Giriji Durga Bhavani vs Revoju Bala Lachaiah
2024 Latest Caselaw 1050 Tel

Telangana High Court

Giriji Durga Bhavani vs Revoju Bala Lachaiah on 12 March, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

         SECOND APPEAL Nos. 19 AND 21 OF 2024

COMMON JUDGMENT:

Since both these appeals arise out of a same judgment

and decree, they are heard together and are being disposed of

by this common judgment.

2. These Second Appeals are filed aggrieved by the common

judgment and decree, dated 16.10.2023 in A.S.Nos.78 and 79

of 2017, on the file of the Principal Senior Civil Judge,

Karimnagar (for short, first appellate Court), whereunder and

whereby the judgment and decree dated 28.06.2017 passed by

the Principal Senior Civil Judge, Karimnagar (for short, trial

Court), in O.S.No.45 of 2010, was confirmed. The said suit,

filed by the appellants herein for declaration of title and

perpetual injunction was dismissed and the counter-claim filed

by the respondents herein was allowed.

3. The appellants are the plaintiffs and the respondent is the

defendant in the suit. For convenience, hereinafter the parties

are referred to as they are arrayed in the suit.

LNA, J

4. The facts of the case in brief are that originally, one

Surfarajuddin had purchased the suit land i.e., Ac.0-02 guntas

in Sy.No.303/A, situated at Teegalaguttapalle Grampanchayat,

Arepally Vilalge of Karimnagar District and obtained permission

from Grampanchayath for construction of a small tiled house

and lived in the said property upto 2003. Subsequently, after

the death of Surfarajuddin, his legal heirs dismantled the house

and sold the southern side of land admeasuring Ac.0-01 gunta

in favour of Hemalatha through a registered sale deed dated

05.03.2003. The wife of Sarfajuddin by name Sahida Begum

has gifted the remaining extend of land admeasuring Ac.0-01

gunta to her son by name Anwaruddin vide document

No.2439/2003. Later, the said Anwaruddin sold the said

extent to plaintiff No.2 under a registered sale deed vide

document No.6324 of 2003, dated 21.07.2003. Likewise, said

Hemalatha sold her extent of land admeasuring Ac.0-01 gunta

in favour of plaintiff No.1 under a registered sale vide document

No.8733 of 2005, dated 11.07.2005. Thus, both the plaintiffs

became the owners and possessors of suit schedule property

and have been in absolute possession and enjoyment over the

same for more than 12 years.

LNA, J

5. It is further case of the plaintiffs that later, plaintiff No.1,

after obtaining permission, constructed a house by availing

loan of Rs.1,50,000/- from Gruha Laxmi Nirmana Sahakara

Sangam Limited. He has also obtained electricity connection

and paying electricity charges. Plaintiff No.2 has also applied

for permission for construction of a house. The plaintiffs have

been living in the suit property for more than 12 years. The

defendant is no way concerned with the suit land because he is

a stranger to the suit land and he never raised objection when

the plaintiffs purchased the suit property and also at the time

of raising construction. On 21.02.2010, the defendant came to

the suit schedule property and tried to interfere into peaceful

possession and enjoyment of the suit land by denying the title

of the plaintiffs. Hence, the plaintiffs filed the suit.

6. The defendant filed written statement and also counter

claim by denying the contents of plaint and further stated that

he is original owner and possessor of plot No.11, admeasuring

241.72 Sq.yards in Sy.No.303/A, situated at

Theegalaguttapally, having purchased the same under a

registered sale deed dated 09.08.1990 vide document No.2874

of 1990 from its original owners i.e., Mula Madhava Reddy and

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others by paying sale consideration of Rs.8,461/-. It is further

stated that in view of the interim order granted in I.A.No.194 of

2010, dated 04.03.2010, the defendant has lost his possession

but not the title. It is further stated that his vendors were the

original owners of the land admeasuring Ac.2-10 guntas in

Sy.No.303/A and that the plaintiffs filed the present suit on the

basis of fabricated documents.

