Telangana High Court
M/S. Varuna Hatcheries Pvt Ltd., Hyd vs Sri. Bitchareddy, R.R.Dist 10 Others on 2 February, 2021
Author: G. Sri Devi
Bench: G. Sri Devi
THE HONOURABLE JUSTICE G. SRI DEVI
SECOND APPEAL No.708 of 2017
JUDGMENT:
This second appeal is filed, under Section 100 of C.P.C., against the judgment and decree of the learned III-Additional District Judge, Ranga Reddy District at L.B.Nagar, dated 04.05.2017, passed in A.S.No.264 of 2013, whereunder the learned Judge dismissed the said appeal with costs by confirming the judgment and decree, dated 28.06.2013, passed in O.S.No.1787 of 2004 on the file of the VIII-Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.
Appellant is the 8th defendant, respondent Nos.1 to 4 herein are the plaintiffs and respondent Nos.5 to 11 are defendant Nos.1 to
7. For the sake of convenience, the parties would be referred to as they were arrayed in the suit.
Necessary facts for disposal of this second appeal are as follows:
Plaintiff Nos.1 to 4 filed O.S.No.1787 of 2004 for declaration of their title to the suit schedule land admeasuring Ac.1.12 guntas in Sy.No.4 situated at Kothagudem Village, Serilingampally Mandal, Ranga Reddy District, and also for permanent injunction restraining the defendants and their henchmen from interfering with their peaceful possession and enjoyment over the said land. It is stated in 2 the plaint that the plaintiffs are absolute owners and possessors of the suit schedule property having purchased the same from the 1st defendant under a registered sale deed bearing document No.1133/2004, dated 30.01.2004. The 1st defendant had acquired the suit schedule property along with other properties through a compromise decree, dated 20.10.2003 passed by this Court in A.S.No.1857 of 1995 and since the date of purchase, the plaintiffs are in peaceful possession and enjoyment of the same and have started their efforts in developing the land and made construction of compound wall and gate to the suit schedule property. It is further stated that the 4th defendant, who is in no way concerned with the suit schedule property, started interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule property under the guise of registered sale deed bearing document No.9942/2003, dated 14.08.2003, having purchased the same from defendant Nos.2 and 3. The plaintiffs came to know that defendant Nos.2 and 3 have purchased the suit schedule property from the coparceners of the 1st defendant under the registered document No.3170 of 1994 dated 13.04.1994, which was executed during pendency of O.S.No.473 of 1988 filed by the 1st defendant for partition, and after final decree the suit schedule land was not allotted to the share of one R.Advaiah and as such said transaction is hit by lis pendency. It is also stated that the 4th defendant with an evil eye to usurp the land of the plaintiffs came to the suit schedule 3 property on 19.07.2004 along with anti social elements and declared that legal heirs of late R.Advaiah sold an extent of 990 square yards and demanded the plaintiffs to vacate the suit schedule land and as such the plaintiffs filed the above suit.
The aforesaid suit was contested by defendant Nos.1, 2, 4 and
8 by filing different written statements. The 1st defendant in her statement admitted each and every averment of the plaint. The 2nd defendant, while denying the averments of the plaint, contended that there is no cause of action for the suit and the 4th defendant did not come to the suit schedule property on 19.07.2004. The 4th defendant contended that defendant Nos.2 and 3 purchased the suit schedule property in the year 1994 through registered sale deed and in the year 1995 they have constructed a compound wall and erected a gate. It is further contended that at no point of time the 1st defendant and her family members made any objection when they constructed compound wall. It is further contended that the 4th defendant had purchased the suit schedule property from defendant Nos.2 and 3 through valid registered sale deed dated 14.08.2003 and since then he has been in possession of the suit schedule property and that there is a dispute with regard to the identity of the property. It is further contended that as per the case of the plaintiffs, the suit schedule land is admeasuring Ac.1.12 guntas in Sy.No.4 of Kothagudem Village, whereas the property owned and possessed by the 4th defendant is in Sy.No.2 and 4 of Kothaguda Village and that 4 the plaintiffs with a mala fide intention got defective registered sale deed with survey numbers of their choice and hence the suit is liable to be dismissed.
