Telangana High Court
Kurella Mallaiah vs Edla Balamani on 22 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.295 of 2023
JUDGMENT:
Challenging the validity and legality of the judgment and decree,
dated 01.06.2023, passed in A.S.No.83 of 2016 on the file of the Court
of Principal District Judge, Bhongir, confirming the judgment and
decree dated 25.02.2013 passed by the Principal Junior Civil Judge,
Bhongir in O.S.No.129 of 2007, the present Second Appeal is filed.
2. The appellant is defendant, respondent is plaintiff 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 plaintiff is the original owner and pattedar of
agricultural land in S.No.553/2 admeasuring Ac.04.20 guntas having
purchased the same from one K.Savithramma under a registered sale
deed dated 06.02.2006. Thereafter the plaintiff has sold away an extent
of Ac.1.20 guntas from out of the above land and retained an extent of
Ac.3.00 guntas of land i.e. suit schedule property. While so, the
defendant, who is having no manner of right or title over the suit
schedule property, filed an application before the MRO and also before
the Police Atmakur P.S. stating that he purchased the suit schedule land
from the plaintiff on 26.01.1999 for a valid consideration of Rs.39,000/-.
LNA, J
Pending the same, the defendant also made an application before the
District Collector, which was referred to RDO and inturn RDO has
initiated proceedings on the application of the defendant and
subsequently passed orders directing the MRO to issue 13-B certificate
by conducting panchnama and also to issue pattedar pass book and title
deed to the defendant without hearing plaintiff herein by coming under
the pressure of the defendant and Joint collector, Nalgonda.
3.1 It is further contended that the orders of the RDO were passed
based upon created document and that in the application filed before the
Joint Collector, it was disclosed by the defendant that he purchased the
said land on 26.06.1999, whereas, in the complaint filed before
Athmakur P.S., it is stated that he purchased the suit land 8 years back,
without giving any date, year and month. As such the alleged document
is created and sham document as the plaintiff never sold any property
much less schedule property to the defendant. Subsequently the
defendant occupied the suit land illegally on 16.03.2007. As the plaintiff
has purchased an extent of Ac.4.20 guntas of land in the year 2006 and
has not purchased the suit land in the year 1999 the question of selling
of the suit lands to the defendant in the year 1999 does not arise and as
such, the claim of the defendant is false, invented for the purpose of the
LNA, J
suit. Hence the suit for declaration of title and recovery of possession of
the suit schedule property. `
4. Defendant No.1 filed written statement inter alia admitting that
the plaintiff purchased an extent of Ac.4.20 guntas of land from original
owner by name K.Savithramma, but contended that she purchased the
same in the year 1999 under an agreement of sale-cum-simple-sale and
from out of the said extent of land she sold Ac.3.00 guntas of land i.e.
suit schedule property to defendant under simple sale deed and handed
over the physical possession to him and the defendant is in possession of
the suit land since the date of purchase. She further contended that the
defendant even applied for mutation by validating the simple sale deed,
on that, the revenue authorities conducted enquiry and issued 13-B
certificate in favour of the defendant and vide proceedings dated
17.03.2007 and thereafter, the revenue authorities conducted enquiry
and issued 13-B certificate in favour of the defendant, vide proceedings
dated 17.03.2007 and thereafter the revenue authorities issued ROR,
pass book and title deed in favour of the defendant and the defendant
denied the other material allegations in the plaint and due to hike of
prices the plaintiff dishonestly filed the present suit and also denied that
the defendant illegally occupied the suit land. Accordingly, he prayed
the Court to dismiss the suit.
LNA, J
5. On the above pleadings, the trial Court framed the following
issues for trial:-
"1. Whether the plaintiff is entitled for the relief of
declaration of title as prayed for.
2. Whether the plaintiff is entitled for recovery of
possession of the suit land from the defendant as prayed
for ?
3. To what relief?
6. On behalf of plaintiff, PW.1 was examined and Exs.A1 to A14
were marked. On behalf of the defendants, DWs.1 to 3 were examined
and Exs.B1 to B5 were marked.
7. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, decreed the suit, vide
judgment dated 25.02.2013, by observing as hereunder:-
"Therefore Ex.B5 which the defendant is styling as
ordinary sale deed will not confer (or) create any right
(or) title in favour of the defendant over the suit
schedule property and will not divest the title of the
plaintiff over the suit schedule property as Ex.B5 is an
inadmissible document due to want of registration and
plaintiff even has not acquired any title by said date.
Subject to law of limitation it is pertinent to note that in
Ex.A14, which corresponds to Ex.B4 which is the order
of the RDO it was mentioned that the defendant is
relying upon "Sada sale deed" dated 26.1.1999 under
LNA, J
which he said to have purchased the plaint schedule
property but Ex.B5 is dated 26.6.1999 and in Ex.B3
which is 13-B certificate the date of the ordinary sale
deed is mentioned as 26.9.1999. Therefore even the date
of alleged ordinary sale deed is inconsistent from stage
to stage and reflects the falsity of the contention of the
defendant.
Thus the evidence on record is sufficient to establish that
the plaintiff is the absolute owner and title holder of the
plaint schedule property and the title still subsist with
the plaintiff. Moreover the order of RDO under Ex.A14
which corresponds to Ex.B4 does not bind the Civil
Court and moreover it is illegal and invalid for the
reasons stated above. Hence the plaintiff is entitled for
the relief of declaration of title as prayed for."
8. The first Appellate Court, being the final fact-finding Court, re-
appreciated the entire evidence and the material available on record and
dismissed the appeal vide its judgment dated 01.06.2023 by observing
that the grounds shown by the defendant to set aside the impugned
judgment are found not tenable and further on close perusal of the
impugned judgment it shows that the findings recorded by the trial
Court on the issues settled in the suit are based upon cogent reasons and
warrants no interference, as such, it is to be held that the impugned
judgment passed by the trial Court is sustainable in law and needs no
LNA, J
interference. The defendant has failed to show sufficient grounds to set
aside the impugned judgment.
9. Heard Sri Kondadi Ajay Kumar, learned counsel for the appellant
and Sri K.Jagadishwar Reddy, learned counsel for respondent. Perused
the record.
10. Learned counsel for appellant 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.
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.
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.
LNA, J
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.
16. Pending miscellaneous applications, if any, shall stand closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:22.03.2024
BV
(2007) 1 Supreme Court Cases 546
