Telangana High Court
Panuganti Satishkumar vs Jupally Srinivasa Rao on 7 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.6 of 2024
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 26.06.2023 in A.S.No.10 of 2019 on the file of the
Principal District and Sessions Judge, Nagarkurnool, wherein
and whereunder the judgment and decree dated 26.11.2018 in
O.S.No.85 of 2013 on the file of the Junior Civil Judge,
Kollapur, was confirmed.
2. 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 the plaintiff is owner and possessor of the lands in
survey Nos.289/A2/1A measuring 0-07 guntas, 289/A2/2A
measuring Ac.0-07 guntas, 301/AA1 measuring Ac.2-37 ½
guntas and 301/E1 measuring Ac.2-37 ½ guntas, totally
measuring Ac.6-09 guntas situated in the limits Ankiraopally
village of Kollapur Mandal (hereinafter referred to as 'suit
lands') having purchased the suit lands from the defendants
under a registered sale deed dated 08.07.2010 for a sale
consideration of Rs.1,25,000/- and his name was also mutated
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in the revenue records. Thereafter, the plaintiff established
Damber Mixing Plant on southern side of the suit land after
taking permissions from all the concerned. However, the
defendants, with a malafide intention, tried to damage the
Damber mixing plant and also tried to lay a new bund in the
suit land in order to occupy some of the suit land, but the
plaintiff could resist them on that day with great difficulty.
Hence, the suit for permanent injunction.
4. Defendant Nos.1 and 2 have filed the written statement
denying the averments made in the plaint except establishment
of Damber mixing plant by the plaintiff in the present suit land.
It is contended that defendant Nos.1 and 2 are the owners of
the lands in survey No.289 admeasuring to an extent of Ac.2-27
guntas and Ac.2-26 guntas respectively and survey No.301
admeasuring to an extent of Ac.3-30 guntas and Ac.3-31
guntas respectively, situated in the limits of Ankiraopally village
limits. Out of the aforesaid lands, defendants sold an extent of
Ac.3-04 ½ gts to the plaintiff vide sale deed document
No.2581/2010 dated 08.07.2010, however, in the said sale
deed, the plaintiff got mentioned double area i.e., Ac.6-09
guntas. Thus, the plaintiff cheated the defendants and obtained
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their signatures in the sale deed for excess area. The plaintiff
was put in possession of Ac.3-04½ guntas and he laid a bund
and road to his northern side border of the said Ac.3-04½ gts
land and also stamped the stone pillers.
5. Further, it is contended that the defendant came to know
the mistake crept in the registered sale deed after the plaintiff
started disputing with them and therefore, they asked the
plaintiff to come forward for correction of the said sale deed.
Instead of correcting sale deed, the plaintiff filed suit claiming
the wrong area of the suit land by showing wrong boundaries
and wrong sketch map; that the sale deed is illegal and void
and as such it is liable to be cancelled to the extent of Ac.3-04½
guntas. It is contended that the counter claim is within time
and not barred by limitation since the mistake crept in the sale
deed came to the knowledge of the defendants on 15.05.2013.
Therefore, prayed to dismiss the suit and to allow counter
claim.
6. Against the counter claim of the defendants, the plaintiff
has filed rejoinder in the form of written statement under Order
VIII Rule 6-A(3) of CPC, denying the counter claim of the
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defendants and reiterating the averments in the plaint. It is
contended that the counter claim is barred by limitation and
there is no cause of action for the same; that the defendants are
aware of the fact that the entire suit land was sold and they are
not in possession of the alleged half area of Ex.A1/registered
sale deed document No.2581/2010, dated 08.07.2010, after
execution of the said document; that as there was increase in
the rate of the land, the defendants with a malafide intention
wants to occupy some of the suit land through the false
counterclaim. Therefore, prayed for dismissal of the counter
claim.
7. Before the trial Court, on behalf of the plaintiff, PW1 to
PW3 were examined and Exs.A1 to A6 were marked. On behalf
of the defendants, DW1 and DW2 were examined, however, no
documents were marked.
8. The trial Court, after considering the entire material
available on record, vide its judgment and decree dated
26.11.2018 decreed the suit by observing as under:
"(i). On a perusal of page No.5 of Ex.A1, it is noticed that the
defendants herein affixed their signatures immediately parallel to
the extent of lands mentioned in the said document. In such a
case it is hard for me to believe that the defendant No.1 and
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defendant No.2 signed in page No.5 without even giving a glance
at the extent of land mentioned in the said page which is written
in large font size. Therefore the contention of the defendants that
the plaintiff got excess area of land mentioned in Ex.A1 without
the knowledge of the defendants, is untrustworthy of credit.
