Telangana High Court
Syed Mohiuddin Afzal vs Syed Shah Anwar Ali on 20 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.130 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 26.06.2023 in A.S.No.187 of 2014 on the
file of the XXV Additional Chief Judge, City Civil Court,
Hyderabad, wherein and whereby the judgment and decree
dated 23.01.2014 in O.S.No.1714 of 2005 on the file of the
IX Junior Civil Judge, City Civil Court, Hyderabad, was
confirmed.
2. The petitioner herein is the plaintiff and the
respondent herein is the defendant in the suit. It is
pertinent to mention that during the pendency of the first
appeal sole plaintiff died and his legal heirs were brought
on records as appellant Nos.2 to 6 herein. 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 originally mother of the defendant viz.,
Vazeera Begum was the owner of the plot No.27-A, part of
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survey No.67, Mallepally Village, Vijaya Nagar Colony,
Hyderabad (hereinafter referred to as 'suit schedule
property') having purchased the same through a registered
sale deed vide document No.1817 of 1962, dated
07.12.1962. Thereafter, an agreement of sale/Ex.A1 was
executed between the plaintiff and mother of the defendant
for a sale consideration of Rs.50,000/- and as per which,
the plaintiff has paid an amount of Rs.15,000/- to mother
of the defendant in three different dates and she handed
over possession of the suit schedule property to the
plaintiff.
4. Whileso, the mother of the defendant died leaving
behind sole defendant as her legal heir. Thereafter, the
defendant issued legal notice dated 27.10.1987 to the
plaintiff calling upon him to pay balance sale consideration
of Rs.35,000/- and get registered sale deed. Upon receipt of
the same, the plaintiff issued reply notice on 20.02.1987,
through his counsel expressing his readiness and
willingness subject to obtaining required permissions by
the defendant from Urban Ceiling, Income Tax Clearance
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for such transactions. Since then, the defendant
postponing the registration of sale deed and later, he
remained silent. In the year 2004, the plaintiff constructed
boundary around the suit schedule property and finally on
01.02.2005, the plaintiff asked the defendant for execution
of sale deed however, there was no response. Hence, the
suit for specific performance and perpetual injunction.
5. The defendant has filed the written statement
denying the allegations made in the plaint inter alia
contending that the plaintiff is not in possession and
enjoyment of the suit schedule property and that there is
no cause of action for filing the suit. It is contended that
mother of the defendant was the absolute owner of the suit
schedule property; that one Vazera Begum, Kubra Fathima
and Khaza Azeemuddin were the joint owners of the
property admeasuring 10000 sq.yds in survey No.67,
Mallepally Village, Vijay Nagar Colony, Hyderabad, having
purchased the same through registered sale deed
document No.1817 of 1962 dated 12.12.1962. The suit
schedule property is the part and parcel of the land
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covered under the said document, as such mother of the
defendant has no right, title or interest to alienate or
transfer the suit property independently without the
consent of other two co-owners and therefore, the alleged
agreement of sale has no legal validity. Moreover, the
alleged document was never executed by mother of the
defendant and the plaintiff has fabricated the documents.
When the plaintiff is not at all in possession of the suit
schedule property, the question of arising cause of action
does not arise. Hence, prayed to dismiss the suit.
6. Basing the above pleading, the trial Court has framed
the following issues:
"1. Whether the plaintiff is entitled for specific performance of
contract dated 23.10.1983 as prayed for?
2. Whether the plaintiff is entitled for perpetual injunction as
prayed for.
3. To what relief?"
7. Before the trial Court, on behalf of the plaintiff, PW1
and PW2 were examined and Exs.A1 to A12 were marked.
On behalf of the defendants, DW1 was examined and
Ex.B1 was marked.
