Telangana High Court
Fothedar Ramesh Kumar vs Gudem Golla Kurmanna on 18 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.256 of 2021
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 11.11.2019 in A.S.No.53 of 2018 on the file of the
IX Additional District Judge, Wanaparthy, wherein and
whereunder the judgment and decree dated 06.06.2018 in
O.S.No.101 of 2009 on the file of the Junior Civil Judge,
Wanaparthy, 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 of the
lands in survey No.581/1=581/A3 to an extent of Ac.1-20 gts
dry and survey No.582=582/AA to an extent of Ac.1-22 gts dry
situated at Nagarala village of Pebbair mandal (herein after
referred to as 'suit schedule lands'). The suit schedule lands are
originally belongs to late Kamsali Krishnaiah @ Kistanna, who
is the own younger brother of plaintiff's paternal grandfather.
Said Kamsali Krishnaiah though married three wives in his life
time, could not get any male issues except one daughter
LNA, J
through first wife, who was married long back and she went
away to her in-laws by taking sufficient property including gold
and silver and lands. All the three wives died and no one is
there to claim anything and no property left behind him to
succeed or inherit by anybody. In last days of said Krishnaiah
none were there to serve him except the plaintiff and his elder
brother. Out of love and affection, the said Krishnaiah has
gifted some properties to the plaintiff and his elder brother.
After the death of said Krishnaiah, his second wife
Susheelamma and first wife's daughter Eashwaramma
quarreled and challenged the Will deed executed by Krishnaiah
in favour of the plaintiff bequeathing properties situated at
Srirangapur and Gumpanpally villages in O.S.No.5/1997 and
they succeeded and the said proceedings are pending before the
Hon'ble High Court in A.S.No.2084/1999.
4. The, second wife of Krishnaiah died and Eashwaramma is
alive. But they did not claim the suit schedule lands and they
used to express that the two survey numbers given to the
plaintiff are sufficient for the service rendered to late
Krishnaiah and for which, the plaintiff contended that apart
from suit schedule lands, the other lands also in
LNA, J
O.S.No.5/1997 are to be secured with full rights as they have
been bequeathed in favour of the plaintiff. More over the land
given to plaintiff's elder brother was never objected or claimed
by the said Susheelamma and Eashwaramma. The plaintiff got
mutated his name in the ROR and also got pattadar pass book
and title deeds in his favour. The defendants are inter related
i.e. father, son and daughter-in-law who are belonging to one
family and they have no connection with the suit lands. The
defendants, who are inimical to the plaintiff tried to interfere
into the suit lands on 26.05.2009, but the plaintiff could resist
the same with great difficulty. Hence, the suit.
5. The defendants filed written statement denying all the
averments mentioned in the plaint inter alia contending that
defendant No.3 is the owner of survey No.581 to an extent of
Ac.1-20 gts and in survey No.582 to an extent of Ac.1-22 gts
both are in one compact block and he purchased the said lands
on 27.02.2009 from Smt.Eashwaramma through registered sale
deed bearing No.3236 of 2009 and since then, defendant No.3
is in possession of the said property. The vendor of defendant
No.3 and her mother Susheelamma were cultivating the land
prior to purchase of said land by defendant No.3. After
LNA, J
purchase of said land, defendant No.3 dug two bore wells. The
vendor of defendant No.3 and her mother Susheelamma filed
suit against the plaintiff vide O.S.No.5/1997 on the file of
Senior Civil Judge's Court, Wanaparthy regarding the
properties of their father late P.Krishnaiah, wherein the Will
deed dated 30.05.1994 said to have been executed by late
P.Krishnalah was discussed and learned Judge had given a
categorical finding that the said Will deed is not genuine. The
suit schedule lands are also one of the properties of the said
Will deed and thus, the plaintiff is not entitled for any kind of
relief. Therefore, the defendants prayed to dismiss the suit.
6. Before the trial Court, on behalf of the plaintiff, PW1 to
PW3 were examined and Exs.A1 to A16 were marked. On behalf
of the defendants, DW1 to DW5 were examined and Exs.B1 to
B6 were marked.