(ii). Another important aspect which is to be noted here is that
it is elicited from DW1 who is none other than the defendant No.2
herein that he studied up to intermediate and that the defendant
No.1 is working as a Teacher, which Implies that both the
defendants are well educated who would invariably and
undoubtedly would ensure to read the contents of the document,
more particularly the extent and survey number and the
boundaries mentioned in Ex.A1 before affixing their signatures in
the said document. No prudent man having education
qualification, in my considered opinion would negligently affix
signatures on the Registered document without reading its
contents more particularly when it is pertaining to the immovable
property. Therefore the fact that the defendants are educated
persons and that they affixed their signatures as executants in
page No.5 of Ex.A1 immediately adjacent to the extent and survey
numbers of the land sold by them to the plaintiff would invariably
go to show that the defendants executed Ex.A1 in respect of the
entire extent of suit land in favour of plaintiff and that no fraud is
played by the plaintiff in obtaining Ex.A1.
(iii). Another important aspect which is to be noted here is that
DW1 in his cross examination categorically stated that he did not
lodge any Police Complaint nor filed any civil suit alleging that the
plaintiff obtained Ex.A1 fraudulently for Ac.6-00 gts of land as
against Ac.3-00 gts sold by him at defendant No.1. The inaction
on the part of the defendants to take any steps for Cancellation of
Registered Sale Deed even after three years from the date of its
execution would also make me to draw an adverse inference
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against the plea of fraud contended by them in their written
statement.
(iv). Though the defendants contended in their written
statement that the plaintiff is in possession of only Ac.3-4 ½ gts of
land and that the defendants are in possession of the remaining
Ac.3-4 ½ gts of land, but surprisingly no scrap of document is
forthcoming from the defendants to establish that they
(defendants) are in possession of Ac.3-4½ gts of the suit land or to
disprove the possession of the plaintiff over the entire extent of
suit land. Therefore an adverse inference can be drawn against
the defendants. Be that as it may the ocular evidence of PW1 to
PW3 coupled with Ex.A1 to Ex.A6 would invariably establish the
possession of the plaintiff over the entire extent of the suit land as
on the date of filing of the suit and hence I am of the considered
opinion that the plaintiff is entitled for relief of perpetual injunction
against the defendants as prayed for.
9. Aggrieved by the above judgment, the defendants have
preferred appeal vide A.S.No.10 of 2019 before the Principal
District and Sessions Judge, Nagarkurnool. The first appellate
Court on re-appreciation of the entire evidence and perusal of
the material available on record vide judgment and decree
dated 26.06.2023 dismissed the appeal by observing as under:
"(i). If the recitals mentioned in Ex.A1 are looked into, it can be
seen that the total suit land was purchased by the plaintiff and
the defendants who undisputedly executed the sale deed. Though
the delivery of the northern part of the suit land is denied on
behalf of the defendants, the fact reveals that the recitals in the
sale deed are acted upon as seen from Ex.A2 to А6 and further
DW1 also in his cross examination admitted that their revenue
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pattedar pass books and title deed were also handed over to the
sub registrar at the time of registration and execution of Ex.A1. It
is worthwhile to mention that the recitals in the registered sale
deed are to be accepted as true and correct until the contrary is
proved and further the allegation that the sub registrar did not
read the recitals in the sale deed under Ex.A1 and that the
defendants also did not go through the said recitals at the time of
execution of the sale deed cannot be accepted in the facts and
circumstances of the case. Further if the registered sale deed
under Ex.A1 is looked into it can be seen that both the defendants
signed corresponding to the mentioning of the total extents of land
sold under the said document referred to in four items under
separate survey numbers with sub divisional survey numbers and
infact the total extent of land is also mentioned as Ac.6.09 gts and
in the same page No.5 of Ex.Al document both the witnesses also
signed in it.
(ii). Having received the entire sale consideration as
mentioned in Ex.Al and admitted by DW1, the defendants cannot
be permitted to say that the said consideration is only for half of
the extent mentioned in the sale deed. In the said circumstances
the contention that Ex.A1 consisting of Ac.6.09 gts sale
transaction being made as a creptup mistake also cannot be
considered. On the other hand, the plaintiff by examining PW2
and PW3 proved that Ex.Al registered sale deed covers the entire
suit lands, wherein the defendants executed Ex.A1 in their
presence and also in the presence of the sub registrar, who
registered the said document before the said identifying
witnesses.
(iii). The evidence of DW1 and DW2 is therefore of no avail and
the admissions extracted from their evidence proved the case of
the plaintiff and the defendants are as such not entitled for any
counterclaim as prayed"
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10. A perusal of the record discloses that both the trial Court
as well as the first appellate Court, on duly considering the oral
and documentary evidence placed on record, concurrently held
that the plaintiff has proved his case that the defendants are
interfering in his property and further held that the defendants
have received the entire sale consideration of Rs.1,25,000/-
from the plaintiff in respect of the entire extent of the suit land
and hence, the defendants miserably failed to establish that the
plaintiff obtained Ex.A1 registered sale deed doc.No.2581/2010,
dated 08.07.2010 by playing fraud.
11. Heard Mr.Damodar Reddy, learned counsel for the
appellants Mr.Jagan Mohan Reddy Kotha, learned counsel for
the respondent. Perused the record.
12. Learned counsel for the appellants vehemently 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.
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13. However, learned counsel for the 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
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.
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
(2007) 1 Supreme Court Cases 546
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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.
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: 07.03.2024
Dua
