Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 467 (AP)

S. K. Ameer v. Syed Khader Shaeb

2020-07-22

M.GANGA RAO

body2020
JUDGMENT M. Ganga Rao, J. - Appellant is the defendant in the suit filed this appeal under Section 100 of the Code of Civil Procedure, 1908 against the reversing judgment and decree dated 18-03-2005 passed by the III Additional District Judge, Kadapa (Fast Track Court, Kadapa) in A.S.No.72 of 2000 by reversing the judgment and decree passed in O.S.No.575 of 1998 dated 21-07-2000 by the IV Additional Junior Civil Judge, Kadapa. 2. For the sake of convenience, the parties hereinafter called as arrayed in the original suit. 3. Brief facts of the case are that the respondents/plaintiffs filed the suit O.S.No.573 of 1998 against the appellant/defendant before the IV Additional Junior Civil Judge, Kadapa, for declaration of right, title and recovery of possession and for consequential relief of permanent injunction over the vacant place covered by EDB1F1 marked suit schedule property. The full extent of the land situated in Circar punji D.No.49 in Ippapenta village is Ac.3.10 cents belong to Manuka Kondaiah. One Sulthan Bee purchased land extent Ac.1.45 cents out of the land in Circar punji D.No.49 of Ippapenta village from Manuka Kondaiah, S/o Yerraiah, original owner under registered sale deed dated 16-11-1935, one Khasim Peera purchased Ac.0.95 cents on 06-06-1936 and plaintiffs' paternal uncle Husaian Saheb purchased land extent of Ac.0.57 cents on 06-06-1936 since then they had been in possession and enjoyment of their respective land. The balance land available in D.No.49 was Ac.0.13 cents out of it Syed Budan Saheb purchased Ac.0.041/2 cents vide registered sale deed dated 18-03-1952 one the same day the appellant's father Nanna Saheb purchased the remaining land extent of Ac.0.81/2 cents, but obtained sale deed for Ac.0.191/2 cents, from Manuka Narasimhulu, S/o Kondaiah. Whereas the balance land available was only Ac.0.081/2 cents. The land extent Ac.0.57 cents purchased by Hussain Saheb for his joint family consisting of Hussain Saheb and his brothers Khasim Saheb and Pakeer Saheb had been in joint possession and enjoyment of the same and later it was got partitioned the same and each one of them got 19 cents of land and FDBOE marked land fell to the share of Khasim Saheb. The respondents/plaintiffs two in number being the sons of Khasim Saheb got partitioned the land fell to their father's share equally, with equal length and width. The respondents/plaintiffs two in number being the sons of Khasim Saheb got partitioned the land fell to their father's share equally, with equal length and width. The 1st plaintiff constructed thatched house in his part of land, whereas the 2nd plaintiff constructed house in his part of land with upstairs portion leaving vacant sites on all sides, keeping ventilation on southern and northern walls in ground floor and also upstairs portion long back for free air and light. In the vacant site of EFB1B1 there is a neem tree. In the year 1994, when the defendant tried to encroach the vacant land by digging pits adjacent to the walls of the 2nd plaintiff, the plaintiffs filed O.S.No.142 of 1994 before the III Additional District Munsif Court for declaration of right and for mandatory injunction to remove the wall and close the pits and the same was decreed pits were closed with the help of police. The defendant again proclaimed that the vacant land belong to him he would occupy the same by using force and occupied the same. (That is the cause of action for filing the present suit O.S.No.573 of 1998 before the IV Additional Junior Civil Judge, Kadapa.) The defendant filed written statement denying the averments of the plaint and states that he was not aware of the purchase of land extent of Ac.1.45 cents by Sulthana Bee and land extent of Ac.0.95 cents by Khasim Peera and land extent of Ac.0.57 cents by Hussain Saheb and land extent of Ac.0.041/2 by Syed Budan Saheb out of the total extent of the land Ac.3.10 cents situated in D.No.49 of Ippapenta village. He states that he was born in the year 1951, his father told him that he purchased land extent Ac.0.191/2 cents in S.No.49 on 18-3-1952 and had been in possession and enjoyment of the land. Out of it, 10 years back, he sold land extent of Ac.0.06 cents to one Rasool Saheb and he constructed house in the said site and residing therein. He denied the partition of the land extent of Ac.0.57 cents among the brothers of Hussain Saheb, who purchased the land extent of Ac.0.57 cents in the year 1936 stating that he purchased the land after separated from his brothers and so the brothers of Hussain Saheb, the father of the plaintiffs, and the plaintiff have no right over the land. Hussain Saheb had a son and three daughters they have to be joined as parties to this suit. He denied the plaint plan and filed separate plan. As shown in the plan, attached to the written statement the defendant constructed ABCD house and BDFE is the coconut leaves vasara extended up to the house of Rasool Saheb on the east and to the compound wall to the defendant house. PQOL is the Kottam (hut) of the first plaintiff and MNIK is a two storied building of the 2nd plaintiff and the defendant has been in possession and enjoyment of the HLKIJE FOBGH vacant portion shown in the plan attached to the written statement. The plaintiffs have no manner of right and enjoyment over the same. He further states that the 2nd plaintiff filed the suit against the defendant when he wanted some development to be made in the vacant site by digging pits adjacent to the house of the 2nd plaintiff and subsequently he closed them as per the decree. Based on the above pleadings the trial Court framed the following issues for adjudication of the lis., 1) Whether the plaintiff is entitled for declaration of title, right and recovery of possession of the property? 