Telangana High Court

Syed Fayeemkhadri vs Vanam Bharatamma on 4 September, 2025

       THE HONOURABLE SMT. JUSTICE RENUKA YARA

                   SECOND APPEAL No.511 of 2024

JUDGMENT:

Heard Sri Mirza Shah Nawaz Baig, learned counsel for the appellant

and Sri Vinod Singh, learned counsel for respondent No.1. Perused the

entire record.

2. The present second appeal is preferred aggrieved by the judgment

and decree dated 08.08.2024 in A.S.No.311 of 2014 on the file of the

XXVI Additional Chief Judge, City Civil Court at Hyderabad ('first

appellate Court'), wherein the appeal was dismissed confirming the

judgment and decree dated 25.09.2014 in O.S.No.4050 of 2003 on the file

of the VI Junior Civil Judge, Hyderabad ('trial Court'), whereby the suit

was decreed.

3. For the sake of convenience, the parties are referred as they are

arrayed in the present second appeal.

4. Initially, plaintiff/respondent No.1 herein filed a suit for perpetual

injunction against defendant No.3/appellant herein and defendant Nos.1, 2

and 4/respondent Nos.2 to 4 herein to restrain them from interfering with

her peaceful possession and enjoyment of suit schedule property more

particularly, to restrain them from demolishing compound wall surrounding RY,J SA_511_2024

suit schedule property consisting of Plot No.83 admeasuring 150.33 sq.

yards in Sy.No.105/1, 105/2, 106, 107, 113 and 114 situated at Tallagadda,

Gudi Malkapur Village, Sardar Bagh, Near Karwan Sahu, Asif Nagar

Mandal, Hyderabad. The appellant herein allegedly made attempts to

interfere with respondent No.1's possession and said attempts were

resisted. While so, the appellant and respondent No.4 got issued notice to

respondent No.1 through GHMC officials i.e., respondent Nos.2 and 3.

Respondent No.1 apprehended that the GHMC officials i.e., respondent

Nos.2 and 3 may demolish the compound wall and therefore, filed the suit

for perpetual injunction before the trial Court. Respondent No.1 claimed

her ownership over the suit schedule property having succeeded to it after

the death of her husband, who was the original owner having been

purchased the same vide registered sale deed document bearing No.3171 of

1978, dated 30.11.1978.

5. Respondent No.1 got examined P.Ws.1 to 3 and exhibited Exs.A-1 to

A-27 to prove her possession before the trial Court. The appellant herein

got examined himself as D.W.1 and exhibited Exs.B-1 to B-16. Learned

trial Court after examining the evidence on record decreed the suit granting

perpetual injunction in favour of respondent No.1. Aggrieved by the same,

the appellant preferred appeal before the first appellate Court and the said

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appeal was dismissed confirming the judgment and decree of the trial

Court. Aggrieved by the same, the present Second Appeal is preferred.

6. The present Second Appeal is preferred with the following

substantial questions of law to be considered:

1. Whether the Suit of the Plaintiff is to be Decreed, when the Plaintiff failed to substantiate and prove the existence of Plot No.83 in the approved layout of Ram Singh Pura Handloom Weavers Cooperative Production Sales Society Ltd., situated at Markandeya Nagar, (Tallagadda) near Karwan Sahu, Hyderabad?

2. Whether the lower Court and the first appellate Court is justified in decreeing the suit without considering/framing the additional issue raised by the Defendant No.3 with regard to the existence of the Plot No.83 in I.A.No.636/2013 in O.S.No.4050/2003?

7. The 1st substantial question of law is factual question about existence

of plot No.83, which is to be determined by examining the approved layout

of the Ram Singh Pura Handloom Weavers Cooperative Production Sales

Society Limited situated at Markandeya Nagar (Tallagadda) near Karwan

Sahu, Hyderabad. The issue of existence or non-existence of plot No.83

was considered by both the trial Court as well as the first appellate Court in

the suit as well as the first appeal and the same has been answered in favour

of respondent No.1 herein and it is held that respondent No.1 has proved

her possession over the suit schedule property. Therefore, the perpetual

injunction was granted.

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8. The 2nd substantial question of law is also with regard to existence of

plot No.83 and failure to frame an additional issue about existence of plot

No.83. Irrespective of framing of additional issue with respect to existence

of plot No.83, the said issue was considered as the main issue while

granting perpetual injunction. Both the trial Court as well as the first

appellate court have considered the ownership as well as the possession of

respondent No.1 over the suit schedule property i.e., plot No.83 while

granting perpetual injunction. In fact, the case of the appellant being owner

and possessor of the said property was also considered and the same was

discarded on the basis of oral admission of the appellant as D.W.1, wherein

it is admitted that he is not owner of the suit schedule property and he was

never in possession of the suit schedule property. The said admissions

were contradictory to the case set out by the appellant in his written

statement. When the ownership of respondent No.1 over plot No.83 which

is suit schedule property is considered and concurrent findings are given by

both the Courts below about its existence and possession of respondent

No.1 over the same, the said factual aspect cannot be canvassed in the

second appeal before this Court.

9. Subsequent to filing of the present Second Appeal, learned counsel

for the appellant filed memo dated 13.08.2025 with a prayer to frame the

following additional substantial questions of law in the present appeal:

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1. Whether the Suit for perpetual injunction was maintainable when the Plaintiff had already transferred both the title and possession by way of a registered Agreement-cum-General Power of Attorney (AGPA) with Possession vide Doct No.3263 of 2006 during the pendency of the Suit, and failed to disclose the same to the trial Court?

2. Whether the Decree passed in favour of the Plaintiff is vitiated due to suppression of material facts, particularly the execution of a registered AGPA vide Doct No.3263 of 2006 transferring possession during the pendency of the Suit?

3. Whether first Appellate Court erred in law by ignoring the fact of transfer of title and possession via AGPA, despite being brought to its notice during appeal proceedings by way of additional evidence, and consequently upholding the Trial Court's Decree?

4. Whether the subsequent execution of a Registered Sale Deed vide Document No.260 of 2024 dated 12.01.2024, during the pendency of the First Appeal, without leave of the court, renders the injunction decree infructuous and unenforceable?

10. The 1st and 2nd additional substantial questions of law are about

execution of agreement-cum-General Power of Attorney with possession

executed vide document bearing No.3263 of 2006 and the said document

was not presented before the trial Court and cannot be a ground before this

Court for registering a second appeal.

11. Coming to the 3rd additional substantial question of law, even if it is

brought to the notice of the first appellate Court that there is transfer of title

and possession, the same was not considered as in a suit for perpetual

injunction legal possession at the inception of the suit is material and not

subsequent developments.

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12. Coming to the 4th additional substantial question of law, there can be