Telangana High Court
Kallem Bharathamma , Bharathavva vs Kutikala Lingaiah on 22 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.242 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree,
dated 14.12.2022, passed in A.S.No.221 of 2018 on the file of the Court
of Principal District Judge, Karimnagar, confirming the judgment and
decree dated 12.10.2018 passed by the II Additional Junior Civil Judge,
Karimnagar in O.S.No.95 of 2012, the present Second Appeal is filed.
2. The appellant is plaintiff No.1, respondent Nos.1 and 2 are
defendant Nos.1 and 2 in the suit. For convenience, hereinafter the
parties are referred to as they are arrayed in the suit.
3. The facts of the case in brief, which led to filing of the present
Second Appeal, are that Suit Schedule-A property was originally owned
and possessed by Deeti Hanmaiah, father of plaintiffs No.3 and 4 and
defendant No.2 and grandfather of plaintiff No.2. He was also pattadar
of plaint schedule land. Though he died 20 years ago, patta of suit
Schedule-A land continued in his name. Deeti Hanmaiah died leaving
behind four sons, namely, late Deeti Ramulu/father of plaintiff No.2,
Deeti Shankaraiah/defendant No.2, Deeti Narahari/plaintiff No.3 and
Deeti Rajaiah/plaintiff No.4. Deeti Ramulu, the eldest son of Deeti
Hanmaiah, died about two years back leaving behind plaintiff No.2 as
his sole legal heir.
LNA, J
3.1 It was averred that after the death of their father, plaint Schedule-
A land devolved with equal share on late Deeti Ramulu/father of
plaintiff No.2, Deeti Narahari/plaintiff No.3, Deeti Rajaiah/plaintiff
No.4 and Deeti Shankaraiah/defendant No.2 and it was jointly owned
and possessed by four sons of late Deeti Hanmaiah. Without knowledge
of late Deeti Ramulu and without knowledge of plaintiffs No.3 and 4,
defendant No.2 executed a registered sale deed bearing document
No.766/2003 dated 18.06.2003 in favour of defendant No.1 in respect of
total land described in plaint A-Schedule. Coming to know about the
same, they questioned defendant No.2 about his competency to sell total
plaint schedule-A land, including their 3/4th undivided share. Defendant
No.2 told that he has sold only his 1/4th share to defendant No.1, that
defendant No.1 fraudulently got the entire Ac.0-27 guntas of plaint
schedule-A land included in the registered sale deed.
3.2. It was further averred that late Deeti Ramulu and plaintiffs No.3
and 4 jointly sold their 3/4th share in Sy.No.20/D i.e., Schedule-B
property to plaintiff No.1 through registered sale deed bearing document
No.1606/2008 dated 04.08.2008 and delivered vacant possession of
plaint schedule-B property to plaintiff No.1.
LNA, J
3.3 It was further averred that the entire land measuring Ac.0-27
guntas described in plaint schedule-A is vacant land and no cultivation
is being made since last many years. Defendant No.1 having colluded
with VRO of the village Ragampet and wrongly got his name mutated in
his favour in the year 2005-06 and since then the name of defendant
No.1 is recorded in the pahanies in respect of total extent of Ac.0.27
guntas in Sy.No.20/D although defendant No.1 got only Ac.0.07 guntas
in oral settlement made in the year 2003. On the strength of wrong
entries in the pahanies, defendant No.1 wrongfully occupied total area of
Ac.0.27 guntas in suit Sy.No.20/D, including 3/4th share of father of
plaintiff No.2 and plaintiffs No.3 and 4 described in plaint schedule-B
about six months back. Hence, the plaintiffs filed the suit for declaration
and recovery of possession.
4. Defendant No.1 filed written statement inter alia contending
that he purchased the B-Schedule property from sons of Deeti Hanmaiah
through a simple sale deed dated 20.05.1990 for a valid consideration of
Rs.4,340/- and since then defendant No.1 has been in possession and
enjoyment uninterruptedly. He requested the sons of late Deeti
Hanmaiah for execution of registered sale deed for better confirmation
of title to him. Defendant No.2 executed a registered sale deed with the
consent and under the instructions of his other brothers, who are residing
LNA, J
at Godavarikhani by doing jobs in SCC Ltd., in favour of defendant
No.1 vide document No.766/2003 dated 18.06.2003 and he was issued
pattadar passbook and title deed book and has been in peaceful
possession and enjoyment of suit land and also perfected his title by way
of adverse possession. Since the year 1990, plaintiffs never claimed
rights over the suit land. The suit is barred by limitation. Accordingly,
he prayed the Court to dismiss the suit.
