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2025 DIGILAW 323 (TS)

Mahaboob Bee v. Paluri Shyamsunder

2025-04-15

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : 1. Challenging the validity and legality of the judgment and decree dated 24.07.2024 in A.S.No.230 of 2019 passed by the Principal District Judge at Hanumakonda, confirming the judgment dated 19.11.2018 in O.S.No.436 of 2002 passed by the Principal Senior Civil Judge, Warangal, the present Second Appeal is filed. 2. Heard Sri S.Ganesh Rao, learned counsel for the appellants. 3. The appellants herein are the plaintiffs and the respondents herein are the defendants in the suit. For convenience, the parties are hereinafter referred to as they were arrayed in the suit. 4. The facts of the case, in brief, are that the plaintiffs filed a suit against the defendants seeking declaration of title and recovery of possession that they are the owners of the land to an extent of 300 Square yards, situated adjacent to house No.25-4-484 at Somidi Road, Vishnupuri of Kazipet, Hanamkonda Mandal, Warangal District. 5. In the plaint, it is averred that defendant Nos.1 to 5 are natural brothers and they are residing at house bearing No.25- 4-480, situated at Vishnupuri, Kazipet of Warangal District and the house of the plaintiffs exists towards northern side of the defendants’ house. There is an open place to an extent of 300 square yards (herein after referred as “suit schedule property”) between the house of the plaintiffs and the defendants, which exclusively belong to the plaintiffs. It is averred that, originally, house bearing municipal No.1/207 was purchased by plaintiff No.1 for a sale consideration of Rs.8,500/- under an agreement of sale from one Heeralal and Babulal; that when the vendor of plaintiff No.1 refused to register the sale deed, he was constrained to file a suit vide O.S.No.73 of 1966 for specific performance against the vendors, on the file of Principal Senior Civil Judge, Warangal and the same was decreed. 6. Aggrieved by the judgment and decree, the vendors of plaintiff No.1, preferred an appeal vide A.S.No.77 of 1968 and the same was allowed. Plaintiff No.1 then filed L.P.A.No.33 of 1973, before this Court and the same was allowed. Subsequently on 13.12.1986, plaintiff No.1 filed E.P.No.9 of 1982 for delivery of possession wherein the Court bailiff, as per the direction of this Court had delivered the vacant possession of the suit schedule property to him and a registered Sale deed was executed in favor of plaintiff No.1 in respect of house No.1/207 on behalf of the vendors. Subsequently on 13.12.1986, plaintiff No.1 filed E.P.No.9 of 1982 for delivery of possession wherein the Court bailiff, as per the direction of this Court had delivered the vacant possession of the suit schedule property to him and a registered Sale deed was executed in favor of plaintiff No.1 in respect of house No.1/207 on behalf of the vendors. The defendants, taking advantage of the old age of plaintiff No.1, filed a suit for permanent injunction against him vide O.S.No.1224 of 2001 on the file of II Additional Junior Civil Judge, Warangal, claiming to be the owners and possessors of the house bearing No.25-4-480 and the open land to an extent of 300 square yards existing between the houses of plaintiff No.1 and the defendants, along with I.A.No.977 of 2001 for temporary injunction. After thorough enquiry, I.A.No.977 of 2001 was dismissed and aggrieved by the said orders, the defendants preferred C.M.A.No.70 of 2001 on the file of the III Additional District Judge, Warangal, which is pending for adjudication. 7. It is further averred that the defendants, under the guise of the exparte injunction orders passed in O.S.No.1224 of 2001, raised the pillars and compound wall to some extent and laid C.C.slab in the suit Schedule property and after dismissal of the injunction application, they have stopped further construction. Aggrieved by the same, plaintiff No.1 filed suit for declaration of title and recovery of possession. As per records, plaintiff No.1 died and his legal heirs i.e., plaintiff Nos.2 to 10 were brought on record. 8. Defendant Nos.1 to 5 filed written statement denying the allegations made in the plaint and contended that house Nos.25-4-480 and 25-4-482 situated adjacently are exclusively owned and possessed by defendant No.1. Defendant No.1 purchased house No.25-4-480 from one Sangaraboina Yellaiah and house No.25-4-482 from Ravula IIaiah. Defendant No.1 is residing at H.No.25-4-482 and defendant Nos.4 and 5 are residing at House No.25-4-480 with the permission of defendant No.1, as their house is under construction. Defendant Nos.2 and 3 are staying at a rented house in the nearby locality. There is another house bearing No.25-4-479 owned and possessed by the brother-in-law of the defendants by name Balerao Sunder Rao, which is abutting on East to H.No.25-4-482. Defendant Nos.2 and 3 are staying at a rented house in the nearby locality. There is another house bearing No.25-4-479 owned and possessed by the brother-in-law of the defendants by name Balerao Sunder Rao, which is abutting on East to