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8. The trial Court, after considering the entire material
available on record, dismissed the suit vide judgment and
decree dated 23.01.2014 by observing as under:
"(i). The plaintiff failed to prove the exclusive title and
ownership of Vazera Begum over the suit plot and he
failed to prove the Agreement of Sale under Ex.Al and
receipts under Ex.A2 to A4. The plaintiff further failed to
prove the signature of Vazera Begum on Ex.A1. So, also
the plaintiff failed to prove the cause of action. Though the
burden of proof lies on the plaintiff, plaintiff failed to prove
the above facts. Plaintiff cannot rely on the pits and falls
and weakness of the defendant's case. By Ex.B1,
defendant showed that Vazera Begum was not the
exclusive owner of the suit schedule property. Further the
defendant denied the signature on Ex.A1 to A3. Since the
plaintiff failed to prove Ex.A1, he is not entitled for specific
performance of Agreement of sale under Ex.A1.
(ii). The original delivery of possession of the suit
schedule property was not proved by the plaintiff. Plaintiff
also did not prove his possession and enjoyment by filing
the municipal tax receipts or electricity bills or other
relevant documents as on the date of the filing of the suit,
as such I hold this issue as against the plaintiff."
9. Aggrieved by the above judgment, the plaintiff had
preferred appeal vide A.S.No.187 of 2014 before the XXV
Additional Chief Judge, City Civil Court, Hyderabad. The
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first appellate Court on re-appreciation of the entire
evidence and perusal of the material available on record
vide judgment and decree dated 26.06.2023 dismissed the
appeal, by observing as under:
"(i). Assuming even for a moment that Ex.A1 is a
valid document and A2 to A4 receipts are issued by
mother of defendant receiving part sale consideration of
Rs.15,000/- on 3 occasions, as per the recitals of Ex.A1
the registered sale deed was supposed to be executed on
3.11.1983 and as per the recitals of Ex.A4, it was
supposed to be executed by July 1984; as contended by
plaintiff either mother of defendant or defendant himself
did not come forward to comply their part of contract,
plaintiff could have initiated legal proceedings either by
issuing notices, or by filing suit for specific performance of
agreement of sale, but no such steps have been taken by
plaintiff and suddenly he introduced Ex.A5 legal notice
said to have been issued by defendant calling for plaintiff
to perform his part of contract. Plaintiff also failed to prove
that Ex.A5 legal notice was issued by defendant through
his counsel, plaintiff had further failed to discharge his
burden to prove the cause of action dated 01.02.2005,
thus the suit is also barred by limitation.
(ii). Considering the evidence and material adduce
on record the Trial Court had rightly answered all the
issues against plaintiff and rightly dismissed the suit, this
Court holds that plaintiff has failed to prove Ex.A1 and
his possession over the same as on the date of suit.
Whereas defendant could prove that plaintiffs vendor i.e..
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mother of defendant do not have exclusive right and title
over the suit schedule property to enter into agreement of
sale with plaintiff, and had not executed Ex.A1. Plaintiff
also failed to prove his possession over suit schedule
property as on the date of filing of suit. Thus the trial
Court did not commit any error in appreciating evidence,
oral and documentary and was right in dismissing the
suit. This Court finds no reasons to interfere into the
findings and Judgment passed by IX Junior Civil Judge,
City Civil Court, Hyderabad dated 23.01.2014 in
O.S.No.1714/2005."
10. Heard Mr.K.Jamali, learned counsel for the
appellants. Perused the record.
11. A perusal of the record discloses that the trial Court
as well as first appellate Court concurrently held that
burden lies upon the plaintiff to prove Ex.A1/agreement of
sale and Exs.A2 to A4/receipts, but he failed to prove the
same and that the plaintiff cannot rely on the weakness of
the defendant's case and therefore, the plaintiff is not
entitled for specific performance of agreement of sale under
Ex.A1.
12. Learned counsel for the appellants vehemently
argued that the trial Court dismissed the suit without
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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.
13. 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.
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 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
(2007) 1 Supreme Court Cases 546
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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 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.
17. 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: 20.03.2024
Dua
