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2023 DIGILAW 1005 (AP)

Thatiparthi Subba Rao v. Yadala Dandemma

2023-07-06

K.MANMADHA RAO

body2023
JUDGMENT : K. MANMADHA RAO, J. 1. The present Second Appeal is preferred by the appellant aggrieved by the Decree and Judgment dated 14.07.2022 passed in A.S. No. 5 of 2016 on the file of XII Additional District Judge, Pithapuram, confirming the decree and judgment dated 20.11.2015 passed in O.S No. 196 of 2008 on the file of Principal Junior Civil Judge, Tuni. 2. Heard Sri T.N.M. Ranga Rao, learned counsel appearing for the appellant and Sri G.Venkata Subba Raju, learned counsel appearing for the respondents. 3. The appellant is the plaintiff and the respondents are the defendants in O.S. No. 196 of 2008 on the file of Principal Junior Civil Judge, Tuni (for short “the trial Court”). 4. For convenience and clarity, the parties are hereinafter referred to as arrayed in the suit. 5. The plaintiff is the absolute owner of the plaint schedule property, which is devolved upon him on the death of his father and thus he is in peaceful possession and enjoyment of the same. Pattadar passbook and title deeds were also issued to him by the revenue authorities. The No. 3 Adangal copy was also issued in favour of him. The 1st defendant is the cousin sister and the defendants No. 2 to 4 are cousin brothers of him. The defendants No. 5 and 6 are henchmen of the defendants No. 1 to 4. As the defendants and their henchmen are tried to remove the soil of seed bed from the plaint schedule property, neighboring ryots rushed to there and resisted the illegal activity of the defendants, due to which, the defendants and their men flew away proclaiming that they shall trespass and occupy the plaint schedule property illegally. Therefore the plaintiff filed suit for grant of permanent injunction. 6. The defendants No. 5 and 6 were set ex-parte. The 1st defendant filed written statement and the same was adopted by the defendants No. 2 to 4 denying all the averments made in the plaint. The father of 1st defendant married one Gangamma and there were disputes between the parents of this defendant. It is stated that on 19.05.2015 the plaint schedule property was given to 1st defendant on registered settlement deed. Since then, he has been in possession and enjoyment and the Government issued Pattadar passbooks etc., in favour of 1st defendant. The father of 1st defendant married one Gangamma and there were disputes between the parents of this defendant. It is stated that on 19.05.2015 the plaint schedule property was given to 1st defendant on registered settlement deed. Since then, he has been in possession and enjoyment and the Government issued Pattadar passbooks etc., in favour of 1st defendant. It is also stated that even knowing the above fact, the plaintiff has filed the false suit. 7. Basing on the pleadings, the trial Court famed the following issues: 1. Whether the plaintiff is in possession of the suit schedule properties by the date of filing the suit? 2. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? 3. To what relief? 8. During the course of trial, on behalf of the plaintiff, he himself examined as PW.1 and got examined one Villager as PW.2 and Ex.A1 to Ex.A4 were marked. On behalf of the defendants, DW.1 to DW.4 were examined and Ex.B1 to Ex.B3 were marked. 9. The trial Court upon hearing the arguments of both the counsels, and on consideration of entire oral and documentary evidence, dismissed the suit. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal, which ended in dismissal confirming the judgment and decree of the trial Court. Hence, the second appeal came to be filed. 10. This Second Appeal is filed under Section 100 CPC on the ground that the judgment and decree of both courts below is totally basing on the presumption, surmises and conjectures, ignoring the material facts available on record and interpretation of law. 11. There cannot be any dispute that, under the amended Section 100 C.P.C. a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, or sound worth, important, considerable, fairly arguable, in contradiction with – technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, or sound worth, important, considerable, fairly arguable, in contradiction with – technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding- are some of the questions, which involve substantial questions of law. 12. According to Section 100 CPC, a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure introduced such an embargo for such definite objectives and since the Courts are required to further probe on that score and the Courts while detailing out, but the fact remains in second appeal finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. The High Court can interfere with such finding recorded by the trial Court though not on law in view of judgment reported in Kulavant Kaur vs. Gurdial Singh Mann, 2001 (4) SCC 262 . 13. Keeping in mind the scope of Section 100 CPC, I would like to decide the present appeal at the stage of admission. 14. The main contention before the trial Court in the written statement is that when the defendants were in joint family the plaint schedule property was given to 1st defendant with a limited right to enjoy the property and the same was given on registered settlement deed. Since then the 1st defendant has been in possession and enjoyment and the Government has also issued pattadar passbook etc. in his favour. 15. Since then the 1st defendant has been in possession and enjoyment and the Government has also issued pattadar passbook etc. in his favour. 15. On a perusal of the material on record, it is clear that, the plaint schedule property is joint family and ancestral property of 1st respondent’s father and appellant’s father and their brothers. On the one hand, the appellant contended that the plaint schedule property fell to him. But on the other hand, the 1st respondent contended that all the brothers gave the plaint schedule property to the mother of 1st respondent for life time enjoyment and later respondents No. 2 to 4 who are brothers of 1st respondent settled the plaint schedule property in favour of 1st respondent under registered settlement deed. This Court observed that there was no positive evidence or substantial evidence adduced by both parties to decide to whom the plaint schedule property succeeds. 16. This Court further observed that the suit was filed for grant of permanent injunction and the appellant/plaintiff has to prove that he is in possession and enjoyment of the property on the date of filing of the suit. But, on verification of the record, the documents filed by the appellant/plaintiff did not disclose that he was in lawful possession and enjoyment of plaint schedule property on the date of filing of suit. Admittedly, a person, who can seek relief of permanent injunction, it is necessary to prove that plaintiff, was in lawful possession of the plaint schedule property and the defendant tried to interfere or disturb such lawful possession. Further, in this case, an Advocate Commissioner was also appointed and filed his report stating that the plaint schedule property is situated in S.No. 214/6, 214/7 and 214/8 and not in S.No. 216/2, where the appellant/plaintiff claiming possession of plaint schedule property in S.No. 216/2. 17. Viewed from any angle, this Court observed that the appellant/plaintiff failed to establish his case and both Courts have rightly held that the appellant failed to establish his possession. Though the trial Court has held that the appellant is not entitled to the equitable relief, this Court need not delve into the said aspect. Even assuming that the appellant alone is entitled to maintain the suit, as he failed to establish his plea that he is in possession of the property, he is not entitled to the relief of injunction. Even assuming that the appellant alone is entitled to maintain the suit, as he failed to establish his plea that he is in possession of the property, he is not entitled to the relief of injunction. Though the respondent has claimed ownership and title, he has not produced the sale deed. Even if the respondent has no title over the property, his possession is enough to non-suit the appellant. Assuming that the appellant is the absolute/true owner of the property, as he is not in possession of the same, he is not entitled to the grant of injunction. The appellant, if so advised, can only file a separate suit for declaration of title and recovery of possession of the property. 18. For the above-mentioned reasons, I do not find any reason to interfere with the well-considered judgments of the Courts below. 19. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. 20. As a sequel, all the pending miscellaneous applications shall stand closed.