Telangana High Court
Mohd Riazuddin vs Challa Nirmala on 27 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL Nos.479 & 481 of 2023
COMMON JUDGMENT:
The parties and the subject matter of the property involved in
both these Second Appeals are one and the same and hence, they
are heard together and disposed of by this common judgment.
2. Second Appeal No.479 of 2023 is filed questioning the
judgment and decree, dated 13.09.2023, passed by Principal
District Judge, Hanumakonda in AS.No.194 of 2022.
2.1. Second Appeal No.481 of 2023 is filed questioning the
judgment and decree, dated 13.09.2023, passed by Principal
District Judge, Hanumakonda in AS.No.193 of 2022.
3. The said A.S.Nos.193 and 194 of 2022 were dismissed by
the first Appellate Court by common judgment, dated 13.09.2023,
whereby the judgment and decree dated 12.07.2018 passed by the
VII Additional Junior Civil Judge, Warangal, in O.S.No.1173 of
2009, dismissing the said suit and allowing the counter-claim filed
by the defendants, was confirmed.
4. The appellant is the plaintiff and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
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S.A.Nos.479 & 481 of 2023
5. The factual matrix of the case, in brief, shorn off
unnecessary details, as narrated in the plaint, which led to filing of
the Second Appeals are that One Thumma Showreddy was
pattedar, owner and possessor of land in Survey No.25/A of
Kazipet Jagir. The suit schedule property of 266 square yards is
part and parcel of the said survey number. The said Showreddy
sold the suit property to one Surender Suksena under a registered
sale deed of 1981 and delivered possession. The said Surender
Suksena sold the same in favour of Nidadavolu Rama Krishna
through a registered sale deed of 1982 for valuable sale
consideration and delivered possession of the land. The said Rama
Krishna sold the same in favour of father of plaintiff by name
Mohd Rafiuddin under an agreement of sale dated 19.09.1988,
notarized in the office of one V.Rajeshwar Rao, for valid sale
consideration and delivered possession of the land. The said
agreement of sale was impounded with Registrar of Warangal and
Collector under Indian Stamp Act on 30.06.2003 giving
authentication to the said document.
5.1. It was further stated that the father of plaintiff died leaving
behind him, his son-the plaintiff and his wife-Zubeda Begum as
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legal heirs and successors of his estate. After death of father of the
plaintiff, the mother of plaintiff being the next elder member gifted
the suit property to the plaintiff under the gift deed dated
15.09.2009. Since then, the plaintiff has been in possession and
enjoyment of the suit schedule property without any interruption
from anybody. The plaintiff resisted the acts of the defendants
when they tried to interfere with his possession without any right.
On 16.12.2009, when the plaintiff was levelling the suit property,
the defendants along with about 15 anti-social elements came to
the suit property and tried to dispossess the plaintiff and threatened
him with dire consequences posing danger to his life and property.
In this connection, the plaintiff lodged a report to police Kazipet,
but Police did not register any case. Hence, the suit for perpetual
injunction in respect of the suit schedule property.
6. The first defendant filed written statement denying the
averments made in the plaint and she also made a counter-claim for
the relief of injunction. She inter alia contended that she is the
owner of plot No.262 which is part and parcel of land in
Sy.No.25/A of Kazipet Jagir of Warangal District, having
purchased the same under the registered sale deed bearing
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document No.5445/2005 dated 04.06.2005 from one Thumma
Rojamma and others, who are legal heirs of Thumma Showreddy-
the original pattedar of above said survey number and since then,
she has been in possession and enjoyment of land purchased by
her. It was further stated that the said Rojamma and others have
executed a registered General Power of Attorney in favour of one
Thumma Papireddy, S/o Showreddy, the elder son. On 06.02.2010,
the plaintiff and his men tried to interfere with her possession over
the said property without any right and tried to start making illegal
constructions. Hence, she prayed to dismiss the suit and allow the
counter-claim.
7. The plaintiff filed rejoinder to the written statement-cum-
counter-claim of defendant No.1 and contended that defendant
No.1 is no way concerned with the suit schedule property and is
trying to grab the suit schedule property by taking advantage of
name 'Show' and he also denied execution of G.P.A in favour of
T.Papi Reddy by contending that Thumma Rojamma and children
of T.Show Reddy have sold the property to her another son-T.Papi
Reddy and as such, the vendors of defendant No.1 are no way
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concerned and are not in possession of Plot numbers mentioned in
the GPA.
8. Defendant No.2 did not chose to contest the suit.
9. Based on the above pleadings, the trial court framed the
following issues for trial:-
"(1) Whether the plaintiff is in lawful possession of suit
schedule
property as on the date of filing of the suit ?
(2) Whether the defendants herein are causing
interference to
such possession of the plaintiff over the suit schedule
property?
(3) If so, whether the plaintiff herein is entitled to relief of
permanent injunction against the defendants as prayed
for ?
(4) Whether defendant No.1 is entitled to relief of
permanent
injunction in respect of counter-claim schedule
property by way of counter-claim against plaintiff ?
(5) To what relief, if any either parties to the suit
entitled?"
10. During trial, on behalf of the plaintiff, P.Ws.1 to 3 were
examined and Exs.A-1 to A-12 were marked. On behalf of the
defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-4 were
marked.
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11. The trial Court after perusing the material on record and
after hearing both sides, vide its judgment dated 12.07.2018,
dismissed the suit while allowing the counter-claim of the
defendants. The trial Court observed as under:-
"In view of the evidence placed before the court on
behalf of the plaintiff and on perusal of the same, the
Ex.A1 does not show the flow of title from whom the
donor acquired the property, and Ex.A2 is only
agreement of sale from which no one can acquire any
rights to claim the property and there is no mention of
delivery of possession also. In ExA3 is tampered by
inserting a line in Para No.5, hence this document
cannot be admissible in evidence as it is tampered.
