Telangana High Court
M. Aslesha vs Kotha Srinivasa Rao Died on 20 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.333 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 18.01.2023 passed in A.S.No.41 of 2018
on the file of the Principal District Judge, Khammam,
wherein the judgment and decree dated 01.06.2016 passed
in O.S.No.586 of 2010 on the file of the Principal Junior
Civil Judge, Khammam 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 plaintiff Nos.1 to 3 are having housing plots side
by side comprising one block. Plaintiff No.1 got her plot
through registered gift deed vide document bearing
No.1912 of 2009 from her mother viz., Ch.Varalaxmi, who
in turn along with plaintiff Nos.2 and 3 purchased their
plots to an extent of 254.50 sq.yds, 109 sq.yds and 235
sq.yds respectively in Survey No.136 situated at
Burhanpuram, Khammam (herein after referred to as 'suit
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schedule property'), vide document Nos. 2653/1998,
2654/1988 and 2652/1988 respectively, from one
V.Sandhya Laxmi, who in turn purchased from one
M.Bixmaiah vide sale deed document No.3742/1981. All
the above deeds reflects 30 feet road towards eastern side
to the plaintiffs' plots. Plaintiff Nos.2 and 3 being the
residents of U.S.A., appointed their father as GPA holder to
deal with the suit schedule property.
4. It is contended that initially the lands in Survey
No.136 stand in the name of Talari Babulu, Venkaiah,
Laxmaiah, who were pattedars and possessors of their joint
family property. Later Talari Babulu and Venkaiah jointly
sold their respective shares to S.Rama Laxmamma, who in
turn sold the entire land to M.Bixamaiah. The said
Bixamaiah made the said land into house plots and
alienated to Rama Laxmamma and others.
5. It is further contended that defendant No.1 is
claiming some land in Survey No.136, which was acquired
by the Government for the purpose of water works for
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laying pipe line. The document bearing No.3252/73
executed by T.Laxmaiah reflects the eastern boundary as
land acquired by Government. Further, said M.Bixamaiah
made the Survey No.136 into house plots by leaving the
suit schedule property for water works. The plaintiffs were
using the surface of the pipe line, to enter into their
houses, during the time of their purchase. Further, it is
contended that defendant No.2 laid a pakka cement road
from Mamillagudem to by-pass road, which was being used
by the plaintiffs to enter into their property. Therefore,
except the plaintiffs and the public, no other person have
any right to enjoy the property by raising structures.
Defendant No.2 is the custodian of the property. While the
matter stood thus, on 21.04.2009, defendant No.1 without
having any right tried to raise structure in the suit
schedule property claiming that he had purchased the suit
schedule property, in which, defendant No.2 erected 450
mm diacase iron pumping. The claim of defendant No.1 is
null and void since Babulu has no land in Survey No.136
after 1973. Hence, the suit.
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6. Defendant No.1 has filed written statement denying
the averments made in the plaint inter alia contending that
he filed O.S.No.827 of 2005 seeking perpetual injunction
against mother of plaintiff No.1, plaintiff No.3 and father of
plaintiff No.2 on the file of the I Additional Junior Civil
Judge, Khammam. The defendants in O.S.No.827/2005
also filed a suit in O.S.No.134 of 2005 against him for
perpetual injunction. While pending the said suits, the
plaintiffs have filed present suit with a false and baseless
plea that the schedule property exclusively belongs to
defendant No.2. As per the Advocate Commissioner's report
in O.S.No.134 of 2005, the plaintiffs herein have no road
on the eastern side abutting their sites and that the
plaintiffs herein cannot reach the cement road from their
respective sites without trespassing into the present suit
schedule property, which is exclusively owned by defendant
No.1 herein.
7. Defendant No.2 has also filed written statement inter
alia contending that the suit schedule property is
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admittedly a municipal land, wherein the water pipe line is
laid and the same cannot be used as a road either by the
plaintiffs or by any one. It is contended that if the said land
is allowed as passage, the plaintiffs will acquire a right for
passage lawfully i.e., easementary right and there is every
possibility of moving heavy vehicles, which will cause
damage to the pipe line underneath a passage. Simply
because of registered deeds of plaintiffs reflecting the road,
it will not confirm their right to passage over the municipal
land. It is contended that no one have right to construct
any structure with or without permission on the existing
pipe line. Defendant No.2 pleaded ignorance about
execution of registered sale deeds in favour of plaintiffs.
