Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 1319 (TS)

A. Vijaya Kumari v. A. Narahari Rao

2025-10-28

RENUKA YARA

body2025
JUDGMENT : RENUKA YARA, J. 1. Heard Sri A. Venkatesh, learned Senior Counsel representing Sri Sriram Polali, learned counsel for the appellant on admission. Perused the entire record. 2. This Second Appeal is preferred by the appellant/appellant/plaintiff aggrieved by the common judgment and decree dated 02.04.2025 in A.S.No.173 of 2022 (Old A.S.No.02 of 2019) and I.A.No.1284 of 2023 and I.A.No.1370 of 2024 and I.A.No.1285 of 2023 on the file of the learned I Additional District Judge, Medchal-Malkajgiri District at Kushaiguda, (‘First Appellate Court’), wherein the appeal was dismissed confirming judgment and decree dated 26.11.2018 in O.S.No.695 of 2012 on the file of the Principal Senior Civil Judge at L.B. Nagar, Ranga Reddy District, (‘Trial Court’), wherein suit filed for perpetual injunction against the respondents/respondents/ defendants, has been dismissed. 3. The brief facts of the case are that the appellant filed suit for perpetual injunction against the respondents claiming to be absolute owner and possessor of the land admeasuring 3240 square yards out of 4000 square yards in Sy.No.105 (part) situated at Medipally Village, Ghatkesar Mandal, Ranga Reddy District (hereinafter referred to as ‘suit schedule property’) under registered sale deed document bearing No.11913/2003, dated 30.03.2003 marked under Ex.A-1. The registered sale deed was executed by General Power of Attorney (‘GPA’) holder A. Venkateshwar Rao representing the owners G. Yadaiah and K. Bikshapathy. The said G. Yadaiah and K. Bikshapathy have purchased suit schedule property from one Meer Ahmed Khan through his GPA holder Mohd. Yaseen through registered document No.2669/1982 dated 25.08.1982 under Ex.A-3. The said G. Yadaiah and K. Bikshapathy executed GPA in favour of A. Venkateshwar Rao under GPA document bearing No.25/1983, dated 28.02.1983. Further, the case of the appellant is that on 18.04.2011, the respondents have illegally dispossessed the appellant from 760 square yards of land out of 4000 square yards. Further, illegal attempts have been made by the respondents on 31.05.2011 to occupy the suit schedule property. In the said context, the appellant filed suit in O.S.No.280 of 2011 on the file of the III Additional Junior Civil Judge, Ranga Reddy District, and obtained status quo order dated 23.12.2011 in I.A.No.620 of 2011 in O.S.No.280 of 2011. During the operation of the said status quo order on 14.02.2012 violating the said orders, the respondents have illegally occupied the suit schedule property. During the operation of the said status quo order on 14.02.2012 violating the said orders, the respondents have illegally occupied the suit schedule property. In the said circumstances, the appellant has withdrawn the said O.S.No.280 of 2011 to file a comprehensive suit by filing I.A.No.148 of 2012. The said I.A. was allowed by the said Court and copy of the said order is marked as Ex.A-4. Taking advantage of withdrawal of the said suit, the respondents started interfering with the suit schedule property. To curtail the illegal acts of the respondents, the appellant approached police and when there is no action on the part of the police, the present suit in O.S.No.695 of 2012 was filed seeking perpetual injunction. 4. Per contra, the case of respondent Nos.1 and 2 is that respondent No.1 is owner and possessor of plot No.3 and respondent No.2 is owner and possessor of plot Nos.4, 5 and 6 admeasuring 1100 square yards each i.e., respondent Nos.1 and 2 are owners and possessors of total land admeasuring 4400 square yards. The link documents of the vendors of respondent Nos.1 and 2 are document bearing No.200 of 1983, dated 14.01.1983/Ex.B-3, document bearing No.199 of 1983, dated 17.01.1983/Ex.B-4, document bearing No.700 of 1983, dated 04.02.1983/Ex.B-6 and document bearing No.699 of 1983, dated 04.02.1983/Ex.B-8. Subsequently, respondent Nos.1 and 2 by virtue of their registered document bearing No.2596/2003, dated 03.03.2003/Ex.B-5, document bearing No.2492/2003, dated 27.02.2003/Ex.B-7 and document bearing No.2493/2003, dated 27.02.2003/Ex.B-9 obtained ownership over the suit schedule property. Ever since, they are in possession of the property and have constructed a rice mill in the name and style of M/s. Anand Para-boiled Rice Mill Private Limited. Further, the respondents have referred to lacunae in the title of the appellant alleging that she is claiming title to the suit schedule property by virtue of sale deed executed by A. Venkateshwar Rao, who is none other than her husband. The said A. Venkateshwar Rao has executed sale deed dated 30.03.2003 Ex.A-1 on the strength of GPA dated 28.02.1983/Ex.A-2. It is pointed that GPA was executed in the year 1983 and the sale deed was executed in the year 2003 after lapse of nearly 20 years that too after the death of the principals G. Yadaiah and K. Bikshapathy. The said A. Venkateshwar Rao has executed sale deed dated 30.03.2003 Ex.A-1 on the strength of GPA dated 28.02.1983/Ex.A-2. It is pointed that GPA was executed in the year 1983 and the sale deed was executed in the year 2003 after lapse of nearly 20 years that too after the death of the principals G. Yadaiah and K. Bikshapathy. Since the principals have died, a question was raised as to whether the sale deed executed by the GPA holder after the death of the principals in favour of the appellant under Ex.A-1 is valid. Respondent Nos.1 and 2 claim that GPA dated 28.02.1983/Ex.A-2 is a sham document and therefore, valid title did not transfer to the appellant. 