The 8th defendant company, who is the appellant herein, filed written statement contending that it had purchased the properties in Sy.Nos.2, 4, 29, 30, 31, 32, 34 and house bearing No.2-44 from different persons such as legal heirs of R.Advaiah and other persons through registered sale deeds bearing Nos. 1074/1990, 10411/1991, 365/2004, 781/2004, 2134/2004, 2135/2004, 2991/2004, 3042/2004, 3473/2004, 3474/2004, 8455/2004, 10013/2004, 10014/2004, 11605/2004, 3611/2005, 3612/2005, 12798/2005, 8789/2006, 18022/2006, 11107/2007 and 5468/2008. It is contended that after receiving the notices in the suit, when the 8th defendant made enquiries with the 1st defendant whether the suit schedule property is covered by the land held and purchased by the 8th defendant from R.Advaiah and others, she informed that the holdings of the 8th defendant and land sold to the plaintiffs are different and separate entities and she further stated that the land held by 8th defendant is not part of the share of the 1st defendant. It is further contended that the 8th defendant being a bonafide purchaser through lawful owners under different sale deeds is in absolute possession and enjoyment of land admeasuring 11,448.22 square yards in Sy.Nos. 2, 4, 11 and 12 of Kothaguda Village and hence the suit is liable to be dismissed. 5
On the basis of the aforesaid pleadings, the trial Court framed the following issues:-
1. Whether the plaintiffs are absolute owners and possessors of the suit schedule property?
2. Whether the plaintiffs entitled for permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule property?
3. To what relief?
During trial, on behalf of the plaintiffs, P.W.1 was examined and Exs.A1 to A33 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B1 to B6 were marked.
The trial Court, on a careful consideration of the rival contentions and also the entire material available on record, decreed the suit holding that the plaintiffs are entitled to a declaration of their title as absolute owners and possessors of the suit schedule property and also entitled to a permanent injunction against the defendants. Against the said judgment and decree, the 8th defendant carried the matter in appeal and the lower appellate Court, by its judgment and decree, dated 04.05.2017, dismissed the appeal, confirming the judgment and decree passed by the trial Court. Aggrieved by the same, the present second appeal has been preferred by the 8th defendant.
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This Court, on 26.12.2017, admitted the second appeal on the following substantial questions of law:
1. Whether both the judgments of the Court below are perverse?
2. Whether the Courts below were justified in decreeing the suit, especially post the application for impleadment of the appellant herein was ordered and thereafter having made no averment or shown no cause of action by filing additional plaint?
3. Whether the Courts below were justified in not looking properly the registered documents namely sale deeds, especially the boundaries and the boundaries stated by the Advocate-Commissioner in the earlier suit have been wrongly stated and they are distinct and separate?
Heard Sri P.Sri Raghuram, learned Senior Counsel appearing for the appellant/defendant No.8 and Sri D.Devender Rao, learned Counsel appearing for respondent Nos.1 to 4/plaintiffs.