7. The defendant further stated that mere pleading of long

possession does not create adverse possession and the house

construction permission, electricity charges bills does not

create any title and adverse possession in favour of the plaintiff.

Basing on the above pleadings, the defendant sought for

dismissal of the suit.

8. The plaintiffs have filed reply to the counter-claim by

denying all the averments of written statements and submitted

that in fact, the defendant has lost his possession in the year

1993 when he sold the suit land to one Md.Shoukath Ali by way

of simple sale deed along with possession.

09. Based on the above pleadings, the trial Court framed the

following issues:-

LNA, J

1. Whether the plaintiff is the owner of the suit property?

2. Whether the plaintiffs are in possession of the suit property?

3. Whether the plaintiffs are entitled for injunction as prayed for?

4. Whether the defendant is the owner of the suit property?

5. Whether the defendant is entitled for recovery of possession as prayed for?

6. Whether the defendant is entitled for mandatory injunction, as prayed for?

7. To what relief?

10. During the course of trial, on behalf of the plaintiffs,

PW.1 to PW.5 were examined and Ex.A-1 to A-39 were marked.

On behalf of the defendant, DWs.1 to 3 were examined and

Ex.B-1 was marked.

11. The trial Court, on due consideration of oral and

documentary evidence placed on record, dismissed the suit and

decreed the counter-claim of the defendant, directing the

plaintiffs to vacate and handover the suit schedule property to

the defendant.

12. The trial Court made the following observations which are

as under:-

(i). "It is the evidence of PWs1 and 2 that at first instance their vendors vendor by name Md. Shoukath Ali has purchased the suit schedule land from the defendant in the year 1993 under Ex.A22 and

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thereafter, the said Shoukath Ali has sold away to Sarfarazuddin under Ex.A23. It is not known that whether the defendant was aware of those transactions and that whether the defendant was aware Sarfarazuddin has constructed the house in the year 1993 itself. Therefore, the plea of adverse possession is amenable to firstly to Md.Shoukath Ali and Secondly to Sarfarzuddin, it is not the pleadings and evidence that the defendant knew that Sarfarazuddin has constructed the house and he allowed to stay him till they have purchased in the year 2003 and in the year 2005. So, it is unknown whether the defendant knew that Sarfarazuddin was in possession of the suit property till Ex.A1 and A2. Therefore, it can be said that it is not tot eh knowledge of the defendant. It is the case of DW1 that he is staying 40kms away from the suit land.

Therefore, whether the defendant knew the fact of possession of Sarfarzuddin from the year 1993 onwards for which there is no evidence. Therefore, the plaintiffs cannot say that the defendant is aware of the possession of Sarfarazuddin.

(ii). Then, coming to Ex.A1and A2 which are executed by PW5 and Md. Anwaruddin in the year 2003 and 2005. The plaintiffs filed the suit in the year 2010 as the defendant tried to interfere into the peaceful possession and enjoyment of the suit land. There is no lota of evidence, that the defendant knew all the developments of alienation and possession. Even, otherwise, it is unknown to law whether the plaintiffs can set up plea of adverse possession based on simple sale deed dated 01.06.1993 and 21.08.1993. Absolutely, the plaintiff cannot maintain any suit for declaration of title based on adverse possession. Thus, the plaintiffs failed to make out that they are actual, peaceful and uninterrupted continuous possession over the suit property for more than 12 years to the exclusion of the defendant with the element of hostility in asserting their rights of ownership to the knowledge of the defendant who is true owner.

(iii). On careful consideration of the entire oral and documentary evidence of the plaintiffs and defendant, this Court is of considered view that the plaintiffs filed to establish their title over the suit schedule property. But, however, has proved the possession over the suit schedule property.

