Neela Shekar vs Siripuram Mallesham
2024 Latest Caselaw 1322 Tel

Telangana High Court

Neela Shekar vs Siripuram Mallesham on 27 March, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 SECOND APPEAL No.227 of 2023
JUDGMENT:

The present Second Appeal is filed questioning the judgment

and decree, dated 25.08.2022, passed by Principal District Judge,

Karimnagar in AS.No.111 of 2018, whereunder and whereby the

judgment and decree dated 18.01.2018 passed by the Additional

Senior Civil Judge, Karimnagar in O.S.No.28 of 2007 was

confirmed.

2. The appellant is the plaintiff and the respondent is the

defendant in the suit. For convenience, hereinafter the parties are

referred to as they are arrayed in the suit.

3. The brief facts of the case as narrated in the plaint, which led

to filing of the present Second Appeal, are that the plaintiff is the

absolute owner and possessor of the suit schedule property having

purchased the same from its pattedar namely Arepally Ramaiah

through registered document No.9115 of 2004 dated 23.4.2004 and

since then, he has been in peaceful enjoyment of the said property.

3.1. The defendants, without having any manner of right, title or

interest over the said property, started interfering with the peaceful

possession and enjoyment of the plaintiff and accordingly, an

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attempt was made on 26.01.2007 and the same has been prevented

and thereafter, the defendants sent two persons by name Komera

Yella Reddy and Mandala Mahender Reddy who started claiming

right over the suit property and started interfering with the

possession and enjoyment of the plaintiff in respect of the suit

schedule property, therefore, OS.No.24 of 2005 has been filed

against them, which was decreed ex parte vide Judgment dated

12.07.2005. Since the defendant could not succeed in grabbing the

suit land, he started interfering with the peaceful possession and

enjoyment of the plaintiff over the suit land which prompted the

plaintiff to file the suit for grant of perpetual injunction in respect of

the suit schedule property.

4. The defendant filed the written statement denying all the

averments made by the plaintiff and submitted that he has

purchased 00.25 guntas of land in Sy.Nos.120/12, 13, 14 and 15 of

Arepally village of Karimnagar Mandal from Gasikanti Mondalah,

Arepally Pochaiah, Arepally Ramalah, Kavvampelly Mysalah,

Kavvampalli Narsalah, Gasikanti Durgalah, Gasikanti Lingaiah,

Neerukulla Kondaiah, Neerukulla Mallaiah and Jekanapally

Ashaiah through registered sale deed bearing document No.4203 of

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1982 and since then, he has been in possession and enjoyment of

the same without there being any interruption and that the plaintiff

is not in possession of the suit land. Later, in the month of July,

2005, he came to know that some persons viz., Kavvampally

Narsaiah, Gasikanti Durgaiah, Jakinipalli Ashaiah, Arepally

Mallaiah and Arepally Narayana were trying to interfere with his

possession, which prompted to file OS.No.444 of 2005 for

perpetual injunction on the file of Principal Junior Civil Judge,

Karimnagar and the Court was pleased to pass ex pate decree and

later, he constructed compound wall and also temporary shed in it.

Hence, he prayed to dismiss the suit.

5. Based on the above pleadings, this Court has settled the

following issues:

"(1)Whether the plaintiff is entitled for the of perpetual injunction as prayed for?

(2)To what relief?"

6. On behalf of plaintiff, PWs.1 to 5 were examined and

Exs.A-l to A-14 were marked. On behalf of the defendant, DWs.1

to 3 were examined and Ex.B-1 to B-23 were marked.

7. The trial court after considering oral and documentary

adduced by both the parties and on hearing the contentions of

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learned counsel for both the parties, dismissed the suit, vide its

judgment dated 18.01.2018. The trial Court observed as under:

"Ex.A2, A4 to A8 goes to show that the vendor of the plaintiff by name Arepally Ramaiah was the pattaedar of land in Sy.No.120/15 to an extent of 00-36 guntas along with Arepally Pochaiah, S/o Pochaiah. Ex.A9 to A12- pahani pathriks goes to show that neither the plaintiff nor his vendor was shown as pattadar of land in Sy.No.120/15 to an extent of 00-12 guntas or 00-36 guntas. None of the entries made in the above said document does not pitch upon that the plaintiff is in possession to the suit land after his purchase under Ex.Al document. Exs.A13 and A-14 does not carry any weight with regard to possession as Ex.B23 falsifies the claim with regard to mutation proceeding."

7.1. The trial Court further observed that the plaintiff cannot

take any advantage of the ex parte decree passed in O.S.No.24 of

2005 in establishing his possession over the suit schedule property

since admittedly, the defendant is not a party to the said

proceedings and therefore, it is not binding on him.

