The High Court dismissed a second appeal in a property dispute regarding a permanent injunction. The court held that only a substantial question of law arises in a second appeal under Section 100 CPC, and could not disturb the concurrent findings of fact by courts below regarding ownership and possession.
The second appeal is dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT HYDERABAD
WEDNESDAY, THE 09TH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN
PRESENT::
HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1313 OF 2010
Between:-
Rangu Gangamma
…Appellant
A n d
Rangu Jaya
…Respondent
HON’BLE SRI JUSTICE G.V.SEETHAPATHY
S.A.No.1313 OF 2010
JUDGMENT:
This second appeal is directed against the judgment dated
28-08-2009 in A.S.No.59 of 2006, on the file of the Principal District Judge, Adilabad, wherein the said appeal filed by the appellant herein was dismissed, confirming the judgment and decree dated 03-04-2006 in O.S.No.2 of 2003, on the file of the Junior Civil Judge, Adilabad, wherein the suit filed by the respondent herein for permanent injunction, was decreed.
2. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the record.
3. The respondent herein filed the suit for perpetual
injunction against the appellant restraining her from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule land. According to the plaintiff, she acquired the ownership of land by way of registered gift deeds on 11-11-2002 and 27-11-2002 by her husband, who got the same under a gift deed dated 06-03-1991 executed by his elder brother Rangu Laxminarayan Goud. Laxminarayana Goud purchased Plot No.22 measuring 122’x 200’ in an open auction from Adilabad Municipality. Out of the same, he gifted a piece of land measuring 25’ x 40’ in favour of plaintiff’s husband Rangu Rajeshwar Goud and ever since, the said Rajeshwar Goud and after him, the plaintiff have been in possession and enjoyment of the said plot. The defendant is second wife of Laxminarayana Goud, who died in 1993, leaving behind the defendant and her children and children through first wife. The plaintiff alleges that on 04-01-2003 when she tried to erect the shed over suit site, the defendant tried to obstruct and dismantle the shed. Hence, the plaintiff filed the suit for injunction.
4. The defendant filed written statement contending that the plaintiff has been residing in Jubilee Hills, Hyderbad since many years and the document dated 0603-1991 was created by the plaintiff in collusion with her husband and that after the death of her husband, Laxminarayana Goud, the defendant and her children succeeded to the property.
5. The trial Court framed the following issues:
i) Whether the plaintiff is entitled for a perpetual injunction restraining the defendant and their men from entering
into the peaceful possession and enjoyment of the suit schedule property as prayed for, together with costs or not?
ii) Whether there is any cancellation of the gift settlement dated 24-12-2002 or not?
iii) To such other relief
6. During trial, the plaintiff was examined as P.W.1 and also examined P.Ws.2 to 4 and marked Exs.A-1 to A- 4. The defendant was examined as D.W.1 and she also examined D.Ws.2 to 4 and marked Ex.B-1.
7. On a consideration of the evidence available on record, the trial Court held that the plaintiff is entitled for a permanent injunction as prayed for. The trial Court further held that the validity of Ex.B-1 cancellation deed dated 2412-2002 cannot be decided in the present suit, which is filed for bare injunction. Aggrieved by the judgment and decree, the defendant preferred appeal in A.S.No.59 of 2006, on the file of the Principal District Judge, Adilabad. The learned District Judge, by judgment dated 28-082009, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Aggrieved by the same, the present second appeal is filed.
8. As can be seen from the grounds of appeal, no question of law, much less a substantial question of law, has been raised, except contending that the evidence on record has not been properly appreciated. The suit is filed for mere injunction. The plaintiff adduced oral and
documentary evidence in support of her claim of ownership and possession over the suit land. The defendant, while denying the plaintiff’s claim, pleaded that under Ex.B-1 herself and her daughter cancelled the transaction under Ex.A-1. Ex.A-1 is the gift deed dated 0603-1991 executed by the defendant’s husband Laxminarayana Goud in favour of the plaintiff’s husband Rajeshwar Goud. Thus, Ex.B-1 recognizes the existence of Ex.A-1 under which the plaintiff based her claim. Both the Courts below have rightly held that the validity or otherwise of Ex.B-1 does not fall for determination in the present suit, which is filed by the plaintiff for bare injunction.
