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2023 DIGILAW 1173 (AP)

Baludula Chinna Edukondalu v. Komati Nagarjuna

2023-08-08

K.MANMADHA RAO

body2023
JUDGMENT 1. The present Second Appeal is preferred by the appellant aggrieved by the Decree and Judgment dtd. 10/4/2018 passed in A.S.No.26 of 2017 on the file of XVI Additional District and Sessions Judge, Nandigama Krishna District, confirming the decree and judgment dtd. 6/3/2017 passed in O.S No.135 of 2014 on the file of Principal Junior Civil Judge, Nandigama. 2. The appellant is the plaintiff and the respondent is the defendant in O.S.No.135 of 2014 on the file of Principal Junior Civil Judge, Nandigamai. 3. For convenience the parties are hereinafter referred to as arrayed before the XVI Additional District and Sessions Judge, Nandigama, Krishna District in A.S.No.26 of 2017. 4. Brief facts of the case are that the plaintiff is the absolute owner of the vacant site in an extent of Ac 0.05 cents out of Ac 8.50 cents in R.S.No.616/1 of Nandigama Village and Mandal, and he acquired the same under registered sale deed document No.2487/2004. Since the date of purchase he is in peaceful possession and enjoyment of the same without any interruption from anybody. The plaintiff resides in Vijayawada and even prior to the purchase of the plaint schedule property he used to reside in Vijayawada, but the defendant who is not having any right over the subject land, trying to occupy the same illegally. Hence the plaintiff filed suit in O.S No.135 of 2014 before the trial Court . 5. The defendant filed written statement denying the allegations made in the plaint. He further contended that the plaintiff is not the owner of the Ac 0.05 cents site and he is not in possession of the total extent of site as on the date of filing of the suit, the plaintiff sold away Ac 0.02 cents of site out of the subject property to the defendant under a registered sale deed dtd. 9/4/2007, as such the plaintiff is the owner and possessor of Ac 0.03 cents of land as on the date of filing of the suit. 9/4/2007, as such the plaintiff is the owner and possessor of Ac 0.03 cents of land as on the date of filing of the suit. Thereafter, both the parties agreed to exchange their plots orally due to good relation in between the parties, after exchange of plots, the defendant constructed a house in the year 2008 in the year 2008 in the site of Ac 0.02 cents on the southern side of the total extent of Ac 0.05 cents and the defendant is in possession on the northern side portion of the property thereafter the defendant settled Ac 0.02 cents of site in his wife"s favour under a settlement deed dtd. 23/11/2009 and since then she was in peaceful possession and enjoyment of the property. It is further stated that the plaintiff also constructed a house in the year 2011 in his extent of Ac.0.03 cents which was taken by him orally exchanged but the plaintiff suppressed the facts of construction made by both parties but filed the suit with false allegations. As such the suit is bad and not maintainable and hence prayed to dismiss the suit. 6. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is in possession and enjoyment of the plain schedule property as on the date of suit? 2. Whether the plaintiff is entitled for permanent injunction against the defendant as agreed for? 3. To what relief? 7. During course of trial, on behalf of the plaintiff, he himself was examined as PW.1 and Ex.A1 to Ex.A4 were marked and on behalf of the defendant, DWs.1 and 2 were examined and Ex.B1 to Ex.B5 were marked. Through the Advocate Commissioner Exs.C1 to C3 were marked. 8. After considering the oral and documentary evidence, the trial Court came to a conclusion that the plaintiff failed to make out a case for grant of permanent injunction as prayed for. Therefore, the suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal in A.S No.26 of 2017 before the XVI Additional District and Sessions Judge, Nandigama (for short "the first appellate Court") . After hearing the both sides, the first appellate Court has framed point for consideration as under: i) Whether the trial Court judgment in O.S No.135 of 2014 on the file of Principal Junior Civil Judge, Nandigama requires any interference by this Court or not? 9. After hearing the both sides, the first appellate Court has framed point for consideration as under: i) Whether the trial Court judgment in O.S No.135 of 2014 on the file of Principal Junior Civil Judge, Nandigama requires any interference by this Court or not? 9. Basing on the above circumstances the first appellate Court has dismissed the Appeal suit with costs by confirming the decree and judgment in O.S.No.135 of 2014. Challenging the same, the present second appeal came to be filed. 10. Heard Sri P. Durga Prasad, learned counsel appearing for the appellant and Sri P. Prahakar Rao, learned counsel appearing for the respondent. 11. This Second Appeal is filed under Sec. 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. 12. There cannot be any dispute that, under the amended Sec. 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. 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. 13. According to Sec. 100 CPC, a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. 13. According to Sec. 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 v Gurdial Singh Mann,2001 (4 SCC 262. 14. Keeping in mind the scope of Sec. 100 CPC, I would like to decide the present appeal at the stage of admission. 15. The main contention before the trial Court in the written statement is that the plaintiff sold away Ac 0.02 cents of site out of subject property to the defendant under a registered sale deed dtd. 9/4/2007 and the said site situated on the northern side of Ac 0.03 cents of site of the plaintiff. The plaintiff is only having Ac 0.03 cents of site on the spot and the plaintiff suppressed all these facts filed the plaint as if he is the owner of Ac 0.05 cents. Thereafter the plaintiff requested the defendant for exchanging the plots in between the defendant and that Ac 0.03 cents of site which was kept by the defendant for his purpose be adjusted on the northern side of the plaint schedule site i.e., Ac.0.02 cents of site from his own site of Ac.0.03 cents on the southern side of total extent for which both parties agreed and changed their plots orally. 16. On a perusal of the material on record, it is observed that there is no dispute that initially the plaintiff purchased the entire subject property. 16. On a perusal of the material on record, it is observed that there is no dispute that initially the plaintiff purchased the entire subject property. As per the plaint the entire plaint schedule property of Ac 0.05 cents is vacant land but when coming to evidence of PW.1, he deposed that when the trial Court granted ad interim injunction on 22/12/2014 the defendant and his men, agents entered into the southern side of the suit schedule property and stated repairing the old ruined structure, but it is not the contention of the PW.1 that the defendant newly constructed house on the southern side portion. The case of the defendant is that after exchange of the properties, both parties constructed the houses in their respective sites, but the plaintiff shown the plaint schedule property in the plaint as vacant site and it is also elicited in his cross examination that there is a dilapidated house in the plaint schedule property. 17. Learned counsel for the appellant mainly contended that there is no evidence available on record for exchange of property and if there is no exchange of property, the question of execution of sale deed does not arise. He further submits that the Courts below ought to have seen that the suit filed by the plaintiff seeking for injunction therefore both the courts ought to have taken into consideration that as on the date of filing of the suit who are in possession for better adjudication of the matter. When the defendant questioning the title of the plaintiff in respect of Ac 0.02 cents on Southern side portion of property it is for the plaintiff to seek declaration but not mere injunction. If the defendant questioned the title of plaintiff it is the obligation on the part of the defendant to file a separate suit for declaration. Therefore the reasons assigned by the Courts below are neither sustainable nor tenable in the eye of law. 18. 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. 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. Moreover, the defendant to prove the exchange and construction of the houses in the plaint schedule property. Further, in this case, an Advocate Commissioner was also appointed and in his evidence clearly falsifies the contention of the plaintiff. 19. 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. Though the respondent has claimed that there is exchange and construction of the houses, he has not produced any material to that extent. 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. 20. For the above-mentioned reasons, I do not find any reason to interfere with the well-considered judgments of the Courts below. 21. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.