Telangana High Court
Mohd. Azeemuddin vs V. Seetharamaiah on 14 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.404 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 20.01.2023 passed in A.S.No.73 of 2018 on the
file of the I Additional District Judge, Mancherial, wherein the
judgment and decree dated 23.01.2018 passed in O.S.No.617 of
2007 on the file of the Principal Junior Civil Judge, Mancherial,
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 the plaintiffs are the owners and possessors of house
plot measuring 654 sq.yards in Sy.No.208, Mancherial
(hereinafter referred to as 'suit land') and the suit land is
ancestral property. After family partition, the father of plaintiffs
got share of total Ac.4-39 guntas of land in survey No.208,
Mancherial, and out of which, the plaintiffs have sold various
house sites to different persons. The suit land is an open plot
and it is covered by adjacent plot of defendant No.2.
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4. It is contended that the defendant No.1 has purchased
1200 sq.yards from one Kodapaka Raju under registered sale
deed, who in turn, purchased the same from the plaintiffs in
the year 1996 through registered sale deed. However, the
dimensions of 1200 sq.yards acquired by Kodapaka Raju, and
the land alienated by him to defendant No.1, is not one and the
same. Thereby, defendant No.1, by changing the dimensions,
has been trying to encroach about 20 feet land towards
Southern side of the house plot.
5. It is further contended that defendant No.3 is stranger to
the suit land and he did not have any title to the suit land. The
defendant No.3 has purchased some other land from some
other persons in Sy.No.207 and tried to interfere over the suit
schedule property with a malafide intention to grab the suit
land. On 09.12.2007, the defendants came to the suit land and
tried to occupy the same by force, however, the plaintiffs
resisted the illegal acts of the defendants. Hence, the suit.
6. Defendant Nos.1 and 2 have filed a written statement
denying the contents of the plaint inter alia contending that
defendant No.1 has purchased 1200 sq.yards of land in
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Sy.No.208, Mancherial from Kodapaka Raju through registered
sale deeds from his vendor Kodapaka Raju and there was no
excess land found towards northern side as claimed by the
plaintiffs. It is contended that mutation has been taken place in
favour of defendant No.1 and the defendant No.1 has made six
plots in 1200 sq. yards and he gifted one of such plot to his wife
i.e., defendant No.2, and they constructed individual houses in
the said six plots having obtained permission from the
Municipality of Mancherial.
7. It is further contended that the plaintiffs herein and
Kodapaka Raju in collusion with each other obstructed the
construction by defendant Nos.1 and 2 by demanding huge
amount. Therefore, defendant No.2 has filed suit in O.S.No.587
of 2007 against the plaintiffs herein and Kodapaka Raju,
wherein the Court has granted ad-interim injunction vide
I.A.No.1524 of 2007. Further it is contended that the plaintiffs,
in order to extract money from the defendants, have filed the
present suit. Therefore, they prayed to dismiss the suit.
8. Defendant No.3 had also filed the written statement
denying the averments of the plaintiffs inter alia contended that
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the documents filed by the plaintiffs did not prove that the suit
land is within the boundaries as mentioned in the schedule and
that the plaintiffs are owners and possessors of the suit land. In
fact, physically no open land is existing as pleaded by the
plaintiffs and thereby, the possession of the plaintiffs over 654
sq.yards of land in Sy.No.208 does not arise. It is further
contended that defendant No.3 is the owner and possessor of
house plot measuring 437 sq.yards in Survey No.207 of
Mancherial.
9. After filing of the written statement by the defendants, the
plaintiffs with the permission of the Court vide I.A.No.696 of
2013 have filed rejoinder by denying the assertions in the claim
of the defendants. It is contended that defendant No.1 has
executed registered gift deed in favour of defendant No.2 by
showing wrong boundaries and that Northern side boundary
belongs to the plaintiffs and Kamma Shivaiah has no right over
the suit schedule property. The plaintiffs have also stated that
defendant Nos. 1 and 2 have no right to proceed with the
construction during pendency of trial, thus the acts of the
defendant Nos. 1 and 2 upon the suit land is a clear case of
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abuse of process of Law. It is contended that at the time of filing
of the suit, the suit land was open land and there was no
construction and defendant Nos. 1 and 2 have encroached the
plot of the plaintiffs to an extent of 20 feet towards Northern
side and constructed the building illegally.
10. Before the trial Court, on behalf of the plaintiffs, PW1 and
PW2 were examined and Exs.A1 to A9 were marked; on behalf
of the defendant, DW1 and DW2 were examined and Exs.B1 to
B21 were marked and the advocate commissioner's report
dated 25.04.2015 is marked as Ex.C1.
11. The trial Court, after considering the entire material
available on records, had decreed the suit vide judgment and
decree dated 23.01.2018, by observing as under:
"The advocate commissioner report under Ex.C1
shows that the advocate commissioner has measured
the suit schedule property in pursuance of the orders of
this Court and found that the northern side to the land
of defendant Nos.1 and 2 there existing the property of
PW1.
Thereby, mere injunction suit is not maintainable
when defendant No.3 is said to be in the possession of
the property, which claimed to be belongs to plaintiffs.
LNA, J
Thereby, having admitted that the open plot of Kamma
Shivaiah, which is situated towards northern side of
house of defendant Nos.1 and 2 and further no steps
taken to amend the suit either for declaration of title or
recovery of possession from defendant No.3 is fatal to
the case of the plaintiffs."
12. Aggrieved by the judgment and decree dated 23.01.2017,
the defendants have filed A.S.No.73 of 2018 before the I
Additional District Judge, Mancherial. The first appellate Court
on re-appreciation of the entire evidence and perusal of the
material available on record vide judgment and decree dated
20.01.2023 dismissed the appeal by observing that the suit is
maintainable when the plaintiffs have been in possession, when
they admit the possession of defendant No.3, then there is no
question of maintainability of perpetual injunction suit against
the defendants. Hence, the present second appeal.
13. Heard Sri A.Gangadhar, learned counsel for appellants.
Perused the record.
14. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiffs have failed to
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establish that they were in lawful possession over the suit
schedule property as on the date of filing of the suit.
15. 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.
16. Learned counsel for the appellants relied upon the
following decisions:
i) Ananthula Sudhakar vs. P.Buchi Reddy
(dead) by LRs. and others 1;
ii) Rattan Dev vs. Pasam Devi 2; and
iii) Malluru Mallappa (dead) through Legal
representatives vs. Kuruvathappa and
others 3
17. The facts in Ananthula Sudhakar (supra) does not apply
to the facts of the present case and in fact, it mandates filing of
suit for declaration and possession, where the plaintiff's title is
under a cloud and he does not have possession. It is relevant to
(2008) 4 SCC 594
(2002) 7 SCC 441
(2020) 4 SCC 313
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note that the same observation has been made by the learned
trial Court while dismissing the suit.
18. The other two decisions relied upon by the learned
counsel for appellants do not come to the aid of the appellants.
19. 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.
20. 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.
21. Further, in Gurdev Kaur v. Kaki 4, 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
LNA, J
only where a substantial question of law is raised and fell for
consideration.
22. 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.
23. 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:14.02.2024
Dua
