Telangana High Court
M.Srinivas Rao vs Muppavarapu Venkat Ramaiah on 6 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.79 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment
and decree, dated 16.11.2023 passed in A.S.No.13 of 2017
on the file of the V Additional District Judge, Bodhan,
wherein the judgment and decree, dated 02.02.2017
passed in O.S.No.200 of 2007 on the file of the Principal
Junior Civil Judge, Bodhan, was confirmed.
2. The appellant is defendant and the respondent is
plaintiff. For convenience, the parties hereinafter are
referred to as they were arrayed before the trial Court.
3. Brief facts leading to filing of the present Second
Appeal are that the plaintiff filed a suit for declaration of
title, recovery of possession and for future mense profits @
Rs.1000/- per annum in respect of agricultural land to an
extent of Acs.2.19 guntas in Sy.No.235/A of Siddipet
village, Bodhan Mandal (hereinafter referred to as 'suit
land'). The plaintiff purchased the suit lands from Sri Shaik
Ahmed under a registered sale deed vide document
No.5385 of 2006 dated 18.10.2006 for a valuable
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consideration of Rs.40,000/- and his name was mutated in
the revenue records as pattedar and possessor.
4. It was further contended that the defendant, being
the neighbouring land owner of suit schedule property on
East, West and South has been pestering the plaintiff to
sell the suit land to him and as the plaintiff refused, he has
forcibly occupied the suit land in the month of November,
2007. Hence, the suit.
5. Defendant filed written statement denying the
averments made by the plaintiff and inter alia contended
that the land in Sy.No.235 was purchased by his brother
Sambasiva Rao and his wife M. Geetha Vani under
registered sale deeds. After purchase, they have been in
continuous and peaceful possession of the same. The land
in Sy.No.235 is covered by a rivulet or vorrey and it is unfit
for cultivation. The said survey number is abutting to the
banks of Manjira river.
6. It was further contended that the plaintiff only
mediated the sale of land in Sy.No.235. There is another
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suit for recovery of money filed by the defendant against
the plaintiff which was decreed. Keeping that grudge in
mind, the plaintiff brought registered sale deed document
No.5385 of 2006 into existence. That the lands are
uncultivable and plaintiff created false documents
including mutation proceedings. According to the
defendant, Acs.2.19 guntas of land is covered by rivulet
which is suppressed by plaintiff and as such, the plaintiff
approached the Court with unclean hands. Hence, he
prayed to dismiss the present suit.
7. Before the trial Court, on behalf of the plaintiff, PW1
to PW4 were examined and Exs.A1 to A9 were marked. On
behalf of the defendant, DW1 and DW2 were examined and
Exs.B1 to B33 were marked.
8. The trial Court, after considering the entire material
available on record, vide its judgment and decree dated
02.02.2017, dismissed the suit by observing as under:
(i) "The plaintiff had clearly proved his title and
right over the suit schedule property in view of Ex A1 to A-
10. Whereas defendant is denying the title of the plaintiff.
Then the onus shifs on the defendant to prove his contention
and also disprove the contention of the plaintiff. Defendant
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submits that there is vorrey (rivulet: stream of water formed
from the main river Manjeera hence forth termed as rivulet
for the sake of convenience) passing through the schedule
property as such there is no land in existence as pleaded by
the plaintiff. But none of the documents filed by the plaintiff
nor the oral evidence of PW-1 to 4 have reflected the same.
The Ex.A-1 to A-10 does not show the rivulet as one of the
boundary. On the contra the certified copies of the sale
deeds filed by the defendant and his relatives show the
rivulet as one of the boundary. In order to find out the said
fact of existence or non existence of rivulet the Advocate
commissioner was appointed twice. One of the Advocate
Commissioner has returned the warrant without execution
as defendant has threatened him which reveals the high
handed neas. Again a senior advocate (PW-3) was
appointed as advocate commissioner who executed the
warrant and conducted survey, physical verification survey
with the assistance of Mandal Surveyor and filed his report
under Ex.A-10. Ex.A-10 is the detailed report along with the
photographs which reveals the existing standing crop. None
of the photos of suit schedule property show the rivulet in
and around as boundary to the suit schedule property. Ex.A-
10 itself is sufficient to prove the contention of plaintiff. The
plea of defendant that suit schedule property is uncultivable
land as rivulet is passing through it does not stand before
the court. The Advocate Commissioner was examined as
PW-3 and cross examined by the defendant. He admitted
the existence of standing crop and that measurement was
taken as per bunds existing.
(ii) It is evident that after purchase of land, the
defendant purposefully shown his family members lands as
boundaries inspite of having rivulet passing through his
lands and as such he suppressed it and encroached the
could(sic) of plaintiff to over come to cross. He has
mentioned false boundaries in his sale deeds and occupied
the land of plaintiff with malafide intention to grab it. As
such the plaintiff is declared as the owner of suit schedule
property as such he is entitled to recovery the suit schedule
property from defendant by evicting him and defendant is
directed to deliver vacant possession of suit schedule
property to plaintiff forth with".
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9. On appeal, the first appellate Court, on re-
appreciation of the entire evidence and perusal of the
material available on record dismissed the appeal vide
judgment and decree, dated 16.11.2023 by observing as
under:
(i) "The claim of the defendant is that the land
in suit survey number is uncultivable as it covers Orrey.
This Court appointed the PW3 as commissioner for
locating the suit schedule property with the help of
surveyor. The evidence of PW3 coupled with
Ex.P10/Commissioner report with plan given by the
surveyor locating the suit schedule property clearly proves
that there is no orrey in Sy.No.235 of Siddapur village. In
fact, the DW2 whose wife said to be having land in
Sy.No.236, in his cross examination clearly admitted that
the Manjeera river/orrey flows/possess in their land and
also the land of his brother. Therefore, there is no orrey in
Sy.No.235 of Siddapur village which includes the suit
property in Sy.No.235/A.
(ii) The plain/sketch given by the Mandal
Surveyor to the Advocate commissioner, clearly located the
suit schedule property in Sy.No.235/A. Therefore, the suit
schedule property is existence and the
appellant/defendant was in illegal possession of the
same".
10. A perusal of the record discloses that the trial Court
as well as first appellate Court concurrently held that the
plaintiff has proved his title over the suit schedule property
and that the defendant had occupied the plaintiff's land
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and therefore, decreed the suit of the plaintiff for
declaration of title and recovery of possession.
11. Heard Mr.V.Ravi Kiran Rao, learned Senior Counsel
representing Sri. V. Rohith, learned counsel on record for
the appellant and Mr. K.Durga Prasad, learned counsel for
the respondent. Perused the record.
12. Learned counsel for the appellant 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.
13. 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.
14. It is well settled principle as per catena of decisions of
the Apex Court that in the Second Appeal filed under
Section 100 of C.P.C., this Court cannot interfere with the
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concurrent findings arrived at by the trial Court and the
first appellate Court, 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.
16. Having considered the entire material available on
record and the findings recorded by the trial Court as well
as the 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.
(2007) 1 Supreme Court Cases 546
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17. 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:06.03.2024
mnv/dsu
