Telangana High Court
Nallabothu Venkanna And 2 Others vs Nallabothu Kashaiah And 4 Others on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.115 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 21.01.2019 passed in O.S.No.216 of 2008
on the file of the Junior Civil Judge at Nalgonda, where under
and whereby the judgment and decree dated 10.10.2022
passed in A.S.No.41 of 2019 on the file of the Court of the
Principal District Judge at Nalgonda was confirmed.
2. The appellants herein are plaintiffs and the respondents
are defendants in the suit. For convenience, the parties are
referred to, as they are arrayed in the suit.
3. Brief facts leading to filing of the present Second Appeal
are that the plaintiffs filed a suit for permanent injunction
against the defendants from interfering with the peaceful
possession and enjoyment of suit schedule property. The
plaintiffs averred that they are the owners and possessors of
the agricultural land in Sy.No.199 to an extent of Ac.12-02
guntas situated at Anantharam village, Nalgonda Mandal and
District. Plaintiffs' father purchased above land under simple
sale deed dated 28-04-1970 along with cart way in Sy.No.197
LNA, J
of Anantharam village. Since the date of purchase, the
defendants frequently obstructed the plaintiffs from passing
through the suit way. In the year 1988, when the defendants
obstructed the plaintiffs, the matter was referred to elders and
it was agreed to by both the parties that plaintiffs should give
a share in the well dug in their land to the defendants and to
the said effect entered into an agreement on 20.06.1988.
3.1 It is contended that again disputes arose in the year,
2006 and the matter was referred to the elders and the elders
convened a meeting and advised the plaintiffs to give land
equal to the way from their land in Sy.No.211 of Anantharam
village and the defendants agreed for the same and entered
into an agreement dated 10.07.2006 on the advise of elders
from both sides, but the defendants did not come forward to
execute the registered sale deed to the exchanged land as per
the agreement. Later the plaintiffs filed application before the
Tahsildar, Nalgonda, who on enquiry, passed orders and
addressed a letter to the Sub-Inspector of Police, Nalgonda
Rural, dated 10.07.2008 to give necessary aid in using the
suit way by the plaintiffs. However, the defendants are
LNA, J
interfering with the peaceful possession and enjoyment of the
suit way of the plaintiffs. Hence, the suit.
4. The defendants filed written statement denying the
plaint averments and inter alia stated that they are the
absolute owners of the agricultural lands in Sy.No.197/1/A
admeasuring Ac.1.23 ½ guntas of dry land situated at
Anantharam village of Nalgonda Mandal and District apart
from the other lands. Originally, the suit lands along with
other lands to an extent of Ac.3-07 guntas covered in
Sy.No.197/A was purchased by mother of the defendants
from Nallabothu Parvathamma, who in turn purchased the
same from its original owner namely Ranga Chary about 35
years back and her name was mutated in ROR and pattedar
passbook and title deed were also issued in her favour. In the
year 2002, the mother of the defendants sold away Ac.1.23 ½
guntas in favour of Nallabothu Eedaiah and kept the
remaining land with her. The defendants are in physical
possession of suit land along with other lands covered in
Sy.Nos.201, 202, 213 and 214, total admeasuring Ac.7.36 ½
guntas and they have spent huge amounts on land to make it
LNA, J
cultivable and dug bore well, erected electric motor and
converted the land from dry to wet and have been raising
paddy and other commercial crops in the said land. Hence,
prayed to dismiss the suit.
5. Basing on the pleadings the trial Court framed two
issues for trial:-
1) Whether the plaintiffs are entitled to seek declaration
of their easementary right in respect of the suit property,
as prayed for?
2) Whether the plaintiffs are entitled for grant of
perpetual injunction, as prayed for?
3) To what relief?
6. Before the trial Court, on behalf of the plaintiffs, P.W's.1
to 5 were examined and Exs.A1 to A.8 were marked. On
behalf of the defendants, D.W's.1 to 3 and Exs.B1 to B.8 were
marked.
