High Court dismissed second appeal at admission stage. Held no substantial question of law arose as lower courts properly appreciated evidence establishing plaintiff's title.
Second appeal dismissed; judgment and decree of trial court and first appellate court confirmed.
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.
[3260 ]
IN THE HIGH COURT FOR THE STATE OFTELANGANA AT HYDERABAD
FRIDAY, THE TWENTY FOURTH DAY OFFEBRUARY TWO THOUSAND AND TWENTYTHREE
PRESENT
THE HONOURABLE SRI JUSTICE A.SANTHOSHREDDY
SECOND APPEAL NO: 46oF 2020
Appeal Under Section 100 of C.P.Cagainstthe Judgmentand Decree made in A.S. No. 3 ol 2017Dated.24-7-2019on the file of the Courtof the Principal District Judge, Adilabad, Preferredagainst the Decree in OS. No. 98 of 2016 Dated: 29-12-2016 on the file of theCourt of the JuniorCivilJudge, Adilabad.
Between:
Mohd. Qamaruddin, S/o:late Md. Khaja, Aged about57 years,Occ.-Cycle Mechanic, RI/o H.No.1-2-34128,Bokkalguda, Khanapur road, Adilabad, District Adilabad.
...PETITIONER/APPELLANT
AND
Smt. Muneera Begum,Wo: Shakeel Ahmed,.aged.alrut 45 y-ears' . Occ. House wife,FUo H.No.2-2-22,NearAziziaUrduSchool, Bokkalguda area, Adilabad, DistrictAdilabad.
...RESPONDENTS
Counsel for the Appellant:SRl.S' CHANDRASEKHAR
Counsel for the Respondent:SRl. KONDADIAJAY KUMAR
The Court made the following:JUDGMENT
THE HON'BLE SITI .IUSTICE A.SANTHOSH RT]DDY REDDY
SECOND APPBAL No.46 OF 2020
JUDGMENT:
'lhis seconl appeal is llled under Section 100 of the Civil Procedure Code. 1908 (tbr shurt'CPC') by the unsuccessful defendant assailing the concrrrent lindings o1-the trial Cou( in O.S.No.98 of 2016 and the tirst appcllate- C-'ourt in .A..S.No.3 of 2017.
'fhe par-tics hcrein are brothcl and sister. The lespondentptaintiff has Illed thc original suit in OS No.98 of 2016 on the frle of the Junior Cii,il Judge, Aclili'bad against thc a ppellant-defendant fbr declaration ol title and reco\er)' ol possession of the suit schr:dule property l.e II.No.1-2-34128 consisting on an area of 50.55 square yards in plot No.279 out o1 S1,.No.299 situated at Ward No. I block No.2, AS Bakkalaguda. Adilabad thereinafter referrecl to
"sr.rit house").'l'hc plaintiff is thc pattadar and owner of the H.No. l-l-34/28 ci,nsisring on a Irl()r No.279 out ol Sy.No.299 situated at
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right or title over tre suit house. relused to vacate the sant,:. The plaintiff got issued a lega[ ;rotice on 10.09,]012 to vacate the suit house. But, he neither replied nol vacated the sLrit house. As such, thc present suit is filed.
5 The delendant filed u,r'irten statement, inter alta, denying the allegations and ccntended that rhr. suit house fell to his share. The delendant is enjoy ng the suit hor-rse peacefully without ary obstruction. lt is stated that the vendor o1' the plaintiff and the de1,:ndant already
executed a doctrncr.rt vicle drre Lrrne nt No.l509/2005. wherein it is mentioned that(,aslern side is rcrnaining area ol H.No. l-2-34128 of vendor No.?. l'he dcf-endant is in possession of the suit house since long time and paying plopeftv tax re!.ularly in the name of his father. The revenue authoritie:; also issuecl patta certifrcate to that effect. The plaintiff created the documents and filed the present su it by showing wrong boundarics. Ilence, he pravs to dismiss the suit.
l) Wherher rhc piaintil'l rs entitled to be declarecl as the lawful ou ner of .hc suit properlr rrnd the same be restored to the plaintiff by evicti'rg the de f'endarrt. therefiom the suit proFerty as prayed lor?
