Telangana High Court
Potta Laxmaiah vs Narsimulu on 14 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
INTERLOCUTORY APPLICATION No.1 OF 2024
IN/AND
SECOND APPEAL No.355 OF 2002
J U D G M E N T:
This Second Appeal is filed under Section 100 of the
Code of Civil Procedure (for short 'C.P.C') by unsuccessful
plaintiff aggrieved by the concurrent findings recorded in
Judgment and Decree dated 17.03.2001 passed in
A.S.No.40 of 1999 by the learned Senior Civil Judge,
Narayanpet (for short 'the learned first Appellate Court') in
confirming the Judgment and decree dated 31.01.1998
passed in O.S.No.81 of 1992 by the learned Junior Civil
Judge, Kodangal (for short 'the learned trial Court') in a
suit filed seeking recovery of possession.
02. For the sake of convenience, hereinafter, the
parties will be referred to as per their array before the
learned trial Court.
03. Plaintiff is the owner of suit lands and he
purchased the same from one Sri Giri Rao S/o. Dathatriya
Rao with the consent of protected tenant Nagaram
Narsaiah of Bomraspet for a consideration of Rs.4,000/-
under Registered Sale Deed dated 06.04.1988. The next
day of the delivery of the possession of the suit land,
defendants illegally occupied the suit lands and wrongfully
gained profits of Rs.1,000/- per year. Plaintiff is the owner
of suit land and his name has been mutated in the
Revenue records, defendants are in illegal possession of the
suit lands. Hence, plaintiff sought for recovery of
possession.
04. It is the case of defendants that defendant No.1
purchased suit land from the original owner Giri Rao under
an Agreement of Sale dated 05.02.1987 for a sale
consideration of Rs.5,000/- and he paid Rs.4,000/- and
agreed to pay remaining consideration of Rs.1,000/- at the
time of registration. The said Giri Rao vendor of the suit
land delivered possession of suit land in favour of
defendant No.1 and since then he is in possession over the
suit land. Plaintiff never in possession of the suit land.
Hence, defendants sought for dismissal of the suit.
05. The learned trial Court framed the following
issues for trial:
i. Whether plaintiff is entitled to delivery of possession
as prayed for?
ii. Whether plaintiff is entitled to the mesne profits? and
if so, at what relief?
iii. Whether Agreement of Sale dated 05.02.1987 set up
by defendants is true, valid and binding on plaintiff?
iv. Whether plaintiff has no cause of action?
v. To what relief?
06. On behalf of plaintiff, PW1 to PW5 were
examined and Exs.A1 to A4 were marked. On behalf of
defendants, DW1 to DW4 were examined and got marked
Exs.B1 to B5.
07. After conducting full-fledged trial, the learned
trial Court dismissed the original suit vide the Judgment
and Decree dated 31.01.1998 passed in O.S.No.81 of 1992.
Aggrieved by the same, plaintiff preferred appeal before the
learned first Appellate Court and the same was also
dismissed vide Judgment and Decree dated 17.03.2001
passed in A.S.No.40 of 1999 confirming the decree and
Judgment of the learned trial Court.
08. Aggrieved by the concurrent findings recorded
by learned trial Court as well as learned first Appellate
Court, appellant-plaintiff filed this Second Appeal before
this Court.
09. The learned trial Court by way of impugned
decree and Judgment dismissed the original suit. On
appeal, being filed by plaintiff, the first Appellate Court
after reevaluating the entire evidence dismissed the appeal
confirming the findings of the learned trial Court.
10. As seen from record, this Court vide Order
dated 07.02.2001 considered ground Nos.1 and 2 of
memorandum of this Second Appeal, as substantial
questions of law, which is as follows:
a. Whether Ex.A1-Sale Deed, which was
registered would operate against Ex.B1-Agreement of
Sale, which was not registered in relation of the
same property?
b. Whether respondents-defendants were entitled
to protect their possession under Section 53-A of the
Transfer of Property Act from plaintiff who had no
knowledge of the sale agreement between
defendants and his vendors?
11. In Narayanan Rajendran and another v.
Lekshmy Sarojini and others 1 the Honourable Supreme
Court of India held that:
"24. Similarly, before amendment in 1976, this
Court also had an occasion to examine the scope of
Section 100 C.P.C. In Deity Pattabhiramaswamy v.
S. Hanymayya and Others 2, the High Court of
Madras set aside the findings of the District Judge,
Guntur, while deciding the second appeal. This
Court observed that notwithstanding the clear and
authoritative pronouncement of the Privy Council on
the limits and the scope of the High Court's
jurisdiction under Section 100 of Civil Procedure
Code, "some learned Judges of the High Courts are
disposing of Second Appeals as if they were first
appeals. This introduces, apart from the fact that the
High Court assumes and exercises a jurisdiction
which it does not possess, a gambling element in the
litigation and confusion in the mind of the litigant
public. This case affords a typical illustration of such
interference by a Judge of the High Court in excess of
his jurisdiction under Section 100, Civil Procedure
Code. We have, therefore, no alternative but to set
aside the Judgment of the High Court which had no
jurisdiction to interfere in second appeal with the
findings of fact arrived at by the first appellate Court
based upon an appreciation of the relevant evidence.
