Kandivalasa Pentayya And Others vs Kuppili Thavudu And Others

Subba Reddy Satti, J

The Defendants in the suit filed the above second appeal against the judgment and decree dated 21.02.2025 in A.S.No.92 of 2018 on the file of Additional Civil Judge (Senior Division), Srikakulam, confirming the judgment and decree dated 21.06.2018 in O.S.No.305 of 2018 on the file of Principal Junior Civil Judge, Srikakulam.

For the sake of convenience and brevity, the parties herein are referred to as per their array in the suit.

Plaintiffs filed the suit for the grant of a perpetual injunction. In the plaint, it was contended, interalia, that the plaintiffs are the sons of Kuppili China Appalanarasayya. Sri China Appalanarasayya had Ac.0.60 cents of wet land in Laveru village i.e. the plaint schedule property, and it is his ancestral property. The plaintiffs succeeded to the property after the death of their father. The plaintiffs have been living jointly and cultivating the property by raising paddy, green gram, black gram and other wet crops. The revenue records are in the name of the plaintiffs' father. The defendants, strangers to the schedule property and belonging to the same village, are trying to trespass on the schedule property. Hence, the suit.

The 1st defendant filed a written statement, and the same was adopted by defendants 2 and 3. The defendants pleaded that the suit is bad for misjoinder and non-joinder of necessary parties. There is no cause of action to file the suit. One Laveti Yellayya filed suit O.S.No.64 of 2013 on the file of Principal Junior Civil Judge, Srikakulam, against the 1st defendant, and the same is pending, in respect of Ac.0.50 cents of land. The grandfather of the 1st defendant dug a bond called as “Satyavani Banda”, a private tank to store water for irrigation for the land measuring an extent of Ac.5.72 cents in S.No.139 of Laveru village. The defendants’ father filed suit O.S.No.461 of 1984, and the same was ended on 27.04.1989. The subject matter of the suit O.S.No.461 of 1984 and the present suit is the same. The judgment in O.S.No.461 of 1984 binds the plaintiffs and has eventually prayed to dismiss the suit.

Based on the above pleadings, the trial Court framed the following issues:

1) Whether the plaintiffs are in possession and enjoyment of plaint schedule property as contended by them?

2) Whether the suit is hit by res judicata

3) Whether the plaintiffs are entitled to a permanent injunction as prayed for?

4) To what relief?

The 3rd plaintiff examined himself as P.W.1 and got examined P.Ws.2 and 3. Exs.A1 to A9 were marked. The 1st defendant examined himself as D.W. 1 and got examined D.Ws. 2 and 3. Exs.B1 to B6 were marked.

The trial Court, on examining both oral and documentary evidence, decreed the suit and granted perpetual injunction on 21.01.2018.

Aggrieved by the said judgment and decree, the defendants filed an appeal A.S.No.92 of 2018. The lower appellate Court, being the final fact-finding Court on appreciation of both oral and documentary evidence, dismissed the appeal by judgment and decree dated 21.02.2025. Assailing the said judgments and decrees, the above second appeal is filed.

Heard Sri Srinivas Ambati, learned counsel for appellants.

Learned counsel for the appellants would submit that the Courts below failed to consider the aspect of res judicata, given the judgment in O.S.No.461 of 1984. He would submit that the Courts below misread and misinterpreted the evidence on record.

Based on the pleadings and contentions, the following substantial questions of law would arise for consideration:

1) Whether the plaintiffs proved their possession over the suit schedule property as on the date of filing of the suit, it being a suit for perpetual injunction?

2) Whether the judgment and decree in O.S.No.461 of 1984 operate as res judicata?

3) Whether the Courts below misread and misinterpreted the documents?

The plaint schedule property is an extent of Ac.0.10 cents in S.No.139/2; Ac.0.20 cents in S.No.139/4, and Ac.0.30 cents in S.No.139/6, totalling an extent of Ac.0.60 cents situated in Laveru village and Mandal of Srikakulam District. The revenue authorities assigned 2130 as Patta or Khata number to the schedule property. The plaintiffs, in support of their case, filed revenue records i.e., adangals, pattadar pass books and title deeds. The defendants filed Exs.B1 to B6. Exs.B3 and B4 are certified copies of the decree and judgment in O.S.No.461 of 1984. Ex.B1 is the Patta on which reliance was placed by the defendants regarding the schedule property.

It is the pleaded case of the plaintiffs that the suit schedule property is their ancestral property. Exs.A1 to A4 are adangal pahanis for the fasli 1422 dated 15.11.2012 of 3 survey numbers. Exs.A4 to A9 are Pattadar pass books and title deeds.

The Courts below, after considering oral and documentary evidence, recorded the finding that the plaintiffs proved title and possession over the suit schedule property. In fact, D.W.1 in his cross- examination admitted the existence of Exs.A1 to A9, however, he contended that the plaintiffs created them for the suit. The defendants did not take any steps to cancel the revenue records standing in the name of the plaintiffs or their predecessors in interest.

Ex.B1 patta does not disclose the survey number and extent. Exs.B3 and B4 judgment and decree in O.S.No.461 of 1984, the plaintiffs in the suit did not press the suit, and hence the said suit was dismissed. The adangal filed by the defendants was marked as Ex.B6, and it pertains to S.No.151. Though the suit is filed for relief of the perpetual injunction, since the defendants set up title to the property and marked Exs.B1 to B6, this Court made the above observations based on the material available on record.

The plaintiffs, as discussed supra, established their possession over the suit schedule property and both the Courts below, after considering oral and documentary evidence, recorded findings concurrently.

The scope of Section 100 of CPC vis-à-vis the concurrent findings of fact recorded by the Courts below is well settled.

Dealing with the scope of Section 100 of CPC, the Hon’ble Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors. (2001) 4 SCC 262 held as follows:

“Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity.”

The Hon’ble Apex Court in Hero Vinoth Vs. Seshammal AIR 2009 SC 1481, held thus:

“19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) …

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.”

A conspectus of judgments referred to supra on the scope of interference by the High Court in second appeal, this Court, while exercising jurisdiction under Section 100 of CPC, must confine itself to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below, where the Courts below have exercised the discretion judicially. Further, the existence of a substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Courts are manifestly perverse and contrary to the evidence on record. If the findings are based on inadmissible evidence or failure to consider relevant evidence High Court, under Section 100 of CPC can interfere.

However, in the above second appeal, the findings of fact recorded by Courts below, being the Court of first instance and final fact finding Court, are based on appreciation of oral and documentary evidence, and it does not call for any interference of this Court as per Section 100 of CPC. This Court finds no question of law, much less substantial questions of law, involved in the present second appeal. Hence, the second appeal fails and is liable to be dismissed, however, without costs.

Accordingly, the Second Appeal is Dismissed at the admission stage. No order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.