Katkam Maheshwer vs Akula Hanmandlu
2024 Latest Caselaw 1073 Tel

Telangana High Court

Katkam Maheshwer vs Akula Hanmandlu on 13 March, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               SECOND APPEAL No.94 of 2024

JUDGMENT:

This Second Appeal is filed against the judgment and

decree dated 04.09.2023 in A.S.No.7 of 2019 on the file of the

Principal District Judge, Jagtial, wherein and whereunder the

judgment and decree dated 21.06.2019 in O.S.No.51 of 2014 on

the file of the Junior Civil Judge, Metpalli was confirmed.

2. For the sake of convenience, the parties hereinafter are

referred to as they were arrayed before the trial Court.

3. Brief facts leading to filing of the present second appeal

are that the plaintiff is the exclusive owner and possessor and

is in enjoyment of the house site plot in Sy.No.690 admeasuring

to an extent of 325 sq.yds situated at Metpalli village

(hereinafter referred to as 'suit property') having purchased the

same from Kamtam Ramesh and Kamtam John under a

registered sale deed vide document No.832/2014, dated

11.03.2014. After purchase of suit property, the plaintiff got

mutated his name in revenue records and obtained pattedar

pass book. Thereafter, the plaintiff, in order to construct a

compound wall around his plot below five meters, had

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constructed a small tin shed by cement bricks to keep the

utensils in it; the defendant tried to interfere with the

construction and also tried to demolish the construction.

Hence, the present suit.

4. The defendant filed the written statement denying the title

and possession of the plaintiff over the suit property. It is

alleged that that vendor's vendor of plaintiff namely Cheeti

Vijaya Ranga Rao is not competent to convey the suit property

under the registered sale deed No.832 of 2014 dated

11.03.2014 to the plaintiff and the said sale deed was brought

into existence without any consideration and without delivery of

possession of the suit property. The said Cheeti Vijaya Ranga

Rao gave reply on 20.10.1995 in response to the letter vide

CC.No.1052/MJ/75, dated 28.10.1985 issued by Land Reforms

Tribunal Karimnagar on the name of Cheeti Venkata Narsimha

Rao to the effect that he is the son of Late Cheeti Venkata

Narsimha Rao, who died in the year 1981 and that he did not

inherit any land as shown in the declaration as his successor

and further, he was not in a position to surrender any land held

by him and the entire lands held by Cheeti Venkata Narsimha

Rao are in the possession of third parties.

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5. It is alleged that the suit land is located in Survey No.685

and therefore, the lands in Survey No.682 and 690 are not the

subject matter of this suit and that father of the defendant

namely Akula Chinna Gangaran and others are the joint

owners and possessors of the lands in Survey No.680

admeasuring Ac.1-00 guntas, Survey No.685 admeasuring

Ac.2-09 guntas consisting of one compact land. Totally Ac.6-17

guntas of Metpalli Shivar having acquired under the

unregistered simple sale deed dated 21.03.1961 through

purchase from Cheeti Anandamma w/o.Cheeti Venkata

Narsimha Rao for a valid consideration with delivery of

possession. Since then, they are in peaceful possession and

enjoyment of said lands including the suit property. As such,

son of said Cheeti Anandama namely Cheeti Vijaya Rangarao

has no right, title, interest or possession in and over the suit

property.

6. It is further alleged that said Cheeti Anandamma sold the

lands in Survey No.680 admeasuring Ac.1-00 guntas, Survey

No.685 admeasuring Ac.3-08 guntas and Survey No.690

admeasuring Ac.2-09 guntas in favour of father of defendant

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namely Akula Chinna Gangaram, Gonela Lingam, Akula Pedda

Gangaram, Duggi Narsimlu and Gonela Kaladhar Lingam along

with other landed properties to various purchasers in the year

1961 and therefore, the father of the defendant and other

sharers became joint owners and possessors of the said lands

including the suit land.