It is for the defendant to take appropriate proceedings to vindicate their rights, if any, under Ex.B-1. Insofar as the present suit is concerned, suffice for the plaintiff to establish that she has been in possession and enjoyment of the suit site by virtue of Exs.A-1 and
A-2. Both the Courts below have, on proper appreciation of evidence, oral and documentary available on record, upheld the claim of ownership and possession made by the plaintiff. The said concurrent finding recorded by the Courts below on a question of fact, cannot be interfered with in the second appeal. It is well settled that the scope of second appeal is limited.
9. In ‘R.RAMACHANDRAN AYYAR VS. RAMALINGAM
CHETTIA R[1] ’ the Apex Court held as follows:
“That the High Court was not justified in interfering with the findings of fact recorded by the first appellate Court in favour of the appellants. There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. To enable the
High Court to interfere under Section 100(1)(c) of the Code of Civil Procedure there must be a substantial error or defect in the procedure which may possibly have produced error or defect in decision of the case upon the merits; it is not enough that there is an error or defect in the appreciation of evidence. Even where the appreciation of evidence made by the first appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, it cannot be said to introduce a substantial error or defect in procedure”.
10. In ‘KSHITISH CHANDRA BOSE VS. COMMISSIONER OF
RANCHI[2] ’ the Apex Court held that ‘the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. It exceeded its jurisdiction under section 100 in reversing pure concurrent findings of fact given by the trial Court and the then appellate Court both on the question of title and that of adverse possession.’
11. In ‘VEERAYEE AMMAL VS. SEENI AMMA L[3] ’, the Apex court held while deprecating the practice of liberal construction and generous application of provisions of Section 100 by the High Courts, observed as follows:
“It is distressing that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that the objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal”.
It was further held as follows:
“In this case the question was covered under Issue 1 as framed by the trial court and issue 1 was, admittedly, an issue of fact which was concurrently held in favour of the appellantplaintiff and did not justify the High Court to disturb the same by
substituting its own finding for the findings of the Courts below, arrived at on appreciation of evidence.’
12. Unless the appellant in the second appeal is able to canvass
the substantial question of law, the concurrent findings of fact recorded by the Courts below cannot be disturbed by
re-appraisal of the evidence. It is not the case of the appellant nor does the record also show that the impugned judgments suffer from any perversity in the matter of appreciation of evidence.
13. Under those circumstances, it s held that no question of law, much less a substantial question of law, arises for determination in the present second appeal. There are no merits in the second appeal.
14. In the result, the second appeal is dismissed. There shall be no order as to costs.
G.V.SEETHAPATHY, J
09th February, 2011 Lrkm.
[1] (1963) SCR 604 [2] (1981) 2 SCC 103 [3] (2002) 1 SCC 134
3 issues framed by the court
Whether the concurrent findings of fact by courts below regarding the plaintiff's possession and title can be disturbed in a second appeal under Section 100 CPC.
Whether the appellant has raised a substantial question of law to justify interference with the judgment dismissing the appeal for permanent injunction.
Whether the appeal against the decree for permanent injunction deserves to be dismissed for lack of merit.
Colour shows how this judgement treated each authority
R. RAMACHANDRAN AYYAR VS. RAMALINGAM CHETTIARelied on¶31
(1963) SCR 604 · Who else cites this
KSHITISH CHANDRA BOSE VS. COMMISSIONER OF RANCHIRelied on¶35
(1981) 2 SCC 103 · Who else cites this
VEERAYEE AMMAL VS. SEENI AMMARelied on¶31
(2002) 1 SCC 134 · Who else cites this
1 provisions across 1 enactments
Rangu Gangamma
Rangu Jaya
G.V.SEETHAPATHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
