Telangana High Court
Sama Malla Reddy vs Smt.M.Bharathi on 19 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.125 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 22.01.2024 in A.S.No.405 of 2015 on the
file of the II Additional District Judge, Ranga Reddy
District, L.B.Nagar, wherein the judgment and decree dated
06.08.2015 in O.S.No.103 of 2015 on the file of the
Principal Junior Civil Judge, Ranga Reddy District,
L.B.Nagar, was confirmed.
2. Petitioner Nos.1 to 3 herein are defendant Nos.2, 3
and 4; petitioner Nos.4, 5 and 6 herein are the legal heirs
of deceased petitioner No.2 herein; respondent No.1 herein
is the plaintiff and respondent No.2 herein is defendant
No.1 in the suit. For convenience, the parties hereinafter
are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second
Appeal are that the plaintiffs are the absolute owners and
possessors of the suit schedule property i.e., plot bearing
No.44/B & 44/A, admeasuring 400 sq.yds in Survey
LNA, J
No.132, situated at Rajya Laxmi Nagar, Phase - 1,
Gurramguda Village, Saroornagar Mandal, R.R.District,
having purchased the same by way of registered sale deed
bearing document No.280 of 2006 dated 05.01.2006 from
its owner. The plaintiffs have constructed a compound wall
around the suit schedule property by duly obtaining the
permission from Gram Panchayat. The plaintiffs came to
know that the father of defendant Nos.1 and 2 have already
alienated their entire extent of land in survey No.132
situated at Gurramguda village and that defendant No.2
himself purchased plot No.42 admeasuring 400 sq.yds;
that the defendants with malafide intention on 21.02.2012
came to the suit schedule property and tried to dismantle
the compound wall; that based on the complaint given by
the plaintiffs, a case was registered in Crime No.104 of
2022 against the defendant Nos.1, 3 and 4. The plaintiffs
have filed a suit in O.S.No.103 of 2012 before the Principal
Junior Civil Judge, Ranga Reddy District, L.B.Nagar, for
perpetual injunction against defendant Nos.1 to 4.
LNA, J
4. The defendants have filed their written statement
denying the averments in the plaint inter alia contending
that their father owned totally Ac.6-00 guntas of land in
Survey No.132, out of which, they have executed an extent
of Ac.5-00 gts in favour of one G.Ramulu, by retaining
Ac.1-00 gts of land and the said G.Ramulu in turn
executed a sale deed to an extent of Ac.5-00 gts to
P.Narayan Reddy. Subsequently, defendant Nos.1 and 2
and their father alienated an extent of Ac.0-18 gts in favour
of Jayaben Patel and another on its western side to an
extent of Ac.0-02 gts of land is effected in Gurram guda
village road and thus, retaining an extent of Ac.0-20 gts of
land facing Gurramguda Village road in which defendant
Nos.1 and 2 are having equal shares i.e., Ac.0-10 gts each.
It is contended that the plaintiff under the guise of
injunction orders, trying to grab the land of the defendants.
Hence, they prayed to dismiss the suit.
5. Before the trial Court, on behalf of the plaintiffs, PW1
and PW2 were examined and Exs.A1 to A25 were marked.
LNA, J
On behalf of the defendants, DW1 and DW2 were examined
and Exs.B1 to B7 were marked.
6. The trial Court, after considering the entire material
available on record, decreed the suit vide judgment and
decree dated 06.08.2015 by observing as under:
"(i). If the plots were sold out without obtaining the
sanctioned layout the Municipal authorities or concerned
department will not allow the construction upon the un
approved plots. But as seen from Ex.A4 permission has
been given for the plaintiff herein to raise construction of
compound wall and two rooms in the schedule property in
the year 2011 itself. Whereas the present suit has been
filed in the year 2012. Therefore Ex.A4 need not be looked
with suspicion. The defendant do not dispute the sale
transaction of five acres of land but they claim to be
owners of Ac.0.20 Gts of land in Sy.no.132 it is for the
defendant's to demarcate and got survey done where the
Ac.0.20 Gts lies because there is no demarcation that has
been done for the said Ac.0.20 Gts as it was unbarrened
land no one had showed any interest at that relevant
point of time when the entire land in Sy.no.132 was used
for the purpose of cultivation. And when the nature of
land was changed from agriculture to commercial the said
Ac.0-20 Gts of land had gained prominence. As far as the
plaintiff is concerned she had established her flow of title
and possession, right from the original pattedars.