7. It is further alleged that father of the defendant died

leaving behind the said lands and the defendant as Class-I legal

heir under Hindu Succession Act, who succeeded his share of

land in the said lands. The other sharers also died and their

legal heirs succeeded the lands and are in possession and

enjoyment of their respective lands and that name of the

defendant is mutated in the revenue records for the year 2009-

2010 and 2010-2011 as owner and possessor of the lands

including the suit property to the extent of his share and that

name of the plaintiff is never recorded as owner and possessor

of the suit land on the basis of alleged sale deed document.

Thus, the plaintiff is out of possession. As such, question of

erecting hut does not arise.

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8. Before the trial Court, on behalf of the plaintiff, PW1 to

PW4 were examined and Exs.A1 to A4 were marked. On behalf

of the defendants, DW1 to DW3 were examined and Exs.B1 to

B17 were marked.

9. The trial Court, after considering the entire material

available on record, vide its judgment and decree dated

21.06.2019 dismissed the suit by observing as under:

"(i). On careful perusal of the documentary evidence adduced by the defendant, it reveals that the Ex.B1 simple sale deed Dt.21.03.1961 executed by Smt. Anandamma in favour of father of defendant and others in respect of the suit land among other lands in Sy.Nos.685, 682 and 690. It further reveals that the Cheeti Venkata Narsimha Rao, who is the husband of the Cheeti Anandamma, sold away the said lands including suit land in favour of third parties. The crucial document in this case is the Ex.

B9 attested copy of reply Dt.28.10.1985, which categorically reveals that the Cheeti Vijaya Ranga Rao who is adopted son of late Cheeti Venkata Narsimha rao and Cheeti Anandamma, reported that he did not inherit any land as shown in his declaration as successor and as such he is not in a position to surrender any land held by him and all the lands held by Cheeti Venkata Narsimha Rao and his wife Anandamma are in possession of third parties. It is further reveals that the Cheeti Venkata Narsimha Rao who is husband of Cheeti Anandamma filed Ceilings Declaration before the Land Reforms Tribunal, Jagtial vide Cc.No.1052/M/75 stating that his wife Cheeti Anandamma have already sold away the lands in Sy.Nos.682, 685 and 690 admeasuring Ac.1-00, 3-08 and 1-00 Gts. respectively under the simple sale deed Dt.21.03.1961.

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Thereafter, on the objection petition filed by the father of defendant and others, the LRAT, Karimnagar excluded the above lands including suit land from ceiling and subsequently the Land Reforms Tribunal, Jagital issued notice vide CC.No.1052/MT/75 Dt.18.10.1985 to surrender the surplus land in the name of deceased Cheeti Venkata Narsimha Rao, and his son namely Cheeti Vijaya Ranga Rao filed application on 28.01.1985 stating that he has not holding and not inherited any land from his father. In view of the documentary evidence before the Land Reforms Tribunal, Jagityal and the Land Reforms Appellate Tribunal, Karimnagar, this court came to conclusion that there is no land succeeded or inherited by Cheeti Vijaya Ranga Rao S/o.Cheeti Venkata Narsimha Rao, as per his own declaration.

(ii). When the vendor's vendor of the plaintiff has no perfect title, how the proceedings under the Ex.A2 were issued by the revenue authorities and in turn the Ex.A1 sale deed was executed in favour of the plaintiff by his vendors. However, the plaintiff has not filed any document showing his exclusive possession and enjoyment over the suit land as on the date of filing of suit. The Ex. A3 pahani for the year 2013 reveals the name of vendors of plaintiff but not in the name of plaintiff as on date of filing of suit in respect of the suit land. As rightly contended by the counsel for the defendant, the Ex.A1 does not reveal the respective extents of the lands in Sy.Nos.682, 685 and 690. By virtue of all these oral and documentary evidence of the parties and the categorical admissions made by the PW.1 in his cross examination, this court is of the opinion that there is a doubt that the plaintiff is in the physical possession and enjoyment over the suit schedule property. When the possession and title of the plaintiff itself under cloud and is having doubtful before this court, the possession and enjoyment of the plaintiff in respect of the suit schedule property is not proved.

