Telangana High Court
Banja Sankarappa, vs The District Collector, on 22 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.80 of 2024
JUDGMENT:
This Second Appeal is filed against the judgment and decree
dated 21.11.2023 in A.S.No.5 of 2022 on the file of the Principal
District Judge, Kamareddy, wherein and where under the judgment
and decree dated 28.03.2019 in O.S.No.40 of 2017 on the file of the
Junior Civil Judge, Yellareddy, Kamareddy District, was set aside.
2. The appellant is plaintiff and respondent is defendant. For
convenience, the parties are hereinafter referred to as they were
arrayed before the trial court.
3. Brief facts leading to filing of the present second appeal are
that plaintiff had purchased the plot No.17 in Survey No.456 of
Yellareddy Village and Mandal admeasuring 300 sq.yards from the
"Church of South India Trust Association", a company registered
under the Companies Act, 1913, through its duly constituted
General Power of Attorney's Rev. V.J. Dorai Raj and Rev. N.S.Mathew
vide registered Sale deed dated 29.06.1979 bearing document
No.1141/1979 and since then, the plaintiff has been in actual
possession and enjoyment of the suit schedule plot. It is further
contended that the Gram Panchayat, Yellareddy vide its order
No.26/2017, dated 14.04.2016 has granted permission for
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construction of the compound wall and a room (5.2 X 4.78) and the
plan is also approved vide REC.No.GP/2016, dated 14.04.2016.
4. It was further contended that on 20.09.2017, he had noticed
that defendant No.2 started construction of mulgies abutting the
road opposite to southern side of the suit schedule property and on
the same day, he had got issued a legal notice to the defendants
under Section 80 of C.P.C and on 27.09.2017, which was received by
the defendants. On 13.10.2017, the plaintiff has addressed a letter
to the defendant No.2 directing him to enquire into the matter, to
take necessary action and to submit a report. In spite of the same
defendant No.2 still continued the construction of mulgies. In these
circumstances, there is every apprehension that, the defendant No.2
shall encroach upon the suit schedule property. Hence, the suit for
perpetual injunction.
5. Defendant No.2 had filed written statement which was adopted
by defendant No.1, denying averments made by the plaintiff, inter
alia contended that the plaintiff has no right or title and he is not in
possession and enjoyment of the suit schedule property and he has
created and fabricated the documents for the purpose of this suit
and the Sale Deed vide Document No.1141/1979, dated 29.06.1979
is illegal, void and it does not create any legal right in favour of the
plaintiff over the suit schedule property. Hence, prayed to dismiss
the suit.
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6. Before the trial Court, on behalf of the plaintiff, PWs.1 and 2
were examined and Exs.A1 to A9 were marked. On behalf of the
defendants, DW1 was examined and Exs.B1 to B9 were marked.
7. The trial Court, after considering the oral and documentary
evidence available on record, decreed the suit, vide its judgment and
decree dated 28.03.2019 by observing as under:
(i) "Before filing of the present suit when the plaintiff
had got issued the notices under Section 80 of C.P.C. to
the defendant Nos.1 and 2 i.e., Exs. A.4, A.6, A.7 and A.8
and basing on the direction given by the defendant No.1,
the District Panchayath Officer with regard to enquire in
matter and take for the necessary action and for report as
in Ex.A.5 but in disposal of the present suit no steps were
taken by the defendants to pay the compensation to the
plaintiff as ordered in Ex.B.9. Basing on the evidence of
D.W.1 he admitted that, the suit schedule plot belongs to
the plaintiff and he is in possession of the said property
and they have not taken any steps to disprove the claim
of the plaintiff.
(ii) Moreover, it is settled principle that, when the land
is acquired concerned Government officials has to comply
the relevant provisions under the Land Acquisition Act by
giving notice to the concerned parties and compensation
has to be paid to the concerned land owners before
acquiring the said land. Hence, in the present suit the
defendant No.2/D.W.1 himself admitted that he had not
issued any notice to the plaintiff nor paid any
compensation before acquiring the lands as mentioned in
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Ex.B.9 and also they have not included the name of the
plaintiff in Ex.B.9.
(iii) The plaintiff has established his legal right and his
exclusive possession having the relief of perpetual
injunction. As well as the plaintiff claiming the relief of
perpetual injunction established that the breach of
obligation or infringement of legal right. He also showed
that there was violation of his right by the act complained
of an act is carried into effect will result into infringement
of his legal right and his possession was invaded by the
defendants who have no title whatsoever, without
possessing any legal right, interfered into his possessin.