5. During the trial, the appellant got herself examined as P.W.1. and got marked Exs.A-1 to A-5. The respondents got examined respondent No.1 as D.W.1 and got marked Exs.B-1 to B-28. Further, D.W.2, who was tenant of respondent Nos.1 and 2 running business in the suit schedule property, was examined. 6. Upon considering the oral and the documentary evidence, the trial Court dismissed the suit holding that there are questions with respect to title of appellant and therefore, her possession over the suit schedule property may not be lawful. Further, it is held that the appellant herself as P.W.1 has admitted that respondent No.3 is in occupation of the suit schedule property. It is also admitted by the appellant that no document is filed to show that she is in possession of the suit schedule property and cultivating it. The evidence of D.W.2 is that he is tenant of respondent Nos.1 and 2 over the land in suit schedule property to an extent of 4400 square yards and he runs a rice mill in the name and style of M/s. Anand Para-boiled Rice Mill Private Limited by virtue of lease deed document 05.01.2010. This evidence of D.W.2 remained un-impeached. On account of question with regard to title of appellant and clear admission about not being in possession coupled with evidence of D.W.2, who claims to be in occupation of the suit schedule property as a tenant of the respondent Nos.1 and 2, led to disposal of the suit. 7. Aggrieved by the same, the appellant carried the matter in first appeal vide A.S.No.173 of 2022 before the First Appellate Court. 7. Aggrieved by the same, the appellant carried the matter in first appeal vide A.S.No.173 of 2022 before the First Appellate Court. Learned First Appellate Court also dismissed the appeal together with I.A.No.1284 of 2023 and I.A.No.1370 of 2024 filed under Order XLI Rule 27 read with Section 151 of C.P.C. to receive certain documents as additional evidence and I.A.No.1285 of 2023 filed under Order XXVI Rule 9 read with Section 151 of the C.P.C to appoint an Advocate Commissioner to measure the entire extent of 9781 square yards with the help of surveyor. Aggrieved by the dismissal of the suit and the first appeal, the present Second Appeal is preferred raising the following substantial questions of law: “1. Whether the Trial Court erred in framing Issue No.1 insofar as the plaintiff’s right and title over the suit schedule property was made as the issue, when the suit was merely for injunction? 2. Whether the Trial Court, in a suit for injunction, where dispute is raised by the defendants regarding plaintiff’s title which involves complicated questions of fact and law, could have gone ahead in adjudicating the suit and determining the title over the suit schedule property instead of relegating the parties to the appropriate remedy by either permitting the plaintiff the Plaintiff to file a fresh suit or to amend the plaint for declaration of title or recovery of possession, in light of the law laid down in Anathula Sudhakar v. P. Buchi Reddy , (2008) 4 SCC 594 and whether the Appellate Court was right in confirming the finding on title over suit schedule property by the Trial Court? 3. Whether the Trial Court erred in doubting the Ex.A-1 sale deed as created document on the ground that it was executed by a GPA holder and the Vendors signature is absent in it, when the signature of the GPA holder on behalf of the Principal is sufficient to execute a document under Section 32 of the Registration Act, 1908? 4. Whether the Trial Court erred in doubting the Ex.A-1 sale deed as created document on the ground that it was executed by a GPA holder and the Vendors signature is absent in it, when the signature of the GPA holder on behalf of the Principal is sufficient to execute a document under Section 32 of the Registration Act, 1908? 4. Whether the First Appellate Court having held that it is not going into the validity of the Ex.A-2 GPA in favour of A. Venkateshwar Rao and having not expressed any opinion on the validity of Ex.A-1sale deed, could ultimately come to a completely contradictory conclusion that it concurs with the finding that Trial Court that the purchase of the suit schedule property by the Plaintiff is doubtful, without giving any independent reasons for the same? 5. Whether the Trial Court’s judgment was perverse in the manner in which following findings were given without there being any evidence for the same: a. a finding was given that the subsistence of the registered General Power of Attorney (Ex.A-2) issued by the vendors of the Plaintiff to Mr. A. Venkateshwar Rao is doubtful, when that is not even the case set up by the Defendant in its written statement of the General Power of Attorney and no evidence was there on record on disprove the subsistence of the General Power of Attorney? b. a finding was given that, Yadaiah and Biskhapati, the Principals of the General Power of Attorney, had died prior to the execution of the sale deed (Ex.A-1) solely based on presumptions and when that was not the case set up by the Defendant in the written statement and there was no evidence whatsoever to come to that conclusion? 