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(iii). In order to prove the interference by the defendant, the Pws.1 to 4 specifically deposed that on 15.02.2014 the defendant along with supporters came to the suit schedule property and tried to interfere with possession of the plaintiff and also tried to demolish the construction, which the PW.1 resisted. Admittedly, the PWs.1 to 4 themselves admitted that there is no construction of compound wall in and over the suit land. According to Section 31 of the Indian Evidence Act, the admissions are not conclusive, but may estop the parties in future course of time. When the plaintiff approaches this court with the relief of permanent injunction, it is the duty of the plaintiff to know that where the suit schedule property is located and who are the neighbourers of his property and who interfered and encroached into the suit schedule land must certain. The discretionary relief of injunction can be granted subject to satisfying the possession and approaching with clean hands to this court. As per oral and documentary evidence under the Exs.B1 to B18, the defendant and others are in the possession of suit land which they inherited from their respective fathers after purchase from Smt.Anandamma under the simple sale deed, which was regularized on paying stamp duty and penalty. However, the oral evidence of the Pws.1 to 4 and Dws.1 to 3 are considered by this court subject to Section 91 and 92 of the Indian Evidence Act. Therefore, this court came to a safe conclusion that when the plaintiff failed to proof the identity of the suit schedule property within boundaries adducing cogent, proper and convincing evidence before this court, the question of interference by the defendant or his supporters over the suit schedule property of the plaintiff does not arise."

10. The first appellate Court on re-appreciation of the entire

evidence and perusal of the material available on record vide

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judgment and decree dated 04.09.2023 dismissed the appeal by

observing as under:

"(i). In the suit plaintiff has to establish his long possession over suit schedule land. He should also establish that the defendant caused interference with the peaceful enjoyment of plaintiff over suit land. This vital ingredient has to be established by the plaintiff so as to grant relief in his favour. In the process of establishing his case plaintiff should stand or fall on the strength of their own and cannot gain strength on the weaknesses if any in the case of defendants. In the back ground of these legal principles Court proceeds to examine the evidence on record both oral and documentary and see whether the plaintiff is able to establish his possession over the suit land.

(ii). Court has carefully perused the averments of plaint, written statement of defendant, deposition of PW1 to 4 and contents of Ex.A1 to A4 and Ex.B1 to B18. A close scrutiny of the oral and documentary evidence discloses that entire dispute revolves round the capacity of the vendor of plaintiff's vendor in selling land to the plaintiff's vendor. Except Ex.A1 sale deed plaintiff failed to file link documents proving the title of his vendor's vendor and his vendor. When the vendor of plaintiff's vendor by name Cheeti Vijaya Ranga Rao made it clear before Land Reforms Tribunal that he did not succeed any property from his father. So he is estopped from claiming, right over the property at later point of time.

(iii). Neither sale deeds of is vendor nor proof of possession of his vendor are placed before the Court. From the material available on record it can be said that plaintiff failed to establish his right over suit plot and the alleged interference by defendant and his men cannot be accepted as true and correct and it was

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introduced by plaintiff for the purpose of filing suit in order to create artificial cause of action.

(iv). Above discussion leads me to conclude that plaintiff failed to establish the title and possession of suit plot and he also failed to establish that defendant and his men caused interference in respect of his enjoyment Since plaintiff introduced artificial cause of action and filed the suit he is not entitled for perpetual injunction as prayed for. Point No.1 is accordingly answered against the plaintiff."

11. Heard Mr.K.Venumadhav, learned counsel for the

appellant. Perused the record.

12. A perusal of the record discloses that both the trial Court

as well as the first appellate Court concurrently held that the

plaintiff failed to prove the identity of the suit property with

boundaries adducing cogent, proper and convincing evidence

and therefore, the question of interference by the defendant or

his supporters over the suit schedule property of the plaintiff

does not arise.

13. Learned counsel for the appellant vehemently 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.

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14. However, learned counsel for the 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.

15. 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

arrived at by the Courts below, which are based on proper

appreciation of the oral and documentary evidence on record.

16. 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.

17. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the

Appellate Court, this Court finds no ground or reason

(2007) 1 Supreme Court Cases 546

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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.

18. Hence, the Second Appeal fails and the same is

accordingly dismissed at the stage of admission. No costs.

Pending miscellaneous applications, if any, shall stand

closed.

___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 13.03.2024 Dua