7. The trial Court, after considering the entire evidence
and material available on record, dismissed the suit with the
following observations -
"i) The plaintiffs failed to prove that Ex.A3 was executed by the
defendants in favour of the plaintiffs in the presence of PWs 2 to
5. In view of the specific denial of the defendants that they have
not executed Exs.A2 to A4 in favour of the plaintiffs and the
signatures on Exs.A2 to A4 does not belong to them and the
plaintiffs have created the said documents, the plaintiffs ought to
LNA, J
have sent Exs.A2 to A4 to the hand writing expert for comparison
of the signatures on Exs.A2 to A4 with that of the admitted
signatures of the defendants, but the plaintiffs did not chose to do
so. Thus, the plaintiffs failed to prove the execution of Exs.A2 to
A4 by the defendants.
ii) The plaintiffs cannot depend on the weakness of the case of the
defendants. The weakness, if any, in the case set up by the
defendants would not be a ground to grant any relief to the
plaintiffs. When the plaintiffs admitted the ownership of the
defendants over the suit property, they cannot be allowed to turn
around and say that for want of sale deed documents evidencing
the purchase of the land in survey No.197 by the defendants, the
defendants are not the owners of the suit property etc., when the
defendants have got no right over the suit property, the alleged
execution of Exs.A2 to A4 for the purpose mentioned therein does
not arise.
iii) The plaintiffs failed to prove the existence of the suit way,
hence using the suit property as a way by the plaintiffs since
1970 does not arise.
iv) Thus it is to be said in summation that the plaintiff failed to
prove the existence of cart way from survey No.197, so also the
execution of Ex.A1 sale deed in respect of the cart way in survey
No.197 permitting them to use the same to go to the agricultural
well called as Maisamma bavi.
v) The plaintiffs did not choose to file the village map also showing
the existence of cart way from survey No.197. Though PW1 stated
in his chief examination affidavit that they have approached
Tahsildar, Nalgonda on 10.6.2008 by way of application for
redressal of the dispute between them and the defendants and
the Tahsildar entrusted the matter to the revenue inspector to
make enquiry and the revenue inspector enquired the matter and
submitted his report on 16-6-2008 and basing on the report of the
LNA, J
Revenue Inspector, the Tahsildar passed orders and addressed
letter to the SI of Police, Nalgonda dated 10.7.2008 to give
necessary aid to the plaintiffs in using the suit way and taking
cue from the said contention of the plaintiffs though the counsel
for the plaintiffs submitted that the said report of the Tahsildar
itself shows the existence of the suit way, absolutely there is no
such record available before this Court. The plaintiffs did not
choose to file any such orders of the Tahsildar before this Court. "
8. Aggrieved by the above judgment, the appellant herein
preferred appeal vide AS. No.41 of 2019 and the first appellate
Court duly considering the grounds, and on re-appreciation of
evidence of material on record dismissed the appeal vide order
dated 10.10.2022 with following observations-
"i) PW5 could not say when the parties to the suit purchased
their properties. He stated that there is pathway dispute
between the parties. He said he did not know whether there was
any naksha bata but added that he saw the pathway and said
he also used it. He denied the suggestion that there is no such
pathway and the plaintiffs forcibly tried to create pathway by
destroying the lands of the defendants. He admitted that a
quarrel occurred in between the plaintiffs and the defendants,
that both the parties beat each other and cases and counter
cases were registered against them and that a resolution was
passed in the presence of the village elders in connection with
the pathway dispute and he along with others attested the
resolution as a witness. He denied the suggestion that there was
no pathway at the time when the vendor of the parties to the suit
executed documents in their favour and that the plaintiffs are
high handedly trying to create pathway through the lands of the
defendants but added by saying that there is no pathway in
existence now. His evidence shows that the parties were at
LNA, J
loggerheads for a considerable time over pathway and finally
resolved their dispute in the presence of elders.
ii) Further the recitals in Ex.A4 show that the plaintiffs took 5
guntas land in S.No.297 as per the measurements mentioned
therein and gave 5 guntas land in S.No.211 to defendant Nos.1
to 3 and that the way to S.No.199 is from the said land in
S.No.297. The plaintiffs' claim for the way to their land in
S.No.199 is in respect of S.No.197, not in respect of S.No.297.
Therefore, Ex.A4 does not support the plaintiffs but goes against
them. "
9. Heard Sri J.C.Francis, learned counsel for the
appellants and perused the record.
10. Learned counsel for appellants argued that the trial
Court dismissed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error
in confirming the judgment and decree passed by the trial
Court.
11. A perusal of the record discloses that both the Courts
concurrently held that the plaintiffs failed to prove their claim
for declaration of easement right of way and also perpetual
injunction and accordingly, declined to grant the relief sought
for by the plaintiffs.
LNA, J
12. The learned counsel for appellants 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.
13. 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 Courts below, which are
based on proper appreciation of the oral and documentary
evidence on record.
14. 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.
(2007) 1 Supreme Court Cases 546
LNA, J
15. 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
appellants are factual in nature and no question of law much
less a substantial question of law arises for consideration in
this Second Appeal.
16. Hence, the Second Appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
17. Pending miscellaneous applications, if any, shall stand
closed.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 11.03.2024
BV
