Smt Shameem Begum vs N. Laxmi
2025 Latest Caselaw 5122 Tel

Telangana High Court

Smt Shameem Begum vs N. Laxmi on 28 April, 2025

      HON'BLESRIJUSTICELAXMINARAYANAALISHETTY

                   SECONDAPPEALNo.203of2025

JUDGMENT:

ThisSecondAppealisfiledchallengingthejudgmentanddecree

dated 13.03.2025 in A.S.No.9 of 2015 on the file of the Senior Civil

Judge at Zaheerabad, whereby and whereunder the appeal was partly

allowed setting aside judgment and decree dated 31.08.2015 in

O.S.No.5 of 2015 on the file of the Junior Civil JudgeatNarayankhed,

Medak District.

2. The appellants herein are defendants and respondents herein

are plaintiffs. For convenience, the parties are hereinafter referred to

as they were arrayed before the trial court.

3. Heard Sri Mohammed Sanaullah Farhan, learned counsel for

the appellants.

4. Brief facts of the case are that plaintiffs filed a suit in O.S.No.5

of 2015 for declaration of title and recovery of possession and

mandatory injunction in respect of suit open plot in survey No.22/1

admeasuring extent 201.66 square yards consisting of 2 bits

admeasuring 100.83 square yards each situated at Narayankhed

village, Medak District.In the plaint, it is averred that the plaintiff

Nos.1 and 2 are the family friends since long time and intended to

purchase an open land/plot in Narayankhed village for the purpose of

constructionofhouse;thatoneAnushamma@Anshammaisthe

LNA,J S.A.No.203of2025 owner and possessor of the land covered under survey No.22/1

situated at Narayankhed town and Mandal District Medak and the

said Anushamma offered to sell a piece of land in survey No.22/1 toan

extent of 201.66 square yards and the plaintiffs have accepted to

purchase the same; and accordingly, Anushamma received the entire

sale consideration of Rs.70,700/- and executed registered sale deed

bearing document No.13578/2005 dated 07.10.2005 and delivered

possession of the said land to the plaintiffs.

5. It is further averred that the defendants are highly influential

persons in the Gram Panchayath having support of the political

leaders of Narayankhed; that defendants without having any right,

title or interest have illegally raised basement in the suit plot and

plaintiffscametoknowaboutthesameandquestionedthedefendants

about construction of illegal and unauthorized basement in the suit

open plot, but the defendants have denied the title and possession of

the plaintiffs; that the plaintiffs demanded to remove the illegal

basement in the suit open plot, but defendants denied and refused.

Therefore, plaintiffs filed suit for declaration, recovery of possession

and mandatory injunction and also to pay damages at Rs.1,00,000/-

per year.

6. Defendants entered appearance but they failed to file written

statement and therefore, they were set ex parte.

LNA,J S.A.No.203of2025

7. Basing on the pleadings in the plaint, the trial Court framed

following issue:

"Whethertheplaintiffsareentitledfor thereliefofdecreeasprayedfor?"

8. To substantiate the case, P.W.1 was examined on behalf of the

plaintiffs and Ex.A.1/registered sale deed was marked on their behalf.

9. The trial Court on due consideration of oral and documentary

evidence dismissed the suit of the plaintiffs vide judgment dated

31.08.2015 by making following observations:

"(i)The sketch map filed by plaintiffs herein along with the suit only the suit plot was shown.There is no clear evidence beforethe Court where suitplotis situated in survey No.22/1 because generally any survey number consists many plots.Total sketch of survey No.22/1 because generally and survey number consists many plots.Total sketchof survey No.22/1 is not filed before the Court as to show the exact location of suit plot in survey No.22/1.It is further observed whether the plaintiffs have purchased the suitplot in any venture is not clearly mentioned before the Court.Whether survey No.22/1 is an agricultural land or commercial oneisnotbroughtonrecord.Whether anyplotting was done in survey No.22/1 is not clearly brought on record.

(ii)Itis further seenthat the plaintiffsarepleading that the defendants have constructed basement in suit plot, no photographs or CD is filed before the Court to show the constructions made by the defendants.NootherwitnessesexceptP.W.1is

LNA,J S.A.No.203of2025 examined before the Court, even only Ex.A.1 is markedbeforethisCourt.Takingintoconsideration the reliefs sought in this plaint the plaintiffs has to establishregarding the occupying of the suitplotby defendants and even the construction made by the defendants.This Court feels that basing on mere oral evidence it cannot be said that the defendants have occupied the suit plot and made construction upto basement level as the defendants set ex parteinthissuitanditisdoesnotautomaticallygiverigh t to the plaintiffs for the reliefs as prayed for.The plaintiffs have to prove their version before the Court."

10. Aggrieved by the judgment of the trial Court dated 31.08.2015,

plaintiffs preferred appeal in A.S.No.9 of 2015 before the Senior Civil

Judge-cum-Assistant Sessions Judge, Zaheerabad.

11. The first Appellate Court being final Court on facts, re-

appreciated entire oral and documentary evidence placedon record

and partly-allowed the appealvidejudgment and decree dated

13.03.2025 and set aside the judgment and decree dated 31.08.2015

passed by the trial Court. Consequently, the suit in O.S.No.5 of 2015

was partly decreed declaring the plaintiffs as the absolute owners and

title holdersof the suit schedule property. Further,the defendants are

directed to remove the structures made in the suit plot and hand over

the vacant possession of the same to the plaintiffs within a period of

three months failing which appellants/plaintiffs are entitled to take

possessionofthesuitschedulepropertybydueprocessoflaw.

