Eerla Mallamma vs Deva Vanamala
2025 Latest Caselaw 4575 Tel

Telangana High Court

Eerla Mallamma vs Deva Vanamala on 7 April, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               SECOND APPEAL No.213 of 2024

JUDGMENT:

Challenging the validity and legality of the judgment

and decree dated 22.12.2023 in A.S.No.04 of 2023 passed

by the Senior Civil Judge-cum-Assistant Sessions Judge at

Manthani confirming the judgment dated 25.04.2023 in

O.S.No.26 of 2016 passed by the Principal Junior Civil

Judge-cum-Judicial Magistrate of First Class at Manthani,

the present Second Appeal is filed.

2. Heard Mr.K.Mohan Goud, learned counsel for the

appellant.

3. The appellant herein is defendant No.3 and

respondent No.1 herein is plaintiff and respondent Nos.2

and 3 are defendant Nos.1 and 2. For convenience, the

parties are referred to as referred in the suit.

4. The facts of the case, in brief, the plaintiff filed a suit

vide O.S.No.26 of 2016, against the defendants for

perpetual injunction. In the plaint, it is averred that the

LNA,J

plaintiff is the owner and cultivator of the land

admeasuring Acs.4.00 guntas in Sy.No.81 situated at

Lonkakesaram Revenue Village of Kamanpur Mandal

(herein after referred as "suit schedule property"), having

purchased the same under registered sale deed bearing

No.2668 of 2006 on 12.06.2006 and he is in continuous

and uninterrupted possession of suit schedule property. It

is averred that on 14.02.2016, the defendants tried to

dispossess the plaintiff, which was resisted, however, in

view of threats of defendants, the plaintiff filed the present

suit.

5. Defendant No.1 entered appearance, but he did not

filed any written statement and the case against defendant

No.2 was not pressed. Whereas, defendant No.3 was set ex-

parte and the suit was initially decreed exparte. However,

vide order dated 25.11.2022 the exparte judgment and

decree vide dated 18.11.2019 was set aside and the written

statement filed by defendant No.3 was taken on file.

6. In the written statement, defendant No.3 denied the

averments and allegations made in the plaint and further

LNA,J

averred that the registered sale deed executed in favour of

plaintiff is created and the boundaries mentioned in the

documents are imaginary. It is further averred that

defendant No.3 never interfered with the possession of

plaintiff. It is also averred that the Mandal Girdawar,

Ramagiri Mandal gave a report dated 22.02.2018 to the

Tahsildar, Ramagiri Mandal in which it was mentioned that

plaintiff has no land in Sy.No.81 of Lonkakesaram Village

and defendant Nos.1 to 3 are in possession of the land to

an extent of Acs.3.00 guntas of land each in Sy.No.81. It is

averred that as the husband of plaintiff was Sarpanch of

the Lonkakesaram Village and that the suit is barred by

limitation.

7. Basing on the above pleadings, the trial Court framed

the following issues:

(i) Whether the plaintiff is in lawful possession and

enjoyment of the suit schedule property as on the date of

filing of the suit?

LNA,J

(ii) Whether the plaintiff is entitled for the relief of

perpetual injunction, as prayed for?

(iii) To what relief?

8. During the course of trial, on behalf of plaintiff, PW-1

and PW-2 were examined and Ex.A1 to Ex.A17 were

marked. On behalf of defendant No.3, DW-1 and DW-2

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

9. The trial court on due appreciation of oral and

documentary evidence placed on record, decreed the

suit vide judgment and decree dated 25.04.2023.

10. The trial Court made the following observations:

"Plaintiff as PW-1 got marked Ex.A-1 1.e., the certified copy of the registered sale deed bearing document no.2668/2006, dt. 12.06.2006, as per which the Plaintiff purchased the Suit Schedule Property from its Lawful owner for sale consideration of Rs. 1,36,000/-. Further, the Plaintiff also filed old original title deed book of her vendor which proves that the vendor of the Plaintiff was the Pattadar of the Suit Schedule Property prior to the execution of Ex.A-1 registered sale deed in favour of the Plaintiff. The Plaintiff also got marked Ex.A-5 and Ex.A-6 i.e., pahanies for the year 2001-2022 and 2003-2004 which proves that the vendor of the Plaintiff was in possession of the Suit Schedule Property prior to selling the Suit Schedule Property by the vendor of the Plaintiff in favour of the Plaintiff. Ex A-2. Ex.A-7 to Ex.A-14 1.e., pahanies and Ex.A-4 i.e 1-B extract clearly establishes that after execution of Ex.A-1 registered sale deed by the vendor of the Plaintiff in favour of the Plaintiff, Plaintiff was in possession of the

LNA,J

Suit Schedule Property till the date of filing of the suit. Thus, all the above mentioned documents filed by the Plaintiff clearly establishes that the Plaintiff was in possession of the Suit Schedule Property as on the date of the filing of the suit."

