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2025 DIGILAW 1105 (TS)

Hyder Ali Khan v. Chinthakayala Anjaneyulu DIED)

2025-09-25

RENUKA YARA

body2025
JUDGMENT : RENUKA YARA, J. Heard Sri G. Ramakrishna, learned counsel for the appellant and Sri M. Govind Reddy, learned counsel for respondent Nos.2 to 6, on admission. Perused the record. 2. This Second Appeal is preferred challenging the judgment and decree dated 06.06.2024 in A.S.No.50 of 2023 on the file of the Principal District Judge at Mahabubnagar (‘first appellate Court’), confirming the judgment and decree dated 28.08.2023 in O.S.No.62 of 2013 on the file of the Principal Junior Civil Judge at Jedcherla (‘trial Court’), wherein the suit files seeking perpetual injunction by the appellant/plaintiff against the respondents/defendants has been dismissed. I.A.No.1 of 2025 in the present appeal is preferred to condone delay of 234 days in filing of the Second Appeal. 3. The brief facts of the case are that the appellant herein is claiming to be absolute owner and possessor of land in Sy.Nos.180/EE2 and 180/E/E total admeasuring Ac.1-14 guntas situated at Tatikonda Village, Bhoothpur Mandal, Mahabubnagar District (hereinafter referred to as ‘suit schedule property’). The appellant purchased the suit schedule property under registered sale deed document bearing No.2841/2012 dated 18.04.2012 from original owners. Thereafter, the suit schedule property was mutated in the name of the appellant and he was issued pattedar passbook and title deed. Ever since, he is in peaceful possession by cultivating the said land. It is the case of the appellant that one T. Dasaratha Ramulu was original owner and pattedar of land in Sy.No.180 with an extent of Ac.12-21 guntas. Out of said land, Ac.4-00 guntas was sold in favour of one Bhuthanna. The said Bhuthanna had two sons and one daughter and he registered the said land to an extent of Ac.4-00 guntas in favour of his two sons and son-in-law (respondent No.1) through registered sale deed document bearing No.1305/1981 dated 22.04.1981 and delivered possession. Subsequently, there was settlement between the sons and son- in-law (respondent No.1) of Bhuthanna, wherein Bhuthanna gave land in Sy.No.195 to his daughter and son-in-law (respondent No.1) and the entire land in Sy.No.180 was given to his two sons i.e., Ponemoni Venkataiah and Ponemoni Anjaneyulu i.e., Ac.2-00 guntas each. Accordingly, their names were mutated in the revenue records. The said Ponemoni Venkataiah and Ponemoni Anjaneyulu sold land to an extent of Ac.0-37 guntas each to the appellant for valid sale consideration under registered sale deed. Accordingly, their names were mutated in the revenue records. The said Ponemoni Venkataiah and Ponemoni Anjaneyulu sold land to an extent of Ac.0-37 guntas each to the appellant for valid sale consideration under registered sale deed. At this juncture, the respondents, who are no way concerned with the land in Sy.No.180, have interfered with peaceful possession of the appellant leading to filing of the suit. 4. Respondent No.1 opposed the suit claim stating that the suit schedule property was purchased by Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1 jointly under registered sale deed document bearing No.1305/1981 and the Ac.4-00 guntas of land is in their joint possession. Respondent No.1 has 1/3 rd share in Ac.4-00 guntas of land in Sy.No.180. The said land was not partitioned by metes and bounds between the owners i.e., Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1. The identity of land to the extent of Ac.1-14 guntas out of Ac.4-00 guntas is not identifiable and in case the suit is decreed there is every possibility of dispossession of respondent No.1 and therefore, sought for dismissal of the suit. 5. The appellant got himself examined as P.W.1 and got examined Ponemoni Anjaneyulu as P.W.2. Exs.A-1 to A-18 were got marked to prove the ownership and possession. Respondents got examined D.Ws.1 to 3 and got marked Exs.B-1 and B-2. 6. Upon examining the evidence adduced on record, the trial Court came to the conclusion that under Ex.B-1 land in Sy.No.180 to an extent of Ac.4-00 guntas was purchased jointly by Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1 and as against this evidence there is no evidence about alleged settlement of land in Sy.No.195 in favour of respondent No.1 and his wife for the purpose of allotting land to an extent of Ac.4-00 guntas in Sy.No.180 to Ponemoni Venkataiah and Ponemoni Anjaneyulu by Bhuthana. There is no such document filed before the trial Court. In the absence of proof of settlement between the family members i.e., sons and son-in-law (respondent No.1) of Bhuthanna, the trial Court came to the conclusion that the suit schedule property is joint property purchased jointly by Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1. Further, there is no proof of partition of said land between the joint purchasers. In the absence of proof of settlement between the family members i.e., sons and son-in-law (respondent No.1) of Bhuthanna, the trial Court came to the conclusion that the suit schedule property is joint property purchased jointly by Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1. Further, there is no proof of partition of said land between the joint purchasers. Therefore, it is held that the land of the appellant cannot be identified until partition takes place by metes and bounds and therefore, the appellant ought to have filed a suit for partition. Further, it is held that when identification of land purchased by the appellant is not done, no injunction can be granted against co-owners. On the basis of the aforementioned findings, the trial Court dismissed the suit. 7. Aggrieved by the judgment of the trial Court, appeal is preferred before the first appellate Court in A.S.No.50 of 2023. The first appellate Court upon hearing the both sides and perusing the evidence adduced before the trial Court came to the same conclusion i.e., the suit schedule property is joint property of said Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1 and the said land was not partitioned by metes and bounds. Therefore, the first appellate Court also held that the appellant ought to have filed suit for partition and that the injunction cannot be granted against co-owners. Aggrieved by the same, the present Second Appeal is preferred raising the following substantial questions of law: 1. Is it a condition precedent for the plaintiff to establish title in a suit for perpetual injunction? 2. Whether revenue records, which are not under challenge, can be said to conclusive proof of ownership and possession and also have got any presumptive and evidentiary value? 