30. In Bholaram v. Amirchand 3 a three-Judge
Bench of this court reiterated the statement of law.
The High Court, however, seems to have justified its
interference in second appeal mainly on the ground
that the judgments of the courts below were perverse
and were given in utter disregard of the important
2 AIR 1959 SC 57
3 (1981) 2 SCC 414
materials on the record particularly misconstruction
of the rent note. Even if we accept the main reason
given by the High Court the utmost that could be said
was that the findings of fact by the courts below
were wrong or grossly inexcusable but that by itself
would not entitle the High Court to interfere in the
absence of a clear error of law.
31. In Kshitish Chandra Purkait v. Santosh
Kumar Purkait 4, a three judge Bench of this Court
held: (a) that the High Court should be satisfied that
the case involved a substantial question of law and
not mere question of law; (b) reasons for permitting
the plea to be raised should also be recorded; (c) it
has the duty to formulate the substantial questions
of law and to put the opposite party on notice and
give fair and proper opportunity to meet the point.
The court also held that it is the duty cast upon the
High Court to formulate substantial question of law
involved in the case even at the initial stage.
32. This Court had occasion to determine the
same issue in Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Marnor 5. The court stated that the High
Court can exercise its jurisdiction under Section 100
C.P.C. only on the basis of substantial questions of
law which are to be framed at the time of admission
of the second appeal and the second appeal has to
be heard and decided only on the basis of the such
duly framed substantial questions of law.
33. A mere look at the said provision shows
that the High Court can exercise its jurisdiction under
Section 100 C.P.C., only on the basis of substantial
questions of law which are to be framed at the time
of admission of the second appeal and the second
appeal has to be heard and decided only on the
basis of such duly framed substantial questions of
law. The impugned judgment shows that no such
(1997) 5 SCC 438
5 (1999) 2 SCC 471
procedure was followed by the learned Single Judge.
It is held by a catena of judgments by this court,
some of them being, Kshitish Chandra Purkait v.
Santosh Kumar Purkait 6 and Sheel Chand v.
Prakash Chand 7 that the Judgment rendered by the
High Court under Section 100 C.P.C. without
following the aforesaid procedure cannot be
sustained. On this short ground alone, this appeal is
required to be allowed."
12. In the backdrop of above settled principle of law
on the scope of Section 100 of CPC, this Court is not
inclined to go into the merits and demerits of the case as
this is a Second Appeal. At the stage of admission, this
Court treated the ground Nos.1 and 2 of the memorandum
of appeal as substantial questions of law.
13. As seen from the entire record, plaintiff
contended that he was in possession after execution of
Ex.A1-registered sale deed but on the next day itself
defendants occupied the suit lands illegally and defendants
are in possession over the suit lands. On the other hand,
defendants contended that they purchased suit lands vide
Ex.B1-Agreement of Sale dated 05.02.1987 and the vendor
of the suit land delivered possession on 05.02.1987 i.e.,
6 (1997) 5 SCC 438
7 (1998) 6 SCC 683
more than one year prior to the alleged purchase of suit
land by plaintiff. During the course of cross-examination,
PW1 categorically admitted that the vendor of the suit land
was not in possession as on the date of alleged purchase
by plaintiff. DW4 who is son of Giri Rao categorically
stated that his father never sold the suit land in favour of
plaintiff. Even though Ex.B1-Agreement of Sale does not
create any interest in the property, still in view of doctrine
of part performance under Section 53-A of the Transfer of
Property Act, 1882 defendants are entitled to protect their
possession. It is also pertinent to note here that during the
course of cross-examination, PW1 admitted that no
document was executed for payment of consideration
amount. Both the learned trial Court as well as learned
first Appellate Court had dismissed the claim of plaintiff by
virtue of their respective Judgments.
14. At the stage of this Second Appeal, defendants
had filed I.A.No.1 of 2024 praying this Court to receive
additional evidence i.e., certified copy of Judgment and
Decree dated 25.08.2000 passed in O.S.No.91 of 1996 by
the learned Junior Civil Judge, Kondangal.
15. While dealing with the aspect of receiving
additional evidence, in Union of India v. K.V.Lakshman 8,
the Honourable Supreme Court of India held that:
"Order 41 Rule 27 of the Code is a provision
which enables the party to file additional
evidence at the first and second appellate stage.
If the party to appeal is able to satisfy the
appellate Court that there is justifiable reason for
not filing such evidence at the trial stage and that
the additional evidence is relevant and material
for deciding the rights of the parties which are the
subject matter of the lis, the Court should allow
the party to file such additional evidence."
16. In the above authority, the Honourable
Supreme Court of India has made it clear that the
additional evidence at the first and second appellate stages
should be accepted if the party is able to persuade the
Appellate Court that there was a valid reason for not
submitting such evidence at the trial stage and that the
additional evidence is relevant and material for deciding
the rights of the parties that are the subject of the lis.
