Telangana High Court
Rathod Hema vs Rathod Maruthi Died Per L.Rs Rathod ... on 1 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.55 of 2024
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 13.10.2023, passed by the I Additional District
Judge, Kamareddy in AS.No.22 of 2022, whereunder and whereby
the judgment and decree dated 17.02.2016 passed by the Junior
Civil Judge, Bichkunda in O.S.No.26 of 2009 was confirmed.
2. The appellants are the plaintiffs 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, which led to filing of the present
Second Appeal, are that the plaintiff is the absolute owner, pattadar
and possessor of the suit schedule property which was given by the
then Government of Andhra Pradesh in the name of one Ms. Jema
about twenty five years back. The said Jema is cousin brother to
the plaintiff and he executed a gift settlement deed in favour of the
plaintiff in respect of the suit schedule property on a stamp paper
worth Rs.50/- on 18-10-1996 in the presence of witnesses and
handed over the possession of the suit schedule property to the
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plaintiff and since then the plaintiff has been in possession and
cultivating of the same till today.
3.1. It was further averred that the defendant, without having
any right or interest over the suit schedule property, tried to destroy
the standing crop on 28-7-2009 and hence, the suit for perpetual
injunction.
4. The defendant filed the written statement denying the
ownership, patta and possession of the suit land by the plaintiff. It
was averred that the said Jema is the father of the defendant, who
died in the year 2006 and after his death, the defendant being the
sole legal heir succeeded to the suit land as it is the joint family
property. After death of his father, the defendant got mutated the
lands in his name and obtained pattadar pass book and title deed
recording his name as possessor over the entire land to an extent of
Ac.7-07 gts in Sy.No.63/LU including the suit land.
4.1. The defendant denied the relationship between his father-
Jema and the plaintiff as cousins and also denied the execution of
gift settlement deed by his father in favour of the plaintiff and
further averred that the plaintiff created the said Gift deed by
forging the signature of the said Jema and mutated the revenue
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records in collusion with revenue officials from the year 2006-07
onwards.
4.2. The defendant further averred that after death of his father,
the entire land in Sy.No.63 was mutated in his name. Accordingly,
he made an application before the MRO, Madnoor for entering his
name in possessor column, but as no orders were passed. The
defendant preferred an appeal against the plaintiff before the
Revenue Divisional Officer, Bodhan and the same was allowed.
The Revision filed by the plaintiff against the orders of the RDO is
pending and no stay was granted therein. Therefore, the name of
the plaintiff appearing in pahani from 2006-07 is quite illegal and
not acceptable and prayed to dismiss the suit.
5. Based on the above pleadings, the following issues were
settled by trial Court:
"(i) Whether the Plaintiff is entitled for perpetual injunction
as prayed?
(ii) To what relief?
6. During the course of trial, on behalf of the plaintiff, PWs.1
to 4 were examined and Ex.A1 to A4 were marked. On behalf of
the defendant, DW-1 to DW-3 were examined and Exs.B1 to B7
were marked.
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7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
observed as hereunder:-
"By virtue of Ex.A-1-unregistered gift settlement deed
(impounded by Sub-Registrar), it is very clear that the
plaintiff was gifted the suit schedule land by the father of
the defendant and his name is also recorded in Exs.A-2
and A-3-pahani patrikas which were issued by the
revenue authorities.
7.1. The trial Court further observed that Exs.A-2 and A-3-
pahani patrikas shows the title and possession of the plaintiff over
the suit schedule property and his name is recorded as pattadar and
possessor in Column Nos.12 and 13. There is nothing to show that
the plaintiff has gained possession by any unfair means just prior to
the suit. On the other hand, the plea of the defendant that the suit
schedule property is ancestral property and he acquired the same
on demise of his father and Ex.A-1 is not valid and binding upon
him can be said to be contrary to the plea taken in the written
statement. By observing thus, the trial Court decreed the suit
granting temporary injunction in favour of the plaintiff.
