In this second appeal against a judgment dismissing a suit for perpetual injunction, the court held that the lower courts correctly found the appellants were not in possession. Finding no error in evidence appreciation, the appeal was dismissed.
The second appeal is dismissed. There is no order as to costs.
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HON’BLE SRI JUSTICE A. RAJASHEKER REDDY
Second Appeal No.669 of 2014
ORDER:
This Second Appeal is filed aggrieved by the judgment and decree dated 24.06.2014 in A.S.No.5 of 2013 passed by the Court of IX Additional District Judge, Wanaparthy, Mahboobnagar District.
Heard learned counsel for the appellants.
The brief facts of the case are as follows:
The appellants herein filed O.S.No.249 of 2005 for perpetual injunction in respect of suit schedule property stating that they are the owners of the suit schedule property and they have been in possession and enjoyment of the same. Since the defendants are capable of dispossessing the petitioners by use of force and illegal means, plaintiffs having no other option filed the suit for perpetual injunction.
The defendants filed written statements denying the plaint averments. They further submitted that the grand father of the plaintiffs by name Kistanna was the original owner of the land in Sy.No.154 totally to an extent of Ac.4-16 Gts and after the demise of said Kistanna, his wife and his sons sold the said land under a simple sale deed to the father of the defendants by name Kummari Chinna Kistanna. They also executed a receipt in favour of the Chinna Kistanna and delivered possession to him. Since then, Chinna Kistanna and the defendants are in peaceful possession and enjoyment of the suit schedule property. The defendants and their father have also paid the land revenue to the authorities since the date of purchase of the property and title deeds and pattedar pass books were also issued in the name of the father of the defendants.
On behalf of the plaintiffs PWs.1 to 4 were examined and Exs.A1 to A4 were examined to prove their case. DWs.1 to 5 were examined on behalf of the defendants and Exs.B1 to B.49 were marked. The trial Court after considering the contentions of the plaintiffs and defendants
and after going through the oral and documentary evidence adduced by both the parties found that the appellants/plaintiffs are not in possession of the suit schedule property as on the date of filing of the suit and thereby dismissed the suit.
Against the same, appellants filed AS.No.5 of 2013 on the file of IX Additional District Judge, Wanaparthy. The appellate Court after detail scrutiny of the averments of the plaintiffs and defendants and evidence available on record found that the appellants/plaintiffs are not in possession of the suit schedule property as on date of filing of the suit and confirmed the judgment of the trial Court. Against the same, the present Second Appeal is filed.
Both the Courts below after examining the evidence of PWs.1 to 4 and DWs.1 to 5 as well as documents produced by both parties came to right conclusion that the appellants/plaintiffs are not in possession of the suit schedule property as on the date of filing of the suit.
The substantial questions of law raised in this Second Appeal are only relating to appreciation of evidence by both the Courts below and they cannot be termed as substantial questions of law.
I have gone through the evidence on record, which was already appreciated by both the Courts below, and found that the Courts below have not committed any error requiring interference of this Court under Section 100 of Civil Procedure Code. In view of the same, I do not find any merit in this appeal. Accordingly, the second appeal is dismissed.
Learned counsel for the appellant submits that appellants may be permitted to file a fresh suit for declaration and recovery of possession. If the law permits, nothing prevents them from instituting the same.
There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
A. RAJASHEKER REDDY, J
Date: 07.10.2014 dv
2 issues framed by the court
Whether appreciation of evidence by courts below warrants interference under Section 100 of the Civil Procedure Code.
Whether substantial question of law is raised in the second appeal.
1 provisions across 1 enactments
Appellants
Respondents
A. Rajasheker Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
