Telangana High Court
Akkala Pochaiah vs Akkala Mallaiah on 3 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.952 of 2010
JUDGMENT:
This Second Appeal is filed by the appellant - appellant - plaintiff
aggrieved by the judgment and decree dated 29.06.2009 in A.S.No.9 of 2005 by
the Additional Senior Civil Judge (Fast Track Court), Luxettipet confirming the
judgment and decree dated 15.06.2005 in O.S.No.58 of 1997 by the Junior Civil
Judge, Luxettipet.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The plaintiff filed the suit for declaration of title and permanent
injunction in respect of suit schedule property to an extent of Ac.1-10 guntas in
Survey No.222/AA situated at Chinthapalli Village. The defendant No.1 was
the brother of the plaintiff, the defendant No.2 was the wife of defendant No.1,
the defendant No.3 was the father of plaintiff and defendant No.1 and defendant
No.4 was the mother of original pattedar Medishetti Rajalingu.
4. The contention of the plaintiff was that originally an extent of Ac.2-20
guntas in Survey No.222 was purchased by defendant No.3 from the original
pattedar Medishetti Rajalingu in the year 1965. In the family partition, the
plaintiff got the suit land of Ac.1-10 guntas out of Ac.2-20 guntas towards his
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share and he was in possession of the suit land by way of cultivation. The patta
of the land was standing in the name of the original pattedar. The defendant
No.1 in collusion with defendant No.4 got a registered sale deed in the name of
defendant No.2. The defendants 1 and 2 were interfering with the possession of
the plaintiff over the suit land without any manner of right. The defendants 3
and 4 were made as parties since they were necessary parties, though no relief
was claimed against them.
5. The defendants 1 and 2 filed a common written statement contending that
Ac.2-20 guntas in Survey No.222 of Chinthapalli was given to defendant No.3
for cultivation on batai by the original pattedar Medishetti Rajalingu during his
life time. The said pattedar died 20 years ago leaving behind his old mother as
his legal heir. As such, the mother of the pattedar by name Medishetti
Laxmakka succeeded to the suit schedule property. Subsequently, in the year
1996, a panchayat was held in which it was decided that defendant No.3 should
purchase the land from the pattedar Medishetti Laxmakka and should take the
legal possession from her. On measurement, the land was found to be Ac.2-29
guntas in Survey No.222 and the panchayat elders decided to pay a
consideration of Rs.81,800/- to the pattedar Medishetti Laxmakka. The plaintiff
and defendant No.3 were not prepared to purchase the land. As such, the
defendant No.1 came forward and purchased the same on 30.11.1996 and got a
registered sale deed in favor of his wife, defendant No.2. Since then, they were
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in continuous possession and enjoyment of the suit land. Since the date of
purchase by defendants 1 and 2, the plaintiff and defendant No.3 were not in
good terms with them. Even after the purchase of the suit land by defendants 1
and 2, they managed to get the name of the plaintiff entered in the revenue
records. The plaintiff was not entitled for declaration of title or the
consequential relief of injunction and prayed to dismiss the suit.
6. The defendant No.3 filed a separate written statement submitting that he
purchased the land of Ac.2-20 guntas in Survey No.222 of Chinthapalli Village
from the original pattedar Medishetti Rajalingu on 22.09.1965 for a
consideration of Rs.1,750/- through a simple sale deed and since the date of
purchase, he was in possession of the same. The defendant No.3 partitioned the
suit land among his sons, wherein the plaintiff was given Ac.1-27 guntas and
the defendant No.1 was given Ac.1-27 guntas towards their share and they were
in possession of their respective shares. Hence, the plaintiff was entitled for
permanent injunction against defendants 1 and 2.
7. Basing on the above pleadings, the trial court framed the issues as follows:
i) Whether the suit is grossly undervalued?
ii) Whether the plaintiff is entitled for declaration and consequential injunction
over the suit land as prayed for?
iii) To what relief?
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8. PWs.1 to 5 were examined on behalf of the plaintiff and Exs.A1 to A15
were marked. On behalf of defendants 1 and 2, DWs.1 to 3 were examined and
Ex.B1 was marked.
9. On considering the oral and documentary evidence on record, the trial
court held that the plaintiff failed to prove his title over the suit land. Though,
he proved his possession over the suit land as on the date of filing of the suit,
when his title was not proved by him, he was not entitled for the consequential
relief of perpetual injunction and dismissed the suit.
10. Aggrieved by the said dismissal, the plaintiff preferred an appeal. The
appeal was heard by the Additional Senior Civil Judge (Fast Track Court),
Luxettipet. Vide judgment and decree in A.S.No.9 of 2005 dated 29.06.2009,
the Lower Appellate Court dismissed the appeal confirming the judgment of the
trial court.
11. Aggrieved further, the plaintiff preferred this Second Appeal raising the
following substantial questions of law:
i) Whether the courts below were justified in dismissing the suit of the plaintiff
in the teeth of the ordinary sale deed and continuous interrupted possession of
the plaintiff?
ii) Whether the courts below were justified in rejecting the adverse possession
of the appellant when all the ingredients of adverse possession are very much
present in the instant case?
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12. This Court on 25.01.2011 admitted the Second Appeal on the substantial
questions of law raised in the grounds of appeal.
