendant, D.W.1 was examined and Exs.B1 to B7

were marked.

8. The trial Court, after considering the entire material

available on record, decreed the suit with costs vide judgment

and decree dated 06.05.2015 and directed the defendant to

remove the parapet wall to the extent of 10 feet, over the

boundaries separating his land and the plaintiffs' land and also

granted perpetual injunction restraining the defendant, his

agents or any person claiming through him, from obstructing

the plaintiffs from using the way to reach suit property.

9. Aggrieved by the judgment and decree dated 06.05.2015,

the defendant has filed A.S.No.21 of 2016. The first appellate

Court on re-appreciation of the entire evidence and perusal of

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the material available on record vide judgment and decree

dated 16.03.2023 dismissed the appeal confirming the

judgment and decree passed by the trial Court. Hence, the

present second appeal.

10. Heard Sri Koppula Gopal, learned counsel for the

appellant. Perused the record.

11. A perusal of the record discloses that both the Courts

below concurrently held that the plaintiffs have established the

boundaries to support their case that there is no other

alternative way to approach the suit property and thereby,

burden casts upon the defendant to adduce evidence to

establish their case that there is a alternative road to the

plaintiffs, but the defendant is failed to do so.

12. Learned counsel for the 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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13. Learned counsel for the appellant has raised specific

contention that the first appellant Court failed to exercise the

powers conferred under Order XLI Rule 31 of C.P.C., and also

failed to frame the points/issues for consideration and did not

independently evaluate the evidence on record. A perusal of the

judgment passed by the first appellate Court would reveal that

though, specific points/issues were not framed, the first

appellate Court had elaborately discussed the evidence placed

on record by both the parties and also recorded reasons for

conclusions.

14. The Hon'ble Apex Court in the case of Laliteshwar

Prasad Vs. S.P.Srivastava (D) through L.Rs 1 held that as per

Order XLI Rule 31 of CPC, the judgment of the first appellate

Court must explicitly set out the points for determination,

record its reasons thereon and to give its reasonings based on

evidence. Further, the Hon'ble Apex Court also held as follows:

"It is well settled that the first appellate Court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate Court provided that

(2017) 2 SCC 415

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the first appellate Court records its reasons based on evidence adduced by both the parties."

In the light of the above decision of the Hon'ble Apex Court, the

contention raised by learned counsel for the appellant that the

first appellate Court failed to exercise powers under Order XLI

Rule 31 of CPC is unsustainable.

15. Further, learned counsel for appellant failed to raise any

further 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.

16. 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