Telangana High Court
Vannam Rama Raju vs Poosa Chakrapani on 7 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.304 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 20.01.2023, passed by Principal District Judge,
Warangal in AS.No.108 of 2016, whereunder and whereby the
judgment and decree dated 27.01.2016 passed by the
V Additional Junior Civil Judge, Warangal in O.S.No.465 of 2009
was confirmed.
2. 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.
3. Succinctly, the facts of the case, which led to filing of the
present Second Appeal, are that the suit was filed for permanent
injunction in respect of the suit schedule property. The plaintiff
averred that he purchased the suit schedule property under a
registered document, dated 20.02.2009 from one Syed Hilaluddin
Quadri and since then, he has been in peaceful possession and
enjoyment of the same.
LNA, J
3.1. It was averred that the vendor of plaintiff by name Syed
Hilaluddin Quadri is son of one Ms. Rafia Sulthana, who inherited
the property from late Raheemunissa Begum, D/o Peer Pasha
Quadri, therefore, the vendor of the plaintiff acquired the suit
property as a legal heir of late Syed Peer Pasha Quadri. The name
of Raheemunissa Begum was mutated in the Revenue Records and
as such, the vendor of the plaintiff was the owner and possessor of
suit property, who in turn sold the same to plaintiff. The defendants
who are strangers, with an intention to grab the suit property, tried
to encroach and occupy the same. Hence, the suit for grant of
perpetual injunction.
4. Defendant No.1 did not choose to appear before the trial
Court and hence, he was set ex parte.
4.1. Defendant No.2 filed his written statement denying the
entire averments of the plaint. He stated that the defendant No.1
works as a videographer under plaintiff, with whose assistance,
defendant No.1 has fabricated false documents.
4.2. It was averred that the suit land is only 303 ¼ square yards
in Sy.No.210 of Ursu village and it belongs to his father Poosa
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Ramulu who has two plots, one is the suit property and another plot
is at Kummariwada, Warangal. That a division took place more
than 20 years back in which, defendant No.2 was allotted the suit
property and father of defendant No.1 by name Poosa Srinivas was
allotted the plot situated at Kummariwada. Warangal. The father of
defendant No.1 sold his share of plot and enjoyed the sale
proceeds. The defendant No.2 got mutated the suit plot in the name
of his wife in the Municipal records and they migrated to
Palvancha about 30 years back for doing business. The suit land is
in the name of wife of defendant No.2-Shashirekha, as such, she is
a necessary party to the suit and hence, this suit is bad for non-
joinder of necessary party. Hence, he sought for dismissal of the
suit with exemplary costs.
5. Basing on the above pleadings, the trial Court framed the
"(1) Whether the plaintiff is entitled for permanent
Injunction as prayed for?
(2) To what relief?"
6. To establish the case, the plaintiff examined P.Ws.1 to 4 and
marked Exs-A1 to A10 on his behalf and the defendants examined
DW1 and got marked Exs.B1 to B-3 on their behalf.
LNA, J
7. The trial Court, upon considering the oral and
documentary evidence and the contentions of both the parties,
dismissed the suit, vide judgment dated 27.01.2016. The trial Court
observed as under:-
"In the present suit, since the defendant No.2 is claiming
right, title and possession in respect of suit schedule
property, that his father, was the rightful owner who
purchased the same under Ex.B-1, by denying the right,
title and possession of PW1, the burden is heavily on the
plaintiff to establish that his vendor was the lawful
owner and he executed Ex.A1, in pursuance of the same,
he has got valid title and lawful possession over the suit
schedule property."
7.1. The trial Court further observed that defendant No.1 is
working as videographer in the photo studio of P.W-1 and that
P.W-4- the maternal uncle of defendant No.1 was examined as
P.W-4 who acted as identifying witness to Ex.A-1 and hence, the
transaction is purely in between P.W-1 and the alleged vendor-
Syed Hilaluddin Quadri which would create suspicion that there
might be collusion in between the plaintiff and defendant No.1.
LNA, J
7.2. The trial Court on further appreciation of the evidence
concluded that Ex.B-1 was executed in respect of the suit schedule
property and the same is true and valid, and whereas, Ex.A-1 is not
valid document in the eye of law and it was a created one.
Accordingly, the trial Court held that the plaintiff failed to prove
his lawful possession over the suit schedule property and hence, the
relief of permanent injunction cannot be granted.