H.No.25-4-482. Abutting to the East of House No.25-4-479, there was a hut and open place to an extent of 305 Square yards, which is owned and possessed by the defendants and the hut was exempted from tax assessment by the Municipality. The father of the defendants, by name Paluri David @ Md.Ankus, S/o. Nasar Mohammed was originally a Muslim and converted to Christianity. The father of the defendants, during his life time, purchased an extent of 190 Square yards on 10.04.1962 from Sri Chityala Rajaih, through Simple sale deed. Subsequently, he had purchased another piece of open land to an extent of 115 Square yards on 18.12.1964, which is abutting to 190 Square yards on Northern side from its previous owners M.B.Vowels and A.Vowels and the said 115 Square yards is part of the open yard of H.No.1/207 belonging to the said Vowels. The house No.1/207 of the plaintiffs and the suit schedule house of the defendants are separated by a compound wall. 9. After purchase of the said open land, the father of the defendants had constructed a hut and resided till his death. The father of the defendants expired on 10.08.1979 and thereafter, they have inherited the said property. Being his only legal heirs, they are in peaceful possession and enjoyment of the same. Defendant No.1 being the elder brother and head of the family and as he already own houses, executed registered settlement deeds in favour of defendant Nos.2 to 4, dividing the suit schedule property into four parts, leaving some land for their private passage. Defendant Nos.2 to 4, with a view to construct their respective houses with joint walls, have submitted plans to the municipality by paying the planning fees and betterment charges vide receipt No.195119, dated 28.09.2001 and also paid development charges to the Kakatiya Urban Development Authority vide Challan to account No.1456, dated 28.09.2001. Thereafter, they had commenced the construction in the said open land. The plaintiffs kept quiet until the structures were raised to little level, without raising any objection. The defendants have also perfected their title over the suit schedule property by virtue of adverse possession. 10. Thereafter, they had commenced the construction in the said open land. The plaintiffs kept quiet until the structures were raised to little level, without raising any objection. The defendants have also perfected their title over the suit schedule property by virtue of adverse possession. 10. The vendor of the father of the defendants i.e., Ms.A.Vowels, besides selling her plot 115 Sq.yards to their father, sold her open plot i.e., part of the house No.1/207 to some others. In fact, A.Vowels is not alias names of Heeralal and Babulal. The said Vowels agreed to sell the house No.1 of 207 to the plaintiff firstly, but subsequently agreed to sell the said house to Heeralal and Babulal. Prior to the execution of agreement of Sale in favour of the plaintiff on 10.08.1965 or in favour of Heeralal and Babulal, the said Vowels had already sold a piece of open plot pertaining to house No.1 of 207 to the father of the defendants, on 18.12.1964 and to some others, which is evident from the certified copy of the registered document filed by the plaintiff, executed by the Court on 13.02.1986 in his favour and his brother Mohd.Moosa and she retained some more land appurtenant to the house bearing No.1 of 207. Therefore, the plaintiff cannot contend that whatever the land sold by the vowels much prior to the agreement dated 01.08.1965 i.e., to the father of the defendants on 18.12.1964 and others is also covered under the Registered sale deed No.5/1986. In fact, the plaintiff, with the help of the registered document No.5 of 1986, is trying to grab the land of the defendants. 11. Though, the Registered Sale Deed was executed in favour of the plaintiff and his brother Mohd. Moosa jointly, in respect of the House, the plaintiff has filed this suit denying the share of house No.1/287, in spite of the dispute pending between himself and his brother Mohd. Moosa. After commencement of construction by the defendants, the plaintiff raised dispute only regarding the boundary, as such, they were constrained to file the suit for permanent injunction in O.S.No. 1224/2001, on the file of II-Additional Junior Civil Judge, Warangal and the C.M.A. preferred by them against the orders passed in the petition for temporary injunction, which is pending. 12. Moosa. After commencement of construction by the defendants, the plaintiff raised dispute only regarding the boundary, as such, they were constrained to file the suit for permanent injunction in O.S.No. 1224/2001, on the file of II-Additional Junior Civil Judge, Warangal and the C.M.A. preferred by them against the orders passed in the petition for temporary injunction, which is pending. 