Telangana High Court
Sk. Baneeya Bee vs Shaik Mastan on 17 March, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.538 of 2024
JUDGMENT:
The Second Appeal is filed questioning the judgment and decree,
dated 20.09.2024, passed by the V Additional District Judge at Bodhan,
Nizamabad, in A.S.No.8 of 2020, whereby and whereunder the judgment
and decree, dated 28.01.2020, passed by the Senior Civil Judge, Bodhan, in
O.S.No.2 of 2015 was confirmed.
2. The appellant Nos.1 and 2 are the legal representatives of the sole
deceased, who is defendant in the suit and the respondent is the plaintiff in
the suit. For convenience, hereinafter the parties are referred to as they were
arrayed in the suit.
3. The brief facts of the case, which led to filing of the present Second
Appeal, are that the plaintiff filed a suit for eviction against the defendant in
respect of suit schedule property i.e., H.No.1-3-358 at Azam Gunj, Bodhan.
It is averred in the plaint that the plaintiff and the defendant are relatives and
the defendant was the owner of the suit schedule property and the defendant
placed the suit schedule property for sale, after negotiations, the plaintiff
agreed to purchase the same for Rs.10,96,000/- and on payment of entire
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consideration, the defendant executed sale deed vide document No.1233/14,
dated 01.03.2014. In fact, the possession was delivered to the plaintiff earlier
to the date of sale deed. Since, the defendant is the relative of the plaintiff.
She allowed the plaintiff to live in the suit schedule property. However,
when the defendant did not vacate the suit schedule property, the plaintiff
filed O.S.No.2 of 2015 through G.P.A. holder against the defendant
requesting the Court to pass decree directing the defendant to vacate the suit
schedule property.
4. Defendant filed the Written Statement denying all the facts and
averments of the plaint and further contended that the suit schedule property
site belongs to Municipal Council, Bodhan, her ownership is not perfected
and she has not paid cost of the land to Municipal Council, Bodhan in terms
of G.O.Ms.No.194, therefore, she cannot transfer any right over the suit
schedule property. It is further contended that the plaintiff by playing fraud
has obtained registered sale deed and thus, prayed to dismiss the suit.
5. On the basis of the above pleadings of both the parties, the trial Court
framed the following issues and additional issues for trial:-
i) Whether the sale deed, dated 26.02.2014 is true, valid
and binding on the defendant?
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ii) Whether the plaintiff permitted the defendant to stay in
the suit schedule house after execution of sale deed, dated
26.02.2014 by the defendant?
iii) Whether the plaintiff is entitled for recovery of
possession of suit schedule house?
iv) To what relief?
Additional Issues:
i) Whether the suit is bad for non-joinder of necessary
parties?
ii) Whether the suit is bad for not seeking the relief of
declaration of title?
6. On behalf of the Plaintiff, the G.P.A. Holder and the wife of the
plaintiff was examined as PW1, the attestors of the registered mortgage deed
were examined as PW2 and PW4 and the plaintiff was examined as PW3
and EXs.A1 to A5 were marked. On behalf of the defendant, she herself
examined as DW1 and two witnesses were examined as DW2 and DW3 and
Exs.B-1 and B-2 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 decreed the
suit with costs directing the defendant to vacate the suit schedule property.
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8. The trial Court categorically observed as hereunder:-
(i) The defendant herself went to the Sub-Registrar
Office, Bodhan, executed Ex.A1 and her photograph along
with thumb mark obtained under Section 32-A of Registration
Act are found on the rare side of first page of Ex.A1, so, it is
not possible to believe that there was no occasion for the
defendant go to Sub-Registrar Office on account of paralysis.
Rest of the points elicited in the cross-examination of PW1 are
of not relevant to the present suit and those can be safely
ignored.
(ii) Further, in the cross-examination, she clearly
admitted that since one year six months, she is receiving
pension from the Bank, so it is not true that she was taken to
Sub-Registrar Office for the purpose of pension. In the cross-
examination, she further admitted that she filed O.S.No.7 of
2016 before the VII Additional District Judge, Bodhan for
cancellation of Ex.A1.
