Telangana High Court
Gorige Anjaiah vs Jukanti Ramchander on 26 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.403 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and
decree, dated 28.03.2022, passed in A.S.No.223 of 2018 on the file
of the Court of V Additional District Judge (II-FTC), Warangal at
Jangaon, confirming the judgment and decree dated 02.08.2018
passed by the Principal Junior Civil Judge, Jangaon in O.S.No.204
of 2012, the present Second Appeal is filed.
2. The appellant is defendant No.2 and respondent No.1 is
defendant No.1. 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 absolute owner
and possessor of the suit schedule property having acquired the
same by way of purchase from one Md. Sarwar Miya, S/o. Kaja
Miya through registered sale deed vide Document No.41/1978,
dated 05.01.1978 and remained in possession thereof. After
purchasing the property, he got entered his name in the revenue
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records and the revenue authorities have assigned Survey Number
as 88/2. He left the land fallow for few years and after that gave the
same to defendant No.1 on the crop share basis. Defendant No.1
used to pay the share of usufruct to the plaintiff whenever he
cultivated the suit land. He further stated that due to drought
condition he went to Bombay for eking out his livelihood.
Defendant Nos.1 and 2, by taking advantage of his absence,
colluded with revenue officials and manipulated the revenue
records and illegally got their names entered in the possessory
column for the period from 1989-1990 to 1997 and 1997-2009
respectively. In the year 2012, when the plaintiff came to the
village, he found that defendant No.2 was claiming ownership over
the suit schedule property and refused to vacate the same. Hence,
the present suit for declaration of title and recovery of possession
of the suit schedule property.
4. The defendants filed their written statement by denying all
the averments except some admitted facts and submitted that the
plaintiff purchased suit land from Md. Sarvar Miya, but he plaintiff
sold away the said property for his family necessities. That
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defendant No.2 had purchased the suit land in the name of his wife
Gorige Anjamma on 05.04.1996 from Dayyala Chandraiah and the
plaintiff and after receiving the entire sale consideration, she was
put in vacant possession of the suit schedule property
4.1. It was further averred that the plaintiff has joined
execution of simple document dated 05.04.1996 in favour of the
wife of defendant No.2 and since the date of purchase, defendant
No.2 and his family members are in peaceful possession and
enjoyment of the said land and prayed to dismiss the suit.
5. After hearing both sides and having regard to the pleadings,
the trial Court has settled the following issues for trial:-
"(i) Whether plaintiff is absolute owner and possessor of
the suit schedule by purchasing through registered sale
deed vide document No. 41/78, dated 05.01.1978?
(ii) Whether the plaintiff is entitled to pass a decree for
recovery of possession from the defendant No.2?
(iii) Whether the defendant purchased the suit land from
the plaintiff or not?
(iv) To what relief?"
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6. On behalf of plaintiff, PWs.1 and 2 were examined and
Exs.A1 to A14 were marked. On behalf of the defendants, DWs.1
to 3 were examined, but no documents were marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, in its judgment
observed as hereunder:-
"Admittedly, DWI not filed the said alleged simple
document before the Court to establish the factum of sale
by Dayyala Chandralah and Jukanti Ramchandralah
(plaining in respect of the suit schedule property.
D.W-1 further admitted in the cross-examination
that he mentined in the written statement that he wife
purchased suit schedule property from one Lachamma.
Thus, the admission of which establishes that the
contention raised by him about purchasing of the property
from the plaintiff is out of truth
In addition to that, the defendants did not make any
effort to examine so-called first vendor by name Dayyala
Chandraiah to show that initially, the pf sold the suit land
to him and after that, both Dayyala Chandraiah and
plaintiff executed the sale deed in favour of defendant
No.2."
8. By observing supra, the trial Court held that the defendants
utterly failed to rebut the contention of P.W-1 and also failed to
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prove that the plaintiff sold away the suit schedule property to them
and accordingly, decreed the suit, vide judgment dated 02.08.2018.
9. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record and dismissed the appeal, vide judgment dated
28.03.2022. The first Appellate Court observed that the contention
of the defendants that the plaintiff sold away the suit schedule
property to Chandraiah and later, both of them jointly sold away
the said property to the wife of defendant No.2 is completely false.
The first Appellate Court further observed that Exs.A-1 to A-14
clearly shows the possession of the plaintiff over the suit schedule
property for a period of more than ten years and that reflection of
name of defendant No.1 in the pahanies supports the case of the
plaintiff that he had given the suit schedule property to defendant
No.1, in his absence, on crop share basis.
9.1. The first Appellate Court further observed as under:-
"As seen from the version of the plaintiff, he completely
denies the execution of the simple sale deed in favour of
third parties and also there is no document on record to
show that the said Anajamma has ever purchased the suit
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property in her name and therefore not adding her as a
party will not defeat the suit.
Article 113 of Limitation Act 1963 provided
limitations for declaration of suits as three years from the
date when the right to sue accrues. Here the version of the
plaintiff is that after he returned from Mumbai he came to
know that the Defendant no.1 alienated the suit lands to
third parties and when questioned, all the defendants
threatened him and therefore he filed the suit. As seen
from the plaint, the cause of action started in the month of
August, 2012 when defendant No.2 denied the title of the
plaintiff and claimed the suit land as his won and the
plaintiff filed he suit in the month of September, 2012 i.e.,
within one month. Therefore, the suit is filed within
limitation."
10. By observing as above, the first Appellate Court, dismissed
the appeal, vide its judgment dated 28.03.2022, thereby,
confirming the impugned judgment of the trial Court.
11. Heard Sri D.V.Chalapathi Rao, learned counsel for the
appellant. Perused the record.
12. Learned counsel for appellant argued that the trial Court
decreed the suit without proper appreciation of the evidence and
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the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
13. The principal contentions raised by the learned counsel for
the appellant that the suit is bad for non-joinder of parties and that
the suit is barred by limitation were adverted to and were rejected
by the first Appellate Court by recording specific reasons and this
Court does not find any reason or ground to interfere with the
observations and conclusions of the first Appellate Court.
14. The further contention of the learned counsel for the
appellant is with regard to applicability of adverse possession. A
perusal of the record would reveal that the plaintiff has not taken
the plea of adverse possession and no evidence was let in with
regard to the said plea. Therefore, in the absence of any specific
plea, evidence and material, the same cannot be canvassed in the
Second Appeal.
15. 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
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and do not qualify as the substantial questions of law in terms of
Section 100 C.P.C.
16. 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 plaintiff, by producing oral
and documentary evidence, clearly established his ownership and
possession in respect of the suit schedule property and that he has
given the same to defendant Nos.1 and 2 on crop share basis.
17. 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 trial Court as well as the first Appellate
Court, which are based on proper appreciation of the oral and
documentary evidence on record.
18. 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
(2007) 1 Supreme Court Cases 546
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where a substantial question of law is raised and fell for
consideration.
19. 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 a substantial question of
law arises for consideration in this Second Appeal.
20. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 26.02.2024
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