Telangana High Court
Labi Shetty Krishna Murthy vs Aitha Balaji on 11 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.201 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 05.12.2022 passed in A.S.No.3 of 2018 on the file
of the Principal District and Sessions Judge, Kamareddy
whereby and where under the judgment and decree dated
06.03.2018 passed in O.S.No.29 of 2014 on the file of the Court
of the Principal Junior Civil Judge at Kamareddy was
confirmed.
2. The appellant herein is plaintiff 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 plaintiff filed suit for perpetual injunction in
respect of the suit schedule property. It was averred that he
purchased the same under registered sale deed bearing
No.3088 of 2005, dated 11.11.2005, while so, the defendants
tried to interfere with the suit schedule property on 24.02.2014
and tried to remove the boundary stones with a desire to grab
the land of the plaintiff and hence, the suit.
LNA, J
4. The defendants have filed written statement denying the
plaint averments and inter alia stated that defendant No.1 is
the holder of the open plot No.69 in Sy.No.52/1, 53, 55, 56,
129/1/2C vide G.P.L.P.No.01/2003 admeasuring 316.38 sq.
yards having purchased it under registered sale deed bearing
Doc.No.4581 of 2013 and prior to it, his predecessor were in
possession and enjoyment as absolute owners. The plaintiff is
wrongly identifying the said plot No.69 belonging to defendant
No.1 and triangular shape plot of P.Soujanya, w/o Defendant
No.3 admeasuring 123.33 sq. yards as suit plot and trying to
come into the possession of the said lands. The suit property
claimed by the plaintiff is not in existence and identifiable. That
the boundaries given in sale deed No.3088 of 2005 is
contradictory with that of the boundaries mentioned in link sale
deed No.2114/81. The plaintiff under the guise of orders of this
Court, approached revenue authorities and attempting to
occupy the plot No.69 by misrepresenting it as suit land. The
defendants immediately filed protest petition requesting the
authorities not to accord permission for conversion in favour of
the plaintiff without considering their grievances. It is further
stated that the plaintiff was never in possession of the suit land
LNA, J
and therefore, the question of interference by the defendants on
24.02.2014 does not arise and the suit is filed only to trespass
and damage of the property of the defendants and prayed to
dismiss the suit.
5. Basing on the pleadings the trial Court framed two issues
for trial:-
1) Whether the plaintiff is entitled for relief of perpetual
injunction as prayed?
2) To what relief?
6. Before the trial Court, on behalf of the plaintiffs, P.Ws.1
and 2 were examined and Exs.A1 to A.6 were marked. On
behalf of the defendants, D.Ws.1 to 3 and Exs.B1 to B.16 were
marked.
7. The trial Court, after considering the oral and
documentary evidence placed on record, dismissed the suit
with the following observations:-
"i) PW1 could not establish his possession over the suit schedule
property as on the date of filing of the suit. When PW1 has not
established his possession, the said fact of alleging interference by the
defendants does not arise. Further PW1 in his cross examination
admitted that 20 to 25 days prior to filing of this suit, he was called by
the police of PS Kamareddy on the complaint lodged by Defendant
LNA, J
No.2 in respect of the suit land and he was advised by the police to
approach the Court to resolve the dispute. He also admitted that since
the date of approaching police, there is no interference in the suit land
by the defendants. This suit was filed on 11.03.2014. If the
defendants have interfered on 20-25 days prior to filing of this suit,
they would have interfered only before 15-02-2014 and there is no
interference by defendant No.2 after 15.02.2014. But as per the
pleadings, the plaintiff submitted that the defendants have interfered
with the peaceful possession and enjoyment of the plaintiff over the
suit schedule property on 24.02.2014 and the same would not be
possible. The evidence of PW1 is found not in corroboration with the
plaint filed by him. Hence it can be said that the defendants have not
interfered with the peaceful possession of the plaintiff as on the date
of alleged cause of action. Hence the plaintiff also failed to establish
the interference of the defendants.
ii) The evidence of DWs 1 to 3 shows that they are in possession of
land in different survey number and not related to suit survey number.