5. On the above pleadings, the trial Court framed the following
issues for trial:-
"1. Whether the plaintiffs are entitled for a declaration of
title and recovery of possession of plaint schedule-B
property?
Alternatively:
1. Whether the plaintiffs are entitled for a declaration
that the registered sale deed bearing document
No.766/2003 dated 18.06.2003 executed by defendant
No.2 in favour of defendant No.1 in respect of plaint
Schedule-A land, is not binding on them?
2. Whether the plaintiffs are entitled for a preliminary
decree of partition and separate possession of their 3/4th
share in the suit schedule-A land?
3. To what reliefs the parties are entitled?"
LNA, J
6. On behalf of plaintiff, PWs.1 to 3 were examined and Exs.A1 to
A5 were marked. On behalf of the defendants, DWs.1 and 2 were
examined and Exs.B1 to B15 were marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, dismissed the suit, vide
judgment dated 12.10.2018, by observing as hereunder:-
"It also appears from the material on record, the
plaintiffs No.2 to 4 and defendant No.2 intentionally
taken the false pleas to defeat the legitimate rights of the
defendant No.1 herein, who is bonafide purchaser under
Ex.B1. The defendant No.1 is entitled for protection of
his rights as a bonafide purchaser.
Further the trial Court held that the contents of simple
sale deed has been proved by DW1. The simple sale
deed dated 20.05.1990 was executed in favour of
defendant No.1, later for the better confirmation of title,
the defendant No.2 executed Ex.B1 in favour of
defendant No.1 on authorization of his other brothers.
From the evidence available on record, this Court is of
the considerable opinion that the defendant No.2
executed registered sale deed in favour of defendant
No.1 much prior to the registered sale deed of plaintiff
No.1, and even before that, there was simple sale deed
dated 20.05.1980 in favour of defendant No.1 in respect
of the suit schedule property, and that the suit schedule
property is in possession and enjoyment of defendant
No.1. Since the date of simple sale deed till today.
LNA, J
The defendant No.1 is having better title than the
plaintiffs. Therefore, the plaintiffs herein are not entitled
for the declaration of title.
As the plaintiffs themselves failed in producing either
oral or documentary evidence to substantiate the
pleadings that, without knowledge of his brothers Deeti
Shankaraiah executed registered sale deed bearing
doc.no.766/2003 dated 18.06.2003 in favour of
defendant No.1 in respect of the total land described in
plaint schedule-.A
The defendant No.1 is entitled for protection of his rights
as a bonafide purchaser."
8. On appeal being filed, the first Appellate Court, being the final
fact-finding Court, re-appreciated the entire evidence and the material
available on record and vide its judgment dated 14.12.2022 observed
that in Ex.B1 there is no reference to any earlier transaction, more
particularly simple sale deed dated 20.05.1990 under which defendant
No.1 claims to have purchased the property from defendant No.2 and
his three brothers. It is further held that the documents discussed above,
more particularly pahanies, show that the name of defendant No.1 was
recorded in possession column from the year 1992-93 and the nature of
possession is shown as Sada Bainama for entire Ac.0.27 guntas if at all
there was an oral settlement and under that settlement only Ac.0.07
guntas was earmarked towards share of defendant No.2 sold to
LNA, J
defendant No.1, the same should have been entered in the revenue
records. Contrary to it, the entire Ac.0.27 guntas is shown to be in
possession of defendant No.1 from the year 1992-93 till 2004
continuously and his nature of possession is recorded as "Sada
Bainama". The learned trial judge had rightly observed that the
plaintiffs No.2 to 4 and defendant No.2 have intentionally taken a false
plea of oral settlement to defeat the legitimate right of defendant No.1,
who was bonafide purchaser under Ex.B1, and that defendant No.1 is
entitled for protection of his right as bonafide purchaser.
9. Heard Ms.B.Namrata Reddy of M/s. Chandrasen Law Offices,
learned counsel for the appellant and Sri Palle Nageswar Rao, learned
counsel for respondent No.1. Perused the record.
10. Learned counsel for appellant 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.
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.
LNA, J
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 on facts 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.
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 appellant 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.
(2007) 1 Supreme Court Cases 546
LNA, J
16. Pending miscellaneous applications, if any, shall stand closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:22.03.2024
BV
