Telangana High Court
Nagesh, vs Smt. Shanti, on 20 June, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.223 of 2025
JUDGMENT:
The Second Appeal is filed questioning the judgment and decree,
dated 29.11.2024, passed by the X Additional Chief Judge, City Civil
Court at Hyderabad in A.S.No.138 of 2018, whereby and whereunder
the judgment and decree, dated 27.02.2017, passed by the VIII Junior
Civil Judge, City Civil Court, Hyderabad in O.S.No.2531 of 2015 was
confirmed.
2. Heard Sri A.Suryanarayana, learned counsel for the appellants
on record.
3. The appellants herein are the plaintiffs and respondent Nos.1
and 2 herein are defendant Nos.1 and 2 in the suit. For convenience,
hereinafter the parties are referred to as they are arrayed in the suit.
4. The brief facts of the case, which led to the filing of the present
Second Appeal, are that the plaintiffs filed a suit for permanent
injunction restraining the defendants from interfering with the
properties i.e., house bearing No.18-7-455/A/277/C(On plot
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No.277/C) admeasuring 235 Sq.yds or 196.46 Sq.mtrs at Patel Nagar,
Uppuguda, Kandikal Village, Hyderabad (hereinafter referred to as suit
schedule A property) and house bearing No.18-7-455/A/277/B(on plot
No.277/B) admeasuring 135 Sq.yds. or 112.86 Sq.mtrs (hereinafter
referred to as suit schedule B property).
5. In the plaint, it is averred that; the plaintiffs are owners of suit
schedule A and B properties, having acquired the same through the
gift settlement deed Nos.718 and 719 of 2015 respectively on
13.02.2015; that the properties have been assessed for tax by the
GHMC and they have also obtained electrical connection and enjoying
suit schedule A and B properties and the defendants without having
any manner of right and title came to the suit schedule properties on
11.10.2015 with anti-social elements and attempted to take possession
of the suit schedule properties. Therefore, the plaintiff filed the suit for
perpetual injunction.
6. Defendant No.1 filed written statement denying the allegations
made in the plaint, contending that there is no house bearing No.18-7-
455/A/277/C on Plot No.277/C and the plaintiffs are trying to
encroach upon the property owned by the defendants by relying on the
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fabricated documents i.e., gift settlement deeds bearing Nos.718 and
719 of 2015; that there is no recital as to how the mother of the
plaintiffs acquired the said property and that the plaintiffs have never
been in possession of the suit schedule A and B property and thus,
prayed to dismiss the suit.
7. On the basis of the pleadings of both the parties, the trial Court
framed the following issues for trial:-
i) Whether the plaintiff Nos.1 and 2 are entitled to
obtain perpetual injunction as prayed for?
ii) To what relief?
8. During the course of trial, plaintiff himself was examined as PW1
and Exs.A1 to A9 were marked. On behalf of defendants, defendant
No.1 was examined as DW1 and Exs.B1 to B7 were marked.
9. 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 27.02.2017.
10. The trial Court while dismissing the suit categorically observed
as hereunder:-
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According to the plaintiff one Anjaneyulu is in possession of the
property as per his cross examination, but the said fact was
not in anywhere in the pleadings as well as in the chief
affidavit. The plaintiff filed the present suit for injunction
simplecitor so he has to prove that he is in peaceful possession
and enjoyment of the property as on the date of the suit. The
plaintiff has to adduce any mode of evidence to prove the
existence of schedule "A" and "B" properties and also proved
that the plaintiffs 1 and 2 are in peaceful possession and
enjoyment of the property as on the date of the suit. He cannot
depend upon the weakness of the defendant. PW1 stated that
her mother acquired the property form ancestors, but there is
no document to prove that the schedule property is ancestral
property of said Laxmi. Once the existence of schedule property
is in doubt. Once there is cloud over the schedule property for
its existence, a simple suit for injunction is not maintainable.
However the plaintiff is failed to establish that he is in peaceful
possession and enjoyment of property as on the date of suit.
Thereby the issue is answered in favour of the defendants
against the plaintiffs.
11. Aggrieved by the Judgment dated 27.02.2017, the plaintiffs
preferred appeal in A.S.No.138 of 2018 on the file of X Additional Chief
Judge, City Civil Court, at Hyderabad. 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 judgment and decree, dated 29.11.2024.
12. The first Appellate Court in its judgment observed as under:-
Moreover, the electricity bills and payment of tax under Ex. A3
to AB does not confer any ownership of the plaintiffs or their
mother over the suit schedule A & B properties. The present
suit filed by the plaintiffs for grant of permanent injunction, but
the plaintiffs failed to prove their possession over the suit
schedule A and B properties. PW1 categorically admitted that
one Anjaneyulu is in possession of the suit schedule A & B
properties. It is strange that the plaintiff failed to adduce
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evidence in order to prove the existence of the suit schedule A
and B properties and also failed to prove the ownership of the
mother of the plaintiffs to execute gift seulement deeds under
Ex.A1 and Ex. A2 infavour of the plaintiffs. From the
cummulative reasons of there proved facts and circumstances,
this court left with no alternative except to hold that the
material on record failed to show that the suit schedule A and
B properties possessed by the plaintiffs and they were in
existence. Accordingly.. Point No.1 is answered. Hence, there is
no requirement to answer the point No.2. As a corollary the
plaintiffs are not entitled to the relief of perpetual
injunction/Hence, points No to 3 are answered against the
plaintiffs.
13. Aggrieved by the judgment and decree dated 29.11.2024
the present Second Appeal is filed.
14. Learned counsel for the appellant would submit that the
trial Court as well as the first appellate Court have unnecessarily
gave finding on the title of the rival parties when the suit is filed
for injunction simpliciter, in the absence of any counter claim.
He further submits that the First appellate Court has failed to
consider the documents filed by the appellants vide I.A.No.1226
of 2023 and thus, committed error in giving erroneous finding
and he finally prayed to allow the appeal and set aside the
impugned orders.
15. Perusal of the record would disclose that, the plaintiffs
filed suit for injunction simpliciter and both Courts have come to
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a conclusion that the appellants have failed to prove and
establish their possession over the suit schedule A and B
properties. Both the Courts have held that the plaintiffs have to
prove their case on their own merits and cannot rely on the
weakness of the defendants. The First Appellate Court
specifically held that the plaintiffs have failed to prove existence
of the suit schedule A and B properties and also failed to prove
the ownership of their mother to execute gift settlement deeds in
their favour under Ex.A1 and Ex.A2. In so far as non-
consideration of I.A.No.1226 of 2023 is concerned, a perusal of
the documents which are placed on record reveal that all the
documents sought to be taken on record pertains to the year
2015 and subsequent to the date of filing of the suit. Therefore,
the First Appellate Court has rightly did not consider those
documents and this Court does not find any illegality or
irregularity in the orders passed by the First Appellate Court and
thus, it does not require interference by this Court.
16. In considered opinion of this Court, learned counsel for
the appellants has failed to raise any substantial question of law
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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.
17. 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.
18. 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.
19. Having considered the entire material available on record
and the findings recorded by the trial Court as well as first
1 (2007) 1 Supreme Court Cases 546
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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 appellants are
factual in nature and no question of law, much less a
substantial question of law arises, for consideration in this
Second Appeal.
20. Hence, the Second Appeal fails and the same is
accordingly dismissed at the stage of admission. No costs.
21. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
20th June, 2025
PSW