ExsA-.4 and A-9 are Pahanies showing the erstwhile
owner as possessor, but actual cultivators are some
other persons. In Ex.A5 there is no mention about plot
No.262 of Sy.No.25/A, then how the subsequent
transfers from the vendors to purchasers, transferred
the rights over plot No.262 property and went into the
hands of plaintiff herein as claiming having possession,
and Ex.A-8 is another document between the same
parties as under Ex A5, but showing the plot No.262
and different extent of land in Sy.No.25/A, and the
remaining documents are also not supporting the case
of plaintiff in clear cut as the main document under
Ex.A8 failed to mention the flow of title from whom the
donor acquired the property and all the remaining
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documents, are supporting evidence only, for which the
Ex A2 is the link document, but it is an agreement of
sale deed from which no rights can be acquired and
transferred subsequently. As such, the plaintiff failed to
prove his case by virtue of Exs.A1 to A9."
11.1 The trial Court further observed as under:-
"Defendant No.1 to prove her case relied on Ex.B1 in
which it is clearly mentioned in page No.2 the flow of
title from whom the vendors acquired the property i.e.,
from Thumma Show Reddy after his demise they
acquired the property, hence they transferred their
rights to the defendant No.1 herein, and Ex.B2 is
another document supporting the case of defendant No.1
that Surender Suxena has sold out his property to one
Kondoju Veerapopala Chary to an extent of 266 Sq.
yards land in Sy.No.25/A from whom Surender Suxena
purchased under doc. No.10708/1981.
The defendant No.1 succeeded in proving her
case by virtue of Exs.B1 to B4 and Exs.A-10 to A-12 and
as such, held that defendant No.1 is in possession of the
same and she is entitled to the relief sought for in the
counter claim."
12. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
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available on record and confirmed the judgment of the trial order.
The first Appellate Court specifically observed as hereunder:-
"From the evidence, it is clear that, as observed by the
trial court, there is no mention of plot No 262 in Ex.A-5
which is CC of sale deed executed by Thumma
Showreddy in favour of Surender Suksena 15.09.2000.
As observed by the trial court, Ex.A-8 was validated in
the month of September, 2010, i.e., after filing of the
suit. The plaintiff did not mention in the plaint about the
existence of Ex.A.8 and about custody by him on the
date of suit. The trial court observed that non-
mentioning of plot No.262 in Ex A-5 and mentioning of
black ink words in Ex.A-3 without any note in Ex.A-3,
regarding the words written in black ink, as per the
evidence of P.W.1 during cross-examination, show that
the plaintiff tried to hide real facts about insertion of
black ink words regarding registered sale deed bearing
document No.10708/1981, and it is clear tampering of
the document."
12.1. The first Appellate Court further observed as under:-
"Ex.A-8 was attested by one T.Rojamma and one
T. Papireddy. i.e., G.P.A holder of said Rojamma, i.e.,
wife of said Showreddy and other legal representatives
of said Showreddy. As per original of Ex.A-5, the said
T.Showreddy sold 800 square yards in Sy.No.25/A of
Kazipet Jagir to one Surender Suksena within the
boundaries of 100 feet road, 20 feet road, land bearing
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No.264 and 263 and 30 feet road on East, West, North
and South respectively. As per plan to Ex.A-5, the land
under Ex.A-5 is plot Nos.265 to 267. There is no
mention of plot No.262 in Ex.A-5."
12.3. As regards the plea of delivery of possession of the suit
schedule property to the plaintiff, the first Appellate court observed
that P.W.3 deposed that except signing Ex.A-2, he does not know
other details of the transaction. He does not know how said
Surender Suksena acquired the suit property. He could not give the
plot number of the suit property and therefore, the evidence of
P.W.3 is not useful to the plaintiff to prove his case.
12.4. The first appellate court further observed that the trial
court was right in observing that transferrable right could not be
acquired by the purchaser under Ex.A-2 and there is no mention of
delivery of possession under Ex.A-2 to father of plaintiff. In Ex.A-
1 there is no mention as to how mother of the plaintiff acquired the
property. As there was no delivery of possession under Ex.A-2 and
as no registered sale deed was obtained by father of plaintiff from
vendor under Ex.A-2, there cannot be any flow of valid title and
valid possession. Ultimately, the first appellate court held that the
plaintiff failed to establish valid possession and incidental title in
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respect of the suit schedule property and hence, he is not entitled to
the relief of perpetual injunction, however, defendant No.1 proved
that she is entitled to counter-claim relief of perpetual injunction.
13. A perusal of record discloses that the trial Court as well as
the first appellate court have concurrently held that the plaintiff
failed to prove that he is entitled to perpetual injunction in respect
of the suit schedule property, however, defendant No.1 proved that
she is entitled to counter-claim relief of perpetual injunction.
14. Heard Sri Akkam Eshwar, learned counsel for the
appellants. Perused the record.
15. Learned counsel for appellants argued that the trial Court
rendered the judgments impugned herein without proper
appreciation of the evidence and the first Appellate Court also
committed an error in confirming the judgments passed by the trial
Court.
16. Learned counsel for appellants failed to raise any substantial
question of law to be decided by this Court in these Second
Appeals. In fact, all the grounds raised in these appeals are factual
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in nature and do not qualify as the substantial questions of law in
terms of Section 100 C.P.C.
17. It is well settled principle by 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.
18. 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.
19. 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
(2007) 1 Supreme Court Cases 546
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in nature and no question of law much less a substantial question of
law arises for consideration in these Second Appeals.
20. Hence, both the Second Appeals fail and the same are
accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 27.03.2024
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