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2022 DIGILAW 139 (TS)

Pilly Gopal v. Pilly Ramulu

2022-03-04

A.VENKATESHWARA REDDY

body2022
JUDGMENT: This Second Appeal is preferred against the judgment and decree dated 27.02.2015 in A.S.No.15 of 2013 on the file of the Judge, Family Court-cum-VIII Additional District and Sessions Judge, Mahabubnagar. A.S.No.15 of 2013 was preferred against the judgment and decree dated 01.04.2013 in O.S.No.51 of 2005 on the file of the Junior Civil Judge, Mahabubnagar. O.S.No.51 of 2005 was filed for mandatory injunction by the plaintiff against the defendants. The trial Court, after careful appreciation of oral and documentary evidence, dismissed the suit answering the issues 1 to 5 against the plaintiff holding that the plaintiff is not entitled for mandatory injunction. 2. Feeling aggrieved by the said judgment and decree dated 01.04.2013 in O.S.No.51 of 2005, the plaintiff preferred A.S.No.15 of 2013 on the file of the Judge, Family Court-cum-VIII Additional District and Sessions Judge at Mahabubnagar. The first appellate Court has confirmed the judgment and decree passed by the trial Court and dismissed the appeal without costs. 3. The first appellate Court in penultimate paragraph observed as under: “...Now it is to be seen whether D1 has constructed disputed wall over the drainage area and the said area is in between houses of plaintiff and defendants. The Court below on perusal of Ex.A2 plan stated that the drainage is also part and parcel of the house of D1 and it is not boundary of his house of southern side. No doubt, there is no drainage at present. According to the plaintiff, D1 occupied drainage portion and constructed new complex, but one way or other the plaintiff has failed to prove that the said drainage is in part and parcel of his house or house site and that it was being jointly used by both plaintiff and D1. The plaintiff has not taken any steps to prove that the said drainage is either part and parcel of his house or being jointly used by the plaintiff and D1. Therefore, the plaintiff failed to prove that D1 occupied certain extent and constructed compound wall. The Court below has answered all such issues and consequently dismissed the suit. The Court below has assigned detailed reasons in coming to the conclusion for dismissal of the suit. Therefore, I see no reasons to interfere with the findings of the lower Court. Therefore, the plaintiff failed to prove that D1 occupied certain extent and constructed compound wall. The Court below has answered all such issues and consequently dismissed the suit. The Court below has assigned detailed reasons in coming to the conclusion for dismissal of the suit. Therefore, I see no reasons to interfere with the findings of the lower Court. Accordingly, I hold that the judgment and decree passed by the Court below is sustainable either in law or on facts and as such the appellant is not entitled to seek such relief as prayed for.” 4. Aggrieved by these findings recorded by the trial Court and the first appellate Court, this second appeal is filed by the plaintiff under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’). As per the memorandum of appeal, the following substantial questions of law are mentioned: “i) Whether the judgment and decree of the Court below is not perverted, since the learned Judge not gave any finding on the pleadings and documents filed by the appellant/plaintiff? ii) Whether the action of the respondent/defendant in raising the compound wall more than the height indicated in the sanctioned plan affects the easement right of the plaintiff/appellant? iii) Whether the Court below is right in observing that the appellant failed to prove the easement right of free flow of air and light in view of the construction of compound wall contrary to Ex.A2 plan and appellant proved the existence of his house which is going to affect due to construction made by the respondent/defendant under Ex.B7 in 2003? Thus, the plaintiff proved his case from 1960 to 2003 i.e., more than statutory period under the Easementary Act.” 5. I have given my thoughtful consideration to the above substantial question of law extracted from the Memorandum of Appeal, none of these points involved any general question of law much less substantial question of law. However, learned counsel for the appellant has relied on the principles laid down in Malluru Mallappa (Dead) through Legal Representatives Vs. Kuruvanthappa and Others, (2020) 4 SCC 313 with regard to the scope of Order XLI Rule 31 C.P.C., and Sections 96 and 100 C.P.C. In paragraph No.18 of the said judgment, the Hon’ble Supreme Court held as under: “18. However, learned counsel for the appellant has relied on the principles laid down in Malluru Mallappa (Dead) through Legal Representatives Vs. Kuruvanthappa and Others, (2020) 4 SCC 313 with regard to the scope of Order XLI Rule 31 C.P.C., and Sections 96 and 100 C.P.C. In paragraph No.18 of the said judgment, the Hon’ble Supreme Court held as under: “18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate Court affirms the judgment of the trial Court, it is required to comply with the requirement of Order 41 Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate Court. No doubt, when the appellate Court agrees with the views of the trial Court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial Court. Expression of a general agreement with the reasons given by the trial Court would ordinarily suffice.” 