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2025 DIGILAW 324 (TS)

Myakalasompally Musti Thippanna v. D. Savaramma

2025-04-15

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : LAXMI NARAYANA ALISHETTY, J. 1. This Second Appeal is filed challenging the judgment and decree, dated 09.11.2023, passed by the Principal District Judge, Jogulamba, in A.S.No.28 of 2019, whereunder and whereby the judgment and decree, dated 30.09.2019, passed by the Senior Civil Judge, Gadwal, in O.S.No.87 of 2014 was confirmed. 2. The appellant herein is plaintiff and respondents herein are defendants, before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit. 3. The brief facts of the case are that plaintiff filed the suit in O.S.No.87 of 2014, for declaration of title and perpetual injunction in respect of 2 1/2 guntas of land in Sy.No.772/3/paiki (hereafter referred to as ‘schedule property’). In the plaint it is averred that plaintiff’s wife purchased the schedule property through registered sale deed bearing document No.1022/1984 from one Sri Namilikanti Nagappa. Later, the vendor got approved the plots through D.T.C.P into two bits i.e. 30 x 40 each with specific boundaries, which plaintiff got ratified vide registered document bearing No. 3561 of 2008 dated 07.07.2008 on the basis of agreement of sale dated 21.01.1987. It was further averred that the plaintiff is in possession and enjoyment of two bits as absolute owner. Later, major part of plot said to have been purchased by the respondents, was affected for formation of roads. The respondents kept quite then and now taking advantage of plaintiff’s innocence picked up quarrel with him in order to grab his plot. Therefore, plaintiff approached the Hon’ble Lok Adalat and the Hon’ble Lok Adalat advised both the parties to approach Court of law. The plaintiff is in possession and enjoyment of the same and regularized the plot vide orders G/LRS/38/2164/2013 dated 20.05.2013 and obtained permission for construction and was ready to construct house, the defendants tried to dispossess the plaintiff from schedule property. Hence, the suit. 4. Defendant Nos. 1 and 2 filed a written statement contending that the suit is not maintainable and plaintiff is no way concerned with the schedule property. Hence, the suit. 4. Defendant Nos. 1 and 2 filed a written statement contending that the suit is not maintainable and plaintiff is no way concerned with the schedule property. Neither the plaintiff nor his wife is owner or possessor of schedule property; that the averment that plaintiff’s wife Shankaramma purchased the schedule property and ratified the same vide registered document bearing No. 3561 of 2008 is false and further agreement of sale are not binding on the defendants; that they are absolute owners and possessors of schedule property having purchased the same on the name of defendant No.1 through registered document bearing No. 1950 of 1984 dated 17.11.1984 and plaintiff is not in possession of suit property and that the proceedings of Municipality are created for the purpose of suit and the same is barred by limitation; that originally, Nemilikanti Nagappa is pattedar and possessor of suit property and defendants purchased some portions of land from him three times i.e., 133 Sq.yards, vide registered sale deed bearing No. 1950 of 1984, dated 17.11.1984, 33.3 Sq.yards, vide registered sale deed bearing No. 1957 of 1984, dated 17.11.1984, and 133 Sq.yards, vide registered sale deed bearing No. 735 of 1985 on 22.04.1985 respectively. It is further averred that after the purchase, defendants are in possession of the schedule property and plaintiff intentionally mentioned the boundaries of the schedule property in the suit for which he is not entitled and the suit is liable to be dismissed. 5. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:- “(1) Whether the plaintiff is absolute owner and possessor to be declare as title holder of the suit schedule plot No. 9 to an extent of 111.10 Sq.yards in Sy.No. 772/3? (2) Whether the plaintiff is entitled for perpetual injunction against the defendants as prayed for? (3) Whether the defendant No.1 has purchased the suit schedule property from original owner one Nemalikanti Nagappa in three times and got registered in her name through registered sale deeds document No. 1950/1984, 1957/1984 and 735/1985 respectively? (4) To what relief?” 6. During the course of Trial, plaintiff was examined as PW.1 and Exs.A1 to A9 were marked. On behalf of the defendants, DW.1 was examined and Ex.B1 to Ex.B5 were marked. 7. (4) To what relief?” 6. During the course of Trial, plaintiff was examined as PW.1 and Exs.A1 to A9 were marked. On behalf of the defendants, DW.1 was examined and Ex.B1 to Ex.B5 were marked. 7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court dismissed the suit, vide judgment and decree dated 03.09.2019. 8. The trial Court while dismissing the suit, categorically observed as hereunder:- “In the instant case, the plaintiff contending that his wife got agreement under Ex.A2 and he got ratification deed under Ex.A3. As per Sec. 48 of Transfer of Property Act that who is prior in time is stronger in law. Sec. 48 Priority of rights created by transfer, where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees be subject to the rights previously created. The priority is determined by the dates of the deeds and not by the date of registration. When Nemilikanti Nagappa sold the property to defendant No.1 D. Savaramma under Ex.B1, he has no right to execute the agreement in favour of the wife of plaintiff. When the property already sold to the defendant No.1, Nemiliknati Nagappa has no right to execute agreement under Ex.A2 to the wife of plaintiff.” 8.1. The trial Court has further observed as hereunder:- “24. The mutation proceedings in favour of plaintiff does not create or confer any title or right over the properties. Therefore, the plaintiff failed to prove his title over the suit schedule property. In Ex.A5 at page No.2, 4 th condition shows the regulation of lay out/plot does not confer ownership on the applicant or after the ownership of the land. In Ex.A7 at condition No. 1 it is mentioned that permission accorded does not confer any ownership rights. Therefore, the contention of the counsel for plaintiff that plaintiff got mutated the plot in the Municipality record does not create any right or title.” 