Telangana High Court
Habeeb Zainulabdin Abid vs Mirza Asad Baig on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.347 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 06.06.2023, passed by the XXVI Additional Chief
Judge, City Civil Court at Hyderabad, in A.S.No.69 of 2019,
confirming the judgment and decree dated 05.03.2019 passed
by the VII Junior Civil Judge, City Civil Court, Hyderabad, in
O.S.No.683 of 2015.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the respondent No.1/plaintiff filed the suit vide
O.S.No.683 of 2015 seeking perpetual injunction restraining the
defendants and their men, servants, agents representatives or
any other person claiming under/through them from interfering
with the peaceful possession or attempting to dispossess the
plaintiff from the suit property.
4. It is contended that the plaintiff that Mrs. Zainab Bee had
purchased property admeasuring Acs.4.20 guntas in Survey
No.300, Qila Mohammed Nagar, Golconda, Hyderabad, in an
open auction conducted by the office of the District Collector,
Hyderabad. After depositing the sale consideration, a patta
certificate was issued in her favour on 9th Aaban 1357 Fasli, 2 LNA, J S.A.No.347 of 2023
corresponding to 3rd September, 1946 A.D. The office of the
District Collector vide letter dated 13th Aaban 1357 Fasli,
corresponding to 7th September, 1946 A.D, confirmed the said
sale transaction in favour of Mrs. Zainab Bee and included her
name in Jamabandi Records i.e., Revenue Records. However,
due to her domestic necessity, Mrs. Zainab Bee sold 400 Square
Yards of land out of the said Acs.4.20 guntas of land, in favour
of Master Mirza Khusro Baig (the father of the plaintiff), by
simple sale deed dated 15.05.1975. Since the father of the
plaintiff was minor at that time, he was represented by his
father viz., Mirza Osman Ghani of Risal Bazaar, Golconda,
Hyderabad.
5. It is stated that only Photostat copies were furnished to
the father of Master Mirza Khusro Baig, and the original
documents i.e., Patta Certificate, Letter issued by the District
Collector were retained by Mrs. Zainab Bee for herself, as she
was holding the remaining vast extent of property in her name.
It is further stated that Mirza Khusro Baig was in possession
and enjoyment of the said property ever since he was child till
he transferred the same in favour of the plaintiff by a registered
instrument. It is stated that till the transfer of the suit
property, it remained as banjar open land with dilapidated room
over it.
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6. It is also stated that Mirza Khusro Baig, the father of the
plaintiff, wanted the plaintiff to live separately after his
marriage. On the assurance of the plaintiff that he would
construct a house on the suit property and would shift
immediately thereafter, Mirza Khusro Baig transferred the suit
property in favour of the plaintiff by a registered gift deed dated
20.03.2015. Thus, the plaintiff became absolute owner and
possessor of the suit property. It is further stated that on
21.03.2015, the plaintiff had dug the trenches on all sides of the
suit property and also raised a compound wall on the trenches
with an intention to start construction after securing building
permission from the competent authority. While making
construction, the plaintiff had removed the dilapidated room,
which was constructed by his grandfather.
7. It is further stated that the defendants have demanded
money and interfered with the construction work of the plaintiff
on 23.03.2015 and 26.03.2015 and made attempts to
dispossess the plaintiff forcibly from the suit property on
27.03.2015, but the plaintiff resisted their attempts with the
help of neighbours and well wishers. It is stated that again on
28.03.2015, the defendants interfered with the possession of the 4 LNA, J S.A.No.347 of 2023
plaintiff, demanded money and tried to dispossess him. Hence,
the suit.
8. The defendant No.1 filed written statement (which was
adopted by defendant Nos.2 to 4) opposing the relief claimed in
the suit and inter alia stating that one, Mrs.Afzalunnisa Begum
had purchased the property bearing Door No.9-11-247/1/A,
admeasuring 405 square yards, situated at Ex-Servicemen
Lane, Golconda Fort, Hyderabad, from one Mr. M. Ibrahim Baig,
under a notarized agreement of sale dated 18.06.2001, for valid
sale consideration and since then, she was in possession and
enjoyment of the same. It is further stated that the said
Afzalunnisa Begum executed registered gift deed dated
14.02.2013 in favour of the defendant No.1 and since then, the
defendant No.1 is in possession and enjoyment of the said
property. The property under the suit claimed by the plaintiff is
bearing H.No.9-11-247/1/C, which is quite different from the
property of the defendant No.1 i.e., H.No.9-11-247/1/A. It is
further stated that the plaintiff did not file any document
pertaining to the property claimed by him, and prayed to
dismiss the suit.
9. On behalf of the plaintiff, P.Ws.1 and 2 were examined
and Exs.A1 and A.2 were marked. On behalf of the defendants,
D.Ws.1 and 2 were examined and Exs.B1 to B12 were marked. 5
LNA, J S.A.No.347 of 2023
10. The trial Court, after considering the entire material
available on record vide judgment and decree dated 05.03.2019,
decreed the suit by granting perpetual injunction as prayed for.
Aggrieved by the same, the appellant/defendant No.1 filed
A.S.No.69 of 2019. The first Appellate Court on re-appreciation
of the entire evidence and perusal of the material available on
record dismissed the appeal confirming the judgment and
decree passed by the trial Court, vide judgment and decree
dated 06.06.2023. Hence, the present Second Appeal.
11. Heard Sri Mohd. Adnan, learned counsel for the appellant
and Sri Mohd. Ilyas, the learned counsel for the respondent
No.1. Perused the record.
12. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiff has established his
possession over the suit schedule property, which has not been
successfully rebutted by the defendant No.1.
13. The learned counsel appearing for the appellant
vehemently argued that the trial Court decreed the suit without
proper appreciation of the evidence and the first Appellate Court
erred in confirming the same.
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LNA, J S.A.No.347 of 2023
14. Per contra, the learned counsel for the respondent
No.1/plaintiff would submit that in the written statement filed
by the defendants they categorically mentioned that they are no
way concerned with the property of the plaintiff. Therefore, on
this ground alone, the suit deserves to be decreed. He further
submitted that the documents filed by the defendants under
Exs.B.4 to B.9 i.e., service connection, property tax receipts and
electricity bills are subsequent to the filing of the suit, and
therefore, they cannot be looked into. He finally contended that
the trial Court has rightly decreed the same and the same was
rightly confirmed by the first Appellate Court.
15. However, the learned counsel 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.
16. It is well settled principle by a catena of decisions of the
Hon'ble 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.
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17. 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.
18. 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.
19. 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.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 22.01.2024 va
1 (2007) 1 Supreme Court Cases 546