12. The defendants are the owners and possessors of the suit schedule property and as admitted by the plaintiffs, they have already made construction over the same. The Registered Sale Deed of the plaintiffs bearing doc.No.05/1986, does not reveal the extent of the land covered by the house bearing No.1/207, and as such, the plaintiff is not entitled for declaration and recovery of possession. The defendants cannot be evicted from the suit schedule property, as they are the absolute owners and possessors of it. The plaintiff has no cause of action to file the suit and the same is frivolous, vexatious and aimed at grabbing the same from the defendants. The Court Fee paid by the plaintiff is also insufficient. The defendants, with the above contentions, prayed to dismiss the suit, with heavy costs. 13. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:- (i) Whether the plaintiff is having any right or title over the suit schedule property? (ii) Whether the plaintiff is entitled for the possession of the suit schedule property? (iv) To what relief? 14. On behalf of the plaintiff, plaintiff No.2, who is wife of plaintiff No.1, was examined as PW1. Ex.A1, certified copy of sale deed, dated 22.07.1985 was marked through PW1 and on behalf of the defendants, DW2 was examined. The evidence in chief of DW1 and DW3 remained eschewed. 15. After full-fledged trial, upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court decreed the suit, vide judgment and decree dated 19.11.2018. 16. The trial Court categorically observed as hereunder:- “The plaintiff having sought the reliefs of declaration of title and recovery of possession of the suit schedule property, from the defendants, by virtue of Registered Sale Deed, executed through the Court in favour of himself and his brother Mohd. 16. The trial Court categorically observed as hereunder:- “The plaintiff having sought the reliefs of declaration of title and recovery of possession of the suit schedule property, from the defendants, by virtue of Registered Sale Deed, executed through the Court in favour of himself and his brother Mohd. Moosa under Ex.A1, did not choose to file the original Sale Deed with plan before the Court in order to establish the existence of the suit schedule property and his exclusive right and title over the same.” “As it is an undisputed fact that the brother of plaintiff Mohd. Moosa filed a suit for partition of the property covered by Ex.Al and the same was decided in his favour before the Tria Court and as well as Hon'ble High Court, this Court is not inclined to accept the contention of the plaintiffs that said Mohd. Moosa is not necessary party to the present suit, more particularly, in the absence of the plaintiff filing any document of relinquishment allegedly executed by his brother in his favour.” “In view of the admitted fact that the suit for Specific Performance of Contract was filed by the plaintiff and his brother and Sale Deed under Ex.A1 was executec in favour of both of them and the brother of the plaintiff succeeded in the partition suit filed by him in respect of the property covered by Ex.A1 before the Trial Court and as well as before the Hon'ble High Court of A.P., it can be held that without hesitation that the younger brother of the plaintiff by name Mohd. Moosa is proper and necessary party to the suit and the suit is bad for non-joinder of necessary party. Accordingly, this issue is answered against the plaintiff.” 17. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and material available on record and dismissed the Appeal, vide its judgment dated 24.07.2024, thereby, confirming the judgment of the trial Court. 18. The first Appellate Court in its judgment observed as hereunder:- “…It is admitted that the suit schedule property situated in between the houses of the plaintiffs and defendants. As per Ex.A1 sale deed the first plaintiff and his brother Mohd Moosa were owners of the property. The defendants contended that the suit schedule property is not the part and parcel of house bearing No.1/207. P.W.1. As per Ex.A1 sale deed the first plaintiff and his brother Mohd Moosa were owners of the property. The defendants contended that the suit schedule property is not the part and parcel of house bearing No.1/207. P.W.1. admitted that they are claiming the property which also sold to Heeralal and Babulal. The main contention of the parties that the defendants along with Ex.A1sale deed plan was not annexed. Ex.B-7 shows that the plan annexed to the sale deed. “The case on hand except relying on Ex.A1, the plaintiffs has not filed any document in support of their claim even, as per Ex.A-1 also there is no existence of measurement and the brother of the first plaintiff filed partition suit against the first plaintiff in which the present suit schedule property was not part and parcel of the said partition suit. These facts clearly shows that plaintiffs miserably failed to prove that they are absolute owners of the suit schedule, property and the suit schedule property was in existence. It is also to be noted that the pleadings of the plaint categorically revealed that the brother of the plaintiff is the proforma party in the suit as he has alienated the property to the first plaintiff. But the manner in which the defendants adduced i.e., Ex.B-37 clearly evident that the property cover under Ex.A-1 was not sought for partition by the brother of the first plaintiff. Ex.A-1 clearly shows that first plaintiff and his brother are absolute owners and the court has executed sale deed in favour of the first plaintiff and his brother. Without any document the plaintiffs are contending that first plaintiff brother alienated the property and first plaintiff is absolute owner of the land is not correct, whereas the defendants proved that the first plaintiff and his brother partitioned the properties by way filing the partition suit, which clearly shows that suit schedule property was not subject matter of the partition suit between the first plaintiff and his brother.” 