(iv). It is settled law that injunction can be granted against any person in the universe except the true

LNA, J

owner. Admittedly, the defendant is the true owner. Then, the plaintiffs cannot maintain any suit for injunction. The title of the plaintiffs remains myth. Hence, not entitled for equitable relief of injunction.

(v). The plaintiffs failed to establish the title and lawful possession over the suit schedule property and also failed to establish that their possession can be protected under Section 53-A of Transfer of property Act, 1882. Since, the plaintiffs vendor's vendor Mohd. Shoukath Ali and Sarfarzuddin did not acquire any title by virtue of Ex.A22 and A23 the plaintiffs are in possession of the suit property since their date of purchase under Ex.A1 and A2.

(vi). Therefore, in the absence of clear evidence, plaintiffs cannot said to have claim that their vendors vendor were in possession of the property. Had been the plaintiffs could have proven the execution of simple sale deed Ex.A22 in favour of Mohd. Shoukath Ali by the defendant, then, the benefit under Section 53-A of Transfer of property Act, 1882 would have been does entitle for protection unless the transferee gets rights over the property. So, therefore, the judgments relied upon by the plaintiffs cannot be made applicable and with great respect the same are not followed. So, therefore, the plaintiffs arguments that their possession can be protected under Section 53-A is beyond the scope.

(vii). It is true that the plaintiff has constructed the house after purchasing the property under Ex.A1. Dw1 also admits that it is the plaintiff No.1 who has constructed the structure. In view of the finding that the plaintiffs did not acquire any valid title by virtue of Ex.A1 and A2, as such, their possession cannot be protected except, asking the defendant to pay estimated value of the structure thereof which will meet ends of justice and also to scales down balance of principle of equity".

13. Aggrieved by the above said judgment, the plaintiffs

preferred A.S.Nos.78 of 2017 against the dismissal of the suit

and A.S.No.79 of 2017 against decree of counter-claim of the

defendant. The first appellate Court on re-appreciation of the

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facts and material available on record dismissed the appeals by

confirming the judgment of the trial Court. The first appellate

Court made following observations for its conclusions, which

read as under:-

(i). "As I already stated above, the plaintiff has claimed that the old house which was constructed by Sarfarajuddin was dismantled after his death and then the wife and son of Sarfarajuddin has sold the property to the plaintiff No.1 and 2. However, on perusing the cross examination of PW.2, he has deposed that at the time of his purchase of suit schedule property, ther was an old house and after purchasing house property he got dismantled and constructed a new structure. This part of cross examination of PW.2 is contrary to the pleadings of plaintiffs. If the evidence of PW.2 is taken into consideration, he himself dismantled the old hosue and raised a new construction which is not at all the case of the plaintiff No.1 or plaintiff No.2 at any point of time. On perusing the cross examination of PW.1 and PW.2 they have categorically admitted about the discrepancy of house number on the document submitted by them before the Court.

(ii). The plaintiffs has totally relied on Ex.A22 and A23 to prove valid flow of title over the suit schedule property. But Ex.A22 and A23 which are unregistered sale deeds are not valid in the eye of law to transfer valid title in favour of Showkath Ali and from Showkath Ali to Sarfarajuddin. When the vendor's of plaintiffs are not having valid title over the suit schedule property, they cannot transfer a valid title to the plaintiffs.

Though PW.5 has claimed that she has purchased the property through a registered sale deed from one Muslim family, but at the time of cross examination, she deposed that she do not know the contents of her sale deed. She further deposed that except sale deeds she did not handover any other documents to the plaintiffs and when the plaintiff No.1 has purchased the suit schedule property from PW.5 it is the duty of PW.5 to hand over the documents through which she has purchased the property to the plaintiff No.1. But as admitted by PW.5 she has not at all handed over the link documents to the plaintiff No.1.