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7 . The plaintiff examinedherselfas PW.l and examinedPws l to 3 on
her behalf andgot marked Exs.A.l to A-5 markedon her behalf'The defendant himself examinedas DW. I and examined DW.2 and Exs'B'1 and B.2 were marked onhis behalf.
9.'lhe unsuccessful delendant hasassailed the judgment and decree of the trial Court dated 29.12.2016 in O.SNo.98 of2016 beforethe Principal District Judge, Adilabad vide A.SNo.3 of2017. The leamed first appellate Judge having heard on both sides formulated the following three pointsas contemplated under Order-4 I Rule-3 I of CPC:
l) Whether the plaintiff has proved her title to the suit schedule property and if so, rvhether she is entitled fbr declaration of title and recovcry of possession ol suit schedule properly?
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2 ) Whethe r thc impugued .ltrclgtnentand decree ol thc trial Coutt is unsustainatrle anci recluircs artf intert'ercnoeby this Cc'urt while sitting in appt:al. i1'so, with\ hat observations?
3 ) I-o rvhat le;trlt'?
l0 The first appellate Cottn on re-appraisalof the trntire,evidence
answered all the points inl'avor'rr of the plaintilfand againstthe defendants andconfirrredthe jLrclgment and decree of the trial coutt disrnissing the appt:alfiledby the clefendant.
(i) Whcther in the abscncc o1'havingproolof valid Litlewith possession, prssing the Judgnlentby boththe Counsbelow in firvotrr of rcs; ondent/plaintill' is correct?
(ii) Whothcr shifting thc burdcn ofproof onth,: headsof appellant is cttrrcct?
iii) Whether thc findingsol Appellatc Courl and TrLalCourtin allowing thc i laimof thc respondent/plaintifTis pcrverse?
respondent-plainti l'-. Peruscd tlrematerial placed on record. The
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submissions made on either side have received due consideration ol this Court.
I (20l9) 8 Suprerne Coun Cases 617 ' t02t(4) Ar.T J75(S.B.)
permissible.He pral's to dismiss Lhe appeal'He hasplaced reliance on the decisionof Stare o.f Punjab v 'lntorjitSinght'
l5 ln thejLrdgrncrrtol' Ilcro /inoth (MINOR) vScsltammala'the Apcx('ourt, while considering thc scopeof second appeal under Section that"An inferenceof fact from the 100 ol'CI.P.C,at PrrraNo 24, heid is aquestionof .fcttt'Ilut the legal ret ituls orc'onlanl\of' a dr'tcuntcttt eJ/ccto.t' the ternls (''f (1 document is a question of law' Corstructionof a doctutrentint'olt'iuY,the ttpplicttritttt o.f any principleo'/'1o*' is also a quesli()t1 tl'lott.T lt:rafot e' whetttltarc is misconstruclirtn'f a documenl or v't'ongapplic'aiirtttof u printipl''o/'law in construitT:< a document'it give.s riseto a que';tion of'Lau*; liit The High Court should be sotisfed thar rhc cttscitt:'t,t'c\ ct stthsltttttittl questionof lav"' and not a mere questittn of'lau 'lquesliono.f ltrtr hovinga materialhearingon the decisionoJ theca':e (that is' a qtteslion' answer to whicha/'recls the rights o/'purtiesto the \ttil) will be it 'rtltstanlialquestiontl- l:rt' if it is not covarerl byarq sltecificStrovisirttts of law or settle'cl legal principle entcrging -frontbinding prececlants and' involvesa debata'\lelegal issue' ,4 .strhstanlittlq1l')stion o.f' latt t: ill alsrt arise in a t'cnl'ar'y situation'
' i l0l0 ) 5 SLrpretlrcLt'Lrrt ('asesj-1i
'.1.!'.ili ' r.Zr)tl(.,. '.l,tc rrc(,'ttll
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where the legal position is clear, either on accounl of express provisions of lax' or bintring precedents, but the court berow has crecided rhe mauer, either ignoring or ac ng contrary to such regar principre. rn the second rype of cases' the substantiar question of raw arises t10t because the raw is stirr debatabre' but because rhe crecision rendererf on o motrrior quesrion, violates the settled position of law, (iii) The general rule is that High Court wi' nor interfere with concurrent /incri,gs of the Courts tntou, gu, it i.s not an absolute