LNA,J S.A.No.203of2025 However,thesuitin respectofdamagesof Rs.1,00,000/-peryearwas

dismissed.

12. The first Appellate Court while allowing the appeal made the

following observation:

"i.On perusal of the entire judgment of trial Court, this Court find substance in the contentions raised by the learned counsel for appellants.The trial Court only observing that there is no mention of venture and no photographsor C.Dsarefiledapparentlycame toawrong conclusion that, the plaintiffs have not established their case.Thus the observations made by the trial Court are not supported by any cogent and convincing reasons.On perusalofex.A.1/registeredsaledeeddated07.10.2005 it is evident that the plaintiffs purchased the suit schedule propertyfromthepreviousownerSmt.NarvaAnushamma for valid consideration and the occupation by the defendants by raising basement in the suit schedule property appears to be illegal and without any authority. The plaintiffs have not adduced any evidence in respect of their claim of Rs.1,00,000/- per year from the defendants fromthedateof suittill theplaintiffsareputinpossession. Therefore, the same cannot be granted.Therefore, taking into consideration the evidence of P.W.1 supported by documentary evidence Ex.A.1/registered sale deed dated 07.10.2005 I am of the considered view that the judgment anddecreeofthetrialCourtsuffersfromirregularitiesand infirmitiesandrequireinterferencebythisCourt.Thepoint is answered accordingly in favour of the plaintiffs".

13. Aggrieved by the judgment and decree dated 13.03.2025, the

present second appeal is filed by the defendants.

LNA,J S.A.No.203of2025

14. Learned counsel for the appellants submitted that the trial

Court has rightly dismissed the suit since plaintiff failed to place any

evidence and material on record, but the first appellate Court

erroneously partly-allowed the appeal and set aside the judgment and

decree passed by the trial Court. The learned counsel for the

appellants would further submit that the first appellate Court decreed

the suit without there being any material on record and came to

erroneous conclusions and thus, allowed the appeal which is

unsustainable and is liable to be set aside.Learned counsel for the

appellants would further submit that the first Appellate Court

recordedperversefindingsthatplaintiffsprovedthesuitclaimwithout

there being any evidence on record and therefore, the said finding of

the first Appellate Court is unsustainable and the present Second

AppealisdeservestobeallowedandthejudgmentofthefirstAppellate

Court is liable to be set aside.

15. A perusal of the record discloses that the trial Court has

observed that the plaintiffs have not filed photographs or CD before

the trial Court to show that the construction were made by the

defendants and that no witness was examined and except marking of

Ex.A1, no other evidence was placed on record and thus, came to

conclusion that there was no sufficient evidence and material on

record and dismissed the suit.

LNA,J S.A.No.203of2025

16. The first appellate Court reconsidered the entire evidence and

material placed on record and came to conclusion that observation

made by the trial Court was not supported by cogent and convincing

reasons and further observed that plaintiffs purchased the suit

schedule plot through registered sale deed dated 07.02.2005 which is

marked as Ex.A1.The first Appellate Court considering the oral

evidence of P.W.1 and documentary evidence in the form of Ex.A1,

cametoconclusion thatplaintiffs provedtheircaseandpartlyallowed the

appeal.

17. Admittedly, plaintiffs did not contest the matter and remained

ex parte before trial Court as well as first Appellate Court and there is

no challenge to claim of plaintiffs and further, there is no contra

evidence to disprove the claim by the plaintiffs. In considered opinion

of this Court, the trial Court has failed to examine and consider the

registered sale deed executed in favour of plaintiffs and oral evidence

of P.W.1 in proper perspective and erroneously gone into the aspect

whether suit plot is part of layout or not without there being any

challenge to the same.

18. InconsideredopinionofthisCourt,thefirstappellateCourthas

rightly appreciated the evidence on record placed by the plaintiffs

particularly Ex.A.1, wherein clear boundaries were mentioned and

itissettledprincipleoflawthatincaseofdisputewithregardto identity

LNA,J S.A.No.203of2025 ofa property,the same can be identified by boundaries and therefore,

findings recorded by the trial Court are erroneous and are

unsustainable.

19. In considered opinion of this Court, the learned counsel for the

appellantsfailed to raise anysubstantial question of law tobe 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.

20. 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

first appellate Court, which are based on proper appreciation of the

oral and documentary evidence on record.

21. Further, in Gurdev Kaur v. Kaki1, the Apex Court held that the

HighCourtsittinginSecondAppealcannotexaminetheevidenceonce

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.

22. Having considered the entire material available on record and

the findings recorded by the first Appellate Court, this Court finds no

(2007)1SupremeCourtCases 546

LNA,J S.A.No.203of2025 ground or reason warranting interference with the said concurrent

findings of first Appellate Court, under Section 100 C.P.C.Moreover,

the grounds raised by the respondents are factual in nature and no

question of law, much less, a substantial question of law arises for

consideration in this Second Appeal.

23. Hence, the Second Appeal fails and the same is accordingly

dismissedatthestageofadmission.Thereshallbenoorderasto

costs.

Pendingmiscellaneousapplications,ifany,shallstandclosed.

LAXMINARAYANAALISHETTY,J Date:28.04.2025 Bw/kkm

LNA,J S.A.No.203of2025

HON'BLESRIJUSTICELAXMINARAYANAALISHETTY

SECONDAPPEALNo.203of2025

28.04.2025

Bw