Telangana High Court
Mekamalla Suguna vs Vootla Ram Mohan Rao on 19 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.438 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 08.10.2023, passed by the IV Additional District
Judge, Karimnagar in AS.No.135 of 2019, whereunder and
whereby the judgment and decree dated 25.01.2018 passed by the
Senior Civil Judge, Huzurabad in O.S.No.15 of 2009 was set aside.
2. The appellant is the defendant and the respondent is the
plaintiff in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present
Second Appeal, are that the plaintiff's father by name V.Kistaiah
was in possession and enjoyment of the suit land during his
lifetime. His mother predeceased his father. That after the demise
of his father in the month of June, 1965, the plaintiff being the sole
legal heir had inherited the suit land together with other properties
at Jammikunta and had been in exclusive possession and
enjoyment of the suit land. The Tahsildar, Huzurabad had issued
certificate of protected tenancy in favour of one Komishetti
Komuraiah to an extent of Ac.6-12 guntas out of total extent of
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Ac.9-18 guntas in Survey No.761 and the remaining area to an
extent of Ac.3-06 guntas which is shown in Tonch map under
Ex.A2 is the suit schedule property. The Survey No.761/1 as
mentioned under Ex.A2 is not yet demarcated in the revenue
records and as such, the original Survey No.761 is still continuing
in the revenue records. While so, in the first week of December,
2008, the defendant illegally and forcibly occupied the suit land
from the possession of the plaintiff and had falsely got it mutated
in her name in the revenue records. The plaintiff after knowing the
said fact requested the defendant to delete her name, but she
refused and denied the title of the plaintiff over the suit land and
also refused to vacate and deliver vacant possession of the suit
property. Hence, the suit for declaration of title and recovery of
possession of the suit schedule property.
4. Defendant filed the written statement denying the plaint
averments and submitted that the suit land was purchased by her
from the plaintiff through simple agreement of sale dated
01.07.1996 after paying the sale consideration of Rs.1,89,000/- and
the said agreement was validated under ROR proceedings after due
enquiry and the defendant was issued pattadar passbook and title
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deed and that since the date of purchase of the suit property till the
date of filing of the suit, the defendant has been in continuous
possession and enjoyment of the suit schedule property. It was
further averred that the plaintiff is claiming right, title over the suit
property by mentioning false boundaries of suit land. Hence,
prayed to dismiss the suit.
5. The plaintiff filed rejoinder to the plaint denying all the
averments in the written statement of the defendant and submitted
that he had never executed any agreement of sale or any document
in favour of the defendant either on 01.07.1996 or at any point of
time and that no sale consideration was received by him from the
defendant and he had never delivered the physical possession of
the suit schedule property to the defendant under the agreement of
sale and the said document is a forged and fabricated one.
6. Based on the above pleadings, the trial Court framed the
following issues for trial:-
"1. Whether the agreement of sale dated 01.07.2016 alleged
to have been execute by the plaintiff in favour of the
defendant is true, valid and supported by the
consideration?
2. Whether the plaintiff is entitled for declaration of his title
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over the suit property as prayed for?
3. Whether the plaintiff is entitled to recovery of possession
of the suit property as prayed for ?
4. To what relief?"
7. Before the trial Court, on behalf of the plaintiff, PWs.1 and
2 were examined and Exs.A1 to A12 were marked. On behalf of
the defendant, DWs.1 to 4 were examined and Exs.B1 to B28 were
marked.
8. After full-fledged trial and upon considering the oral and
documentary evidence and the contentions of both the parties, the
trial Court dismissed the suit, vide judgment and decree dated
25.01.2018. The trial Court categorically observed that Ex.B-2 i.e.,
13-C Namuna and the pahanies for the years 1997-98 to latest
pahaines and 1-B Namuma dated 28.01.2006 clearly shows that the
defendant was in possession of the suit schedule property since
1997-98 i.e., more than 12 years prior to filing of the suit and the
plaintiff having kept quiet for 12 years, filed the suit. Therefore, it
clearly appears that the plaintiff sold the suit property to the
defendant through simple sale deed dated 01.07.1996 and the same
was validated under ROR proceedings.
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8.1. The trial Court further observed that the plaintiff admitted
that since the year 2008 the defendant has been cultivating the suit
schedule property and the documents filed by the defendant prove
that she is the owner of the suit property.
9. On appeal, the first Appellate Court, being the final fact-
finding Court, on re-appreciation of the entire evidence and the
material available on record and allowed the appeal setting aside
the judgment of the trial Court, vide judgment dated 08.10.2023.
9.1. The first Appellate Court observed that the documents under
Exs.A1 to A-8 discloses the source of acquisition of title in the
name of father of the plaintiff by name Vootla Kistaiah and the
document under Ex.A9 proves that the suit schedule property is the
ancestral property of the plaintiff having acquired by the plaintiff
from his father Vootla Kistaiah and that plaintiff has been in
possession of the suit land. It was further observed that the
evidence of P.Ws.1 and 2 discloses that the defendant had forcibly
and illegally occupied the suit schedule property by illegally
dispossessing the plaintiff and the same was not denied and
disputed by the defendant by way of giving any suggestion to
P.Ws.1 and 2. Thus, the first Appellate Court held that the plaintiff
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has proved his valid title in respect of the suit schedule property by
virtue of Exs.A-1 to A-9.
9.2. The first Appellate Court observed that the defendant
failed to examine the alleged attestors and scribe of the alleged
simple sale dated 01.07.1996 and that the defendant herself in her
evidence as D.W-1 expressed ignorance about the contents of the
said simple sale deed. Therefore, the said document is not true,
valid and supported with valid consideration. It was further
observed that when the alleged simple sale deed was not exhibited
before the trial Court, there is no question of perusal of the same.
9.3. The first Appellate Court further observed that the
procedure under ROR Act was not followed for making the
necessary changes in the revenue records. Hence, mere filing of the
pahanies and the revenue records covered under Exs.B-1 to B-28
does not establish the claim of the defendant that he purchased the
suit property from the plaintiff. Accordingly, the first appellate
Court adjudicated that the plaintiff by examining herself as P.W-1
and P.W-2 and also exhibiting Exs.A-1 to A-12 proved her lawful
ownership and possession in respect of the suit schedule property.
Thus, the first Appellate Court held that the trial Court failed to
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properly appreciate the facts of the case and did not marshal the
evidence adduced by the plaintiff and defendant.
10. Heard Sri Pasham Krishna Reddy, learned counsel for the
appellant and Sri J.Suresh Babu, learned counsel for the
respondent. Perused the entire material available on record.
11. A perusal of the record discloses that the trial Court held that
basing on the documents exhibited by the defendant, held that the
defendant is the owner of the suit land and he has been in
possession of the same since several years prior to filing of the suit.
However, on appeal, the first appellate Court after re-appreciating
the entire evidence, both oral and documentary, found fault with
the judgment of the trial Court and its way of appreciating the facts
of the case and marshalling the evidence adduced by both the
parties and accordingly, set aside the judgment of the trial Court.
Hence, the present Second Appeal.
12. Learned counsel for appellant argued that the trial Court
appreciated the evidence on record and rightly dismissed the suit,
however, the first Appellate Court failed to appreciate the evidence
on record in a proper perspective and committed an error in setting
aside the judgment of the trial Court.
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13. 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.
14. 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.
15. 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.
16. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
(2007) 1 Supreme Court Cases 546
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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 appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
17. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
18. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:19.03.2024
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