7. The trial Court, on due consideration of oral and
documentary evidence available on record, vide its judgment
and decree dated 06.06.2018 dismissed the suit by observing
as under:
"The Sl.No.1 property in the present case is Sy.No.581/1
and the same is covered in issue NO.1 in O.S.5/1997. Pw1 during
LNA, J
his cross examination dated 30.1.2015 admitted that the suit
schedule land in Sl.No.2 and that the land mentioned in Ex.A9 as
survey No.581/2 are one and the same. It is to be noted that in
the Judgment O.S.5/1997 the first issue has been decided that
late Krishnaiah has not executed Ex B4 will deed dt.30.4.1995 in
favour of first defendant in the said suit, who is the plaintiff herein
and that the vendor of D3 was in possession of the properties
covered under the Ex.A9 Will deed.
It is settled law that possession follows title. Since the
Sl.No.1 of the suit schedule property i.e. 581/1 is covered under
the judgment in O.S.5/1997 and inview of the admission of Pw1
that Sl.No.2 of the suit schedule property 582/AA and the
property referred as 581/2 in Ex.B1 are one and the same, and in
view of the findings in the said suit that the vendor of D3 was in
possession of the properties covered and under Ex.A9/B4 Will
deed, no further findings can be given regarding the possession of
the plaintiff.
The plaintiff has to prove his case on his own legs, but he
cannot depend upon the weakness of the defendant. It is an
admitted fact that basing on Ex.A9 will deed the revenue record in
respect of suit schedule property is entered in the name of
plaintiff. Inview of the findings on Ex.A9 in O.S.5/1997 and the
suit schedule property is covered under Ex.A9 will as appearing in
the document and as admitted by PW1 during the course of his
cross examination dated 30.1.2015, the plaintiff is not entitled for
injunction against the defendants purchased the suit schedule
property from plaintiff No.1 in O.S.5/1997 bonafidely."
8. Aggrieved by the above judgment, the plaintiff had
preferred appeal vide A.S.No.53 of 2018 before the IX Additional
District Judge, Wanaparthy. The first appellate Court on re-
LNA, J
appreciation of the entire evidence and the material available on
record, vide judgment and decree dated 11.11.2019 dismissed
the appeal by observing as under:
"As seen from the evidence on record the burden of proof
lies on the plaintiff to prove that he is in possession and
enjoyment over the suit schedule property. Moreover the plaintiff
has to specifically prove that the possession must be lawful. But
in this case the plaintiff got property under Ex.A9 or Ex.B4 will but
the same was not accepted as per Ex.A8 or Ex.B3 Judgment. As
seen from the evidence of DW1, DW2, DW3, DW4 and DW5
Krishnaiah not executed EX.A9 will in favour of the plaintiff. There
is no dispute that Eashwaramma is the daughter and
Susheelamma is the second wife of K.Krishnaiah and they are the
legal heirs of K.Krishnaiah. The third defendant purchased the
suit property under Ex.B1 sale deed from defendant and
Susheelamma filed O.S.5/1997 for declaration and permanent
injunction against the appellant herein, the said suit was decreed
on 26.4.1999 as per Ex.A8 or Ex.B3. Thereafter in the year 2009
Eashwaramma sold the suit property in favour of third defendant
under Ex.B1. The third defendant has got right and title over the
suit property. An injunction not to be granted against true owner.
As per Pw2 defendants are in possession of suit property since 7
or 8 years and cultivating the suit lands. Here the possession of
the plaintiff is not lawful and though the plaintiff is filed the
revenue records. The said revenue records are obtained only
basing on the will i.e Ex.A9 and Ex.B4. Hence the plaintiff is not
entitled to the permanent injunction as prayed for."
9. A perusal of the record discloses that the trial Court as
well as the first appellate Court concurrently held that the
plaintiff has failed to prove his case. It was further held that
LNA, J
defendant No.3 purchased the suit schedule lands from
Eashwaramma under Ex.B1. In fact, prior to execution of
Ex.B1, Susheelamma and Eashwaramma filed O.S.No.5 of 1997
for declaration of title and for perpetual injunction in respect of
suit schedule lands and the same was decreed. Therefore,
defendant No.3 has got right and title over the suit schedule
lands. It is further observed that even PW2 admitted that the
defendants are in possession of the suit schedule lands since 7
or 8 years and have been cultivating the same. By holding thus,
both the Courts held against the plaintiff.
10. Heard Mrs.P.Nithya, learned counsel for the appellant.
Perused the record.
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.
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
LNA, J
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
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
(2007) 1 Supreme Court Cases 546
LNA, J
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.
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 18.03.2024
Dua
