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2025 DIGILAW 448 (TS)

Shameem Begum v. N. Laxmi

2025-04-28

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : LAXMI NARAYANAALI SHETTY, J. This Second Appeal is filed challenging the judgment and decree dated 13.03.2025 in A.S.No.9 of 2015 on the file of the Senior Civil Judge at Zaheerabad, whereby and whereunder the appeal was partly allowed setting aside judgment and decree dated 31.08.2015 in O.S.No.5 of 2015 on the file of the Junior Civil Judgeat Narayankhed, Medak District. 2. The appellants herein are defendants and respondents herein are plaintiffs. For convenience, the parties are hereinafter referred to as they were arrayed before the trial court. 3. Heard Sri Mohammed Sanaullah Farhan, learned counsel for the appellants. 4. Brief facts of the case are that plaintiffs filed a suit in O.S.No.5 of 2015 for declaration of title and recovery of possession and mandatory injunction in respect of suit open plot in survey No.22/1 admeasuring extent 201.66 square yards consisting of 2 bits admeasuring 100.83 square yards each situated at Narayankhed village, Medak District.In the plaint, it is averred that the plaintiff Nos.1 and 2 are the family friends since long time and intended to purchase an open land/plot in Narayankhed village for the purpose of construction of house; that one Anushamma@Anshammais the owner and possessor of the land covered under survey No.22/1 situated at Narayankhed town and Mandal District Medak and the said Anushamma offered to sell a piece of land in survey No.22/1 to an extent of 201.66 square yards and the plaintiffs have accepted to purchase the same; and accordingly, Anushamma received the entire sale consideration of Rs.70,700/- and executed registered sale deed bearing document No.13578/2005 dated 07.10.2005 and delivered possession of the said land to the plaintiffs. 5. It is further averred that the defendants are highly influential persons in the Gram Panchayath having support of the political leaders of Narayankhed; that defendants without having any right, title or interest have illegally raised basement in the suit plot and plaintiffs came to know about the same and questioned the defendants about construction of illegal and unauthorized basement in the suit open plot, but the defendants have denied the title and possession of the plaintiffs; that the plaintiffs demanded to remove the illegal basement in the suit open plot, but defendants denied and refused. Therefore, plaintiffs filed suit for declaration, recovery of possession and mandatory injunction and also to pay damages at Rs.1,00,000/- per year. 6. Therefore, plaintiffs filed suit for declaration, recovery of possession and mandatory injunction and also to pay damages at Rs.1,00,000/- per year. 6. Defendants entered appearance but they failed to file written statement and therefore, they were set ex parte. 7. Basing on the pleadings in the plaint, the trial Court framed following issue: “Whether the plaintiffs are entitled for there lief of decree as prayed for?” 8. To substantiate the case, P.W.1 was examined on behalf of the plaintiffs and Ex.A.1/registered sale deed was marked on their behalf. 9. The trial Court on due consideration of oral and documentary evidence dismissed the suit of the plaintiffs vide judgment dated 31.08.2015 by making following observations: “(i)The sketch map filed by plaintiffs herein along with the suit only the suit plot was shown.There is no clear evidence before the Court where suit plotis situated in survey No.22/1 because generally any survey number consists many plots.Total sketch of survey No.22/1 because generally and survey number consists many plots.Total sketch of survey No.22/1 is not filed before the Court as to show the exact location of suit plot in survey No.22/1.It is further observed whether the plaintiffs have purchased the suit plot in any venture is not clearly mentioned before the Court. Whether survey No.22/1 is an agricultural land or commercial one is not brought on record. Whether any plotting was done in survey No.22/1 is not clearly brought on record. (ii) It is further seen that the plaintiffs are pleading that the defendants have constructed basement in suit plot, no photographs or CD is filed before the Court to show the constructions made by the defendants. No other witness esexcept P.W.1 is examined before the Court, even only Ex.A.1 is marked before this Court. Taking into consideration the reliefs sought in this plaint the plaintiffs has to establish regarding the occupying of the suit plot by defendants and even the construction made by the defendants.This Court feels that basing on mere oral evidence it cannot be said that the defendants have occupied the suit plot and made construction upto basement level as the defendants set ex parte in this suit and it is does not automatically give right to the plaintiffs for the reliefs as prayed for.The plaintiffs have to prove their version before the Court.” 10. Aggrieved by the judgment of the trial Court dated 31.08.2015, plaintiffs preferred appeal in A.S.No.9 of 2015 before the Senior Civil Judge-cum-Assistant Sessions Judge, Zaheerabad. 11. The first Appellate Court being final Court on facts, re- appreciated entire oral and documentary evidence placed on record and partly-allowed the appeal vide judgment and decree dated 13.03.2025 and set aside the judgment and decree dated 31.08.2015 passed by the trial Court. Consequently, the suit in O.S.No.5 of 2015 was partly decreed declaring the plaintiffs as the absolute owners and title holders of the suit schedule property. Further,the defendants are directed to remove the structures made in the suit plot and hand over the vacant possession of the same to the plaintiffs within a period of three months failing which appellants/plaintiffs are entitled to take possession of the suit schedule property by due process of law. However, the suit in respect of damages of Rs.1,00,000/-pery ear was dismissed. 