8 AIR 2016 Supreme Court 3139
17. In the present case on hand, respondents have
prayed this Court to receive the additional evidence i.e.,
certified copy of Judgment and Decree dated 25.08.2000
passed in O.S.No.91 of 1996 by the learned Junior Civil
Judge, Kondangal. It is pertinent to note that O.S.No.81 of
1992 which is the subject matter in this Second Appeal,
was filed seeking recovery of possession by plaintiff in the
year 1992. Subsequently, defendants have filed O.S.No.91
of 1996 seeking specific performance of Agreement of Sale
dated 05.02.1987, which is the subject matter in I.A.No.1
of 2024. The suit in O.S.No.81 of 1992 was dismissed on
31.01.1998. As seen from the Judgment dated 31.01.1998
there was mention of filing of suit in O.S.No.91 of 1996 by
defendants. Aggrieved by the dismissal of suit in
O.S.No.81 of 1992, defendants preferred appeal suit in
A.S.No.40 of 1999. The said A.S.No.40 of 1999 was also
dismissed vide Judgment dated 17.03.2001 confirming the
Judgment dated 31.01.1998 passed in O.S.No.81 of 1992.
As seen from the Judgment dated 17.03.2001 passed in
A.S.No.40 of 1999, there was mention of filing of O.S.No.91
of 1996 by defendants. It is apparent on the face of record
that both the learned trial Court as well as learned first
Appellate Court in their respective Judgments, had taken
note of the fact with regard to filing of suit in O.S.No.91 of
1996 by defendants seeking specific performance of
Agreement of Sale dated 05.02.1987.
18. It is the case of petitioners in I.A.No.1 of 2024
that by the time the suit in O.S.No.91 of 1996 was decreed,
the suit in O.S.No.81 of 1992 was dismissed. Hence, they
could not file the certified copy of Judgment and decree
dated 25.08.2000 passed in O.S.No.91 of 1996 before the
learned trial Court.
19. It is to be noted here that plaintiff therein had
filed a suit in O.S.No.91 of 1996 seeking specific
performance of Agreement of Sale dated 05.02.1987
against defendants therein, before the learned Junior Civil
Judge, Kondangal, wherein the suit was decreed directing
defendant Nos.1 and 2 to register sale deed in favour of
plaintiff therein. The Agreement of Sale dated 05.021987
which was believed to be true and valid by both the learned
trial Court as well as learned first Appellate Court, has
been directed to be executed. It appears no appeal was
preferred before appellate Court challenging Judgment and
Decree dated 25.08.2000 passed in O.S.No.91 of 1992 by
the learned Junior Civil Judge, Kondangal, therefore, it has
become final. Hence, this document further gives strength
to the concurrent findings recorded by the learned trial
Court as well as learned first Appellate Court and the said
document is proper and necessary which has direct and
significant bearing on the core issue involved in the case on
hand and also much relevant for putting a quietus to the
dispute between the parties. Therefore, keeping in view the
above settled principle of law laid down by the Honourable
Supreme Court of India, this Court deems it appropriate to
receive certified copy of Judgment and Decree dated
25.08.2000 passed in O.S.No.91 of 1992 by the learned
Junior Civil Judge, Kondangal, as additional piece of
evidence by allowing I.A.No.1 of 2024. The learned Courts,
after full-fledged trial and on hearing both sides, have held
that plaintiff failed to prove that possession was delivered
to him. In view of the above, this Court is of the
considered opinion that the ground Nos.1 and 2 of
memorandum of appeal which were considered as
substantial questions of law, are of no use to appellant and
they are not a valid grounds for reversing the concurrent
findings of learned trial Court as well as learned first
Appellate Court.
20. It is also well settled principle by a catena of
decisions of the Honourable 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
learned trial Court as well as learned first Appellate Court,
which are based on proper appreciation of the oral and
documentary evidence on record. It is also to be placed on
record that this Second Appeal is of the year 2002
challenging the concurrent findings recorded in the suit
filed seeking recovery of possession in the year 1992 which
was decided in the year 1998, the first appeal was
preferred in the year 1999 and the same was decided in the
year 2001.
21. Further, in Gurdev Kaur v. Kaki 9, 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.
22. Having considered the entire material available
on record and the findings recorded by the learned trial
Court as well as the learned first Appellate Court, this
Court finds no ground or reason warranting interference
with the said concurrent findings recorded by both the
Courts under Section 100 of CPC. Moreover, the grounds
raised by appellant are factual in nature. Hence, this
Second Appeal deserves to be dismissed as devoid of
merits.
23. Accordingly, I.A.No.1 of 2024 is allowed. The
Second Appeal is dismissed. There shall be no order as to
costs.
9 (2007) 1 Supreme Court Cases 546
As a sequel, pending miscellaneous applications, if
any, shall stand closed.
_________________________________
JUSTICE M.G.PRIYADARSINI
Date: 14-JUN-2024
KHRM