7.2. The trial Court further observed that the documents viz.,

Exs.B-9 to B-15 goes to show that the defendant is in possession of

land to an extent of 00-19 guntas having RCC structure. Ex.B1 to

Ex.B-8-CC of sale deeds of the year 1982 goes to show that the

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vendor of plaintiff-Arepally Ramaiah and others have sold the land

in Sy.No.120/15 to different people including the plaintiff herein.

Perhaps, that is why there is no mention in Ex.A1-sale deed with

regard to remaining land of Arepally Ramaiah and ultimately, the

trial Court concluded that the plaintiff is not in possession of the

suit land at any point of time much less on the date of filing of the

suit.

7.3. By observing thus, the trial Court held that the plaintiff

failed to establish his possession over the suit schedule property as

on the date of filing of the suit land in addition to existence of

prima facie case and balance of convenience and accordingly,

dismissed the suit.

8. On appeal, the first Appellate Court, being the final fact-

finding Court, on re-appreciation of the entire evidence and the

material available on record, confirmed the judgment of the trial

court, vide its judgment dated 25.08.2022. The first appellate Court

observed as hereunder:-

"Exs-B1 to B-8 are certified copies of registered sale deed transactions and the particulars given above of the land shown in these sale deeds reveal that by the year 1982 itself, the pattadars of these lands have sold Ac 05-

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12 Gt extent of land. In the light of these facts, burden is upon the plaintiff to prove the total extent of land in Sy.No.120, the land sold by the pattadars and the remaining land, more particularly the land remaining in Sy.No.120/15. As already observed above, PW2 stated that they have obtained Encumbrance Certificate prior to purchase of the property by the plaintiff, but said document is not filed before the Court. This Court observes that all these transactions under Ex.B1 to B-8 are registered transactions which definitely will be revealed in the Encumbrance Certificate and in the light of particulars of PW2 that he does real estate business and that plaintiff enquired with him prior to purchase by plaintiff, silence on part of plaintiff on obtaining Encumbrance Certificate at the time of his purchase is against the case of plaintiff."

8.1. The first Appellate Court further observed that Ex.B23-the

Letter issued to defendant under RTI Act on an application made by

him and the Reply given by the Information Officer that the

information is not available in their Office, which are filed by

defendant goes to show that the purported Ex.A13-Mutation

Proceedings filed by the plaintiff are false and fabricated

Proceedings. Prima facie, the daily register entry filed vide Ex.B22

shows that it pertains to an application given by B. Laxminarayana.

To rebut these documents, plaintiff did not examine any witness.

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8.2. The first Appellate Court further observed as under:-

"It is also to be appreciated here that plaintiff is claiming the suit land within the given boundaries in Ac.00.12 guntas of his land, whereas, defendant is claiming the same land as in Ac.00.19 guntas. Thus, the very identity of the land described in the schedule of the plaint is to be proved and localized on ground. However, there is no evidence on any of the above aspects."

8.3. While adjudicating on the aspect of possession in respect of

the suit schedule property, the first Appellate Court observed as

under:-

"Plaintiff having approached the Court seeking equitable relief of perpetual injunction is bound to bring forth all these above facts before the trial Court Further, plaintiff claims to have constructed a compound wall by obtaining permission, but no such permission is filed by plaintiff. Defendant claims that the land purchased by him is not only covered by a compound wall but there is shed with two rooms and it was even allotted house number and there is electricity connection with SC No.131. In the light of above facts, burden is heavily on the plaintiff to prove that it is himself who constructed the compound wall and not the defendant. As a matter of fact, the very identity of the property, as claimed in the

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registered sale deed of the plaintiff, remained not proved.

Coming to the aspect of possession of the suit land by plaintiff as on the date of filing the suit, the above discussion sufficiently establishes that plain failed to prove that he was in physical possession or constructive possession of suit land of Ac.0.12 guntas."

9. Having observed as above, the first Appellate Court held that

the trial Court had meticulously discussed the oral and documentary

evidence on record, and thoroughly appreciated the factual aspects

of the case and came to a right conclusion and accordingly,

dismissed the appeal confirming the judgment of the trial Court.

10. Heard Sri Ponnam Ashok Goud, learned counsel for the

appellant. Perused the entire material available on record.

11. A perusal of the record discloses that both the trial Court as

well as the First Appellate Court have concurrently held that the

plaintiff failed to prove that he was in physical possession of the

suit schedule property and accordingly, declined to grant the relief

sought for by him.

12. Learned counsel for appellant argued that the trial Court

dismissed the suit without proper appreciation of the evidence and

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the first Appellate Court also committed an error in confirming the

judgment and decree passed by the trial Court.

13. 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.

14. 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.

15. 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.

(2007) 1 Supreme Court Cases 546

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16. 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.

17. Hence, the Second Appeal fails and the same is accordingly

dismissed at the stage of admission. No costs.

18. Pending miscellaneous applications, if any, shall stand

closed.

__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:27.03.2024 dr