Rejeti Sriramulu vs Avala Jamminaidu And Another

T. Mallikarjuna Rao, J

This Second Appeal was filed by the Appellant/Plaintiff undder Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against the Judgment and decree, dateed 08.04.2003 passed in A.S.No.50 of 2000 on the file of learned Additional District Judge’s Court, Vizianagaram (forr short, 'the 1st Appellate Court'), confirming the Judgment and decree, dated 23.08.1999 passed in O.S. No.34 of 1995 on the file of learned Junior Civil Juddge’s Court, Cheepurupalli (for short ‘thee Trial Court’).

The parties to the Appeal are referred to as they are arrayed in O.S.No.34 of 1995.

Plaintiff filed O.S.No.34 of 1995 seeking the relief of permanent injunction in respect of the plaint schedule property or with the 27 palmyrah trees situated on the Western side of Ac.0.72 cents in S.No.71/3.

The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:

The Plaintiff is the rightful and absolute owner of an extent of Ac.0.82 cents in Survey No.73/1, under Patta No.414, situated in Ippalavalasa Village. On 05.05.1984, the Plaintiff sold an extent of Ac.0.72 cents to the 1st Defendant. Following this transaction, the Plaintiff retained the remaining Ac.0.10 cents of land, where a well was dug, and the land was utilized for cultivation. However, in the 2nd week of April, 1995, both the Defendants proclaimed their intention to trespass upon the land described in the plaint schedule. They also expressed their willingness to destroy the Palmyrah trees situated there. This declaration followed the Plaintiff's refusal to sell the plaint schedule land, which includes a motor shed and the well.

Defendants 1 and 2 filed a written statement denying the Plaintiff's allegations. They asserted that Survey No.71 was divided into 7 sub-divisions, with Patta No.269 and S.No.71/3 (0.82 acres) belonging to the 1st Defendant, who holds title and possession. They claimed that a joint well was dug by the Plaintiff and 2nd Defendant with a loan from the Co-operative Bank, which the 2 nd Defendant repaid. The Plaintiff is not the sole owner of the well and had sold the land to the 1st Defendant. A letter dated 05.05.1984, signed by the Plaintiff and his wife, confirmed no objection to drawing water from the well. The Plaintiff’s suit, based on suppressed facts, is alleged to be malicious and liable to be dismissed.

Based on the above pleadings in O.S.No.34 of 1995, the Trial Court framed the following issues:

1) Whether the Plaintiff is entitled for permanent injunction as prayed for?

2) To what relief?

During the trial, P.Ws.1 to 3 was examined and marked Exs.A.1 to A.14 on behalf of the Plaintiff. D.Ws.1 and 2 on behalf of the Defendants was examined and marked Exs.B.1 to B.16.

After the trial concluded and both sides presented their arguments, the learned Trial Court dismissed the suit in its judgment dated 23.08.1999.

Aggrieved by the said judgment and decree in O.S.No.34 of 1995, the Defendants filed A.S.No.50 of 2000. The 1st Appellate Court, being the final fact-finding Court, framed the following point for consideration:

Whether the Appellant/Plaintiff is entitled for permanent injunction, as prayed for?

The 1st Appellate Court, on scrutiny of oral and documentary evidence adduced on behalf of both sides, had dismissed the Appeal by its Judgment, dt.08.04.2003, confirming the judgment and decree in O.S.No.34 of 1995, dated 23.08.1999. Aggrieved by the 1st Appellate Court's Judgment passed in A.S.No.50 of 2000, the Appellant/Plaintiff preferred the present Second Appeal.

Heard Sri A. Sreedhar, learned counsel for the Appellant/Plaintiff, and none represented the Respondents/Defendants.

The learned counsel for the Appellant/Plaintiff asserts that the Trial Court erred in holding that the Plaintiff sold the entire land under Ex.B1. In fact, the Plaintiff sold only Ac.0.72 cents, retaining Ac.0.10 cents for himself. The Trial Court failed to recognize this distinction. The learned counsel further asserts that Ex.A2, which is true, shows the Defendants’ acknowledgment that the Plaintiff did not part with the Ac.0.10 cents of land containing 27 palmyrah trees. The Plaintiff has been in possession of this land, and thus, the counsel asserts, the Trial Court should have decreed the suit in the Plaintiff's favour.

Despite being granted several adjournments, no representation has been made on behalf of the Respondents / Defendants. Therefore, the matter is deemed to have been heard on behalf of the Respondents.

Based on the Appellant’s contentions, the following substantial questions of law are involved in this Second Appeal:

Whether the Lower Appellate Court rendered the judgment and Decree strictly adhering to the mandatory provisions of Order 41 rule 31 of the Code of Civil Procedure.

Whether the Courts below are justified in not properly considering the oral and documentary evidence adduced by the plaintiff and whether the Court below are justified in misreading the evidence let in by the plaintiff.

Whether the reasons assigned by the Courts below are sustainable for discarding Ex.A2 which would categorically prove the possession and enjoyment of the schedule land containing palmyrah trees by the plaintiff.

Whether the Courts below are justified in giving credence to the oral evidence adduced on behalf of the defendants with regard to the total extent of the land S.No.71/3 saying that the same being Ac.0.72 cents only in view of the categoric pleading of the 1st defendant in his written statement that the same being Ac.0.72 cents out of Ac.0.82 cents.

Before delving into the matter, since the Appeal is filed under Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.