rule. Some of the well recognized exceptions ai,e where (i) the courts below have ignored materiar evidence or acted on no evidence; (ii) the courts have drawn v,rong inferences from proved focts hy applying the law erroneoush,,. or (iii) rhe courts have wrongly cu,tt the burden of proof. When we refer to,decision based on no evidence,. it nol only refers to cases where there is a total dearth of evidence, but also re.fers b aryl case, wherc the <tvidence, taken as a whole. is not reas o na b ly c apa b le of s uppo r t i ng t h e fi nd ing.,, 16' I have carefu'y perused the judgments of the trial court and the first appellate Court. The plainrillis thc owner and posscssor of.thc suit schedule propefty house bearing No.l_2_34/2g consisting on a plor No'279 0ut of Sy'No 2gg situated ar Masood NagariBokkaraguda torar
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arca ol [66 sclLrarc Ilrds. lhellhsildar, Adilabad had issuedExA l patteclar passbook ir-r ihvor.rr ol'thc plaintifTfor the suit sch:dule propefiy vide procs.No.l)i(tll99l . dated09.09.2003by collectirrg requisite stamp duty. Sincc therr, theplaintill has becomethe absolute ownerand posscssor of the srtrne. Tl-rcrealicr.it appears she has sold away'an extent o1'115.55 square lardsto one Md.shakeeluddinon 09.052'108' lhe total area of the sr.tit schedule PropertyH.No. 1-2-3'li - 8and also thc' ILNo.I-+--130 s ttrateclat Ilokkalaguda.Adilabad is 33i square yards, w hich r.r'as ou nctl and posscssecltr1' the latherof the plaintiffand the dc t'cnd ant.
17 . 'l'he plaintifl liled partition sLrit in O.S.No.l86 of 2005 against the clclenclant and otlter. brotliers,sistels and motherand the said suit was cornprorn ised or.rt of the Court.i'hcreafter,at requestof -hc det.endant, Lhe plnintil-f allot':tl him toresitlcin the suit schedule properl)' lor some period. l'helcaftcr', hc relirsed to\ acatethe same'
IU. On the other hantl, itis thc casc of the defendantthat he is in posscssioti and cu.it-'trnent o1'thcsuiLschcdulepropefty alc'ng u'ith other propcrlics, u'hich lell to his shalein the partition. It is alsohis case that the r enclol ol' tlrc plaintiff has already executcd a document
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No l509/200-s, wherein it is mentioned that easrern side or the house is remaining area of H.No. I_2-34l2g of vendor No.2. As per the said documcnt. the delendanr is in posscssion since lorrg tirne.
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Botlr o1'tlrcm catcgolicall<sup>statccl tliat thc suit schedule Dr()perty belongs to the pla intitf
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plaintifF and their other family members wourd itserf estabrish rhat rheir ancestral properties were not partitioned by that time. rherefore. the question of eastem side land being owned by the defendant does not afise. Except the said contention, the defendant Ibired to establish his title to the suit schedule property with any other evidence.
2r ' The triar court has answered a, the issues in [avour or the plainti rf holding that the plaintiff is entitred for decraration and recoverry of possession. I do not find any perversity or irregularity in apprcciation of cvidence by the trial Court. The first appeliate Courr has l.ormulated two points touching on arr rivar contentions and re-appreciated the e'idence and answered on re-appreciation of the orar and documentary evidence available on record, finally concluded that the trial Court has rightl,v decreed the suit and there are no grounds to interf_ere with the judgment of the trial court. Accordingly, the judgment and decree of.the trial court were confirmed in its entirety. 22' I have given my thoughtfur consideration to the substantial questions of law that are proposed by the appellants/defendants in the memorandum of grounds of second appeal. The oral and documentarv evidcnce as stated supra, as appreciated by the Courts bel'w,, thc plaintifi.
