Telangana High Court
Elchalwar Praveen vs Narayana Sharma on 21 April, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.55 of 2025
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree, dated 27.09.2024, passed by the Principal District Judge,
Adilabad, in A.S.No.21 of 2022, whereunder and whereby the
judgment and decree, dated 17.06.2022, passed by the Senior Civil
Judge, Adilabad, in O.S.No.646 of 2017 was confirmed.
2. The appellant herein is plaintiff and respondents are defendants,
before the trial Court. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case are that plaintiff filed the suit in
O.S.No.46 of 2017 before Senior Civil Judge, Adilabad, for
declaration of title and recovery of possession of H.No.3-1-265/2,
admeasuring 111.11 Sq.yds, out of which plinth area 250 sft in
Sy.No.85, situated at ward No.3, Block No.1, Gunj Road, Adilabad
(hereafter referred to as 'schedule property'). In the plaint it is averred
that originally, one Pathula Sharma was the owner and possessor of
2 LNA, J
the schedule property and on 02.03.1996, he died leaving behind
defendants as his legal heirs. Defendants being legal heirs executed
GPA document No.186 of 2015, date 08.01.2025, in favour of the
plaintiff to empower him to lease, mortgage and also to sell the
schedule property. Basing on the said GPA, plaintiff executed sale
deed in his name vide sale deed No.3694 of 2015, dated 12.06.2015,
for a sale consideration of Rs.5,95,000/- and paid the amount to
defendants and further schedule property has been mutated in his
name; that defendant No.1, was in possession of the schedule property
and requested plaintiff to allow him to stay there till he finds an
alternative accommodation, but, even after six months, he
intentionally did not vacate the premises. Therefore, plaintiff issued
legal notice on 10.07.2017, however, defendants did not comply the
same. Hence, the suit.
4. Defendants filed written statement denying the allegation made
in the plaint and contended that they are joint owners and possessors
of the schedule property and have sold a part of the H.No.3-1-265/2 to
an extent ofAc.33.77 Sq.yds to Anitha Sharma and she sold the same
to one Gangadhar; that defendant No.2, is residing in the remaining
3 LNA, J
portion of the schedule property since long back and was also paying
property tax from time to time; that plaintiff got registered a sale deed
for 1000 sft, in his favour without consent and knowledge of the
defendants and the same is not binding upon them and prayed to
dismiss the suit.
5. On the basis of the above pleadings of both the parties, the trial
Court framed the following issues for trial:-
"(1) Whether the plaintiff is entitled to be declared as owner
of the suit schedule property as prayed for?
(2) Whether the plaintiff is entitled to recover possession of
the suit schedule property by evincing the defendant Nos. 1
and 2 as prayed for?
(3) To what relief?"
6. On behalf of the plaintiff, PW1 was examined and Exs.A2 to
A10 were marked. On behalf of the defendants, DW.1 and DW.2 were
examined, Ex.B1 to Ex.B4 were marked.
7. After full-fledged trial and upon considering the oral and
documentary evidence and the contentions of both the parties, the trial
Court dismissed the suit, vide judgment and decree dated 17.06.2022.
4 LNA, J
8. The trial Court categorically observed as hereunder:-
"In a suit for declaration of title, the plaintiff is required to
prove his case on his own strength and has to stand on his own
legs. Even, if the defendants have not been able to prove their
ownership over the suit property, the plaintiff cannot be said
to have succeeded in establishing the title to the suit property
without proving the title through documentary evidence in his
favour. In this case, both parties admitted that defendant's
father was the original owner and both of them failed to prove
the same. As discussed above, as the defendants had no title
over the suit land, and so they cannot authorize the plaintiff by
executing GPA to execute sale deed on their behalf. Like that,
the plaintiff had also no right to register the suit land on his
name vide Ex.A2 as he did not got any rights."
9. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and material
available on record and dismissed the Appeal, vide its judgment dated
27.09.2024, thereby, confirming the judgment of the trial Court.
10. The first Appellate Court in its judgment observed as
hereunder:-
"22.When the plaintiff admitted that the defendants are not
owners of the suit schedule house, how they are having right to
execute Ex.A1 GPA in favour of the plaintiff in respect of suit
5 LNA, J
schedule property authorizing him to sell or manage or
mortgage the same to the others. The plaintiff did not place any
material before the court to show that the defendant Nos. 1, 3
to 8 are the owners of the suit schedule property as on the date
of Ex.A1 GPA.
23. It is well settled principle of law that one cannot convey a
better title what he had. In the instant case the plaintiff failed to
establish the right and title of the defendant Nos.1, 3 to 8 over
the suit schedule property to execute Ex.A1 GPA in his favour
authorizing him to deal with the suit schedule property. When
the defendant Nos.1, 3 to 8 have no right to execute the Ex.A1
GPA, basing on Ex.A1 GPA the plaintiff cannot convey a better
title to the vendee under Ex.A2 registered sale deed.
24. In a suit for declaration of title the heavy burden lies on the
shoulders of the plaintiff to prove his own case irrespective of
the defence set up by the opposite party. In the instant case the
plaintiff failed to prove the title and right of defendant Nos.1, 3
to 8 to execute Ex.A1 GPA in his favour, as such the plaintiff
shall not get right and title over the suit schedule property by
virtue of Ex.A2 registered sale deed. Merely mutating the name
of the plaintiff in revenue records under Ex.A3 does not create
any right and title in his favour over the suit schedule property.
In view of the said discussions this court is of the opinion that
the plaintiff failed to prove his right, title over suit schedule
property based on Exs.Al and A2. Accordingly point Nos.1 and
2 are answered in favour of the respondents"
6 LNA, J
11. Heard Sri Kondadi Ajay Kumar, learned counsel for the
appellant. Perused the entire material available on record.
12. Learned counsel for the appellant contended that the trial Court
as well as first appellate Court without properly appreciating the oral
and documentary evidence placed on record, have come to erroneous
conclusion and dismissed the suit. Learned counsel for the appellant
further submitted that both the Courts have committed error in not
considering the admissions of DW.1 and DW.2 on ownership of
Pathulal Sharma and their inheritance of the schedule property.
Learned counsel further submitted that both the Courts have recorded
erroneous findings that plaintiff failed to establish his case and also
ownership and inheritance and thus prayed to allow the second appeal.
13. A perusal of record would disclose that the trial Court as well
as the first Appellate Court concurrently held that suit is filed for
declaration of title and recovery of perpetual injunction, therefore,
burden lies on the plaintiff to substantiate his case, which plaintiff
failed to prove, thus dismissed the suit. First appellate Court
categorically observed that the plaintiff himself admitted that
7 LNA, J
defendants are not owners of the schedule property and therefore, one
cannot convey better title than what he had and thus Ex.A1, i.e., GPA
executed in favour of the plaintiff and sale deed executed basing on
the said GPA, does not confer any title to the plaintiff. First appellate
Court further observed that mutation of plaintiff's name in property
register of municipality does not create or confer any title in favour of
plaintiff.
14. In considered view of this Court, the 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.
15. It is well settled principle by a catena of decisions of the
Hon'ble Apex Court that in the Second Appeal filed under Section
100 C.P.C., this Court cannot interfere with the findings on facts
arrived at by the first Appellate Court, which are based on proper
appreciation of the oral and documentary evidence on record.
8 LNA, J
16. 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 falls for consideration.
17. Having considered the entire material available on record and
the findings recorded by the first Appellate Court, this Court finds no
ground or reason warranting interference with the said findings, under
Section 100 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.
18. 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.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:21.04.2025
tssb
(2007) 1 Supreme Court Cases 546