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 that in this case, it is necessary to
look into the title of the property incidentally to decide the lis, but
the plaintiff failed to establish as to how the property was acquired
by his vendor-Hilaluddin Quadri.
8.1. The first Appellate Court further observed as under:-
"As per Ex.A-2 to A-5-pahanies, the name of
Rahamunissa Begum was shown as pattadar and as per
Ex.A-6, the possessor column shows the residential
houses. The vendor of the plaintiff is not Rahamunissa
Begum, but Moinuddin as per the alleged registered
agreement of sale cum GPA Dt.20-2-2009. As contended
by the plaintiff, as on Ex.A6 to A10 (pahanies) there were
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residential houses. The schedule of property is shown as
an open house plot out of Sy.No.210. So the possession of
the plaintiff over the suit schedule property as an open
plot as on date of the suit is not believable."
8.2. The first Appellate Court ultimately confirmed the
impugned judgment of the trial Court by holding as under:-
"For the purpose of this suit of mere injunction, the
burden of proof lies on the plaintiff and if it is not
discharged, the plaintiff will not get the relief in the suit.
Now, the document placed by plaintiff is Ex.Al and in
view of the discussion above on the evidence of PWs.1 to
PW4, Ex A1/ registered agreement of sale cum GPA,
Exs.A2 to A10-pahanies and other documents, the
burden of proving physical possession as on the date of
filing of suit is not established by the plaintiff."
9. Heard Sri Bankatlal Mandhani, learned counsel for the
appellant and Sri Hari Prasad Podila, learned counsel for the
respondents. Perused the record.
10. Learned counsel for the appellant relied upon the decisions
of the Hon'ble Supreme Court in Ramesh Chand Ardawatiya Vs.
Anil Panjwani 1 and in Achintya Kumar Saha Vs. Nanee Printers
(2003) 7 SCC 350
LNA, J
and others 2, and in Union of India Vs. Ibrahim Uddin and
another 3 and in Rame Gowda (dead) by LRs. v. M.Varadappa
Naidu (dead) by LRs. & Another 4 and the decision of the High
Court of Andhra Pradesh in State of Andhra Pradesh Vs. Pramila
Modi and others 5 and the decision of the High Court of Bombay in
Shobha Satyanarayana Birla Vs. Janabai Parshuram Pawar,
deceased reptd by her heirs Laxmabai Raghunath Pawar 6
11. In Ramesh Chand Aradwatiya's case (1st cited supra), the
Hon'ble Supreme Court at Para 34 held as hereunder:-
"A contract for sale does not confer title in immovable
property. Section 54 of Transfer of Property Act
provides that a contract for the sale of immovable
property is a contract that such a sale shall take place
on terms settled between the parties; it does not itself
create any interest or charge on such immovable
property. However, still, if a person has entered into
possession over immovable property under a contract
for sale and is in peaceful and settled possession of the
property with the consent of the person in whom the title
vests, he is entitled to protect the possession against the
whole world, excepting a person having a title better
(2004) 12 SCC 368
(2012) 8 SCC 148
(2004) 1 SCC 769
2005(4) ALD 105 (DB)
2004(2)Mh.L.J.
LNA, J
than what he or his vendor possesses. If he is in
possession of the property in part performance of
contract for sale and the requirements of Section 53-A of
Transfer of Property Act are satisfied, he may protect
his possession even against the true owner."
12. In Achintya Kumar Saha's case (2nd cited supra), the
Hon'ble Supreme Court, wherein the issue was whether the
agreement was a locence or a tenancy, at Para 9 held as under:-
"the issue was there before the trial court and the
agreement was held to be a licence. It was also there
before the lower appellate court but it was not
adjudicated upon. When the core issue is not
adjudicated upon, it results in substantial question of
law under Section 100 of CPC. In the case of Santosh
Hazari V. Purushotham Tiwarri reported in (2001) 3
SCC 179, it has been held that whether a question of law
is a substantial question of law in a case will depend on
facts and circumstances of each case, the paramount
consideration being the need to strike a balance between
obligation to do justice and necessity to avoid
prolongation of any dispute."