(iii) Therefore, in the event of defendant succeeds in
O.S.No.7 of 2016, then only she will be entitled to retain
possession over the suit schedule property but as on the date,
as she already executed registered sale deed in favour of the
plaintiff i.e., Ex.A1, she is bound to deliver vacant possession
of the suit schedule property to the plaintiff.
(iv) The plaint and written statement relating to O.S.No.7
of 2016 are filed by the plaintiff and those are marked as
Ex.A4 and Ex.A5. In the plaint averments in O.S.No.7 of 2016,
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the defendant further developed her version and stated that
she took Rs.7,00,000/- from the plaintiff and on instructions of
the plaintiff, she executed the sale deed and other documents.
What was pleaded by the defendant in O.S.No.7 of 2016 is not
covered in the averments of the written statement or in the
chief-examination affidavit filed in this suit and it shows that
her version is not true.
9. By observing as hereinabove, the trial Court opined that there is
proper and sufficient evidence in support of the plaintiff's contentions and
that there is no reliable or acceptable evidence on behalf of the defendant
either to disprove the contentions of the plaintiff or to prove the contentions
of the defendant.
10. 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 with costs, vide judgment and decree, dated
20.09.2024.
11. The first Appellate Court in its judgment observed as hereunder:-
(i) The Registration Act clearly provided safe guards to
avoid any fraud. There is no denial by the defendant as to
putting her signature on sale deed/Ex.A1 before the Sub
Registrar in sub Registration Office and her presence is
evident from the digital photograph and thumb impression
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along with the buyer/plaintiff and attestors/PW2 and PW4 in
the sale deed, as per the Section 32 and 32(a) of the Act.
(ii) There is a elaborate procedure when she denied the
execution of the document/sale deed. Since, the defendant did
not deny the execution of the sale deed/Ex.A1, the Sub-
Registrar, proceeded for registration or otherwise he has to
follow the procedure prescribed in Section 35 of the
Registration Act i.e.,denying to register the document/sale
deed, pass an order with a reasons. Therefore, for all the
above reasons, it is found that the defendant voluntarily
executed the registered sale deed/Ex.A1 in favour of the
plaintiff and she is unable to prove the fraud committed by the
plaintiff in getting the sale deed/Ex.A1.
(iii) Infact, the O.S.No.7 of 2016 on the file of this Court
earlier VII Additional District Judge's Court, Bodhan, in
which the defendant as a plaintiff sought for cancellation of
the registered sale deed in favour of the plaintiff apart from
gift deeds in the name of her brother Gul Mohammed and the
same was dismissed with a finding that the plaintiff is unable
to discharge her burden in establishing her case.
12. Heard Mr Amrutha Sanjeeva, learned counsel for the
appellants and Sri Viplav Simha Reddy, learned counsel for the
respondent. Perused the entire material available on record.
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13. Learned counsel for the appellants contended that the
judgments and decrees of both the Courts are erroneous, patently
illegal, perverse in its findings. He further contended that the plaintiff
by taking advantage of defendant's loneliness, by playing fraud and
breach of trust, brought the alleged sale deed into existence and that
plaintiff neither proved nor substantiated his claim and the said aspect
was not properly construed by the trial Court as well as the first
Appellate Court and therefore, prayed to allow the Second Appeal.
14. Per contra, learned counsel for the plaintiff contended that the
trial Court on appreciation of the evidence on record, rightly decreed
the suit with costs in favour of the plaintiff and against the defendant
for recovery of possession of the suit schedule property and the first
Appellate Court, on re-appreciation of the evidence, has dismissed the
appeal suit.
15. A perusal of record would disclose that the trial Court as well
as the first Appellate Court have made categorical observations that
defendant herself went to the Sub-Registrar Office, Bodhan, and her
photograph along with thumb mark obtained are found on the rear
side of first page would clearly indicate that the defendant voluntarily
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executed Ex.A.1, Sale deed. In view of the evidence of PWs.1 to 4,
who are attestors of the sale deed, the defendant failed to prove fraud
and misrepresentation on the part of the plaintiff in execution of
Ex.A.1.Therefore, this Court does not find any reason to interfere with
the findings of the appellate Court.
16. Learned counsel for the appellants 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.
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
(2007) 1 Supreme Court Cases 546
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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 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
Date:17.03.2025
dgr
