Telangana High Court
Peddula Yelladas vs Ramsagaram Sathireddy Died Pr Lrs. on 27 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.180 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree dated 28.10.2022 passed in A.S.No.28 of 2019
on the file of the Principal District Judge, Siddipet, wherein
and whereby the judgment and decree dated 21.06.2019
passed in O.S.No.65 of 2011 on the file of the Senior Civil
Judge, Siddipet, was confirmed.
2. The appellants herein are plaintiffs and respondents
are defendants in the suit. 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 one Peddula Siddaiah, who is the father of
plaintiff Nos.1 to 3, had purchased suit schedule property
i.e., Ac.1.03 guntas of land in survey No.1000, situated at
Nangunoor village and Mandal of the present Siddipet
District, out of Acs.2.00 guntas of land, from Anireddi
Kishta Reddy in the year 1968 and thereafter, he made
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eight plots in Ac.0-11 guntas out of Ac.1-03 guntas of land
and sold those plots to several persons under separate sale
deeds.
4. While so, defendant No.1 in collusion with defendant
Nos.2 to 5 and father of defendant No.6, filed O.S.No.33 of
2000 on the file of the Junior Civil Judge, Siddipet for
partition of Ac.1.00 guntas of land in survey No.1000
against 31 persons including the plaintiffs, contending that
the suit land therein (Ac.1.00 in Survey No.1000 abutting
to road) is in joint possession of sharers, who were shown
as defendants 1 to 8 herein. In the said suit, written
statement was also filed, however, it was dismissed.
Against the said dismissal, the defendants have filed
A.S.No.10 of 2004 before the IV Additional District Judge
(Fast Track Court), Siddipet, and the same was dismissed.
5. It is further contended that name of the father of
plaintiff Nos.1 to 3 was recorded as possessor of Ac.1.03
guntas for some years and was discontinued without any
basis; that in Form No.1 ROR for the year 1989-90 name of
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the Peddula Siddaiah is shown as occupant for the land to
an extent of 19 gts in survey No.1000; that one of the
tenants Jangiti Laxman dumped earth on Ac.0-02 gts of
land which is situated in backside of the plot of Sirikonda
Ramachandram and also construction of shops in the plots
sold by the father of plaintiffs Nos.1 to 3 falsifies the
entries in revenue records. The defendants on 03.07.2011
tried to encroach the suit lands, hence, the suit for
perpetual injunction.
6. Defendant Nos.1 to 7 contended that the land
claimed to have been purchased by the father of plaintiff
Nos.1 to 3 is adjoining Survey No.994 on the eastern side
which belongs to Sri Radhakishan Rao. A road was laid
through the land of plaintiffs' father and as such only 8 to
10 guntas remained, which was sold to others by the
palintiffs' father during his life time under various simple
deeds.
7. It is contended that the father of plaintiff Nos.1 to 3
filed suit viz., O.S.No.33 of 2000 in respect of land in
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survey No.1000 to an extent of Ac.0.32 gts, whereas it is
the case of the plaintiffs that one Anireddy Kistareddy had
land admeasuring Acs.2.00 gts in Survey No.1000 and the
father of plaintiff Nos.1 to 3 purchased the land
admeasuring an extent of Ac.1-03 gts in survey No.1000
abutting to Siddipet-Nangunoor Road in the year 1968
from Anireddy Kistareddy.
8. It is contended that the dismissal of suit in O.S.No.33
of 2000 does not create any obligation or right to the
plaintiffs in the suit land as the plaintiff and their father
were out of possession of the suit land and they did not
claim right over the suit land prior to institution of
O.S.No.33 of 2000 and after its dismissal the claim of the
plaintiffs is time barred. Hence, they prayed to dismiss the
suit.
9. Before the trial Court, on behalf of the plaintiffs, PW1
to PW4 were examined and Exs.A1 to A25 were marked.
On behalf of the defendants, DW1 to DW4 were examined
and Exs.B1 to B27 were marked.
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10. The trial Court, after considering the entire evidence
and material available on record, dismissed the suit vide
judgment and decree dated 21.06.2019 by observing as
under:
"(i). The plaintiffs failed to discharge the burden that is
casted upon them to prove their possession and
enjoyment and in such case onus does not shift to the
defendants to substantiate their plea. Nothing material
could be elicited from mouth of DW-1, which is favourable
to the case of plaintiffs. As the plaintiffs failed to
discharge the burden in such event there is no need to
discuss further.
(ii). Plaintiffs have shown cause of action to file this suit
arose on 03-07-2011 when the defendants allegedly tried
to encroach the suit land. Limitation to file suit for
perpetual injunction is three years from the date when the
right to sue accrues as per Article 113 of Limitation Act,
1963. The plaintiffs have shown that cause of action
arose on 03-07-2011 and the suit was filed on 14-07-
2011 as such the suit is within period of limitation. Hence,
issue is answered accordingly.
(iii). No specific plea is taken by the defendants as to why
the suit is not maintainable as per section 41 of Specific
Relief Act. The plaintiffs have filed suit on the ground that
defendants threatened to dispossess plaintiffs from suit
schedule property. Whereas section 41 of Specific Relief
Act deals with injunction when refused. The claim of
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plaintiffs does not fall under any of the grounds
enunciated under section 41 (a) to (j) to say that suit is not
maintainable under section 41 of Specific Relief Act. This
issue is answered accordingly."
11. On appeal, the first Appellate Court on re-
appreciation of the entire evidence and perusal of the
material available on record vide judgment and decree
dated 28.10.2022 dismissed the appeal, by observing as
under:
"(i). It is pertinent to note no where in Ex.A12, it is
stated that Anireddi Kistareddy owns Ac.2-00 acres land
in Sy.No.1000 and out of that Ac.2-00 guntas he is selling
Ac.1-03 guntas under Ex.A11. Further, plaintiffs not
examined any person who can speak about the plaintiffs'
possession of the suit.
(ii). It is pertinent to note PW1 himself admitted in his
cross-examination, his name was recorded in as pattadar
of the suit land after the death of his father. These proved
facts show that the plaintiffs failed to prove that the
vendee in Ex.A11 is their father Peddula Siddaiah and
that they are in possession of the suit land as on the date
of filing of the suit, as such, they are not entitled for
perpetual injunction.
(iii). Further Exs.B12 to B18 and Exs.B23 to B26 and
also Exs.B19 to B22 show that purchasers of land in
Sy.No.1000 are in possession of extent of the land
purchased by them. I, therefore, opine the plaintiffs failed
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to prove that they are in possession of the suit land. The
Trial Court has considered all these facts and came to
right conclusion and dismissed the suit. For these
reasons, I opine that there is no need to interfere with the
Judgment and Decree of the Trial Court. The point is
accordingly answered."
12. Heard Mr.L.Preetham Reddy, learned counsel for the
appellants, Mr.Sanjeev Gillela, learned counsel for the
respondents. Perused the record.
13. A perusal of the record discloses that the trial Court
as well as the first appellate Court concurrently held that
the plaintiffs failed to prove that they were in possession of
the suit land as on the date of filing of the suit, as such,
they are not entitled for perpetual injunction.
14. Learned counsel for the appellants vehemently
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.
15. However, learned counsel for the appellants failed to
raise any substantial question of law to be decided by this
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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.
16. 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.
17. 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.
18. Having considered the entire material available on
record and the findings recorded by the trial Court as well
(2007) 1 Supreme Court Cases 546
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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.
19. 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: 27.03.2024
Dua
