Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 528 (TS)

Nerella Rajamallaiah v. Nerella Ramaiah

2025-04-30

LAXMI NARAYANA ALISHETTY

body2025
JUDGMENT : LAXMI NARAYANA ALISHETTY, J. This Second Appeal is filed challenging the judgment and decree, dated 17.03.2022, passed by the II Additional District and Sessions Judge Judge(FTC), Adilabad at Mancherial, in A.S.No.63 of 2018 whereunder and whereby the judgment and decree, dated 08.02.2018, passed by the Junior Civil Judge, Luxettipet, in O.S.No.17 of 2009 was confirmed. 2. The appellants herein are plaintiffs and respondent herein is defendant, 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 as narrated in the plaint are that plaintiff filed suit in O.S.No.17 of 2009 for declaration of title and recovery of possession of land bearing Sy.No.120/4, admeasuring 12 ½ guntas and a portion of the house bearing GP.No.8-136, situated at Uthkur shivar, Gampalapalli Village, Adilabad District (hereinafter referred to as ‘schedule property’). It was averred in the plaint that the father of the plaintiffs by name Nerella @ Chakali Lasmaiah has acquired agricultural land admeasuring 25 guntas in Sy.No. 120 in Uthkur shivar of Luxettipet revenue Mandal along with lands in Sy.Nos.210 and 221 under Section 38(E) of A.P.Tenancy(TA) Act and the same was mutated in his name in the revenue records; that the father of the plaintiffs in the capacity of a protected tenant constructed two rooms house, which was given House No.8-136; that father of the plaintiffs on humanitarian grounds has allowed the defendant, who is his half brother to stay in one room of his house and when their grandfather died, defendant did not vacate the room. Later, In the year 1998, when the plaintiffs have applied to the MRO, Luxettipet for mutation of lands in their name in respect of the lands in Sy.Nos.120, 210 and 221, the revenue authorities have transferred half of the property from every survey number in the name of the defendant, as such 12 ½ guntas of land in Sy.No.120 went into the hands of the defendant and the defendant occupied it in June, 1999; that the plaintiffs came to know about the fraudulent transfer of the land in Sy.No.120 on receipt of summons in O.S.No. 23 of 2007 filed by the defendant and when the plaintiffs pressurized the defendant to vacate the room, the defendant and his son have given an undertaking to the plaintiffs that they will vacate the room by April, 2007, however, instead of vacating the room the defendant filed a suit against the plaintiffs. The plaintiffs appealed to the Tahsildar, Luxettipet for rectification of record and the Tahsildar sent a notice on 17.10.2007, but did not take any further action against the defendant. It was further averred that the father of the plaintiffs was issued ownership certificate under Section 38 (E) of Tenancy Act in 1974, but the defendant has fraudulently got entered his name in the revenue records and pahanies as ‘occupant’. Hence the suit. 4. Defendant filed written statement denying the allegation made in the plaint and averred that the father of the plaintiffs and the defendant are own brothers and sons of Late Nerella Venkaiah. The father of the plaintiffs is the elder son and Kartha of the family; that tenancy certificate was issued to both the defendant and father of the plaintiffs and both of them jointly cultivated the suit land along with some other lands. Thereafter, the father of the plaintiffs and the defendant had orally partitioned their lands including with suit land and as per the partition, defendant and Lasmaiah got half share each in the lands. In 1975, Ryotwari pass book was issued to the defendant and both defendant and father of plaintiffs were cultivating their respective share of lands without any dispute. The plaintiffs and their father did not interfere with the peaceful possession of the defendant till the death of Lasmaiah and when defendant constructed a house in schedule property, plaintiffs did not object the same. The plaintiffs and their father did not interfere with the peaceful possession of the defendant till the death of Lasmaiah and when defendant constructed a house in schedule property, plaintiffs did not object the same. The defendant has been peacefully enjoying the schedule property, since more than 30 years and the plaintiffs have no right over the schedule property. Hence prayed to dismiss the suit. 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 entitled for declaration of title over the suit schedule property? (2) Whether the plaintiff is entitled for recovery of possession of suit schedule property? (3) To what relief?” 6. During the course of the trial, on behalf of plaintiffs, plaintiff No.1, was examined as PW.1 and one Eggidi Sayanna was examined as PW.2 and Exs.A1 to A9 were marked. On behalf of defendant, DW.1 was examined and Exs.B1 to B7 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 08.02.2018. 8. In the Judgment, the trial Court categorically observed as hereunder:- “….38(E) certificate was issued in favour of the father of the plaintiffs. But the contention of the defendant is being the karta of joint family patta was issued in the name of the father of the plaintiffs and that the defendant and father of the plaintiffs cultivated the suit land and partition was effected long back. As per the partition, the suit land i.e., half of the land in Sy.No. 120 was mutated in favour of the defendant. According to his case, the defendant is in possession of suit land since 1970. On the other hand,the plaintiffs did not file any document to show their possession over the suit land after 1970. Since half of the land in Sy.No.120 was mutated in favour of the defendant, the contention of the defendant that partition was effected between them long back and basing on their partition, the name of the defendant was mutated in revenue record shall not be ruled out completely. Further, admittedly, the defendant is in possession of the suit land since 30 years ago and the possession of the defendant is being supported by the documents...” 8.1. Further, admittedly, the defendant is in possession of the suit land since 30 years ago and the possession of the defendant is being supported by the documents...” 8.1. The Trial Court has further observed as hereunder:- “…the plaintiffs did not file any document to show their possession within 12 years prior to filing of this suit. On the other hand, as per the plaint averments, the name of the defendant was mutated and Raitwari pass book was issued in the year 1975. Therefore it can be inferred that the defendant is in possession of suit land since long back. In the light of above discussion, this Court is of the view that, the plaintiffs are failed to prove their title over the suit land...” 9. Aggrieved by the said judgment dated 08.02.2018 of the trial Court, the plaintiff preferred appeal vide A.S.No.63 of 2018 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 17.03.2022, thereby, confirming the judgment of the trial Court. 