Sanction of permission for raising the construction over
the schedule property also reveals the demarcation,
LNA, J
identity of the schedule plots. And defendants nowhere
alleged that they also converted the said Ac.20.00 Gts of
land into plots. As far as the schedule property is
concerned it is part of five acres of land that has been
admittedly sold away by the original pattedars.
(ii). So the defendants herein have no right or title over
the schedule property. There is absolutely no document
that has been let in by the defendants to rebut the
evidence of plaintiff. The oral evidence of Pw2 which has
supported the plaintiff's case in all ways coupled with the
documentary evidence adduced by the plaintiff clearly
goes to establish the possession of the plaintiff over the
schedule property and also the interference by the
defendants. An adverse inference needs to be drawn
against the first and second defendants as they did not
enter in witness box. Dw.1 in his examination in chief
categorically stated the land that was purchased by the
Vendors of the plaintiff is nothing to do with the land
possessed by the defendant. Which itself shows that the
schedule property and the land being claimed by the
defendants is separated. As there is serious litigation
going on in between, there is every need to the plaintiff to
protect her plot."
7. Aggrieved by the above judgment, the defendants had
preferred appeal vide A.S.No.405 of 2015 before the II
Additional District Judge, Ranga Reddy District, L.B.Nagar.
The first appellate Court on re-appreciation of the entire
evidence and perusal of material available on record vide
LNA, J
judgment and decree dated 22.01.2024 dismissed the
appeal, by observing as under:
"(i). the suit is filed by the plaintiff is for permanent
injunction wherein the possession is the criteria. The
existence of the plot since the year 1993 onwards is
proved by the sale deed under Ex.A14 and pahanies filed
by the defendants, thereby no reliance can be placed on
the entries in pahanies, at the same time the registered
sale deeds clearly shows title of the plaintiff over the suit
schedule property and further the link documents, title of
his vendor, vendors vendor. In respect of plots, the
possession follows the title. Further the possession of the
plaintiff over the suit plot is also supported by the
sanction permission under Ex.A4 and oral testimony of
PW2.
(ii). The defendants examined DW2 in support of their
contention, but he deposed that the property was made
into plots twenty years back. The suit schedule property
is situated within 5 ½ Acres, the sold away property of
Ac.0-18gts is also under 5 ½ acres etc., which clearly
support the case of the Plaintiff i.e., suit property is within
Ac.5-00gts. The defendants failed to prove their
possession over the suit schedule property but the
plaintiff proved her possession thereby entitled for
permanent injunction.
(iii). On clear evaluating oral and documentary
evidence and after going through judgment of lower court,
this court is of the view that there are no merits in the
appeal and the lower court has rightly decreed the suit,
LNA, J
hence this court find no reason to interfere with the
findings given by the lower court in this appeal."
8. Heard Mrs.V.Sanjana, learned counsel for the
appellants. Perused the record.
9. A perusal of the record discloses that the trial Court
as well as first appellate Court concurrently held that as
per the deposition of DW2 the property was made into plots
twenty years back. The suit schedule property is part of 5
½ acres and the sold away property of Ac.0-18 guntas is
also part of 5 ½ acres etc., which clearly supports the case
of the plaintiff that the suit schedule property is part of
Ac.5-00 gts. Hence, the plaintiff proved her possession and
thereby she is entitled for permanent injunction and the
defendants failed to prove their possession over the suit
schedule property.
10. Learned counsel for the appellants vehemently
argued that the trial Court decreed 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.
LNA, J
11. However, learned counsel for the appellants 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 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.
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 first 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 less, a 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.
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LAXMI NARAYANA ALISHETTY, J
Date: 23.02.2024
Dua