19. Learned counsel for the appellants would submit that the trial Court as well as First Appellate Court have failed to properly appreciate the oral and documentary evidence placed on record. He would further submit that both the Courts have misinterpratated Exs.B1 to B6 and have come to erroneous conclusion. Learned counsel for the appellants would submit that the trial Court as well as First Appellate Court have failed to properly appreciate the oral and documentary evidence placed on record. He would further submit that both the Courts have misinterpratated Exs.B1 to B6 and have come to erroneous conclusion. HE further submitted that both the courts have committed grave error in rejecting the suit filed by the plaintiffs for declaration of title and recovery of possession, though the defendants admitted that the appellants/plaintiffs purchased the suit schedule property through registered sale deed. He would further submit that both the Courts have failed to consider the gift deed executed by the father of the defendants/respondents invalid, since his title was not established. He would further submit that both the Courts have erroneously placed reliance on the property tax receipts i.e., Exs.B9 to B34 and failed to consider the same and could not confer any title. 20. A perusal of the record would disclose that the trial Court as well as First Appellate Court have concurrently held that the plaintiffs, having sought for declaration of title and recovery of possession of suit schedule property under the registered sale deed which was executed in his favour as well as his brother under Ex.A1, did not choose to file the original sale deed along with plan to establish the existence of the suit schedule property and their exclusive right and title over the same. Both the Courts held that the plaintiffs failed to prove that they are the absolute owners of the Suit Schedule property and the plaintiffs are claiming ownership of the entire property without there being any document of relinquishment by his brother. The First Appellate Court further observed that the defendants proved that plaintiff No.1 and his brother partitioned the property by filing a partition suit, by which it is clear that the suit schedule property is not the subject matter between the plaintiffs and his brother. The trial Court as well as the first appellate Court further held that the brother of plaintiff No.1 by name Mohd.Moosa , though he is proper and necessary party, was not made a party to the suit. Therefore, the suit is barred by non-joinder of necessary party. The First appellate Court further observed that the brother of Mohd. The trial Court as well as the first appellate Court further held that the brother of plaintiff No.1 by name Mohd.Moosa , though he is proper and necessary party, was not made a party to the suit. Therefore, the suit is barred by non-joinder of necessary party. The First appellate Court further observed that the brother of Mohd. Moosa i.e., plaintiff No.1 filed a suit in O.S.No.305 of 1989 on the file of I Additional Senior Civil Judge, Warangal and the same was decreed and plaintiff No.1 filed an appeal before the erstwhile High Court of Andhra Pradesh and the said appeal was dismissed and in the said suit, the suit schedule property was not mentioned. Therefore, it is evident that the property covered under Ex.A1 was joint property of plaintiff No.1 and his brothers and he ought to have mentioned the suit schedule property in the suit filed by the brother of plaintiff No.1 for partition. 21. However, learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C. 22. It is well settled principle by a catena of decisions of the Hon’ble Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the findings on facts arrived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. 23. Further, in Gurdev Kaur v. Kaki , (2007) 1 Supreme Court Cases 546 , the Apex Court 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 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and falls for consideration. 24. Having considered the entire material available on record and the findings recorded by the first Appellate Court, this Court finds no ground or reason warranting interference with the said findings under Section 100 C.P.C. Moreover, the grounds raised by the appellants are factual in nature and no question of law, much less a substantial question of law, arises for consideration in this Second Appeal. 25. 25. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. 26. Pending miscellaneous applications, if any, shall stand closed.