9. In Ex.A7 at condition No. 1 it is mentioned that permission accorded does not confer any ownership rights. Therefore, the contention of the counsel for plaintiff that plaintiff got mutated the plot in the Municipality record does not create any right or title.” 9. Aggrieved by the dismissal of the suit, the plaintiffs preferred appeal vide A.S.No.28 of 2019 and 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 03.09.2019, thereby, confirming the judgment of the trial Court. 10. The first Appellate Court in its judgment observed as hereunder:- “…It is very pertinent to note that Ex.A3 rectification deed was in favour of the plaintiff but not in favour of wife of the plaintiff Smt.Musti Shankaramma. The plaintiff did not choose to examine the persons who executed Ex.A3 rectification deed to unravel as to the availability of the property purchased under Ex.A1 on the spot even after formation of 33’ feet road. 29. Having, lost some area purchased under Ex.A1 sale deed, the plaintiff further went ahead in getting Ex.A2 and A3 documents from his vendor Nemalikanti Nagappa and legal representative which does not conveys any title over the disputed property. The plaintiff is trying to ride two horses at a time which is not at all possible. In case, the plaintiff has lost some property due to formation of road, then the recourse left to the plaintiff to go for compensation from his vendor or to compensate vendors remaining property by way of gift or any other document. Ex.A2 and A3 documents only goes to show that even after formation of road still the plaintiff holds the same property purchased under Ex.A1 sale deed. But, this assertion cannot be accepted for the reason that PW2 who is the attestor of Ex.A1 to A3 has clandestinely admitted that a road has been formed in the property purchased under Ex.A1. Thus, Ex.A2 and A3 does not confers any further title to the plaintiff’s wife. So, therefore, the said documents have to be kept outside the purview of its consideration” 10.1. The first Appellate Court further observed as hereunder:- “32. The plaintiff is trying to take advantage of the weakness of the defendants evidence in making interpolation of plot No.9 in Ex.B1 sale deed. So, therefore, the said documents have to be kept outside the purview of its consideration” 10.1. The first Appellate Court further observed as hereunder:- “32. The plaintiff is trying to take advantage of the weakness of the defendants evidence in making interpolation of plot No.9 in Ex.B1 sale deed. The suit filed by the plaintiff is for declaration of title and so therefore, the burden lies on him. In this regard, it is worthwhile to mention a decision of Hon’ble Supreme Court of India in between Union of India and others vs. Vasavi Co-operative Society Limited and others wherein it was observed as under: “It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, in the case set up by the defendants would not be a ground to grant relief to the plaintiff.” ….the evidence of PW2 clinchingly goes to show that 33’ feet road has been formed in the property purchased under Ex.A1. Then it can be said the plaintiff did not approach the court with clean hands and trying to suppress material facts of the property in dispute has projected by DW1 and DW2. Therefore, the plaintiff cannot take any advantage of interpolation of plot No.9 in Ex.B1 sale deed. Without any base the plaintiff has assigned the suit schedule property by giving plot No.9. Though, the plaintiff got confirmation of the property from his vendor under Ex.A2 and rectification under Ex.A3 still failed to establish that the suit schedule property denotes plot No.9 which he has purchased under Ex.A1. Ulna Ex.A2 and A3 subsequent documents also does not denotes plot No.9. Thus, it can be concluded that the plaintiff failed to establish clear title over the suit schedule property.” 11. Heard Sri Srilekha Pujari, learned counsel for the appellant and Sri Ch. Ravinder, learned counsel for the respondents. Perused the entire material available on record. 12. Learned counsel for the appellant contended that the trial Court as well as the first appellate Court without proper appreciation of the oral and documentary evidence placed on record, have come to erroneous conclusion and dismissed the suit. Ravinder, learned counsel for the respondents. Perused the entire material available on record. 12. Learned counsel for the appellant contended that the trial Court as well as the first appellate Court without proper appreciation of the oral and documentary evidence placed on record, have come to erroneous conclusion and dismissed the suit. Learned counsel for the appellant further submitted that both the Courts have failed to appreciate the oral and documentary evidence placed on record by plaintiff particularly Exs.A1 to A9 and oral deposition of PW.1, PW.2 and CW.1, by which, the appellant proved his title over schedule property. Therefore, viewed from any angle, impugned order is liable to be set aside, hence, prayed to allow the second appeal. 13. A perusal of record would disclose that the trial Court as well as the first Appellate Court concurrently held that suit is filed for declaration of title and perpetual injunction, therefore, burden lies on the plaintiff to substantiate his case, which plaintiff failed to prove. Both the Courts observed that mere mutation proceedings in favour of plaintiff name in property register of municipality does not create or confer any title in favour of plaintiff. The First appellate Court referred to and relied upon the judgment of Hon’ble Supreme Court of India between Union of India and others vs. Vasavi Co-operative Society Limited and others, wherein in it held that in a suit for declaration of title, burden always lies on the plaintiff to establish his case for declaration and mere weakness, if any, on the part of the defendants does not mean that plaintiff is entitled for relief. 14. In considered view of this Court, the learned counsel for appellant 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. 15. 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. 16. 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. 16. 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. 17. 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 appellant are factual in nature and no question of law, much less a substantial question of law arises, for consideration in this Second Appeal. 18. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. Pending miscellaneous applications, if any, shall stand closed.