Smt. Tota Malleshwari vs Sri Tota Muthaiah
2025 Latest Caselaw 4167 Tel

Telangana High Court

Smt. Tota Malleshwari vs Sri Tota Muthaiah on 23 June, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

              SECOND APPEAL No.472 of 2024

JUDGMENT:

The Second Appeal is filed against the judgment and

decree dated 27.03.2024 in A.S.No.01 of 2021 on the file of the

learned Senior Civil Judge, Manthani, wherein the judgment

and decree dated 15.04.2019 in O.S.No.106 of 2010 on the file

of the learned Additional Junior Civil Judge, at Manthani, was

confirmed.

2. Appellant herein is the plaintiff and respondents herein

are defendants in the suit. For convenience, the parties

hereinafter are referred to as they were arrayed before the trial

Court.

3. Brief facts of the case, which led to filing of the present

second appeal as narrated in the plaint are that the defendants

offered to sell an agricultural land admeasuring Acs.0-21 gts in

Sy.No.898, situated at Manthani (herein after referred to as 'suit

schedule property'), in June, 1999, and the plaintiff agreed to

purchase the same for a total sale consideration of Rs.50,000/-

and paid an amount of Rs.40,000/- towards advance sale

consideration; that the defendants immediately delivered the

possession of the property to the plaintiff and orally agreed to

execute the sale deed whenever the balance sale consideration

is paid by the plaintiff; that on 06.11.2002, plaintiff paid the

balance sale consideration of Rs.10,000/- to the defendants and

they in turn executed "Sada Bynama" in favour of the plaintiff,

acknowledging the receipt of the total sale consideration and

delivery of possession of the suit schedule property; that later

defendants approached the plaintiff in the month of March,

2003 and handed over the Pattadar Pass Book and title deed to

the plaintiff, in which the suit property was duly recorded in her

favour and also stated that title deed is sufficient to convey the

title to her, as such she did not insist for execution of registered

sale deed in her favour.

4. It is averred that when the plaintiff received a notice in

the month of May, 2010, from the office of the Revenue

Divisional Officer, Manthani, in Record of Rights Appeal

No.A/390/2010, filed against the proceedings of Tahsildar,

Manthani, dated 20.11.2001, granting of 13-B and 13-C

certificates under the Record of Rights Act in respect of the suit

schedule property in her favour, and that she came to know

that without her knowledge and consent, defendants obtained

13-B and 13-C certificates under the Record of Rights Act, in

her favour on 20.11.2001 and on the strength of such

proceedings, defendants got the Pattadar Pass Book and Title

deed in her favour. Therefore, plaintiff filed a suit vide

O.S.No.106 of 2010, for specific performance of contract dated

06.11.2002 and for direction to the respondents to execute a

registered sale deed in respect of the suit schedule property in

her favour.

5. Defendant Nos.1 and 2 filed the written statement and

contended that they purchased the suit schedule property

jointly from one Suvarna Chantamma, through a registered sale

deed bearing document No.644 of 1995, in which the husband

of the plaintiff is one of the attesting witnesses; that defendant

No.2 obtained a loan from State Bank of Hyderabad vide loan

account No.MTL-235, by depositing the original sale deed

bearing document No.544 of 1995, for security and started an

offset printing press at Manthani; that subsequently, it was

merged with loan account of the husband of the plaintiff bearing

account No.MTL-254, and when the said account was closed in

2005, the husband of the plaintiff took the said document and

got patta in favour of plaintiff under Record of Rights bearing

No.683 of 1989, dated 20.11.2001, therefore, defendants filed

an appeal before the Revenue Divisional Officer, Manthani, vide

Record of Rights Appeal No.A/390/2010, dated 15.04.2010,

against the mutation proceedings sanctioned in favour of

plaintiff. Hence, prayed to dismiss the suit.

6. Basing on the pleadings of both the parties, the following

issues were framed by the trial Court for trial:

i) Whether there is any contract of sale agreement among plaintiff and defendants?

ii) Whether the simple sale deed dated 06.11.2002 is created by fabrication as alleged by defendants.

iii) Whether the plaintiff is entitled for relief of specific performance and injunction as prayed for?

iv) To what relief?

7. During the course of trial, on behalf of the plaintiff,

P.Ws.1 to 5 were examined and Exs.A1 to Ex.A13 were marked.

On behalf of the defendants, D.Ws.1 to 4 and C.W.1 were

examined and Exs.B1 to B41 were marked.

8. The trial Court, on due consideration of oral and

documentary evidence placed on record, dismissed the suit vide

judgment and decree dated 15.04.2019. The trial Court while

dismissing the suit made the following observations:-

"On perusal of oral evidence of P.W.1, P.W.2 and P.W.4 and Ex.A1 on this aspect, it is clearly established that the plaintiff did not take any steps by way of any means to call for the defendants to execute a regular registered sale deed in her favour since the date of execution of Ex.A1 i.e., 06.11.2002 to till to filing of the suit. Hence, in absence of specific evidence noticing the fact, the Court could not believe the version of plaintiff that she came to know of fact of noticing the refusal on the part of defendants to execute a regular registered sale deed. Hence, the time for limitation runs from the date of execution of Ex.A1 and accordingly, the suit is barred by limitation.