6. (a) Whether the Trial Court’s conclusion that purchase 4000 square yards by the Plaintiff is doubtful on the sole basis that the Defendants have proved purchase of 4400 square yards is perverse for completely ignoring the evidence on record i.e., the boundaries mentioned in the sale deeds/gift deeds (Ex.B-3 to B-9) filed by the Defendants in respect of their 4400 square yards and the Plaintiff’s sale deed in respect of her 4000 square yards (Ex.A-1) and comparing them to ascertain whether they refer to the same portion of land or not? (b) Whether the First Appellate Court’s findings that the boundaries mentioned in the suit schedule property do not reflect the correct position on the ground and that the suit schedule property forms part of the Defendant’s property are completely perverse since they are based on presumptions, without any evidence on record and by ignoring the available evidence in the form of the obvious difference between the boundaries of the suit schedule property claimed by the Plaintiff (Ex.A-1) and the boundaries of the property claimed by the Defendants (Ex.B-3 to B-9)? 7. Whether the First Appellate Court could have rejected the Plaintiff’s application for appointment of Advocate Commissioner on the ground of inappropriateness of the relief claimed in the suit, which is wholly irrelevant to determine the question of allowing the application?” 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. Learned counsel for the appellant referred to the judgment of the Hon’ble Supreme Court of India in the case of Ishwar Dass Jain v. Sohan Lal , (2000) 1 SCC 434 , wherein it is held as under: “10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. 11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. 11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi v. Sharad Chandra, 1988 Supp SCC 710 while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M. Sharma, J. (as he then was) observed that: (SCC pp. 712-713, para 5) “The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case.” In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as “owner” of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh [ (1992) 1 SCC 647 ] with reference to a second appeal of 1978 disposed of on 5-4-1991, Venkatachaliah, J. (as he then was) held: (SCC p. 652, para 10) “… where the findings by the court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.” Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar [1995 Supp (4) SCC 534] it was held that where certain vital documents for deciding the question of possession were ignored — such as a compromise, an order of the Revenue Court — reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari [ (1998) 2 SCC 295 ] arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15-1-1996. 12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh [ (1992) 1 SCC 143 ] it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed of on 24-9-1985.” 10. Learned counsel for the appellant, in addition to the substantial questions of law raised in the grounds of appeal filed along with the Second Appeal, raised question about the findings of the Trial Court about the Principals G. Yadaiah and K. Bikshapathy not signing the sale deed under Ex.A-1 and the same being not necessary under Section 88 of the Indian Contract Act, 1872. Further, a question is raised as to whether the filing of second suit is barred with the same prayer having withdrawn the first suit when there is threat of dispossession. It is also urged that when the suit is filed for perpetual injunction, the trial Court ought not to have examined the title. Lastly, it is also urged that whether the First Appellate Court is justified in dismissing the I.As. filed under Order XLI Rule 27 read with Section 151 of C.P.C and Order XXVI Rule 9 read with Section 151 of the C.P.C. 11. In the backdrop of the guidelines followed for admission of the Second Appeal under Section 100 of the C.P.C. and the legal ratio laid down by the Hon’ble Supreme Court of India in the case of Ishwar Dass Jain (cited supra), substantial questions of law raised by the appellant are to be considered. In the backdrop of the guidelines followed for admission of the Second Appeal under Section 100 of the C.P.C. and the legal ratio laid down by the Hon’ble Supreme Court of India in the case of Ishwar Dass Jain (cited supra), substantial questions of law raised by the appellant are to be considered. 