The plaintiffs in hurried manner filed the present suit while
he was taking steps by perusing the documents of plaintiffs
and defendant No.1. Hence, prayed to dismiss the suit.
8. Before the trial Court, on behalf of the plaintiffs, PW1
to PW5 were examined and Exs.Al to A27 were marked. On
behalf of the defendants, DW1 to DW4 were examined and
Exs.B1 to B21 were marked.
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9. The trial Court, after considering the entire material
available on record, dismissed the suit vide judgment and
decree dated 01.06.2016 by observing as under:
"The Plaintiffs did not file any single document having extent
and boundaries to say that the schedule property was
acquired land. The evidence of P.Ws 4 and 5 and D.W.4 also
not useful in this regard. It is for Defendant No.1 to raise
construction in his own land subject to certain conditions
imposed by the Municipality and it is not for the Plaintiffs to
restrain. As per Advocate Commissioner report it is clear that
the Plaintiffs cannot reach their plots from road without
entering into the land of Defendant No.1. Therefore, as
rightly contended by the Defendant No.1 that the Plaintiffs
filed this suit some how to get way through land of
Defendant No.1 to reach their plots from 30 feet road.
Therefore, the above discussion shows that there is no merit
in the case of the Plaintiffs. Even the Plaintiffs have no
locustandi to file this suit in respect of land of Defendant
No.1. Without having any right or possession, the Plaintiff
filed this suit for declaration and injunction by abusing
process of law, thereby, caused inconvenience to the original
owners."
10. The first appellate Court on re-appreciation of the
entire evidence and perusal of the material available on
record vide judgment and decree dated 18.01.2023
dismissed the appeal, by observing as under:
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"It is appearing that since the plaintiffs in previous
suits were un-successful in establishing their claim against
the defendants, they have filed the present suit with a
different relief of declaration of title. In a suit for
declaration of title, if the plaintiffs were to succeed, they
must do so on the strength of their own title irrespective of
the question whether the defendant has proved his case or
not. This can be done by adducing sufficient evidence to
discharge the onus that is on him irrespective of whether
the defendant has proved his case or not.
The object of Section 34 of the Specific Relief Act is
to declare the status or right of any person entitled to any
legal character or to any right as to any property. The legal
position, therefore, is clear that the plaintiff in a suit for
declaration of title and possession could succeed only on
the strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have
proved their case or not.
In the present case the plaintiffs have got no right to
seek declaration as to suit schedule property for using the
same as approach road to enter into their premises from
the pakka cement road laid by the defendant No.2 since
the suit schedule property is meant for water pipe line.
Even if any right, it is only for the government authorities
to seek appropriate remedy against the persons who
interfered with their property.
Nobody can approach the court for a declaration on
a chance or a mere hope entertained. Moreover, there is no
specific material to show that it belongs to Municipal
Corporation or Government. In view of the above
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discussion, the appellants are not entitled for any reliefs
as prayed for."
11. Heard Mr.Madiraju Prabhakar Rao, learned counsel for
the appellants, Mr.M.V.Hanumantha Rao, learned counsel
for respondent No.7 and Mr.N.V.Anantha Krishna, learned
counsel for the caveator. Perused the record.
12. A perusal of the record discloses that both the Courts
below concurrently held that plaintiffs have filed the suit to
get way through land of defendant No.1 to reach their plots
from 30 feet road and that the plaintiffs have no locus
standi to file this suit in respect of land of defendant No.1.
Without having any right or possession, the plaintiffs filed
this suit for declaration and injunction by abusing process
of law. Therefore, there is no merit in the case of the
plaintiffs.
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.
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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.
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.
1 (2007) 1 Supreme Court Cases 546
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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.
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: 20.02.2024
Dua
LNA, J
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
20.02.2024
Dua