2) To what relief? 4. On behalf of the plaintiffs, the 2nd plaintiff was examined as PW.1 and marked Exs.A.1 to A.7. On behalf of the defendant, the defendant himself was examined as DW.1 and got examined Syed Budan Saheb as DW.2 and got marked Exs.B.1 to B.3. 5. The trial Court, on considering the evidence on record, dismissed the suit holding that the evidence on record is not sufficient to grant relief in the suit. Against the said judgment and decree, the plaintiff preferred appeal A.S. No.72 of 2000 before the III Additional District Judge, Kadapa, on various grounds inter alia contending that Sri Nanna Saheb, the father of the defendant purchased only the land extent of Ac.0.081/2 cents, the balance land available out of the total extent of land Ac.3.10 cents in Circar punji D.No.49 of Ippapenta village and sold away land extent of Ac.0.06 cents to Rasool Saheb about 10 years back and he constructed house therein, whereas Nannasaheb constructed house and vasara in his remaining land extent of Ac.0.021/2 cents shown as ABCD and DEFD in the plan attached to written statement. Whereas the plaintiffs' father Khasim Saheb got land extent of Ac.0.19 cents shown as FDBOE in the partition of the land extent of Ac.0.57 cents purchased by his brother Hussain Saheb. The same was got partitioned in equal shares by the plaintiffs and constructed their houses leaving plaint schedule vacant land. In spite of not having any vacant land available for the defendant, whereas the defendant prevent the plaintiffs to use the vacant land of their own, by raising thorny bushes in the vacant land and by constructing bath room and digging pits whereas the plaintiff protested for the same. On considering the evidence on record and arguments of the counsel for both parties, the lower Appellate Court framed the following points for its consideration. 1) Whether the appellants established their title over the suit property shown in the schedule land plaint plan as EOB1 F1? 2) Whether the appellants entitled for recovery of possession and consequential permanent injunction as prayed for ? 3) To what relief? 6. The lower Appellate Court, considering the evidence of PW.1 and DW.1 and DW.2 coupled with documentary evidence Exs.A.1 to A.7 and Ex.B.1 to B.3, came to the conclusion that the trial Court ought to have decreed the suit, but erroneously dismissed the suit. The trial Court also not properly considered the judgment and decree passed in O.S.No.142 of 1994 in its proper perspective and which was became final. Taking advantage of the dismissal of the present suit, the defendant is encroaching the suit schedule site and cutting the trees of the plaintiffs and also closing the rastha by putting thorny bushes. During the course of evidence, the defendant admitted Ex.A.5, Ex.A.1, Ex.A.2 and Ex.A.3 documents and the property purchased under those documents. The land extent of Ac.3.011/2 cents was purchased under the above documents, out of total extent of land Ac.3.10 cents available in the D.No.49 of Ippapenta village, the land extent of Ac.3.011/2 cents sold by land owner Mamuka Kondaiah, S/o Yerraiah, whereas remaining land extent of Ac.0.081/2 cents was sold by Manuka Narasimhulu, S/o Kondaiah under sale deeds Exs.A.3 and A.4 executed on 18-03- 1952. The defendant's father purchased remaining land extent of Ac.0.081/2 cents, but got mentioned the land extent of Ac.0.191/2 cents in Ex.A.3 wherein it is wrongly mentioned as 191/2 cents. But the defendant had not examined vendor of the land. The defendant's father purchased remaining land extent of Ac.0.081/2 cents, but got mentioned the land extent of Ac.0.191/2 cents in Ex.A.3 wherein it is wrongly mentioned as 191/2 cents. But the defendant had not examined vendor of the land. Admittedly, out of the land in Ex.A.3 extent of Ac.0.081/2 cents, 10 years back land extent of Ac.0.06 cents was sold to Syed Rasool Umar under Ex.A.4 and remaining land extent of Ac.0.021/2 cents the house of the defendant is situated, the house and vasara of the defendant is on the south of EO point and he has no site beyond north of EO and EOB1F1 site of the plaintiff and they also averred in the old suit, but for the suit property three feet site mistakenly by oversight noted as defendant site instead of the site of the plaintiff. As per the evidence of PW.1 coupled with the documents Ex.A.5, Ex.A.1 and Ex.A.2, A.3 and Ex.B.1 it is revealed that the plaintiff got property up to EO and defendant property is situated on the south of EO. Accordingly, the lower Appellate Court held that the plaintiff established the title over the suit site shown in the plaint schedule as EOB1F1 and the plaintiffs are entitled for declaration of title and recovery of possession and consequential permanent injunction over, EOB1F1 marked suit schedule property and accordingly allowed the appeal setting aside the judgment and decree of the trial court passed in O.S.No.573 of 1998 dated 21-07-2000 passed by the IV Additional Junior Civil Judge, Kadapa and decreed the suit declaring the respondents/plaintiffs right and title over the suit schedule property shown as EOB1F1 in the plaint plan, recovery of possession and consequential permanent injunction. Being aggrieved by the same, the defendant filed present second appeal before this court. 