Learned Senior Counsel appearing for the appellant would submit that the finding of the trial Court as confirmed by the appellate Court on the aspect of possession being delivered by bailiff in execution of the partition suit i.e. O.S.No.473 of 1988 filed between Narasamma and Advaiah is perverse and arbitrary. He further submits that the finding of the trial Court that the oral evidence of P.W.1 in the suit is sufficient proof that plaintiffs are in possession of the suit schedule property is also perverse and is liable 7 to be set aside. He further submits that the documentary evidence on record such as Exs.B4 and B5 clearly establish the possession of the appellant and their predecessors and not the possession of the 1st defendant in Sy.No.4 for which no oral evidence is admissible as against this documentary evidence qua the Court below relied only on oral evidence which is perverse. That apart, Exs.A1, A14, 15, 18, 22, 25, 26, 27, 30, 31, 32 and 33 marked on behalf of the plaintiffs also established that the plaintiffs never had possession but without taking into consideration those documents and openly overlooking the important pieces of evidence, the Court below gave a contrary finding. He further submits that the possession was never delivered to the 1st defendant at any point of time and that the evidence also points out the possession of R.Advaiah over the entire suit schedule property and that there is no such document on record to show that after recording the compromise, the 1st defendant and legal heirs of R.Advaiah have accepted the delivery of possession of the suit schedule property, hence the finding of the Court below can be interpreted as perverse finding of fact and is liable to be set aside. He also submits that the first appellate Court has not considered the oral and documentary evidence adduced before the trial Court and has mechanically confirmed the judgment and decree. He further submits that the property which devolved upon the 1st defendant in a partition suit is not the property which is shown in the present suit and that the present suit schedule property appears to be the 8 property which fell to the share of Mr.R.Advaiah in the partition suit and that the appellant had purchased the said property from their vendors, who in turn purchased the same from the share of R.Advaiah and, therefore, the appellant is the lawful owner of the suit schedule property. He also submits that the boundaries mentioned in the Commissioner's Report, the boundaries mentioned in the sale deed, through which, the 1st defendant sold the property to the plaintiffs and the boundaries of the suit schedule property are different and thus there is a defect in the devolution of title. Since the 1st defendant herself did not have title over the property, she could not have sold the property to the 1st plaintiff and, therefore, the finding of the trial Court as confirmed by the appellate Court with regard to the possession is perverse and arbitrary. He also submits that the trial Court and the appellate Court have failed to consider that the plaintiffs have neither amended the pleadings nor amended the prayer of the suit after impleading the appellant and therefore, no relief against the appellant could have been granted by the Courts below. He further submits that the first appellate Court has not properly framed the point for consideration in the appeal in terms of Order 41 Rule 31 C.P.C. In support of the said contentions, he relied upon the following citations.
1. Madhukar Nivrutti Jagtap and others v. Smt. Pramilabai Chandulal Parandekar and others1 1 (2019) SCC Online SC 1026 9
2. Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others2
3. Khemchand Shankar Choudhari and another v. Vishnu Hari Patil and others3
4. Nagubai Ammal and others v. B.Shama Rao and others4
5. Bishan Singh and others v. Khazan Singh and another5
6. Bondar Singh and others v. Nihal Singh and others6
7. State of Madhya Pradesh v. Nomi Singh and another7
8. Kanchi Subbamma and others v. Mannepalli Penchalaia8
9. Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar and others9
10. B.Santoshamma and another v. D.Sarala and another10
11. Palem Chandra Shekar v. Palem Biskhapathy11
12. State of Rajasthan and others v. Shiv Dayal and another12 Per contra, learned Counsel for the respondents/plaintiffs would submit that the second appeal is not maintainable in view of clear findings given by the trial Court as well as the lower appellate Court in favour of the plaintiffs. He further submits that the admitted facts need not be proved as per Section 58 of the Indian Evidence Act and that D.W.1, who was examined on behalf of the appellant, had clearly admitted that the suit schedule property belongs to the 1st defendant and that the suit schedule property was clearly demarcated and delineated by metes and bounds and 2 (2013) 5 SCC 397 3 (1983) 1 SCC 18 4 AIR 1956 SC 593 5 AIR 1958 SC 838 6 (2003) 4 SCC 161 7 (2015) 14 SCC 450 8 1977 SCC Online AP 115 9 (2020) 7 SCC 275 10 Civil Appeal No.3574 of 2009 SC 11 CMA No.18 of 2019, TSHC 12 (2019) 8 SCC 637 10 possession was also delivered thereof by Court bailiff in the partition suit i.e., O.S.No.473 of 1988 and also admitted that this Court upheld the partition effected including the suit schedule property. He also submits that the contentions raised in the second appeal during arguments were never raised in the suit, even otherwise those contentions are untenable. He further submits that both the Courts below clearly and categorically held that the plaintiffs are in possession of the suit schedule property and there is an injunction order in their favour all through and that the finding with regard to possession is unassailable in view of the factual matrix of the case, which is thoroughly examined by both the Courts below. He further submits that a perusal of Exs.A1 to A3 would show that the boundaries mentioned therein and the boundaries mentioned in the suit schedule property are one and the same and as such the contention of the appellant is unsustainable. He also submits that the plaintiffs have clearly proved their title and possession over the suit schedule property through clear and cogent evidence, which was taken into consideration by the trial Court, as such a judgment and decree was passed in favour of the plaintiffs in the suit and the same was confirmed in an appeal filed by the appellant. He further submits that concurrent findings given by the Courts below on appreciation of facts and evidence cannot be assailed when there is no perversity in those judgments and since 11 there is no perversity of whatsoever nature in the judgments of both the Courts below, this second appeal is liable to be dismissed.