13. Heard Sri V.Subrahmanyam, learned counsel for the appellant and Sri
N.Vinesh Raj, learned counsel for the respondents 1 and 2. The respondent
No.3 though filed his written statement had not contested the matter even before
the trial court as well as the First Appellate Court and the respondent No.4
remained ex-parte both before the trial court as well as the First Appellate Court.
14. The appeal was filed against the concurrent judgments of the courts
below. The general rule is that High Court will not interfere with the concurrent
findings of the courts below. The well recognized exceptions for the said rule
are:
i) Where the courts below have ignored material evidence or acted on no
evidence.
ii) The courts have drawn wrong inferences from proved facts by applying the
law erroneously. (or)
iii) The courts have wrongly casted the burden of proof.
15. The Hon'ble Apex Court in Suresh Lataruji Ramteke v. Sau.Sumanbai
Pandurang Petkar and Others 1 in Civil Appeal No.6070 of 2023 held that:
"After all, a second appeal is not a "third trial on
facts", and so, for re-appreciation of evidence to
be justified, and for the same to be required as
2023 Live Law SC 821
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well as being demonstrably, at a different
threshold from merely, a "possible different
view", perversity or the other conditions of "no
evidence" or "inadmissible evidence" ought to
be urged, and subsequently, with the Court
being satisfied on the arguments advanced, of
such a possibility, the Court would then, proceed
to call for the record. That is to say that
accepting the argument of perversity merely on
the submissions made and not having
appreciated the record, would be unfair to the
Court of first appeal."
16. The High Court would not ordinarily interfere with the finding of facts
unless the appellant could show perversity or that the Courts have come to a
wrong conclusion ignoring the material evidence on record or acted on no
evidence. ''No evidence'' not only refers to cases where there is a total dearth of
evidence but also refers to any case where the evidence taken as a whole is not
reasonably capable of supporting the finding as held by the Hon'ble Apex Court
in Boodireddy Chandraiah and Others v. Arigela Laxmi and Another2 and
Hero Vinoth (Minor) v. Seshammal 3.
17. On a perusal of the admitted substantial questions of law raised in the
grounds of appeal by the learned counsel for the appellant, the same were
answered by both the courts below. The burden was rightly casted on the
2007 AIR SCW 7062
AIR 2006 SC 2234
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plaintiff to prove whether the plaintiff was entitled for declaration of title and
consequential injunction over the suit land. Both the courts below observed that
the plaintiff alleged that his father defendant No.3 purchased the land of Ac.2-
20 guntas in Survey No.222 situated at Chinthapalli Village from the original
pattedar Medishetti Rajalingu in the year 1965 and in the partition he got Ac.1-
20 guntas of land towards his share 18 years ago, but failed to file the sada sale
deed or failed to examine his father shown as defendant No.3, who filed written
statement supporting his case and failed to prove that there was a partition. The
cross-examination of PW.1 would disclose that he was having four brothers, but
had not examined any of his brothers to show that there was an oral partition
and he got the suit land towards his share in the partition held that the plaintiff
failed to establish his title and that his father purchased the property for a
valuable consideration under a valid document, as such, he was not entitled for
declaration of title. Though he could prove his possession, the trial court rightly
observed that as the suit is filed for consequential injunction, he is not entitled
for the relief of perpetual injunction also as prayed for by him.
18. With regard to the second substantial question of law admitted by this
Court, whether the courts below were justified in rejecting adverse possession
of the appellant when all the ingredients of adverse possession were present in
the instant case, the Lower Appellate Court answered the same specifically
holding that whoever claims adverse possession has to plead and prove from
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which date he came into possession and for how long he continued to be in
possession to the knowledge of one and all and when such plea was not taken
and proved, the person who claimed adverse possession could not get adverse
possession however long he was in possession and based its judgment by
placing reliance upon the judgment of the Hon'ble Apex Court in Hemaji
Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others 4.
19. The First Appellate Court held that on considering the evidence of both
the parties, it was proved that for the sake of convenience, both the plaintiff and
defendant No.1 were cultivating Ac.1-20 guntas of land each on behalf of their
father, who took the land on lease and they had no independent title. The
version of defendant No.1 admitting the continuous possession of the plaintiff
over the plaint schedule property was nothing but a misconception since earlier,
the plaintiff cultivated the plaint schedule property on lease and after obtaining
temporary injunction, he continued to cultivate the same. Thus, it could never
be said that the plaintiff has been in continuous possession. The long
possession of the plaintiff as deposed by DW.1 in his evidence would not confer
any title to the plaintiff for the land in his possession, since he utterly failed to
prove the purchase of the property by his father, the defendant No.3. To prove
the factum of partition, the plaintiff did not examine his surviving brothers. The
defendant No.3, who was a proper person to speak about the purchase as well as
2008 (6) ALT 1 (SC)
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the partition of the property among his sons and allotment of definite shares to
each of his sons, was not examined. As such, the plaintiff failed to prove his
title as well as possession and also failed to plead and prove the adverse
possession over the suit schedule property.
20. As both these questions raised by the appellant - plaintiff in this Second
Appeal were answered by the courts below basing on the evidence on record
and the Courts had not wrongly casted the burden of proof or not drawn any
wrong inferences from the proved facts or not applied the law erroneously, this
Court does not find any necessity to interfere with the concurrent finding of
facts recorded by the courts below and any substantial questions of law arising
in this matter.
21. In the result, the Second Appeal is dismissed with costs confirming the
judgments of the courts below.
As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 03.06.2024.
Nsk.