3. Whether settled possession without establishing title enables the plaintiff to obtain a decree for perpetual injunction? 4. Whether a person who is in lawful possession and enjoyment of the property can seek for perpetual injunction even against true owner? 5. Whether the purchaser of undivided share of a coparcener with established possession can be said to be legal or illegal? 8. The Hon’ble Supreme Court of India in Hemavathi v. V. Hombegowda , [ (2025) 5 SCC 442 ] held that High Court can entertain a regular second appeal purely on a ‘substantial’ question of law not even a question of law or a question of fact. 8. The Hon’ble Supreme Court of India in Hemavathi v. V. Hombegowda , [ (2025) 5 SCC 442 ] held that High Court can entertain a regular second appeal purely on a ‘substantial’ question of law not even a question of law or a question of fact. Further, as per the judgment of this Court in Syed Abdul Quddus v. K. Vijaya Laxmi , [2024 SCC OnLine TS 186] , the Apex Court in Gurdev Kaur v. Kaki, (2007) 1 SCC 546 held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 CPC is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration. 9. When the substantial questions of law raised in the present Second Appeal are perused, it is seen that the substantial question of law No.1 is whether it is condition precedent for the plaintiff to establish title in a suit for perpetual injunction. In the instant case, there is no issue about the title of the appellant. The only issue is shares of joint owners out of the total extent of Ac.4-00 guntas in Sy.No.180 are not carved, therefore, the suit schedule property sold by two co-owners to an extent of Ac.0-37 guntas each is not identifiable. There has to be partition of Ac.4-00 guntas of land between Ponemoni Venkataiah, Ponemoni Anjaneyulu and legal heirs of respondent No.1 (respondent Nos.2 to 6). Once the share of Ponemoni Venkataiah and Ponemoni Anjaneyulu is identified then out of the said extent of land, Ac.0-37 guntas each has to be given to the appellant. When this kind of division by metes and bounds is not done, the appellant cannot say he is in possession of the unidentified suit schedule property to an extent of Ac.1-14 guntas. To sum up, title is not in dispute rather possession is in dispute. 10. Substantial question of law No.2 is about whether the revenue records when unchallenged can be conclusive proof of ownership and possession and whether the said documents have presumptive and evidentiary value. There is no doubt or dispute about entries in revenue records and their evidentiary value in the present matter. 11. Substantial question of law No.3 is whether settled possession without title enables the appellant to obtain decree of perpetual injunction. There is no doubt or dispute about entries in revenue records and their evidentiary value in the present matter. 11. Substantial question of law No.3 is whether settled possession without title enables the appellant to obtain decree of perpetual injunction. The settled possession is also one of the basis for grant of perpetual injunction. However, in the instant case, the appellant failed to prove his settled possession in the undivided property purchased under Ex.B-1 by Ponemoni Venkataiah, Ponemoni Anjaneyulu and respondent No.1. 12. Substantial question of law No.4 is about whether a person who is in lawful possession can seek perpetual injunction against true owner. This question is not relevant in the present case as perpetual injunction is sought against the co-owner and not true owner. 13. The last and 5 th substantial question of law is whether undivided share of a coparcener with established possession can be said to be legal or illegal. On this issue, it is to be noted that purchase of undivided share of coparcenary property is not illegal. However, injunction cannot be granted against a co-owner. 14. In view of the scrutiny of the substantial questions of law raised by appellant, it is seen that there is no substantial question of law which needs consideration by this Court under Section 100 of the C.P.C. in the face of concurrent findings about the facts of the case as well as the findings given about the appellant seeking a wrong remedy of perpetual injunction, when he ought to have sought for partition and allotment of his land in the property purchased jointly under Ex.B-1. 15. In view of the foregoing discussion, this Court is of the considered opinion that there are no substantial questions of law which are to be considered and the Second Appeal lacks merits. 16. I.A.No.1 of 2025 is filed seeking to condone delay of 234 days in filing the present Second Appeal on the ground of ill-health of the appellant and his wife, who suffered with Thyroid and Hypertension. Further reason for delay stated is that there is no interference by the respondents till 1 st week of June, 2025 and from 1 st week of June, 2025, the respondents started to interfere and in order to protect the suit schedule property, the appellant filed the present Second Appeal. 17. Further reason for delay stated is that there is no interference by the respondents till 1 st week of June, 2025 and from 1 st week of June, 2025, the respondents started to interfere and in order to protect the suit schedule property, the appellant filed the present Second Appeal. 17. The respondents opposed the I.A. to condone delay denying the averments of the application in total including the ill-health of the appellant and his wife and also the other ground i.e., the interference from the respondents. 18. The ill-health of the appellant, if any, does not seem to be so disabling such as to prevent the appellant from preferring the Second Appeal. The illness of the appellant’s wife i.e., Thyroid and Hypertension are common which do not prevent any person from doing day to day activities. It is apparent that the appellant did not intend to prefer the Second Appeal until there was alleged interference by the respondents. Waiting for the respondents to interfere without preferring the Second Appeal in time only shows negligence and lack of due diligence, as such there are no grounds to condone the delay of 234 days in filing the present Second Appeal and the application is liable to be dismissed. 19. In the result, the I.A.No.1 of 2025 filed seeking to condone delay of 234 days is dismissed and the Second Appeal is also dismissed at the stage of admission confirming the judgment and decree dated 06.06.2024 in A.S.No.50 of 2023 on the file of the first appellate Court. However, liberty is granted to the appellant to pursue other remedies available to him in accordance with law. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.