LNA, J

(iii). Though the plaintiffs has also examined PW.4 he has admitted at the time of cross examination that he do not know from whom MD.Anwaroddin has purchased the property and he has not seen the link documents of plaintiff No.2. Though the plaintiff No.1 has deposed that she has submitted the link documents along with the suit but on perusing the record, she has not filed Ex.A22 and A23 before the Court along with the suit, which clearly establishing that Ex.A22 and A23 were created by the plaintiffs after filing the written statement by the defendant.

(iv). On one hand the plaintiffs has failed to establish their title over the suit property by way of adverse possession against the defendant and on the other hand, the plaintiffs failed to establish the valid flow of title in their favour from the defendant. Therefore, the plaintiffs are not entitled for declaration of title and consequential relief of permanent injunction against the defendant.

(v). The defendant has also filed counter claim which was decreed by the trial Court. Aggrieved by the said judgment, the plaintiffs have also preferred the appeal. However, in view of the above discussion, it is clear that the defendant has originally purchased the suit schedule property from his vendor under Ex.B1 which is a registered sale deed and he has not sold the suit schedule property either to Showkath Ali or to Sarfarajuddin, but taking advantage of absence of defendant at the suit schedule property the plaintiffs has started construction in the suit schedule property. Therefore, the defendant is entitled for recovery of possession of suit schedule property from the plaintiffs.

14. Heard Sri Vedula Srinivas, learned Senior Counsel

representing Smt. Vedula Chitralekha, learned counsel on

record for the plaintiffs and Sri D. Bhaskar Reddy, learned

counsel for the respondents.

15. Learned counsel for the appellants would submit that the

trial Court as well as first appellate Court have not properly

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construed the concept of adverse possession. He relied upon

the judgment of the Apex Court in Dagadabai Vs Abbas Alias

Gulab Rustum Pinjari 1 on the point of adverse possession,

and the relevant portion of it reads as under:-

"Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that lay on him in accordance with law. When both the courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit and then such concurrent findings of fact were unimpeachable and binding on the High Court".

16. Per contra, the learned counsel for the

respondents/defendants submits that trial Court as well as the

first appellate Court, on appreciation of both oral and

documentary evidence, rightly dismissed the suit of the plaintiff

and decreed the counter-claim. He further submits that the

failed to raise substantial question of law to interfere with the

reasoned judgments of the trial Court as well as first appellate

Court. He has relied upon the judgment of the Apex Court in

Dagadaba Vs Abbas Ali Gulab Rustum Pinjari 2 considering

the issue of adverse possession as read as under:-

(2017) 13 SCC 705

(2017) 13 SCC 705

LNA, J

(i). Fourth, the High Court erred fundamentally in observing in para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea". In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the rue owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.

(ii). It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results, in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.

17. Learned counsel for the respondent also relied upon

judgment of Hon'ble Apex Court in Nazir Mohamed Versus

J. Kamala 3 and the relevant portion of it reads as under:-

(i). The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, wherever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

AIR 2020 SC 4321

LNA, J

(ii). When no substantial question of law is formulated, but a second appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

18. Perusal of the judgments of the trial Court as well as the

first appellate Court and material placed on record would show

that both the Courts have taken into consideration and

discussed the oral and documentary evidence placed on record

thoroughly and have recorded detailed observations and finally

came to the conclusion that the plaintiffs failed to prove their

title and possession and further held that the defendant is the

owner of suit property having purchased the same by way of a

registered sale deed. Accordingly, both the Courts below

rejected the claim of the plaintiffs and allowed the counter-

claim of the defendant.

19. The learned counsel for the appellants/plaintiffs 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 they do not raise any

substantial question of law in terms of Section 100 C.P.C.

LNA, J

20. 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.

21. Further, in Gurdev Kaur V.Kaki 4, 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.

22. 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 grounds or reasons

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.

(2007) 1 SCC 546

LNA, J

23. Hence the Second appeal fails and the same is

accordingly dismissed. There shall be no order as to costs.

Miscellaneous Petitions pending, if any, shall stand

closed.

___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 12.03.2024 fm