"Taking into consideration the oral evidence of Plaintiff as as PW-1 and the documentary evidence filed by the Plaintiff i.e., registered sale deed, 1-B register extract and pahanies, this Court is of the considered view that the Plaintiff is in Lawful possession of the Suit Schedule Property as on the date of filing of the suit. Accordingly issue no.1 is answered in favour of the Plaintiff and against the defendants."

11. Aggrieved by the judgment and decree dated

25.04.2023, the plaintiff preferred an appeal vide

A.S.No.4 of 2023 on the file of the Senior Civil Judge-

cum-Assistant Sessions Judge at Manthani.

12. The First Appellate Court being appellate Court

reinstated the evidence and the material placed on

record and dismissed the Appeal vide Judgment and

Decree 22.12.2023 and confirmed the orders passed in

O.S.No.26 of 2016, dated 25.04.2023.

13. The First Appellate Court has observed the

following observations:

"From the recitals of Exs.A-1 to A-17, the plaintiff established 12. her case that one Leelavathi was the original owner of suit schedule property, and from her, the plaintiff purchased suit schedule property to an extent of Ac.4-00 gts., under a registered sale deed. Later, the plaintiff sold away total Ac.0-26 guntas of

LNA,J

land in favour of the third parties, and she has been in possession of the remaining land. During the cross- examination of Pw-1 and Pw-2 except for the minor discrepancies, nothing was elicited to disprove plaintiff's incidental ownership or possession over suit."

"Plaintiff by exhibiting Ex.A-1, she established her incidental ownership over suit land, and from Ex.A-2, she established her lawful possession as on the date of filing of the suit. Therefore, the burden is not on the plaintiff to prove the contents of Ex.B-1 as she is not relying on Ex.B-1. On the other hand, the onus is on Defendant No. 3 to establish the contents of Ex.B-1 and disprove the possession of the plaintiff. The evidence of Dw2 did not establish the contents of Ex.B-1. In addition to that, during the cross-examination of Dw-1, she admitted that she did not state in her chief examination that how she acquired Ac.3-00 guntas of land in suit survey number. Therefore, admittedly, defendant No. 3 failed to explain how she got the three acres of land in Suit survey number and did not file any other document except Ex.B-1 to prove her right or interest over Sy. No. 81. Therefore, defendant No. 3 failed to prove her case, and the preponderance of probabilities are in favour of the plaintiff."

"This Court is of the view that, the plaintiff established her lawful possession over the suit schedule property as on the date of filing the suit. As such, the plaintiff is entitled to a perpetual injunction over the suit schedule property. The trial court has considered all the aspects, and there is no infirmity in the judgment of the trial court."

14. Aggrieved by the judgment dated 22.12.2023, the

present Second Appeal is filed.

15. Learned counsel for the appellant would submit

that the trial Court as well as the first appellate Court

failed to appreciate the oral documentary evidence

placed on record in proper perspective and thus

LNA,J

erroneously decreed the suit. Learned counsel would

further submit that evidence and documents placed on

record on behalf of the appellant, were not properly

appreciated by the trial Court as well as first appellate

Court and have come to erroneous conclusion and

recorded perverse findings.

16. Learned counsel further submit that Ex.B1 to B3

through which the defendant possession is evident was

ignored by the both courts. Therefore, the appeal

deserved to be allowed and the judgment and decree

dated 22.12.2023 is liable to be set aside.

17. A perusal of the record would disclose that the

trial Court as well as first appellate Court on proper

appreciation of oral, documentary evidence placed on

record by the plaintiff and have come to categorical

conclusion that plaintiff was able to prove his

possession and ownership in respect of the suit

schedule property and Ex.B1 to B3 heavily relied upon

by the defendant were in fact came into existence after

filing of the suit, therefore, the same cannot be looked

into. It is a settled principle of law that the possession

LNA,J

as on the date of filing of the suit can only be

considered while adjudicating a suit for injunction.

Therefore, the documents which are relied upon by the

appellant cannot be considered as the same are

subsequent to filing of the suit. The first appellate

Court has also observed that the appellant/defendant

No.3 failed to prove the contents of Ex.B1 and further

in cross-examination, she admitted that she did not file

any document explaining reasons how she acquired

Acs.3.00 guntas of land in the suit schedule property.

The first appellate Court further observed that

appellant/defendant No.3 failed to file any other

documents, except, Ex.B1 to B3, in proof of her right or

interest in Sy.No.81 of Lonkakesaram Revenue Village

of Kamanpur Mandal. .

18. In view of above discussion, this Court is of the

considered opinion that 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

LNA,J

qualify as the substantial questions of law in terms of

Section 100 C.P.C.

19. 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.

20. 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.

21. Having considered the entire material available

on record and the findings 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.

(2007) 1 Supreme Court Cases 546

LNA,J

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.

22. Hence, the Second Appeal fails and the same is

accordingly, dismissed at the stage of admission.

No costs.

As a sequel, the miscellaneous petitions pending, if

any, shall stand closed.

___________________________________ LAXMI NARAYANA ALISHETTY, J Date:07.04.2025 EDS