6. Per contra, learned counsel for the respondents strenuously contends that there are no grounds to prefer the appeal, there is no substantial question of law involved and the second appeal is liable to be dismissed at the admission stage itself and relied on the principles laid down in Laxmidevamma and Others Vs. Ranganath and Others, 2015 (3) ALD 122. In this case, in a second appeal ignoring the concurrent findings of the trial Court and the first appellate Court, the High Court has reversed the findings on factual side wherein the Hon’ble Supreme Court has held that it is beyond the scope of Section 100 C.P.C. The Hon’ble Supreme Court has dealt with the scope of Section 100 C.P.C., in second appeal. In the reported decision, the concurrent findings of the first appellate Court and the trial Court were modified by the High Court on factual side and when the matter was carried to the Supreme Court, the judgment impugned was set aside. 7. Reverting back to the facts of the present case, the plaintiff has filed O.S.No.51 of 2005 for mandatory injunction against defendants 1 and 2. The 1st defendant is a private individual, whereas the 2nd defendant is the Town Municipality, Mahabubnagar. 7. Reverting back to the facts of the present case, the plaintiff has filed O.S.No.51 of 2005 for mandatory injunction against defendants 1 and 2. The 1st defendant is a private individual, whereas the 2nd defendant is the Town Municipality, Mahabubnagar. The said suit for mandatory injunction was dismissed by the trial Court with an observation that the plaintiff has failed to prove his case that the 1st defendant has encroached into part of his house and constructed a compound wall by covering the drainage area between their houses and thereby the plaintiff is deprived of enjoyment of easementary right of free flow of light and air and that on the southern side of his house, the windows are opened and thereby all the issues were answered against the plaintiff. The first appellate Court has confirmed the findings recorded by the trial Court. Both the Courts have rightly appreciated the oral and documentary evidence available on record. On a copious reading of the memorandum of appeal, Point Nos.9 to 11 (extracted in para supra) deal with substantial questions of law. But, none of these grounds deal with either general question of law or even substantial questions of law. A careful perusal of the judgments of the trial Court and First Appellate Court also disclose that there is no legal flaw, in these judgments and no substantial question of law is made out. 8. Section 100 of C.P.C., deals with the second appeal. The existence of a substantial question of law is the sign qua non for the exercise of the jurisdiction under the amended provisions of Section 100 C.P.C. The jurisdiction of the High Court is now confined to entertain only such appeals as involved substantial question of law specifically set out in the memorandum of appeal and formulated by the Court. (Thiagarajan Vs. Venugopalaswamy B. Koil, (2004) 5 SCC 762 and Dharmarajan Vs. Valliammal, (2008) 2 SCC 741 ). 9. Though the law is well settled that in the regular second appeal, the High Court can interfere with the concurrent findings of the Courts below, but it is only on the substantial question of law framed at the time of admission of appeal or reframed or substituted later at the time of arguments. 10. Viewed from any angle, no point of law is involved in the grounds of appeal much less any substantial question of law. 10. Viewed from any angle, no point of law is involved in the grounds of appeal much less any substantial question of law. When a query is posed by this Court, whether any question of law is involved, it is fairly conceded that only questioning the manner of appreciation of oral and documentary evidence by the trial Court against the defendants, the Second Appeal is filed. Considering the scope of Section 100 C.P.C., I am of the view that such concurrent findings on facts by the trial Court and the first appellate Court, based on the material available on record, are binding on the second appellate Court and normally such findings cannot be interfered or disturbed in the second appeal. Therefore, I find no material from the memorandum of second appeal and the grounds mentioned therein and no substantial question of law is made out. I do not find any irregularity in appreciation of law and in applying the settled principles to the facts of the case. In such circumstances, framing of substantial question of law is not required and the appeal has to be dismissed at the admission stage itself and only when the second appeal gets admitted or decided finally by allowing the same substantial question of law is required to be framed by the High Court. If the second appeal is dismissed at the stage of admission, then framing of substantial question of law is not required. (Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam, (2015) 16 SCC 540 . 11. Therefore, relying on the principles laid down in the above decisions and in the facts and circumstances of the case, I find that no substantial question of law involved in the Second Appeal. Further, a studied and careful examination of the judgments of the trial Court and the first appellate Court does not disclose any irregularity in the concurrent finding recorded leading to substantial questions of law. 12. In the result, the second appeal is dismissed at the admission stage itself. However, in the facts and circumstances of the case, there shall be no order as to costs. Miscellaneous Petitions, if any, pending in this second appeal shall stand closed.