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has pro'ecl her t,tlc o.er the sLrir :chedLrle property. l.herefore, I ilo not trnd any pcn,ersitr or irr.cgular.it,r in the findings recordr:d by the trial L-ourt on this point
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or thc points rvhich were decided by the Courls below on proper appreciation of the rnateriar avairable on record, which does not warrant any interference by this Court.
25 In VEttRAyEE AMMAL v. SEENI Ai{MAL5, rhe Apex courr. while deprecating the practice of Iiberal construction and gcnerous application of provisions of Section 100 by the High Courls, observed that"lt is distres.ring that despite amendment. thc provit.ion.t o/.Stction 100 o/ the Code have been liberally construed and generou.sly appliecl b_y some judges of the High Courts with the resurt that the objective intended lo be achieved by, the amendment r.tf Section 100 appears to have heen frustrated' Even before the amendment of section t00 of rhe code, the concurrent finding of facts could not be disturbed in the second appeal,,. It was further. held.'ln this case the qtrestion ,,_as covered under lssue I as fratned by the trial court and issue I was, ad.mittedly, an issue of fact which v)as concurrently held in favour of the appellanrplaintiLf and did not justiflt rhe ltigh court to disturb the same by suhstituting its own finding for the ./indings of the Courts below, arrivecl at on appreciatictn of evidence. '
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26' t itllcss th. rlppcllant rir t^e second appeal is able to canvass thc substantiar "1',estio. of larr. rhe concurrent findings of fact recorded b1,thc Courts b,:low cannot bc clisturbed by re_appraisal of the evidence. It is nor the casc ol the appeliar)t nor does the recorcl al:;o shorv that the irnpugned .iudgirrents sufrer rr.rn any perversity in the matter of apprec iation ofcr dencc.
21 . [.lndcr those circur.nstanct-:. ir is hcld that no question ol law. rnuch le'ss a sLrbstantial tlucstion ol lurr. rrrises fbr determinatiorr in the present sccond appeal.'l h_.rc are no merits in the second appeal.
2U. In thc resLrlt. rhe second appcal is dismissed at thc admission stage ilscll'conflr,i,g thL' corcL)r'r'en1 rirclings of the trial courr in o.S.No.9g ol l0l6 and thc l'r.:i1 appcllxtc (,t,rrr_r in A.S.No..l o1.2017. Horvever. in the circutnst.lnces o l'the casc. tlrcr.c shall be no order as to tlle costs.
As a scqrrc , n.risccllaneoLr: rpplications, il any, pcnding in this second appeal, shall stand closed.
SD/. M. RAMAKRISHNA DEPUTY REGISTRAR //TRUE COPYII sEc;i#r oFFrcER
To, 1 2 TJ+ 3 T.no i,ii{ii!-ji,i*:e'rffi c.o c*:E^ +llfr:Il}"""ucBiHf
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HIGH COURT
DATED:2410212023
JUDGMENT
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SA.No.46 of 2020
DISMISSING THE SECOND APPEAL AT THE ADMISSION STAGE
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3 issues framed by the court
Whether a substantial question of law arises to disturb the concurrent findings of the trial court and first appellate court in a second appeal?
Whether the plaintiff has proved her title to the suit schedule property and is entitled for declaration of title and recovery of possession?
Whether the appellant has established beneficial title over the suit schedule property to displace the plaintiff's claim?
Colour shows how this judgement treated each authority
State of Rajasthan v. Shiva DyalReferred¶60
State of Rajasthan v. Shiva Dyal
M. Venkateswara Rao v. K. Koteswara RaoReferred¶60
M. Venkateswara Rao v. K. Koteswara Rao
State of Punjab v. Tintoriq SinghReferred¶63
State of Punjab v. Tintoriq Singh
Hero Vinod (MINOR) v. SeshammalaReferred¶64
Hero Vinod (MINOR) v. Seshammala
V. Venkata Ramana v. V. ChalamReferred¶64
V. Venkata Ramana v. V. Chalam
Heramo v. AnchivadasReferred¶69
Heramo v. Anchivadas
2 provisions across 2 enactments
Mohd. Qamaruddin
Smt. Muneera Begum
A. Santhosh Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