13. In Ibrahim Uddin's case (3rd cited supra), the Hon'ble
Supreme Court at para 85.3 held as hereunder:-
"Presumption under section 90 of Evidence Act in
respect of 30 years old document coming from proper
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custody relates to the signature, execution and
attestation of a document i.e., to its genuineness but it
does not give rise to presumption of correctness of every
statement contained in it. That the content of documents
are true or it had been acted upon, have to be proved
like any other fact."
14. In Rame Gowda's case (4th cited supra), the Hon'ble
Supreme Court at Para 11 held as under:-
"In the present case, the trial court has found the
plaintiff as having failed in proving his title.
Nevertheless, he has been found to be in settled
possession of the property. Even the defendant failed in
proving his title over the disputed land so as to
substantiate his entitlement to evict the plaintiff. The
trial court, therefore, left the question of title open and
proceeded to determine the suit on the basis of
possession, protecting the established possession and
restraining the attempted interference therewith. The
trial court and the High Court have rightly decided the
suit. It is still open to the defendant-appellant to file a
suit based on his title against the plaintiff- respondent
and evict the latter on the former establishing his better
right to possess the property."
15. In Pramila Modi's case (5th cited supra), the Hon'ble High
Court of Andhra Pradesh at Paras 55 and 57 held as under:-
LNA, J
"55. It is thus clear that Pattadar means a person, who
possesses a title to the land whether he is in possession
of the land or not, is responsible to the Government for
payment of land revenue. Pattadar is one whose title to
the land has been recognised.
57. This Court after referring to its carlier decisions
rendered under the Land Revenue Act in Anthya v.
Gattadu, AIR 1950 Hyderabad 58; Phoola Bhunna v
Rekha Deva, AIR 1957 Hyderabad 23; and Syed Jalal v.
Targopal, AIR 1970 AP 19, and relevant provisions of
the Land Revenue Act, observed:
"It is thus recognised that transfer of a patta of a
holding would amount to transferring of all that
is necessary to effectually transfer agricultural
land and vest a title in the person to whom it is
transferred. Transfer of patta is thus nothing but
a transfer of title itself. It is thus clear that patta
is nothing but a title itself so far as the
agricultural land is concerned in Telangana area
of State of Andhra Pradesh. The Division Bench
in Syed Jalal Vs Targopal reported in AIR 1970
AP 19, while construing various provisions of the
Land Revenue Act and the scheme of the Act
observed that "indubitably, the patta of
agricultural land itself is a evidence of right of
the holder, a transfer of which is also deemed to
be a permanent alienation."
LNA, J
16. In Shobha Satyanarayan Birla's case (5th cited supra), the
Hon'ble High Court of Bombay at Para 6 held as under:-
"Section 90 of Evidence Act enables the court to draw a
presumption where any document purporting or proved
to be thirty years old, is produced from any custody
which the court in the particular case considers proper.
It was further held that the presumption in Section 90 of
Evidence Act is of due execution and attestation of an
old document. The presumption does not extend to the
truth of the contents of the document."
17. From the aforesaid judgments, it is evident that it is settled
law that a person who entered into possession over immovable
property under a contract for sale and is in peaceful and settled
possession of the property with the consent of the person in whom
the title vests, he is entitled to protect the possession against the
whole world, except a person having a title better than what he or
his vendor possesses.
18. In the instant case, the trial Court upon appreciating the
evidence on record observed that there is litigation from the date of
execution of Ex.A-1 itself, thus, the alleged possession of P.W-1
cannot be said to be lawful, continuous and uninterrupted
possession. The first Appellate Court also concurred with the said
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observation of the trial Court. In the light of the said findings, the
judgment rendered in Ramesh Chand Aradwatiya's case (1st cited
supra) is not helpful to the appellant.
19. The other judgments of the Hon'ble Supreme Court relied
upon by the learned counsel for the appellant relates to drawing of
presumption under Section 90 of the Evidence Act, which are no
way applicable to be facts of the instant case.
20. 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.
21. 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.
22. A perusal of the record discloses that both the Courts below
concurrently held that the oral and documentary evidence adduced
LNA, J
by both the parties goes to show that the plaintiff failed to prove his
lawful possession over the suit schedule property and thus, he is
not entitled for the relief of permanent injunction as prayed for.
23. 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.
24. Further, in Gurdev Kaur v. Kaki 7, 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.
25. 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
(2007) 1 Supreme Court Cases 546
LNA, J
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.
26. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
27. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date: 07 .03.2024
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