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8. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record and observed as hereunder:-
"Except the oral evidence of Pw.1 to 4, there is no
concrete and documentary evidence placed by the
plaintiff to show that there is existing relationship
between the respondent/parties. Moreover PW-1 and
PW-4 admitted in their cross examination that the
father of the plaintiff and father of the defendant are
not own brothers. In the absence of any such evidence,
it cannot be said that the father of the defendant is the
brother of the plaintiff. Hence, this Court comes to a
firm conclusion that there is no relationship existing
between the parties."
8.1. The first Appellate Court further observed that there is
serious suspicion about the execution of Ex.A-1-unregsitered Gift
deed by the said Jama in favour of the plaintiff, as the plaintiff's
name was reflected as pattadar and possessor in the paahines for
the years 2007-08 and 2008-09 when the alleged Gift deed was
executed in the year 1996. Thus, the plaintiff failed to prove that
the father of the defendant executed Ex.A-1 in his favour.
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8.2. It was further observed that the plaintiff did not make any
application before the MRO, Madnoor for mutation of the record
immediately after the alleged gift deed, but made an application
after death of father of the defendant-Jema and got mutated the
land in his name vide File No.5 of 2007 dated xx.02.2009. On an
Appeal filed by the defendant against the said order before the
Revenue Divisional Officer, the order of the MRO was set aside.
Questioning the same, the plaintiff filed Revision before the Joint
Collector, Nizamabad and the same was dismissed confirming the
order of the RDO, Bodhan. Thus, it was held that the mutation
orders passed by the Tahsildar, Madnoor in favour of the plaintiff
become invalid.
9. The first Appellate Court vide its judgment declared Ex.A-1-
Gift deed as invalid document and that Exs.A-2 to A-4 became
invalid in view of the orders of the Revenue authorities. On the
other hand, the oral and documentary evidence adduced by the
defendant i.e., Exs.B-1 to B-7 clearly shows that the defendant is
the owner of the suit schedule property and has been in possession
and enjoyment of the same. Accordingly, the first Appellate Court
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allowed the appeal, vide judgment dated 13.10.2023 setting aside
the judgment and decree of the trial Court.
10. Heard Sri Apurva M.Gokhale, learned counsel for the
appellants and Sri Emmadi Upender, learned counsel for the
respondent. Perused the record.
11. Learned counsel for the appellants relied upon the decision
of the erstwhile High Court of Andhra Pradesh in Pittala Kistaiah
Vs. Ganta Laxmi and another 1. In the said decision, at para-16, it
was observed as under:-
"It is true that the present second appeal is preferred as
against a reversing judgment and decree. The appellate
Court is the final fact finding Court. It is needless to say
that as far as the factum of possession is concerned, it
appears to some extent concurrent findings had been
recorded, but the Court of first instance was not inclined
to grant the relief of perpetual injunction on the ground
of inadmissibility of Ex.A17 and also on the ground of the
parties being co-owners of the property. As already
referred to supra, in the light of the specific stand taken
by the 1st defendant claiming exclusive right, this defence
for the present purpose may not be available to the 1st
defendant. It is no doubt true that incidentally the title
(2007) 2 ALD 81
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may have to be gone into in a suit for perpetual
injunction. This Court is not inclined to express any
further opinion relating to the validity or admissibility
and the other aspects of Ex.A17. However, in the light of
ample oral and documentary evidence available on
record in relation to the factum of possession, this Court
is of the considered opinion that the limited relief granted
by the appellate Court cannot be found fault with.
However, the parties are at liberty to agitate their rights
by pursuing the other proper legal remedies, if they are
so advised."
12. The facts of the aforesaid judgment are distinct than that of
the present case and hence, it cannot be applied to the instant case
and is of no help to the appellants.
13. 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.
14. 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
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factual in nature and do not qualify as the substantial questions of
law in terms of Section 100 C.P.C.
15. 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.
16. Further, in Gurdev Kaur v. Kaki 2, 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.
17. 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
(2007) 1 Supreme Court Cases 546
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nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
18. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
19. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:01.03.2024
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