Telangana High Court
K. Chinnaiah vs Narsimha Naidu on 23 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.76 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 28.03.2022 passed in A.S.No.216 of 2011 on the
file of the Court of the XVI Additional District and Sessions
Judge - cum - XVI Additional Metropolitan Sessions Judge's
Court - cum - III Additional Family Court, Ranga Reddy District
at Malkajgiri, reversing the judgment and decree dated
01.06.2011 passed in O.S.No.1545 of 2004 on the file of the
Court of the III Additional Senior Civil Judge (Fast Track Court),
Ranga Reddy District.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to file present Second Appeal are that
the plaintiff is owner and possessor of the house No.6-84/101
on plot Nos.10 and 11 in Survey No.458 admeasuring 453
sq.yds situated at Alwal village, Malkajgiri Municipality (herein
after referred to as 'suit property'), having purchased the same
from one C.Papaiah, who is the GPA holder of Radhamma, vide
registered document bearing No.14095/1989, dated 2 LNA, J S.A.No.76 of 2023
21.07.1989, since then he has been in possession and
enjoyment of the suit property. The said Radhamma, who was
the original owner and pattedar of the property, had obtained a
lay out for Ac.1-15 gts in survey No. 458 situated at Alwal
village and executed a GPA in favour of one C.Papaiah vide
document No.110/1980, dated 26.05.1989. The plaintiff had
purchased plot Nos.10 & 11 and also constructed one room and
had been in continuous possession. The plaintiff got permission
from Municipal authorities through proceedings No.G1/1045
and BA.No.1045/2003 dated 03.04.2004 to construct a
building on the said plot. When the construction work was in
progress, defendant No.1, who is the neighbor of the plaintiff
interfered with the construction work stating that the suit
property belong to defendant No.3, whose land is in survey
No.461 and the plaintiff has lodged a police complaint, however,
police have taken no action.
4. It is further contended that on 25.08.2004 and
07.10.2004, the defendant without any manner of right of
whatsoever interfered with the suit property and threatened the
plaintiff with dire consequences to vacate the suit property. 3
LNA, J S.A.No.76 of 2023
Therefore, the plaintiff has filed a suit in O.S.No.1545 of 2004,
on the file of the III Additional Senior Civil Judge, (Fast Track
Court), Ranga Reddy District at L.B.Nagar, for permanent
injunction restraining the defendants from interfering with the
peaceful construction of the schedule property.
5. The defendant Nos.1 and 3 have filed the written
statement denying the contents of the plaint and further denied
the ownership of the plaintiff. The defendant No.1 is the
colleague of defendant No.3, working in BHEL. It is contended
that defendant No.3 and other defendants had purchased
different plots in survey No.461, situated at Alwal Municipality
from its previous owner under separate registered sale deeds.
Defendant No.3 purchased plot bearing No.10(B) and 11(A) in
survey No.461, admeasuring 266 sq.yards under registered sale
deed bearing document No.3454/1988, dated 04.05.1988.
Since the date of purchase, defendant Nos.1 and 3 are in
peaceful possession and enjoyment of the respective plots.
Defendant No.1 after obtaining the permission for construction,
had constructed house and residing there. Defendant No.3, to 4 LNA, J S.A.No.76 of 2023
safeguard his property constructed a compound wall encircling
his plot and requested defendant No.3 to lookafter the plot.
6. It is further contended that in the month of September
2004, the plaintiff tried to trespass into the plot of defendant
No.3 and tried to raise construction. On information given by
defendant No.1, defendant No.3 rushed there, and objected
illegal activity of the plaintiff. When defendant No.3 demanded
the plaintiff to show his document, he refused. Therefore,
defendant No.3 approached the Station House Officer, Alwal
Police Station and complained about illegal activities of the
plaintiff.
7. It is further contended that the Inspector of Police, Alwal,
called defendant No.3 and plaintiff for enquiry and then
defendant No.3 came to know that the plaintiff purchased plot
Nos.10 and 11 in Survey No.458, situated at old Alwal, Ranga
Reddy District, whereas, his plots are situated at survey
No.461. After enquiry, the police, Alwal warned the plaintiff that
his property is entirely different from the plot where he was
trying to make illegal constructions and the plaintiff undertook
not to make construction. It is further contended that under 5 LNA, J S.A.No.76 of 2023
the guise of sale deed pertaining to plot Nos.10 and 11 in
survey No.458, the plaintiff is trying to trespass into the plot of
defendant No.3 and making efforts to raise constructions and
that the plaintiff obtained ex parte injunction by suppressing
the material facts.
8. Defendant No.2 filed written statement denying the case
of the plaintiff. It is contended that there are no such plot
Nos.10 and 11 in survey No.458 at Alwal village and that the
plaintiff is trying to claim the property which is not existing in
survey No.458, but falls in survey No.461 of Venkatapuram
village. Defendant No.2 is the owner and possessor of the
property bearing No.20-40/H(old), 20-40/82/1(new) on plot
No.10 in Survey NO.461, situated at Venkatapuram Village,
Alwal, Vallabnagar Taluk, admeasuring 373.47 sq.yds, having
purchased the same vide registered sale deed bearing
No.2664/1997, dated 11.09.1997. It is also contended that
defendant No.2 lodged a complaint before both the municipal
authorities and the police authorities against the plaintiff and
they have failed to take any action at the instance of the
plaintiff.
