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2025 DIGILAW 346 (AP)

C Subramanyam v. A. Varadarajulu

2025-02-24

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short ) is filed aggrieved against the Judgment and decree, dated 11.06.2018 in A.S.No.101 of 2015, on the file of VIII Additional District Judge, Chittoor (“First Appellate Court” for short), confirming the Judgment and decree, dated 30.05.2015 passed in O.S.No.205 of 2011, by the learned Principal Junior Civil Judge, Chittoor (“trial Court” for short). 2. The appellant is herein is the plaintiff and the respondents herein are the defendants in O.S.No.205 of 2011, on the file the Principal Junior Civil Judge, Chittoor. 3. The plaintiff initiated action in O.S.No.205 of 2011, on the file of the Principal Junior Civil Judge, Chittoor, with a prayer for declaration of right and title of the plaintiff over the plaint schedule property and consequential relief of permanent injunction and for costs. 4. The learned Principal Junior Civil Judge, Chittoor, dismissed the suit with costs. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed A.S.No.101 of 2015, on the file of VIII Additional District Judge, Chittoor. The learned VIII Additional District Judge, Chittoor, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff in the suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.205 of 2011, is as follows: The plaint schedule property which is situated adjacent to the house of the plaintiff in the suit village is the ancestral property of the plaintiff. Since the present house wherein the plaintiff is residing is a small one, the mother and brother of the plaintiff executed a registered gift deed on 07.09.2009 in favour of the plaintiff in respect of the plaint schedule property. Subsequent to the gift deed’s acceptance the plaintiff obtained the house plan approved from the Grama Panchayat, Murakambattu. Right from the beginning the plaint schedule property was fenced on its 3 sides. The 4 th side is the house of the plaintiff. The defendants who are strangers to the plaint schedule property claiming title over the plaint schedule property which was negatived by the plaintiff. Right from the beginning the plaint schedule property was fenced on its 3 sides. The 4 th side is the house of the plaintiff. The defendants who are strangers to the plaint schedule property claiming title over the plaint schedule property which was negatived by the plaintiff. Thereafter, the defendants by influencing the police threatened the plaintiff not to go ahead with his plan of construction in the plaint schedule property while the plaintiff intending to make construction at the cost of his retirement benefits. The defendants also obtained the signature of the plaintiff and his mother on blank stamp papers by keeping them in the police station under coercion. The defendants are attempting to grab the plaint schedule property. Hence, the suit. 7. The 1 st defendant filed written statement before the trial Court and the same was adopted by 2 nd defendant and contended as follows: Originally the plaint schedule property is a grama kantam land, acquired 40 years ago by one A. Chinnaswamy, who is father of the defendants. During the lifetime, he enjoyed the plaint schedule property and constructed a hut and subsequently, he died 27 years ago. After his demise, his wife A. Chengamma and her children i.e., the defendants herein are enjoying the plaint schedule property without any interruption whatsoever from anybody till today. On 23.04.2010 the defendants and their family members got partitioned their joint family properties and in the partition, the plaint schedule property is allotted to the defendants as “C” schedule therein. After partition, the defendants made a requisition letter to the Executive Officer, Murakambatu for construction of a house in the plaint schedule property. At that time, the Executive Officer of Murakambattu Grama Panchayat informed the defendants about the plan approval for the very same schedule of property obtained by the plaintiff. Immediately, the defendants held mediation before the village elders, in the said mediation the plaintiff orally agreed to cancel the approved plan obtained by him in the presence of witnesses viz., Somasundaram of Venganapalli and Seivaraj of Kattamanchi. Thereafter the defendants made a requisition letter to the Executive Officer, Grama Panchayat of Murakambattu. Then, the said Execution Officer cancelled the approved plan issued in the name of plaintiff and granted the approved plan in favour of the defendants for construction of house in the plaint schedule property. Thereafter the defendants made a requisition letter to the Executive Officer, Grama Panchayat of Murakambattu. Then, the said Execution Officer cancelled the approved plan issued in the name of plaintiff and granted the approved plan in favour of the defendants for construction of house in the plaint schedule property. The defendants are in possession and enjoyment of the plaint schedule property and the plaintiff has filed the vexatious suit for wrongful gain to knock away the suit property and all the documents filed by the plaintiff are cooked up for the purpose of the case. 8. On the basis of above pleadings, the learned Principal Junior Civil Judge, Chittoor, framed the following issues for trial: (1) Whether the plaintiff is entitled for the relief of declaration of his right and title over the schedule property? (2) Whether the plaintiff is in exclusive possession and enjoyment over the schedule property? (3) Whether the plaintiff is entitled to the relief of permanent injunction in respect of schedule property? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.5 were marked. 10. The learned Principal Junior Civil Judge, Chittoor, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit with costs. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.101 of 2015, on the file of VIII Additional District Judge, Chittoor, wherein, the following point came up for consideration. Whether the decree and judgment passed by the Principal Junior Civil Judge, Chittoor in O.S.No.205 of 2011, dated 30.05.2015 is sustainable in law or on facts? 11. The learned VIII Additional District Judge, Chittoor i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiff/appellant and in favour of the defendants/respondents and dismissed the first appeal. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.205 of 2011 filed the present second appeal before this Court. 12. Heard Sri P. Ranga Rao, learned counsel, representing Sri T. Janardhana Rao, learned counsel for appellant and heard Sri M. Eswar, leaned counsel, representing Sri K. Kirthi Teja, learned counsel for the respondents. 13. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.205 of 2011 filed the present second appeal before this Court. 12. Heard Sri P. Ranga Rao, learned counsel, representing Sri T. Janardhana Rao, learned counsel for appellant and heard Sri M. Eswar, leaned counsel, representing Sri K. Kirthi Teja, learned counsel for the respondents. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial questions of law between the parties arise in this case. A proper test for determining whether a questions of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 ] , the Apex Court held that; “it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial questions of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising substantial questions of law.” 14. The appellant/plaintiff having chosen to invoke the jurisdiction of the Second Appellate Court under Section 100 of Civil Procedure Code, it is for them to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. The appellant/plaintiff having chosen to invoke the jurisdiction of the Second Appellate Court under Section 100 of Civil Procedure Code, it is for them to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellants have shown any substantial questions of law. The contention of the appellants is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. It is trite law that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weaknesses, if any, of the case set up by the defendant would not be a ground to grant the relief of declaration of title in favour of the plaintiff. The onus to prove title to the schedule property in question was on the plaintiff. It was incumbent on the part of the Court to record a finding on the claim of title to the suit property, the Court is also bound to enquire or investigate that question on first before going into any other question that may arise in a suit. 17. The case of the appellant is that the plaint schedule property is the ancestral property of the appellant and a registered gift deed under Ex.A.1, dated 07.09.2009, was executed by the mother and brother of the plaintiff in his favour. In order to prove the same, the appellant relied on Ex.A.1 registered gift deed. Whereas the contention of the defendants is that the plaint schedule property is a grama kantam land, acquired about 40 years ago by father of the defendants A. Chinnaswamy under a registered partition deed, dated 23.04.2010 and the same fell to the share of the defendants and that mother and brother of plaintiff had no right and title in the plaint schedule property and they are not having any right to execute a gift settlement deed in favour of the plaintiff. The defendants are strongly disputing the right and title of the mother and brother of the plaintiff, but the plaintiff failed to prove that his mother and brother are having right in the plaint schedule property. It was contended by the plaintiff that the plaint schedule property is their ancestral property. In cross examination the plaintiff i.e., P.W.1 and his brother P.W.2 admit that they have no documentary proof to show that the plaint schedule property is their ancestral property. Moreover, there is no recital in Ex.A.1 registered gift settlement deed that the plaint schedule property is the ancestral property of the plaintiff. It was stated by P.W.2, who is no other than the brother of plaintiff in his evidence affidavit that plaint schedule property was acquired by father of plaintiff and the same was in the name of mother of plaintiff in official records, but no documentary evidence was produced by the plaintiff to prove that the suit schedule property is ancestral property. 