12. Coming to the 1 st and 2 nd substantial questions of law, it is about whether the right and title of the appellant over the suit schedule property could have been major issue in a suit for injunction simplicitor. In this regard, it is to be noted that the appellant claimed the suit schedule property to be agricultural land. Whenever the subject property is immovable property which is agricultural land, that has no structures, proof of possession becomes difficult. In said context, incidental enquiry is made into the title of the plaintiff/appellant to ascertain the genuineness of title on the basis of principle that possession follows title. When the appellant in the present Second Appeal claims that the suit schedule property is open agricultural land in which cultivation is done, no fault can be found on the part of the Trial Court for cursorily examining the title. Further, when the appellant filed suit and the same is contested by respondent Nos.1 and 2 challenging the title by filing supporting documents, irrespective of the fact that title is not a major issue, the pleadings and documents have to be discussed. In the instant case too, the Trial Court merely perused the contents of the documents under Exs.A-1 to A-4 and Exs.B-3 to B-8 to recount the version of the rival parties. Ultimately, it is the oral evidence of D.W.2, who was tenant under lease deed executed by respondent Nos.1 and 2 and was running para-boiled rice mill in suit schedule property, clinched the matter in the favour of respondents and against the appellant. The documentary evidence marked under B-series coupled with oral evidence of D.W.2 have established the fact that appellant was not in possession of the suit schedule property and that the suit schedule property is not open land, but consists of structures i.e., rice mill and other structures. Further, the tenant of respondent Nos.1 and 2 was in occupation. The documentary evidence marked under B-series coupled with oral evidence of D.W.2 have established the fact that appellant was not in possession of the suit schedule property and that the suit schedule property is not open land, but consists of structures i.e., rice mill and other structures. Further, the tenant of respondent Nos.1 and 2 was in occupation. Thus, it was concluded by the Trial Court that the appellant was not in possession of the suit schedule property as on the date of filing of the suit and the said conclusion led to dismissal of the suit for perpetual injunction. 13. The 3 rd , 4 th, 5 th and 6 th substantial questions of law need not be examined as the suit is not filed seeking declaration and any cursory observation made by the Trial Court are immaterial when respondent Nos.1 and 2 have managed to clinchingly establish their possession over the suit schedule property. 14. Lastly, coming to the 7 th substantial question of law, the First Appellate Court has dismissed I.A.No.1284 of 2023 and I.A.No.1370 of 2024 filed under Order XLI Rule 27 read with Section 151 of C.P.C. to receive certain documents as additional evidence on record consisting of documents which came into existence during the pendency of the first appeal. The First Appellate Court observed that the appellant intends to bring death certificate of her vendor on record and the same is not necessary in a suit for injunction when the appellant has to merely prove her possession and enjoyment on the date of filing of the suit. It is held that the receiving of additional documents is not of any help to adjudicate the suit and perhaps would enlarge the scope of the suit and therefore, dismissed the said applications. 15. With respect to I.A.No.1285 of 2023 filed under Order XXVI Rule 9 read with Section 151 of the C.P.C to appoint an Advocate Commissioner, it is held that according to the appellant herself 760 square yards out of 4000 square yards has been occupied by respondent Nos.1 and 2 and therefore, she filed O.S.No.1231 of 2015 and the said suit is pending. In the said suit, I.A.No.1182 of 2015 is filed to amend the relief sought and the same was dismissed and has become final. In the said suit, I.A.No.1182 of 2015 is filed to amend the relief sought and the same was dismissed and has become final. Since there is admission about inappropriate relief being sought in the suit, it is held that localization by inspection would not serve any purpose. Lastly, the evidence of P.W.1/appellant shows that there is existence of structures over the suit schedule property and respondent Nos.1 and 2 are in possession and enjoyment of the said property, therefore, it is impossible to localize 4000 square yards of land claimed by the appellant. Therefore, the said I.A. for appointment of the Advocate Commissioner has been dismissed. 16. This Court sees no infirmity in the reasoning given by the First Appellate Court while dismissing the aforementioned I.As. to receive documents and appointment of Advocate Commissioner and no substantial question of law can be framed in that regard. 17. In view of the foregoing discussion, there are no merits in the Second Appeal as there are no substantial questions of law to be considered in the face of factual findings given by both the Trial Court and the First Appellate Court about the appellant not being in possession of the suit schedule property as on the date of the filing of the suit, as such the Second Appeal is liable to be dismissed. 18. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment and decree of the trial Court and the First Appellate Court in O.S.No.695 of 2012 and A.S.No.173 of 2022 respectively. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.