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LNA, J S.A.No.76 of 2023
9. Before the trial Court, on behalf of the plaintiff PW1 to
PW3 were examined and Exs.A1 to A15 were marked; on behalf
of the defendant DW1 and DW2 were examined and Exs.B1 to
B7 were marked.
10. The trial Court, after considering the entire material
available on record, vide judgment and decree dated
01.06.2011, decreed the suit. Aggrieved by the same, the
defendants have filed appeal in A.S.No.216 of 2011 before the
XVI Additional District and Sessions Judge - cum - XVI
Additional Metropolitan Sessions Judge's Court - cum - III
Additional Family Court, Ranga Reddy District at Malkajgiri.
The first appellate Court, on re-appreciation of the entire
evidence and the material available on record, allowed the
appeal vide judgment and decree dated 28.03.2022 and
reversed the judgment and decree passed by the trial Court.
Hence, the present Second Appeal.
11. Heard Mr.M.M.Gond, learned counsel for the appellants
and Mr.Pramod Maligi, learned counsel for the respondents.
Perused the record.
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LNA, J S.A.No.76 of 2023
12. A perusal of the record discloses that the trial Court
decreed the suit filed by the plaintiffs for perpetual injunction
on conclusion that the plaintiff has been in lawful possession
and enjoyment of the suit property not only on the date of filing
of the suit but also prior to it continuously and commenced the
construction in pursuant to the sanction accorded by the Alwal
Municipality. In view of undue interference caused by the
defendants, the plaintiff is entitled to the permanent injunction
against the defendants.
13. The first appellate Court, on re-appreciation of evidence
on record, observed that the trial Court had arrived at
erroneous conclusion and granted relief of perpetual injunction.
The first appellate Court further observed that the defendant
Nos.1 to 3 have shown the sufficient ground in the appeal to
interfere with the judgment of the trial Court and allowed the
appeal and set aside the judgment and decree of the trial Court.
14. It is relevant to refer to following observations of the first
appellate Court for appreciation :
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LNA, J S.A.No.76 of 2023
(i) that the trial Court appointed an Advocate Commissioner to
localize the suit property. The Advocate Commissioner, with the
help of surveyor, i.e. Deputy Inspector of Police, has submitted
a report under Exs.C1, C2 and C3/sketch maps stating that
the suit property is in survey No.461 but not in survey No.458.
(ii). that plaintiff filed suit on 11.11.2004 showing that the
suit property is situated in survey No.458, old Alwal village. The
defendant filed the written statement claiming their right over
the plot Nos. 10(B) and 11(A), which are situated in survey
No.461, old Alwal village and on 18.12.2004 Ex.A11 /
rectification deed was executed by the plaintiff through
C.Papaiah, who is claimed to be GPA holder of the
B.Radhamma. The plaintiffs have not filed any document to
show that Radhamma executed GPA in favour of C.Papaiah and
C.Muthyalu, though it is mentioned that they are the GPA
holders of Radhamma.
(iii). that non filing of title deed of Radhamma and irrevocable
GPA said to have been executed by Radhamma in favour of
C.Papaiah and C.Muthyalu and the sale deed dated 21.07.1989
said to have been executed by C.Papaiah in favour of the 9 LNA, J S.A.No.76 of 2023
plaintiff are not marked as documents on behalf of the plaintiff
and the same is fatal to the case of the plaintiffs and further
Smt. Radhamma died even before execution of rectification deed
i.e. Ex.A11, dated 18.12.2004.
15. The first appellate Court specifically held that in the light
of the evidence of PW1 to PW3, the suit plots are not situated in
survey No.458 but they are situated in survey No.461 and at
the time of execution of rectification deed Ex.A11, Radhamma
was not alive and that GPA holders C.Papaiah and C.Muthyalu
has no right to execute the rectification deed Ex.A11, thus, the
plaintiff cannot claim any valid right and title even over plot
Nos.10 and 11 in survey No.458 of old Alwal village.
16. The first appellate Court finally came to the conclusion
that constructions have been raised by the plaintiff after filing
of the suit and in such circumstances the finding of the trial
Court that the plaintiff was in lawful possession of the schedule
property by the date of filing of the suit is incorrect and
therefore, the plaintiff is not entitled for the relief of injunction
as sought for against the defendants and thus allowed the
appeal by setting aside the judgment of the trial Court. 10
LNA, J S.A.No.76 of 2023
17. Learned counsel for the appellants vehemently argued
that the trial Court has rightly decreed the suit by properly
appreciating the evidence and the first appellate Court allowed
the appeal dismissing the suit on improper appreciation of
evidence, material and wrong conclusions and thus, the
requires interference by this Court in the present appeal.
However, 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 of C.P.C.
18. Further, in Gurdev kaur Vs. Kaki 1 the Hon'ble Apex
Court held that the High Court sitting in Second Appeal cannot
examine the evidence once again as the third trial Court and
the power under Section 100 of C.P.C. is very limited and it can
be exercised only 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 first appellate Court, this
1 (2007) 1 SCC 546 11 LNA, J S.A.No.76 of 2023
court finds no ground or reason warranting interference with
the said findings, under Section 100 of 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. In the considered
opinion of this Court, the first Appellate Court has rightly
allowed the appeal by setting aside the judgment and decree of
the trial Court.
20. 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:23.01.2024 Dua 12 LNA, J S.A.No.76 of 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.76 of 2023
Date:23.01.2024
Dua
