Syed Yakoobuddin Hussaini vs Sunil .S. Arli
2024 Latest Caselaw 1101 Tel

Telangana High Court

Syed Yakoobuddin Hussaini vs Sunil .S. Arli on 15 March, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

            SECOND APPEAL No.114 OF 2024

JUDGMENT:

This Second Appeal is filed against the judgment and

decree dated 13.12.2023 in A.S.No.232 of 2016 passed by

the X Additional Chief Judge, City Civil Court, Hyderabad

(lower appellate Court), whereby and whereunder the

judgment and decree dated 16.08.2016 in O.S.No.3037 of

2011 passed by the VIII Junior Civil Judge, CCC,

Hyderabad (trial Court), was confirmed.

2. Appellant is the plaintiff and respondent is the

defendant in the suit. For convenience, the parties

hereinafter are referred to as they were arrayed in before

the trial Court.

3. Brief facts leading to filing of the present second

appeal are that the plaintiff filed suit for perpetual

injunction against the defendant in respect of the suit

schedule property i.e., house bearing Municipal No.18-8-

254/1/A/114/A (plot No.119), admeasuring 237.00

Sq. yards, which is equivalent to 198.15 Sq.Mts., situated

at New Rakshapuram Colony, Kanchanag Bagh,

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Hyderabad. It is stated that the plaintiff acquired part of

suit schedule property from his father late

Sri Syed Atharuddin Hussain by way of succession along

with other legal heirs under registered Release Deed vide

Document No.4102/2011, dated 25.11.2011, from his

mother Wasiya Sultana and remaining part of the property

from his sister by way of unregistered declaration of Lease

Deed in his favour. It is further stated that on 14.11.2011,

the defendant, who is nothing to do with the suit schedule

property, trespassed into the schedule property and tried

to grab the property with land grabbers and anti social

elements without any legal right or title. Though the

plaintiff filed a complaint before the police, they did not

take any action against the defendant and advised the

plaintiff to approach the civil court. Thereby the plaintiff

filed the above suit for perpetual injunction against the

defendant in respect of the suit schedule property.

4. Defendant filed written statement denying the

averments made by the plaintiff, stating that one

Mr. Mohd. Azghar sold Plot No.119 in Sy.No.78,

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admeasuring 244 Sq.Yds to his wife, by name Kalpana, by

way of notarized absolute agreement of sale dated

19.02.2003 by paying entire sale consideration and also

paid betterment charges, water connection charges to the

welfare society and let out the said property to the adjacent

school by name St. Mary's High School for parking under a

Lease Agreement dated 24.11.2008, subsequently, the said

lease was duly canceled on 22.04.2010. He further

contended that the contents of the entire plaint are false

and incorrect.

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

the following issues:-

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. To what relief?

6. Before the trial Court, on behalf of the plaintiff, PW1

and PW2 were examined and Exs.A1 to A5 were marked.

On behalf of the defendant none were examined and no

document was marked.

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7. After considering the oral and documentary evidence

placed on record, the trial Court dismissed the suit

vide judgment and decree dated 16.08.2016 with the

following observations:-

"The pleading of the plaintiff, clearly says that cause of action arose on 25th day of November, 2011 and on 14.11.2011 when the defendant and his henchmen came to the property and started digging the ground and tried to take illegal possession by trespassing into the property without any legal right ad title. During the cross examination, he categorically stated that it came to his knowledge that the defendant and his wife trying to raise the illegal constructions in the schedule property in the year, 2011. As per his knowledge, in the year, 2008 or 2009 his father requested the school persons not to park their vehicles in the open area, his father not got issued any notice or complaint against the school management. He do not know the defendant his wife, he do not know the Rakshpuram is a colony, where the suit schedule property is situated he heard there is a welfare association in

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Rakshpuram Colony, but he do not know about it and he never paid any contribution to that welfare association become the member of association, he know that the original owner Mohd Asghar filed a declaration affidavit in the Court saying that he sold the schedule property to the defendants wife. After filing the present suit he came to know that earlier the defendants wife leased out the schedule property to adjacent to school management underwritten rental agreement. Subsequently, a written cancellation of rental agreement took place. PW2 who is relative of PW1 categorically stated in his cross examination that he admitted that he know Kalpana S. Arli wife of the defendant who is the member of Rakshapuram plot owners colony as a owner of plot No.119. He do not know about the cause of action, so as per the evidence of PW1 and PW2 cause of action is not proved, as admitted by PW1 Ex.A1 is a forged document and as per the written declaration given by Mohd. Asgahr the wife of the defendant is the owner of the property. It is the duty of the plaintiff to prove that as on the date of the suit, he was in possession of the

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property and a threat was made by the defendants adverse to the schedule property, but they said cause of action was also not proved. Therefore, the above discussion the plaintiff failed to establish that he is in possession and enjoyment of the property as on the date of the suit.

8. On appeal, the First Appellate Court on re-

appreciation of the entire evidence and material available

on record dismissed the appeal vide judgment and decree

dated 13.12.2023 by observing as under:

"The documents relied by the plaintiff under Ex.A1 to Ex.A5 does not much help to establish the claim of the plaintiff that he is in possession of the suit schedule property by virtue of Ex.A3. On the whole it could be said that plaintiff failed to file the date of filing of the suit and also he failed to substantiate his claim by adducing any worth mentioning material evidence to establish that defendant visited the suit schedule property on the alleged date along with his associates and caused illegal possession over the suit schedule property.

"Therefore, for the reasons and discussion made above this Court is of considered view that the learned trial judge came to right a

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conclusion and there is nothing on the record which warrants interference of this Court to consider this appeal filed by the appellant - plaintiff."

09. A perusal of the record discloses that the trial Court

as well as the First Appellate Court concurrently held that

the plaintiff failed to establish his possession in respect of

the suit schedule property as on the date of filing of the

suit and thus, the plaintiff is not entitled for the perpetual

injunction. The First Appellate further held that whatever

the defense put-forth by the defendant, how much weak it

may be, such weakness of the defense or the failure on the

part of the defendant to produce sufficient evidence, would

not entitle the plaintiff for grant of a decree in his favour.

10. Learned counsel for 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 without re-appreciating

the evidence in proper perspective.

LNA, J

11. However, 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.

12. It is well settled principle that by a catena of

decisions, the Apex Court held that in the Second Appeal

filed under Section 100 of C.P.C., this Court cannot

interfere with the concurrent findings arrived at by the trial

Court and first appellate Court, which are based on proper

appreciation of the oral and documentary evidence on

record.

13. 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

14. Having considered the entire material available on

record and the findings recorded by the trial Court as well

as the lower Appellate Court, this Court finds no ground or

reason warranting interference under Section 100 C.P.C.,

with the said concurrent findings, recorded by both the

courts below. Moreover, the grounds raised by the

appellants are factual in nature and no question of law,

much less substantial question of law, arises for

consideration in this Second Appeal.

15. 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:15.03.2024 Fm