But as per the evidence of these witnesses, the plaintiff is said to be
trying to interfere into the plots owned by showing the suit survey
number though the suit survey number is not in existence. The
defendants though were examined in length, they could not produce
any evidence to substantiate their plea that the plaintiff fabricated
false documents to encroach into the plot and could not establish that
the plots is not in existence.
8. Aggrieved by the above judgment, the appellant herein
preferred appeal vide AS. No.3 of 2018 and the first appellate
LNA, J
Court duly considering the grounds and on re-appreciation of
the entire evidence and material available on record dismissed
the appeal vide order dated 05.12.2022 with the following
observations:-
"i) PW1 in the course of his cross examination admits that about 4
guntas of land in Sy.No.129/1/6 and about one gunta of land in
Sy.No.54/1 was acquired by the government for the purpose of road
widening at the time of his vendor holding the land. Therefore, it is
clear that the boundaries of the plot claimed by Ex.A1 should change.
The plaintiff has not chosen to obtain a rectification deed from his
vendor. The fact stated in his evidence with regard to acquisition, does
not find place in the plaint pleadings. Plead and lead is the settled
rule. When such being the case of the plaintiff, the burden is heavily
on the plaintiff to prove and establish the identity of the suit plot on
ground, more particularly when the defendants have denied the title
and possession of the plaintiff over the suit schedule property.
Therefore, the preponderance of the probability is drawn in favour of
the defendants case.
ii) By virtue of all clear pleading in the written statement that the
plaintiff in the guise of this suit wrongly showing the boundaries, he is
wrongly claiming part of the defendants plot which is triangular piece
of land i.e. plot No.69 and 70. PW1 has also categorically admitted in
the course of his cross examination that the plaint schedule map
annexed to the plaint shows the open plot of Nagaraju is on the
southern side of the suit schedule property whereas the boundaries
shown in the plaint southern side discloses as open plot of Ganga
Raju and that Ganga Raju and Naga Raju are admittedly two different
persons. It is also the admission of PW1 that he cannot say on what
basis the sketch map is prepared while submitting the plaint.
iii) On two sides of the suit schedule property there is property of the
defendant. The boundaries in the sale deeds are different from the
LNA, J
boundaries shown in the plaint schedule. It is an undisputed fact that
the suit schedule property is an agriculture land and not an open plot
as stated by the plaintiff. The plaintiff cannot have a better title than
what his vendor has. On perusal of the link document marked Ex.A2
no map is annexed to the sale deed. No measurements are shown
whether the plot is rectangular or triangular, it is not clear. The
plaintiff cannot have a better title than what his vendor has.
iv) The evidence of DW1 to DW3 shows that they are in possession of
land in different survey number and not related to the suit survey
number. But as per the evidence of these witnesses, the plaintiff is
said to be trying to interfere into the plots owned by showing the suit
survey number though the suit survey number is not in existence.
v) It is gathered from the entire material on record that the total area
of Ac.4.11 ½ guntas of land is of the defendants pertaining to
Sy.No.52/1, 53, 55, 56 and Sy.No.129/1/C and all the said lands
were purchased by the father of the defendants. It is the case of the
defendants that the 2nd defendant got the lands converted into the non
agricultural lands and then made them into plots. That about 100 plots
were made in the said land apart from internal roads, drainage and
there were many houses constructed in various plots by different
purchasers and one such plot is of the defendant Nos. 1 and 2 i.e. plot
Nos.69 and 70.
9. Heard Sri K.Venumadhav, learned counsel for the
appellant and Sri Janardhan Reddy Kotha, learned counsel for
the respondents and perused the record.
10. Learned counsel for appellants argued that the trial Court
decreed the suit without proper appreciation of the evidence
LNA, J
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
below concurrently held that the plaintiffs failed to establish
their actual possession or interference by the defendants over
the suit schedule property and accordingly, declined to grant
the reliefs sought for by the plaintiff.
12. The learned counsel for appellant 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.
LNA, J
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.
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.
(2007) 1 Supreme Court Cases 546
LNA, J
17. Pending miscellaneous applications, if any, shall stand
closed.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 11.03.2024
BV
