Telangana High Court
K. Swamy vs Smt. N. Laxmi on 15 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.482 of 2023
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 16.03.2023 in A.S.No.8 of 2022 on the file of the
Principal District Judge, Siddipet, wherein and whereunder the
judgment and decree dated 12.07.2018 in O.S.No.114 of 2011
on the file of the Principal Junior Civil Judge, Gajwel, 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 originally, one Enkaiah was the owner of the land
admeasuring to an extent of Ac.1-31gts in Survey No.16
situated at Madaram village, Warangal Mandal (herein after
referred to as 'suit property'). The said Enkaiah had four sons
viz., Vishwanatham, Laxminarayana, Laxminarsaiah and
Ramaiah. The suit property has been divided into four parts
and the said Vishwanatham, who is father of plaintiff got Ac.0-
26 gts., one Laxminarsaiah got Ac.0-12 gts and the remaining
land went to Ramaiah and Laxminarayana. The suit property
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appeared in the name of Vishwanatham for the year 2003-04,
2004-05 and 2009-10.
4. It is further contended that as per the revenue records,
the defendants are not having any title or right over the suit
property. Further, defendant No.1 without any consent or
knowledge of other family members sold the property to one
Shoura Rayulu, who in turn sold the property to defendant
No.2. On coming to know such fact, the plaintiff had
approached defendant No.2 with the elders regarding the fate of
the property. The defendant No.2 came to suit property and
pressurized him to dispose of property and he also made
attempt on 05.11.2022 and 15.12.2022. Hence, the suit for
declaration and perpetual injunction.
5. Defendant No.2 had filed written statement denying
averments made by the plaintiff inter alia contending that
defendant No.1 being a family member, with consent and
knowledge of other family members sold the property to Shoura
Rayulu vide document No.565/2007, dated 18.01.2007. The
said Shoura Rayulu in turn sold the said property to defendant
No.2 vide document No.2282/2008. It is contended that the
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cause of action alleged to be pleaded in the plaint is false; that
the father of defendant No.1 viz., Laxminarsaiah was the
pettadar and owner of the land Ac.1-31 gts in Survey No.16/AA
in Madaram village, who gifted the land Ac.0-35 gts out of Ac.1-
31 gts and other lands to defendant No.1 vide gift deed
No.1326/1988 and defendant No.1 also succeeded the
remaining land Ac.0-36 gts. out of Ac.1-31 gts.; that the
plaintiff has sold away his land to an extent of Ac.0-22 gts in
Survey No.16/E to Sri Kammari Mallesham and his name was
also mutated in the revenue records. Hence, prayed to dismiss
the suit.
6. Before the trial Court, on behalf of the plaintiff, PW1 was
examined and Exs.A1 to A3 were marked. On behalf of the
defendants, DW1 was examined and Exs.B1 to B4 were
marked.
7. The trial Court, after considering the entire material
available on record, vide its judgment and decree dated
12.07.2018 dismissed the suit by observing as under:
"(i) This is a suit for declaration of title, hence the
burden lies on the plaintiff to establish Enkaiah was the
pattedar and he had 4 sons and the land divided into 4 parts.
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(ii) The case of the defendant is that the defendant
No.1 being a family member and with the knowledge of plaintiff
sold land to Shouri Rayalu. The PW1 oral evidence clinches his
pleadings that he stated in his cross-examination that he do
not know whether defendant No.1 sold the land to an extent of
Ac.1-31 gts to M. Shoura Rayalu in the year 2007 in turn
Rayalu sold the same to Vadakattu Srinivasu. Once the plaint
pleadings are that his family member sold to Soura Rayalu,
how he pleaded ignorance before this Court therefore, his oral
evidence is disbelieved in any fact.
(iii) The plaintiff neither participated in the proceeding
nor cross- examined DW1, therefore the evidence of defendants
taken into consideration as kept unchallenged. Ex.B1 is
executed by defendant no.1 in favour of Shouri Rayalu. The
plaint itself pleaded the fact. There is no denial as such Ex.B1
is proved. Ex.B2 is the 1-B namoona clearly shows the name of
defendant No.2 to an extent of Ac.1-31 gts. in Sy.No.16/A/4.
Ex.B3 is pahani reflecting the defendant No.2 as owner and
possessor. Ex B3 is the subsequent to the filing of suit.
However, the defendants able to establish their title by way of
filing Ex.B1 in the year 2007 therefore Ex.B3 is a continuation
of such document. Ex.B4 is the original pattedar pass book is
also corroborating Ex.B1
(iv) The plaintiff filed the suit for declaration of title.
There is no positive denial from the defendants denying the title
of the plaintiff. The plaintiff himself filed suit referring
registered sale deeds stating that the defendant No.1 sold to
Shoura Rayalu and whereas the plaintiff pleaded his ignorance
in his oral evidence about such sale.
(v) The plaintiff further failed to establish the cause
of action that the defendants interfered on 05-11-2011 and 15-
12-2011 without any right."
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8. The first appellate Court on re-appreciation of the entire
evidence and perusal of the material available on record vide
judgment and decree dated 16.03.2023 dismissed the appeal by
observing as under:
"(i) As per the version of the plaintiff, his father has four
brothers namely Laxminarayana, Laxminarsaiah and
Ramaiah. But Exs.A1 to A3 only show that his father
Vishwanatham Lofer is pattadar and possessor of Ac.0-22
guntas in Sy.No.16/E1. Had the plea of the plaintiff is true and
correct, these exhibits should have shown the name of
Vishwanatham's brothers Laxminarayana, Laxminarsaiah and
Ramaiah. But these exhibits do not show their names instead
names of Kammari Mallesham and others are shown. It is
pertinent to note, PW1 in his cross-examination, stated that
Laxmi is the daughter of Laxminarsaiah. As per his version
Laxmi was given Ac.0-12 guntas in suit survey number. But
Exs.A1 to A3 do not show that Laxmi has Ac.0-12 guntas of
land in suit survey number. Further in his cross- examination,
he also stated that he does not know whether defendant No.1
sold the land to an extent of Ac.1-31 guntas to M.Soura Rayulu
in the year 2007.
(ii) This being a suit for declaration of title and
perpetual injunction, the plaintiff has to prove his title and he
cannot depend on the weakness of the defendant's case.
Except Exs.A1 to A3, no other document is filed by the plaintiff.
Mere entries in revenue records would not confer title. In a suit
of this nature, plaintiff has to prove his title over the suit land
by a series of documents tracing his title to the original owner.
The plaintiff should have filed 1-B Namuna and also other
documents which show that Ac.1-31 guntas of land in
Sy.No.16/E originally belongs to his father Enkaiah and in a
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partition his father and his paternal uncle each got Ac.0-22
guntas. In the absence of any such document on the mere
ground some pahanies show the plaintiff as patradar of the
suit land, his title cannot be declared and the defendants
whose land is in a different survey number cannot be
restrained from alienating the suit land. The Trial Court has
considered all these aspects and rightly dismissed the suit."
9. Heard Mr.S.A.Subbarao, learned counsel for the
appellant. Perused the record.
10. A perusal of the record discloses that both the trial Court
as well as the first appellate Court concurrently held that in a
suit for declaration and perpetual injunction, the plaintiff has
to prove title as well as possession and cannot depend on the
weakness of the defendants and that the plaintiff failed to prove
his title and also interference by the defendants and hence,
dismissed the suit.
11. 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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12. 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.
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
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.
15. 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.
16. 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.
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LAXMI NARAYANA ALISHETTY, J
Date: 15.03.2024
Dua
