Telangana High Court
Abdul Raheem vs Syed Sadullah Shah Quadri Died on 19 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.17 of 2024
JUDGMENT:
The present Second Appeal is filed aggrieved by the
judgment and decree, dated 17.08.2023, passed in A.S.No.203 of
2016 on the file of the Court of IX Additional Chief Judge, City
Civil Court, Hyderabad, whereunder the judgment and decree
dated 01.06.2016 passed by the XVII Additional Senior Civil
Judge, City Civil Court, Hyderabad, in O.S.No.1699 of 2012 was
confirmed.
2. The appellant is the defendant and respondent No.1 is the
plaintiff in the suit. Since respondent No.1 died, he is represented
by his legal heirs i.e., respondent Nos.2 to 4 herein. For
convenience, hereinafter the parties are referred to as they are
arrayed in the suit.
3. The facts of the case in nut-shell leading to filing of the
present Second Appeal are that the suit was filed for recovery of
possession of the suit schedule property. The plaintiff inter alia
stated in the plaint that one Syed Shah Ismail Quadri was the
owner and possessor of the suit schedule property and he died
issueless. As such, the father of the plaintiff succeeded to his
property by virtue of a decree in O.S.No.3829 of 1983 on the file
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of X Assistant Judge, City Civil Court, Hyderabad. Subsequently,
on the death of his father on 06.07.1993, the plaintiff and his two
brothers succeeded to the said property.
3.1. It was further averred that during the life time of the said
Syed Shah Ismail Quadri, the father of the defendants by name
Shaik Bande Ali was engaged as a servant to sweep and keep clean
the Dargah apart from pulling cycle rickshaw and on his request,
the plaintiff's father with the consent of the said Syed Ismail Shah
Quadri provided a shelter in the said house having two rooms,
admeasuring an extent of 50 square yards. Even after the death of
the defendant's father, the defendant with his family was permitted
to continue the occupation of the said house only on the
consideration that his father-Shaik Bande Ali served the
Muthawalli-Syed Shah Ismail Quadri, the father of the plaintiff and
also served the Dargah.
3.2. The plaintiff stated that since the life time of Syed Shah
Ismail Quadri and Moinuddin Shah Quadri, the portions of said
house were let out to various tenants and most of the tenants were
evicted through process of law and lastly, one tenant in collusion
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with one Shaik Mahaboob Ali claimed ownership of the entire
house and filed Civil Suit in O.S.No.5784 of 1987 and the said suit
was dismissed. The two appeal preferred against the said judgment
and decree were also dismissed and as such, the said portions were
vacated after informing to the plaintiff who took possession as the
elder son and the plaintiff is serving Dargah and maintaining the
house.
3.3. It was further averred that as the plaintiff felt necessity of
the suit premises, he demanded the defendant to vacate the
possession by the end of January 2012, but defendant did not
comply the demand and as such, the plaintiff got issued the legal
notice dated 15-06-2012 demanding the defendant to vacate, but as
the defendant did not vacate even after receiving the notice, the
present suit was filed.
4. The defendant filed written statement inter alia denying the
ownership and possession of the suit schedule property by the
father of the plaintiff and later on his death, the plaintiff along with
his two brothers succeeded to the said property.
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4.1. It was specifically pleaded that the defendant along with
his family was residing in house bearing H.No.13-2-1234/A/2,
whereas the Municipal Number of the suit schedule house is
13-1-1234/A. Thus, the suit schedule property and the property of
the defendant are very much different. Hence, he prayed to dismiss
the suit.
5. Basing on the above pleading, the trial court framed the
following issues for trial:-
"(1) Whether he plaintiff is entitled for the relief of
eviction as prayed for?
(2) To what relief?
6. During trial, the plaintiff got himself examined as PWI and
marked Exs.A-l to A-7 and on the defendant's side, DW1 was
examined and Exs.B1 to B-3 were marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, vide judgment
dated 01.06.2016, decreed the suit by observing as under:-
"The defendant failed to prove that the suit schedule
property is different from the property in his possession
as he failed to prove the existence of house No.13-1-
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1234/A/2 as he failed to file any documents and
municipality records to show that he is the owner of the
said property and he succeeded the same and in the
absence of any documents filed by the defendant to
establish that the property in his possession is different
from the suit schedule property, I am of the opinion that
in the absence of any documents filed by the defendant,
the property which is in possession of the defendant is
the suit schedule property which is the portion of 13-1-
1234/A and as the plaintiff proved to be the successor of
the property from the father along with his brothers, he
is entitled to issue Ex.A1 legal notice for possession of
the suit schedule property from the defendant and as
such I hold that the plaintiff proved the suit claim
against the defendant and the defendant is liable to
handover the possession of the suit schedule property to
the plaintiff.""
8. The first Appellate Court, being the final fact-finding Court,
re-appreciated the entire evidence and the material available on
record and observed that though the defendant contended that he is
residing in H.No.13-1-1234/A/2, he did not file any title deed or
any property receipt or electricity receipt pertaining to the said
house. It further observed that even in Ex.A-7-Gift settlement deed
executed by the defendant in favour of his wife, the House number
is shown as 13-1-1234/A, but in Exs.B-1 and B-2-Aadhar Cards of
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the defendant and his wife, distinct house property is shown.
Ultimately, the first Appellate Court held that the defendant totally
failed to establish the existence of house bearing
H.No.13-1-1234/A/2, whereas the plaintiff established that his
father was declared as owner of the suit schedule property and
accordingly, dismissed the appeal filed by the defendant.
9. Heard Sri Zulfaquar Alam, learned counsel for the appellant
and Sri D.Rama Krishna Reddy, learned counsel on record for the
respondents. Perused the record.
10. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
by both the parties goes to show that the defendant failed to
establish his case that he is residing in a different house than that of
the suit schedule property and the plaintiff has succeeded in
establishing that his father was declared as owner of the suit
schedule property.
11. 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.
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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
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 fell for
consideration.
15. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
(2007) 1 Supreme Court Cases 546
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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 a 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.
17. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 19.02.2024
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