Telangana High Court
Bairi Venkatrajam, vs Bairi Bose on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.435 of 2023
JUDGMENT:
Aggrieved by the judgment and decree, dated 01.8.2023,
passed in A.S.No.185 of 2019 on the file of the I Additional
District Judge, Hanumakonda, whereunder and whereby the
judgment and decree dated 25.6.2019 passed by the VII Additional
Junior Civil Judge, Warangal, in O.S.No.596 of 2013, was
confirmed, the present Second Appeal is filed.
2. The appellant is the plaintiff and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the
present Second Appeal, are that the plaintiff is the owner and
possessor of the suit schedule property having purchased the same
from one Vaddemanukota Ramesh, S/o late Sammaiah and
another, through registered sale deed vide Doc.No.5427/2011,
dated 18.08.2011 and since then he has been in peaceful possession
and enjoyment of the same. The plaintiff contended that originally
one Vaddemanukota (Chakali) Narsaiah is the pattadar of the said
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property. The grandfather of the plaintiff's vendor died leaving
behind his son V.Sammaiah as his legal heir who inherited the suit
schedule property. After the demise of said V.Saminaliah, the
plaintiffs vendors inherited the suit schedule property as 'his legal
heirs. The plaintiff further contended that defendant No.1-his
natural brother and defendant No.2-wife of defendant No.1, who
are no way concerned with the suit schedule property, on
05-06-2013, tried to interfere with his peaceful possession of the
plaintiff suit schedule property to grab away the same. Hence, the
suit seeking the relief of permanent injunction restraining the
defendants and their followers, etc., from interfering with the
peaceful possession and enjoyment of the plaintiff over the suit
schedule property.
4. The defendants filed the written statement denying all the
plaint averments except their relationship with the plaintiff. They
contended that the name of defendant No.1 is 'Rajabose' but not
'Bose', therefore, the plaintiff ought to have filed a suit for
declaration. They further contended that the suit schedule property
is not a vacant land, as stated by the plaintiff, since there is a house
bearing No.1-64 situated in the suit schedule property and the
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boundaries given in the suit schedule are incorrect. They
specifically contended that defendant No.2, who is the absolute
owner and possessor of the said house, had gifted the same to his
wife-defendant No.1 vide Doc.No.1364/2009 and the boundaries of
the said property are entirely different from the boundaries shown
in the plaint schedule. As such, the plaintiff is not the owner of the
suit schedule property. They further contended that the alleged sale
deed, dated 18-08-2011, was brought into existence by the
plaintiff, in collusion with Vaddemanukota Ramesh and his brother
Rajkumar, to grab the suit schedule property of defendant No.2.
Therefore, the alleged vendors of the plaintiff were also not the
owners of the suit schedule property nor they have got marketable
title or transfer in the suit schedule property. The House bearing
No.1-64 is situated in the land measuring 502-50 square yards
belonging to defendant No-2, whereas the plaintiff filed the above
suit in respect of the land measuring 92.36 square yards and not a
single boundary shown in the plaint schedule is tallied with
boundaries of the property belonging to the defendant No-2.
4.1. The defendants further contended that the defendant No.1
constructed a tin shed bearing G.P.No.1-64 way back in the year
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1983 and have been residing therein with and also have been
paying property tax since the last 30 years.
4.2. It was further averred that the property bearing
G.P.No.1-64 is measuring '502-50' square yards and not '92-36'
yards as shown in the plaint schedule. That on obtaining
permission from Grama Panchayat, Paidipally, the defendants got
constructed compound wall around the said house in the year 2012.
Hence, the defendants prayed to dismiss the suit.
5. Basing on the above pleadings, the trial Court framed the
following issues:-
"1. Whether the plaintiff is in lawful possession of suit
schedule property as on the date of filing of the suit?
2. Whether the defendants herein causing interference to
such possession of the plaintiff over the suit schedule
property?
3. If so, whether the plaintiff herein is entitled to relief of
permanent Injunction against the defendants, as prayed
for?
4. To what relief?"
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6. To substantiate his case, the plaintiff himself got examined
as PW1 and also examined one D.Venu as PW2 and got marked
Exs.A-1 to A-9. On behalf of defendants, defendant No.1 got
himself examined as DW1 and got marked Exs.B-1 to B-18.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 25.6.2019, dismissed the suit observing that the plaintiff
failed to prove his right over the suit schedule property and
accordingly, held that the plaintiff is not the owner of the property.
8. On an appeal being filed, the first Appellate Court, being the
final fact-finding Court, re-appreciated the entire evidence and the
material available on record and observed that except the pahanies,
no documents were field by the plaintiff to show that his vendors'
family was in possession of the suit schedule property. The first
Appellate Court further observed that the plaintiff failed to prove
his possession and enjoyment over the suit schedule property and
accordingly, dismissed the appeal vide judgment dated 01.8.2023.
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9. Heard Sri Venkatram Narsaiah, learned counsel for the
appellant, and Sri Yadagiri Mailaram Rao, learned counsel for the
respondents. Perused the record.
10. Learned counsel for appellant 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.
11. A perusal of the record discloses that both the Courts below
concurrently held that the plaintiff failed to prove his possession
and enjoyment over the suit schedule property and accordingly,
negatived the relief sought for by him.
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
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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 fall for
consideration.
15. 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 appellant are factual in
nature and no question of law much less 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.
(2007) 1 Supreme Court Cases 546
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17. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
15.02.2024
dr