10. The first Appellate Court in its judgment observed as hereunder:- “30. In the present case defendant never pleaded himself to be a protected tenant. He was in possession of the property for an extent of Ac. 0.12 ½ gts., which is the part of the property against which his brother was declared as protected tenant. Admittedly, original tenant Lasmaiah or his children never 19 of 22 A.S.No.63 of 2018 disputed the possession or cultivation of defendant in respect of Ac. 0.12 ½ gts., in Sy.No.120. No objection appears to have been filed against the entries of defendant name in pahanies in possession column. When the plaintiffs very much have the knowledge about the possession of defendant right from 1986 87, when they have the knowledge of mutation in revenue records in 1998 as pleaded by them, their version that they do not know his suit for injunction was filed is not believable. It clearly appears that to overcome the limitation aspect, plaintiffs pleaded the same. Apparently, the possession of defendant is adverse to the interest of plaintiff. His intention to possess the property can be understood from his entries in revenue records. Inspite of having the knowledge plaintiffs’ failed to object or protest against the possession of defendants. It clearly appears that to overcome the limitation aspect, plaintiffs pleaded the same. Apparently, the possession of defendant is adverse to the interest of plaintiff. His intention to possess the property can be understood from his entries in revenue records. Inspite of having the knowledge plaintiffs’ failed to object or protest against the possession of defendants. On the other hand, they categorically mentioned that defendant was in possession of one of the two rooms constructed by their fathers even prior to declaring him as protected tenant shows the long standing possession. Since the possession of a party over a property assumes importance even in the absence of title, the defendant case can be given credence. Though the defendant being the brother cannot claim ownership as a matter of right against the property of his brother over the property acquired under protected tenancy, his possession has to be protected because of his uninterrupted and continuous possession.” 10.1. The First Appellate Court has further observed as hereunder:- “certainly plaintiff lost their title in respect of the portion which is in the possession of defendant, They cannot claim any right much less title against said property. When they accepted the cultivation of property by defendant they cannot claim said property as heirs of the original protected tenant. Though the nature of the property Tenancy will not give right to acquire or transfer the property by any of the known modes like sale, gift, lease or partition, the right under Article 65 of Indian Limitation Act is automatic. It is by virtue of the circumstances prevails. The person need not claim under Article 65, but he acquires right automatically. The party acquired if proves that he is in possession and the possession is known to the adverse party and a period of 12 years elapsed. In the present case, the case of the defendant that he is in possession is evident through pahanies. In these circumstances, the claim of the plaintiffs do not stand. When the documentary evidence produced by the plaintiffs is not convincing, the declaratory relief of title cannot be granted.” 11. Heard Sri C.A.R. Seshagiri Rao, learned counsel for the appellants and Sri. S. Prasad Babu, learned counsel for the respondent. Perused the entire material available on record. 12. In these circumstances, the claim of the plaintiffs do not stand. When the documentary evidence produced by the plaintiffs is not convincing, the declaratory relief of title cannot be granted.” 11. Heard Sri C.A.R. Seshagiri Rao, learned counsel for the appellants and Sri. S. Prasad Babu, learned counsel for the respondent. Perused the entire material available on record. 12. Learned counsel for the appellants contended that the trial Court as well as first appellate Court have failed to appreciate the oral and documentary evidence placed on record by plaintiffs in proper perspective and dismissed the suit as well as appeal on erroneous and perverse findings. Learned counsel further contended that the trial Court as well as first appellate Court failed to appreciate the fact that tenancy certificate was in favour of father of plaintiffs and thus they are entitled to the reliefs sought for in the suit. Hence, prayed to allow the appeal. 13. A perusal of record would disclose that the trial Court as well as the first Appellate Court concurrently held that plaintiffs have not filed any document to substantiate their claim and further, observed that the defendant has been in possession since 1970 which is more than 30 years from the date of filing of the suit. Both the Courts have observed that on one hand plaintiffs themselves admitted that name of the defendant was mutated in the revenue record in respect of half share of land in Sy.No.120, in the year 1975, and on the other hand have taken contradictory stand that name of the defendant was mutated in the revenue records in the year 1998 and the defendant occupied the land in the year 1999, which clearly shows the inconsistency in the stand of the plaintiffs. The trial Court has rightly observed that limitation for filing suit for declaration and recovery of possession is 12 years from the date of cause of action, whereas, the suit was filed in the year 2009 i.e., about 34 years after mutation of the names of the defendants in the revenue record and therefore, suit is clearly barred by limitation. 14. 14. Further, as per material placed on record, mutation has taken place in the name of the defendant in the year 1975 and since then, he has been in possession of his share of land in Sy.No.120 and thus possession of defendant can be traced to, the year 1975, i.e., more that 30 years, therefore, suit is barred by limitation and thus, not maintainable. 15. 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. 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. 17. 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. 18. 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. 19. 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.