12. The first Appellate Court while allowing the appeal made the following observation: “i. On perusal of the entire judgment of trial Court, this Court find substance in the contentions raised by the learned counsel for appellants.The trial Court only observing that there is no mention of venture and no photographs or C.Ds are filed apparently came to a wrong conclusion that, the plaintiffs have not established their case.Thus the observations made by the trial Court are not supported by any cogent and convincing reasons.On perusal of ex.A.1/registered sale deed dated 07.10.2005 it is evident that the plaintiffs purchased the suit schedule property from the previous owner Smt. Narva Anushamma for valid consideration and the occupation by the defendants by raising basement in the suit schedule property appears to be illegal and without any authority. The plaintiffs have not adduced any evidence in respect of their claim of Rs.1,00,000/- per year from the defendants from the date of suit till the plaintiffs are put in possession. Therefore, the same cannot be granted. Therefore, taking into consideration the evidence of P.W.1 supported by documentary evidence Ex.A.1/registered sale deed dated 07.10.2005 I am of the considered view that the judgment and decree of the trial Court suffers from irregularities and in firm ities and require interference by this Court. The point is answered accordingly in favour of the plaintiffs”. 13. Aggrieved by the judgment and decree dated 13.03.2025, the present second appeal is filed by the defendants. The point is answered accordingly in favour of the plaintiffs”. 13. Aggrieved by the judgment and decree dated 13.03.2025, the present second appeal is filed by the defendants. 14. Learned counsel for the appellants submitted that the trial Court has rightly dismissed the suit since plaintiff failed to place any evidence and material on record, but the first appellate Court erroneously partly-allowed the appeal and set aside the judgment and decree passed by the trial Court. The learned counsel for the appellants would further submit that the first appellate Court decreed the suit without there being any material on record and came to erroneous conclusions and thus, allowed the appeal which is unsustainable and is liable to be set aside.Learned counsel for the appellants would further submit that the first Appellate Court recorded perverse findings that plaintiffs proved the suit claim without there being any evidence on record and therefore, the said finding of the first Appellate Court is unsustainable and the present Second Appeal is deserves to be allowed and the judgment of the first Appellate Court is liable to be set aside. 15. A perusal of the record discloses that the trial Court has observed that the plaintiffs have not filed photographs or CD before the trial Court to show that the construction were made by the defendants and that no witness was examined and except marking of Ex.A1, no other evidence was placed on record and thus, came to conclusion that there was no sufficient evidence and material on record and dismissed the suit. 16. The first appellate Court reconsidered the entire evidence and material placed on record and came to conclusion that observation made by the trial Court was not supported by cogent and convincing reasons and further observed that plaintiffs purchased the suit schedule plot through registered sale deed dated 07.02.2005 which is marked as Ex.A1.The first Appellate Court considering the oral evidence of P.W.1 and documentary evidence in the form of Ex.A1, came to conclusion that plaintiffs proved their case and partly allowed the appeal. 17. Admittedly, plaintiffs did not contest the matter and remained ex parte before trial Court as well as first Appellate Court and there is no challenge to claim of plaintiffs and further, there is no contra evidence to disprove the claim by the plaintiffs. 17. Admittedly, plaintiffs did not contest the matter and remained ex parte before trial Court as well as first Appellate Court and there is no challenge to claim of plaintiffs and further, there is no contra evidence to disprove the claim by the plaintiffs. In considered opinion of this Court, the trial Court has failed to examine and consider the registered sale deed executed in favour of plaintiffs and oral evidence of P.W.1 in proper perspective and erroneously gone into the aspect whether suit plot is part of layout or not without there being any challenge to the same. 18. In considered opinion of this Court,the first appellate Court has rightly appreciated the evidence on record placed by the plaintiffs particularly Ex.A.1, wherein clear boundaries were mentioned and it is settled principle of law that in case of dispute with regard to identity of a property,the same can be identified by boundaries and therefore, findings recorded by the trial Court are erroneous and are unsustainable. 19. In considered opinion of this Court, the learned counsel for the appellantsfailed to raise anysubstantial question of law tobe 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. 20. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings arrived at by the first appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. 21. 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 fell for consideration. 22. 22. 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 concurrent findings of first Appellate Court, under Section 100 C.P.C. Moreover, the grounds raised by the respondents are factual in nature and no question of law, much less, a substantial question of law arises for consideration in this Second Appeal. 23. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. There shall be no order as to costs. Pending miscellaneous applications, if any shall stand closed.