Before proceeding further, it would be appropriate to refer to Section 100 of C.P.C., which reads as under:
"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any 12 other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Though Section 100 C.P.C deals with the High Court's jurisdiction in second appeal, it has the effect of declaring that the first appellate court is the final court on facts and the High Court in a second appeal cannot re-appreciate evidence or facts unless the case involves a substantial question of law.
In Dudh Nath Pandey v. Suresh Chandra Bhattasali13 the Supreme Court held that the High Court cannot set aside findings of fact of the first appellate court and come to a different conclusion on reappraisal of evidence while exercising jurisdiction under Section 100 C.P.C.
Admittedly, the plaintiffs filed suit for declaration of their title to the suit schedule property and for permanent injunction. It is the case of the plaintiffs that they have purchased the suit schedule property from the 1st defendant under a registered sale deed dated 30.01.2004. The 1st defendant filed O.S.No.473 of 1988 before the Additional Subordinate Judge, Rangareddy District against her brother-in-law R.Advaiah and others, who are co-parceners, for partition of the suit schedule property and other properties and in the said suit, preliminary decree and final decree were passed. Aggrieved by the same, the defendants therein preferred an appeal before this Court vide A.S.No.1857 of 1995, which was ended in 13 (1986) 3 SCC 360 13 compromise. As per the terms of compromise, the suit schedule property fell to the share of the 1st defendant and that the 1st defendant filed written statement, supporting the version of the plaintiffs, which was not denied by the 8th defendant. Further, the 4th plaintiff, who was examined as P.W.1, stated that the 1st defendant sold away the suit schedule property, which fell to her share, to the plaintiffs under Ex.A1-registered sale deed and that the said fact was not even denied by the appellant/defendant No.8. D.W.1, who is the authorized signatory of the appellant company, also admitted that the 1st defendant had acquired the suit schedule property by virtue of a compromise decree passed in A.S.No.1857 of 1995. It is the case of the appellant/defendant No.8 that he had purchased the property from the legal heirs of R.Advaiah. Since the said R.Advaiah himself did not get any right or title over the suit schedule property, the question of his legal heirs getting right to alienate the property in favour of the appellant does not arise. That apart, the appellant/defendant No.8 has not shown cogent reasons to set aside the findings of the Courts below. Thus, having regard to the facts and circumstances of the case and in view of the aforementioned discussion, I am of the firm view that there is no legal infirmity in the conclusion arrived at by the Courts below with regard to the title of the suit schedule property and possession held by the plaintiffs and that there is no perversity in the judgments of both the Courts below.
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Be that as it may, this is a second appeal where concurrent findings had been recorded to the effect that the plaintiffs are the absolute owners and possessors of the suit schedule property and they are in possession of the same. When concurrent findings have been recorded and discretion had been exercised by both the Courts below, this Court sitting under Section 100 of C.P.C. is loath to re-appreciate the evidence and come to a different conclusion. In such circumstances, the second appeal sans merit and the same is liable to be dismissed.
Accordingly, the Second Appeal is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_____________________ JUSTICE G.SRI DEVI 02.02.2021 Gsn/gkv