18. The plaintiff in the suit is seeking relief of declaration of right and title in the plaint schedule property. The defendants are severely disputing the right and title of the predecessors in title of the plaintiff, therefore, it is for the plaintiff to prove that his predecessors in title are having right and title in the plaint schedule property. Law is well settled that in a suit for declaration of title the plaintiff must succeed only on the strength of his own title and not on the weaknesses in the defence put forth by the defendant. Furthermore, there was a clear admission made by P.W.1 and P.W.2 that there is no evidence on record to show that plaint schedule property is their ancestral property. The contention of the plaintiff is that the plaintiff applied Gram Panchayat, Murakambattu for sanction of plan for construction of house and accordingly, the plan was approved by the Gram Panchayat, Murakambattu, dated 02.03.2010. Whereas the defendants relied on Ex.B.3 Panchayat Resolution, dated 03.06.2010 and Ex.B.4 letter of proceedings issued by the Gram Panchayat, Murakambattu. The plan approval granted by the Panchayat in favour of the plaintiff was cancelled and issued proceedings under Ex.B4 in favour of 1 st defendant. Whereas the defendants relied on Ex.B.3 Panchayat Resolution, dated 03.06.2010 and Ex.B.4 letter of proceedings issued by the Gram Panchayat, Murakambattu. The plan approval granted by the Panchayat in favour of the plaintiff was cancelled and issued proceedings under Ex.B4 in favour of 1 st defendant. It was contended by the plaintiff that the plaint schedule property was fenced on its 3 sides by the plaintiff and 4 th side is the house of plaintiff, but in order to prove the said aspect, the plaintiff did not adduce any evidence. As stated supra, except the evidence of P.W.1 and P.W.2, no other oral or documentary evidence is produced by the plaintiff. Here in this case P.W.1 is no other than the plaintiff and P.W.2 is no other than the own brother of plaintiff. There is no evidence on record that the plaint schedule property is the ancestral property of plaintiff. The plaintiff relied on Ex.A.1, dated 07.09.2009 said to have been executed by mother and brother of plaintiff in his favour, but there is no whisper in Ex.A.1 that the plaint schedule property under Ex.A.1 is an ancestral property. Admittedly, in the case on hand, no evidence is produced by the plaintiff to prove his right and title in the plaint schedule property. The contention of the defendants is that the plaint schedule property is a Gram Kantam land, acquired about 40 years ago by the father of defendants under a registered partition deed Ex.B.1, dated 23.04.2010, the same is fell to their share. In order to prove the same, the defendants relied on Ex.B1 and approved plan with regard to the plaint schedule property, dated 18.05.2010 and Ex.B.3 Panchayat Resolution, dated 03.06.2010 and Ex.B.4 letter of proceedings issued by Gram Pancnayat, Murakambattu, dated 18.05.2010 and also relied on certificate issued by Gram Panchayat, dated 04.10.2011. The evidence of D.W.1 to D.W.3 coupled with documentary evidence produced by the defendants goes to show that the father of defendants acquired the plaint schedule property which is grama kantam land and subsequently in the partition under Ex.B.1 the plaint schedule property fell to the share of the defendants. As stated supra, in a suit for declaration of title and consequential relief of permanent injunction, the burden heavily rests upon the plaintiff, but the plaintiff failed to prove the same. 19. As stated supra, in a suit for declaration of title and consequential relief of permanent injunction, the burden heavily rests upon the plaintiff, but the plaintiff failed to prove the same. 19. Learned counsel for the appellant placed a reliance of D. Yadamma and others vs. G. Suryanarayana and another , [ 2008 (3) ALT 217 ] The facts in the aforesaid case law relates to a suit for partition of the plaint schedule property whereas the present suit is for relief of declaration of title and consequential relief of permanent injunction. Therefore, the facts and circumstances in the cited decision are different to the instant case. 20. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points against the plaintiff and in favour of the defendants do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of substantial questions of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure . The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 21. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial questions of law arise for consideration and when no substantial questions of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki , [ AIR 2006 SC 1975 ]. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki , [ AIR 2006 SC 1975 ]. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code. 22. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the Courts below. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.