It is clearly showed that Ex.B1 to Ex.B11, Ex.B26, Ex.B34, Ex.B35 and Ex.B42, Ex.B43, Ex.B45 to Ex.B47 are public documents and admitted to be true unless cogent evidence is adduced to discard their presumption. The plaintiff failed to adduce any such evidence to discard the presumption raised against such public documents.

Plaintiff failed to adduce any cogent evidence to prove the version of P.W.4 and Ex.A1. Hence, in the absence of such specific cogent evidence, this Court could not believe the version of plaintiff that the transaction in Ex.A1 was executed by the defendants as alleged by the plaintiff."

9. Aggrieved by the judgment and decree passed by the trial

Court, the plaintiff preferred A.S.No.01 of 2021 on the file of

the learned Senior Civil Judge, Manthani. The first Appellate

Court re-appreciated the entire evidence and dismissed the

appeal, vide judgment and decree dated 27.03.2024. In the

impugned judgment, the first Appellate Court made the

following observations:-

"The defendants denied the signatures on Ex.A1, and there is no material on record to show that the plaintiff had taken steps to forward the alleged signatures of defendants on Ex.A1 to the handwriting expert in order to prove the said disputed signatures belong to defendants No.1 and 2. Hence, as per the ratio laid down in Lakshmi Sreenivasa Cooperative Building Society (cited supra), the plaintiff has not succeeded in proving the fact that the defendants signed on Ex.A1.

The evidence of P.Ws.4 and 5, who are the alleged witnesses to Ex.A1 is not consistent; as such, their evidence is not helpful to the plaintiff in establishing the execution of Ex.A1 by the defendants. Hence, the plaintiff failed to establish that the defendants executed

Ex.A1 in her favour. Therefore, the plaintiff is not entitled to specific performance of the contract. Further, admittedly, Ex.A2 to A8 were cancelled; hence, the plaintiff failed to establish her incidental ownership and lawful possession over the suit schedule property as on the date of filing of the suit."

10. Challenging the aforesaid judgment and decree passed by

the first Appellate Court, the present Second Appeal is filed by

the plaintiff.

11. Heard Mr.Mirza Baig, learned counsel for the appellant.

Perused the record.

12. Learned counsel for the appellant submitted that the trial

Court as well as the first Appellate Court have not considered

the oral and documentary evidence placed on record in proper

perspective and came to erroneous conclusions. He further

submitted that Ex.A1 clearly shows that there was a contract of

sale in respect of the suit schedule property and it was signed

by both the respondents in the presence of attestors and Exs.A2

to A13 prove the entitlement and physical possession of

appellant to the subject land. He further submitted that both

the Courts have come to erroneous conclusion that the suit was

barred by limitation by considering the date of Ex.A1, without

considering the subsequent development of issuance of 13-B

and 13-C certificates. He also submitted that the trial Court as

well as the first Appellate Court failed to appreciate the said fact

and dismissed the suit and first Appeal erroneously. Hence, he

prayed to allow the Second Appeal.

13. Perusal of the record would disclose that the trial Court

has observed that plaintiff has not taken steps for execution of

the sale deed pursuant to the agreement of the sale dated

06.11.2002. Further, the suit was filed in the year 2010,

therefore the suit is barred by limitation. Both the Courts

concurrently held that plaintiff failed to prove the execution of

the Ex.A1-Agreement of Sale dated 06.11.2002, and therefore,

the plaintiff is not entitled for Specific Performance of Agreement

of Sale. The first appellate Court has also held that the evidence

of P.Ws.4 and 5, who are alleged witnesses to Ex.A1, is not

consistent, as such their evidence is not helpful to the plaintiff

in establishing the execution of Ex.A1 by defendants. Hence, the

plaintiff failed to establish that the defendants executed Ex.A1

in her favour and the plaintiff failed to establish her ownership

and lawful possession over the suit schedule property.

14. In the light of facts and circumstances of the case and the

observations of trial Court as well as the first appellate Court,

this Court is of the view that the appellant has failed to make

out any ground to interfere with the impugned Judgment and

decree.

15. In considered opinion of this Court, 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.

16. 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.

17. 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.

18. Having considered the entire material available on record

and the findings recorded by the trial Court as well as the

1 (2007) 1 SCC 546

Appellate Court, this Court finds no ground or reason

warranting interference with the said concurrent 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.

19. 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.

___________________________________ LAXMI NARAYANA ALISHETTY, J

DATE: 23.06.2025 TRI