Thereby it can be held that, the plaintiff has proved
essentials of perpetual injunction by producing oral and
documentary evidence."
8. On appeal, the first appellate Court on re-appreciation of the
entire evidence and perusal of the material available on record,
allowed the appeal vide judgment and decree dated 21.11.2023 by
making following observations:
"(i) All the said documents i.e., Exs.B.1 to B.9 go to
show that the lands including the suit in Survey No. 456
of Yellareddy Village and Mandal admeasuring 300
sq.yards is vested with the Government and with the
Agricultural Market Committee, Yellareddy. It is also seen
from the Cross examination of P.W.1 that it is his version
that he does not know about acquisition of lands by the
District Collector, Nizamabad and taking over possession
by the Government and that the acquired land was also
handed over to the Secretary, Agricultural Market
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Committee, Yellareddy as per Lr.No.A2/5496/79, dated
28.03.1980 and that the said acquired lands were also
the subject matter of W.P.No.5510 of 1982 before the
Hon'ble High Court and in compliance of the
orders/modified orders of the Hon'ble High Court, Awards
were passed awarding compensation to Smt.Lalitha Bai,
W/o. Keshava Reddy, and similarly, compensation was
awarded to the Church of South India for acquiring Land
in Survey No.456 extent Ac.2.03 guntas., compensation
was awarded to the Church of South India towards
acquisition of the lands in Survey No.647 to the extent of
Ac.2.12 guntas., and the compensation is awarded to the
South India for acquisition of land in Survey No.646 extent
Ac.3.09 guntas and that the plaintiff also does not know
that some of the compensation award amounts are in the
Revenue Deposits nobody came forward to claim the
compensations more particularly the compensation
relating to Plot No.17 in Survey No.456 was not
disbursed.
(ii) From all the above said circumstances, the
preponderance of probability is definitely in favour of the
Defendants case that the subject land and other lands
have been acquired long back by the Government and
handed over to the Agricultural Market Committee,
yellareddy way back in 1980 itself as per the Records
submitted by the Defendants and the plaintiff being the
owner of the suit Plot No.17 in Survey No.456 as per the
sale deed Ex.A.1, might not have knowledge about the
acquisition proceedings which hae taken place in respect
of bulk lands.
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(iii) The plaintiff has filed the suit claim as an after
thought instead of taking steps for getting the
compensation whatever is due to him as a owner for an
extent of 309 sq.yards of plot No.17 in Survey No.456 of
(schedule) Yellareddy. Further, the plaintiff has not
chosen to file the layout plan under which the survey
No.456 was formed into Open Plots by the Church of
South India. The plaintiff having shown to have
purdchased the suit property in 1979, did not choose to
file any document showing his physical possession over
the suit property till 2016 which is the date on which the
Gram Panchayath issued permission to the plaintiff for
making construction and approved the plan of the
plaintiff.
(iv) In the above said circumstances and viewed from
any angle, Ex.A.1 to A.9, do not establish that the plaintiff
was in actual physical possession of the suit property as
on the date of filing the suit. Therefore, the findings of the
trial Court in holding that the plaintiff is in possession and
enjoyment of the plaint schedule property as on the date
of filing of the suit and even prior, requires to be set
aside."
9. Heard Mr.S.M.Rafee, learned counsel for the appellant.
Perused the record.
10. A perusal of the record discloses that the trial Court decreed
the suit against the defendants by granting perpetual injunction in
favour of the plaintiff. Whereas, the first appellate Court held that in
a suit for perpetual injunction, the plaintiff has to prove title as well
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as possession and cannot depend on the weakness of the defendants
and that the plaintiff failed to prove his title and also interference by
the defendants and hence, allowed the appeal setting aside the
judgment of the trial Court.
11. Learned counsel for the appellant vehemently argued that the
trial Court rightly decreed the suit against the defendants by
granting perpetual injunction to the plaintiff but the first appellate
Court, without proper appreciation of the evidence, committed an
error in setting aside 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 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
first appellate Court, 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
(2007) 1 Supreme Court Cases 546
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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 of first appellate Court, under
Section 100 C.P.C. Moreover, the grounds raised by the respondents
are factual in nature and no question of law, much 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.
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LAXMI NARAYANA ALISHETTY, J
Date:22.03.2024
Bw