7. This Court admitted the second appeal by framing the following substantial questions of law and granted interim stay on 23-06-2005. 8. This Court heard both the counsel and considering the submissions of the counsel and perused the record. The counsel for the appellant, while reiterating the grounds of memorandum of this second appeal, would contend that the defendant's father purchased the land extent of Ac.0.191/2 cents in Sy.No.49 of Ippapenta through Ex.A.3 registered sale deed and later out of it, he sold away the land extent of Ac.0.06 cents to Rasool Saheb by Ex.A.4. The counsel for the appellant, while reiterating the grounds of memorandum of this second appeal, would contend that the defendant's father purchased the land extent of Ac.0.191/2 cents in Sy.No.49 of Ippapenta through Ex.A.3 registered sale deed and later out of it, he sold away the land extent of Ac.0.06 cents to Rasool Saheb by Ex.A.4. The remaining vacant land is available and is in possession and enjoyment of the defendant. The defendant constructed bath room and raised threes. The trial Court on considering the evidence on record and judgment and decree in O.S.No.142 of 1994 Ex.B.3 rightly dismissed the suit. Whereas the lower Appellate Court on erroneous appreciation of fact and law and judgment and decree in O.S.No.142 of 1994 came to a wrong conclusion that the vacant land shown as EOB1F1 in the plaint schedule land belongs to the plaintiff and allowed the appeal by setting aside the judgment and decree passed by the trial Court and decreed the suit O.S.No.573 of 1998 on the file of IV Additional Junior Civil Judge, Kadapa. 9. Per contra, the counsel for the respondents/plaintiffs would contend that the lower Appellate court reappreciated the entire evidence on record and by elaborate discussion having framed the points, rightly came to the conclusion that the plaintiffs have right and title over the suit schedule land and are entitled for recovery of the land. The defendant/appellant herein failed to show any substantial question of law for interference of this court in judgment and decree passed in A.S.No.72 of 2000 passed by the III Additional District Judge, Kadapa. He further contended in support of his contention that the finding of facts recorded by the First Appellate Court are final, in the absence of any perversity in the findings of the First Appellate Court thus this court cannot reappreciate the entire evidence on record came to the different conclusion, while exercising the power under Section 100 CPC. Hence, sought for dismissal of the second appeal. 10. Hence, sought for dismissal of the second appeal. 10. In the facts and circumstances of the case, considering the submissions of the counsel and perusal of the record, there is no perversity in coming to the conclusion by the lower Appellate Court that the plaintiffs have proved their right and claim over the suit schedule land and recovery of the possession on consideration of the evidence of PW.1 and DW.1 and DW.2 and coupled with documentary evidence Ex.A.1 to A.5 and Ex.B.1 to B.3. The contention of the counsel for the appellant that the plea of the plaintiffs in the earlier suit O.S.No.142 of 1994 that the defendant occupied their three feet of land and dehors to the said plea in the present suit the defendant illegally occupied suit schedule land attracts the principle of estoppel enunciated under Section 115 of the Evidence Act and the said plea considered and negated by the lower Appellate Court. If this wants to interfere and reverse the said findings, the entire evidence has to be reappreciated the same is not permissible in law and further contention of the counsel that in view of the provision of Order II Rule 2 CPC the claim of the present relief in the present suit and in view of the judgment and decree in the earlier suit, the claim of relief is barred and not maintainable is untenable for the reason that the present suit is filed for different and subsequent cause of action of encroachment made by the defendant in the suit schedule land in which the relief prayed in the suit could not be said to be barred by the provisions of Order II Rule 2 CPC. The Hon'ble Apex Court in Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216 while dealing with the scope of Section 100 CPC, held at paragraph 16 as follows: "......A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The Court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The Court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal, on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 C.P.C......" 11. Having regard to the facts and circumstances of the case and the question of law urged by the learned counsel for the appellant will not fall within the ambit of Section 100 of CPC, there is no question of law much less substantial question of law is involved in this appeal, as the defendant failed to show any perversity in considering the evidence as recorded by the lower Appellate Court. Therefore, the second appeal is devoid of any merit and liable to be dismissed. 12. In the result, the second appeal is dismissed confirming the judgment and decree dated 18-03-2005 passed in A.S.No.72 of 2000 by the III Additional District Judge, Kadapa. 13. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.