Andhra Pradesh High Court - Amravati
Darla Raja Kumar Alias Baji vs Edla Koteswara Rao on 22 November, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
SECOND APPEAL No.701 of 2019
JUDGMENT:
The unsuccessful plaintiff filed this Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, assailing the decree and judgment, dated 13.06.2019, of the learned XIII Additional District Judge, Narasaraopet, passed in A.S.No.83 of 2010, whereby the said learned Additional District Judge while dismissing the appeal confirmed the decree and judgment, dated 12.06.2008, of the learned Principal Junior Civil Judge, Chilakaluripet, in O.S.No.135 of 2003 filed by the plaintiff, for recovery of the plaint schedule property from the defendants.
2. I have heard the submissions of learned counsel appearing for the appellant/plaintiff ('plaintiff', for brevity) at the stage of admission. I have perused the material record.
3. The parties in this second appeal shall hereinafter be referred to as arrayed in the suit for convenience and clarity.
4. At the outset it is to be noted that the following questions are raised in the grounds of appeal as substantial questions of law:
Whether the suit for recovery of possession is as much as a suit for declaration of title?
Whether in a suit for recovery of possession, the house tax receipts prevailing over the electricity bills or not? [Reproduced verbatim]
5. On perusal of the material record and consideration of the submissions made, it is perceptible that the plaintiff brought the suit against the defendants inter alia stating that the plaintiff is the absolute owner of the suit schedule property consisting of site, thatched house and one shed with 2 asbestos cement sheets etcetera; that the said property is originally a part of gramakantam land, which was encroached by the plaintiff's ancestors more than 100 years ago; that after the said encroachment, a thatched house was constructed; that the ancestors of the plaintiff enjoyed the same peacefully without any interruption exercising rights of ownership; that theplaintiff's grandfather, Bapanaiah, succeeded to the property from his ancestors; that after his death, the plaintiff's father succeeded to the property; that in the year 1970, thatched shed became dilapidated due to heavy rains; that out of love and affection, his father executed a registered gift deed, dated 27.09.1970 (registration extract of the said document is Ex.A2) and delivered possession of the property to the plaintiff's mother; that thereafter, the plaintiff's mother enjoyed the said property with absolute rights; that she raised a thatched hut with her funds and also one asbestos sheet shed with attached bathroom; that during her lifetime, she filed O.P.No.3 of 1996 informa pauperisfor recovery of possession; that on her death, the said suit was dismissed as abated; that while so, the defendants 1 to 3, who are having no manner of right, title and interest, with support of rowdy elements have broke open the locks of the suit schedule house and trespassed into it on the night of 17.08.1996 wrongfully and illegally without any manner of right; though the plaintiff and the neighbors raised an objection, it was of no avail; that the defendants are trying to fabricate the documents; and, hence, the suit is filed.
6. Per contra, the defence is this: - 'The plaintiff and his predecessors have no right or interest over the schedule property and they were never in possession of the same. The 1st defendant purchased 40 ½ Sq.yards, on 21.09.1970, from M/s.Sanam Venkataswamy and his son Mastanu Rao under an agreement of sale coupled with delivery of possession. Later, regular registered sale deed, dated 20.05.1974, was executed at Sub-Registrar's Office, Chilakaluripet. That apart, the 1st defendant is also having ancestral 3 property of an extent of nearly 80 Sq.yards on the Northern side of the above said 40 ½ Sq.yards with a thatched house with brick walls facing doorwaystowards North. On the North of thatched house, a shed with asbestos sheets and one bathroom, was raised by the defendants to the knowledge of all the concerned including the plaintiff. The Municipality assigned a Door No.11-
222. Later, the house number was changed as 11-298. Thus, the plaintiff and his predecessors have nothing to do with the plaint schedule property. The plaintiff is having a house with D.No.11-239, which is an RCC building. He is working in local Municipality and he fabricated documents misusing official position. Therefore, the question of the defendants illegally trespassing into the plaint schedule property as alleged in the plaint is not correct.'
7. Basing on the above pleadings, the trial Court framed the following issues for trial:
1. Whether the suit is barred by doctrine of res-judicata?
2. Whether the plaintiff is entitled for possession of the suit schedule property?
3. Whether the plaintiff is entitled for mesne profits or damages as prayed for?
4. To what relief?
8. During the course of trial, PWs.1 to 3 were examined and exhibits A1 to A5 were marked on the side of the plaintiff. DWs1 and 2 were examined and exhibits B1 to B14 were marked, on the side of the defendants.
9. The trial Court having examined the pleadings and the oral & documentary evidence brought on record had held that the plaintiff failed to establish title incidentally and also the right to recover possession of the plaint schedule property and dismissed the suit of the plaintiff, recording findings on all issues against the plaintiff. The plaintiff's first appeal was also dismissed, by the judgment impugned, after recording concurrent findings. The trial Court, having noted that the OP earlier filed by the mother of the plaintiff was 4 dismissed as abated on her death, also recorded a finding that under Order XXII Rule 9(1) CPC, the present suit by the plaintiff is not maintainable. The trial Court thus found that the suit is not maintainable. On the second issue as regards the plaintiff's entitlement to recover possession of the plaint schedule property, the trial Court, having examined the oral evidence in juxtaposition with the exhibits marked, held that the plaintiff failed to discharge the legal burden in support of the claim for recovery of possession of the plaint schedule property from the defendants and that on the other hand, the defendants by placing reliance on exhibits B1 to B3 proved that the plaint schedule property is in their possession since 1986 and that the suit house was provided with electricity service connection in the year 1986 and that exhibit B3 is of the year 1974 and that it is not possible to accept that the recitals are incorporated in exhibit B3 of the year 1974 foreseeing a litigation in the year 1996 and that, therefore, the documents exhibited, on examination and on the application of test of preponderance of probabilities, make it evident that the defence of the defendants is true and that the defendants proved their long settled possession for over a statutory period by filing the necessary documentary evidence and that the plaintiff failed to establish the right over the plaint schedule property and the plaintiff's entitlement to recover the possession of plaint schedule property from the defendants. The appellate Court, having noted that the legal burden is upon the plaintiff to establish his right to the property and also the entitlement to recover the possession of the property from the defendants, examined the oral evidence and the exhibits marked and held that the plaintiff failed to adduce the required standard of evidence for answering the issue in favour of the plaintiff and that as per settled law the plaintiff has to succeed on his own strength but not the weakness of the defence of the defendants. The appellate Court having thus examined the facts and evidence in proper perspective and also the correctness 5 of the judgment of the trial Court, agreed with the findings of the trial Court and dismissed the appeal.
10. Viewed thus, this Court finds that the questions being sought to be raised are not substantial questions of law and that the said questions are not even pure questions of law; but, are either only mixed questions of fact & law or pure questions of fact. Therefore, this Court further finds that no question of law much less a substantial question of law is involved requiring interference with the decree & judgment impugned. Accordingly, this Court holds that there is no substance in the questions being sought to be raised. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratios in the decisions in Gurudev Kaur v. Kaki1and Dagadabai (dead) by LRs. v. Abbas Alias GulabRustumPinjari2.
11. In the case on hand, after careful examination of the pleadings, evidence and the contentions, as this Court finds that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of the narrow compass of Section 100 of the Code of Civil Procedure.
12. In the result, the Second Appeal is dismissed confirming the judgment & decree, dated 13.06.2019, of the learned XIII Additional District Judge, Narasaraopet, passed in A.S.No.83 of 2010. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_____________________ M. SEETHARAMA MURTI, J 22nd November, 2019 pab 1 AIR 2006 SC 1975 2 (2017) 13 SCC 705