In H.P.Pyarejan V. Dasappa (dead) by L.Rs. and others 2006 (3) ALT 41 (SC) , the Hon’ble Supreme Court held that:

“Under Section 100 of the Code (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it involves re-appreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713) and Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438)……”

Considerations in Section 100 of C.P.C., arise only when there is a substantial question of law and not mere such questions of law or one based on facts. However, it has to be borne in mind that in case of misapplication of law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in Second Appeal to consider such questions which are substantial in nature in terms of law.

In the second Appeal, while exercising jurisdiction under Section 100 of the C.P.C., this Court must confine itself to the substantial question of law involved in the Appeal. This Court cannot re-appreciate the evidence and interfere with the findings of the Courts below, where the Courts below recorded the findings judicially by appreciating both oral and documentary evidence. Further, the existence of a substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Courts below are manifestly perverse and contrary to the evidence on record.

The Plaintiff examined as PW.1, while Defendants 1 and 2 examined as DWs.1 and 2. They stuck to their version, both on the plaint and in their written statement. Notably, the 2nd Defendant is the Plaintiff's brother and the brother-in-law of DW.1.

Admittedly, the 1st Defendant purchased Ac.0.72 cents of land from the Plaintiff in Sy.No.71/3, as evidenced by the registered sale deed, dated 05.05.1984, (Ex.B.1) / registration extract Ex.A.1. The Plaintiff claims he owned Ac.0.82 cents, out of it, he sold Ac.0.72 cents of land to the 1st Defendant. However, Defendants 1 and 2, in their testimony, assert that the Plaintiff never possessed the schedule property i.e., Ac.0.10 cents of land. The Plaintiff failed to cross-examine DWs.1 and 2. This oversight left their testimony unchallenged, and it stands un-rebutted.

The Plaintiff, despite filing both the First and Second Appeal, hasn’t provided a justification for his failure to cross-examine DWs.1 and 2. As a result, both Courts rightfully took into account the version of DWs.1 and 2 during their chief examination.

The Plaintiff asserts he is in possession of the schedule property, which is Ac.0.10 cents, claiming it includes a well, a motor shed, and 27 palmyrah trees—trees he contends were not sold to the 1st Defendant. However, both Courts have correctly pointed out that if the Plaintiff truly possessed Ac.0.10 cents of land out of the total Ac.0.82 cents, his name should’ve appeared as one of the boundary owners in Ex.B.1. Yet, the sale deed Ex.B.1 does not mention the Plaintiff as a boundary owner. This glaring omission proves the Plaintiff’s failure to establish that he owns the Ac.0.10 cents of land adjacent to the Defendants’ property described in Ex.B.1.

The Plaintiff claims that 1st Defendant had Ex.A.2 executed in his favour, which allegedly grants him rights over the 27 palmyrah trees. According to the recitals in Ex.A.2, the 1st Defendant relinquished his rights to these trees, which are located to the west of the land covered by Ex.B.1. PWs.2 and 3, who were examined on behalf of the Plaintiff, clearly testified that the Plaintiff does not own any land near the property that he sold to the 1st Defendant. It is pertinent to note that PWs.2 and 3 were examined to prove Ex.A.2, but they did not support the Plaintiff’s case. Ex.A.2 also makes no reference to the Plaintiff owning Ac.0.10 cents of land to the west of the land covered by Ex.B.1. This omission weakens the Plaintiff’s claim and raises doubts about the validity of his assertions regarding the ownership of the land.

The Plaintiff has not adduced any evidence before the Court to substantiate a claim that he owned Ac.0.82 cents of land and retained Ac.0.10 cents after selling Ac.0.72 cents to the 1st Defendant. Though the Plaintiff has submitted several documents, both the Trial Court and the 1st Appellate Court have noted that these documents do not establish either the Plaintiff's title or possession of the Ac.0.10 cents of land. If the Plaintiff truly owned Ac.0.10 cents as he asserts, Ex.B.1 sale deed should have reflected this fact. It should have specified that out of the total Ac.0.82 cents of land, he sold Ac.0.72 cents, leaving the remaining Ac.0.10 cents as one of the boundaries mentioned in the deed.

Both the Trial Court and the 1st Appellate Court thoroughly examined and carefully considered the documents presented by both parties. As a Second Appellate Court, there is no need to reiterate the discussions already made by both the Courts.

The Hon’ble Supreme Court, in several cases, has held that the exercise of powers under Section 100 of C.P.C., can interfere with the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain V. Abdul Majeed & others 2011 (7) SCC 189, Union of India V. Ibrahim Uddin 2012 (8) SCC 148, and Vishwanath Agrawal V. Sarla Vishwanath Agrawal 2012 (7) SCC 288.

The findings of both the Trial Court and the 1st Appellate Court, which affirm that the Plaintiff failed to establish ownership or possession of Ac.0.10 cents of land after selling Ac.0.72 cents to the 1st Defendant, are neither unreasonable nor based on a misinterpretation of documents or misreading of evidence. These conclusions are well-founded, supported by the available evidence, and reflect a proper analysis of the case. After careful reading of the material on record, this Court finds that the Trial Court and the 1st Appellate Court concurrently dismissed the Plaintiff's suit by recording all the findings of facts against the Plaintiff enumerated above, and the findings were neither against the pleadings nor evidence nor against any provisions of Law.

This Court discerns no perversity in the Judgments rendered by the learned Trial Court and the 1st Appellate Court. The findings and reasoning provided by both the Courts are consistent with established legal principles. Both the Courts meticulously reviewed all the evidence available on record.

This Court considers that the Trial and 1st Appellate Courts’ conclusions are not subject to interference under Section 100 of C.P.C. In these circumstances, upon consideration of the decrees and judgments of the trial Court as well as the 1st Appellate Court, this Court is satisfied that the arguments presented pertain solely to the factual matrix and do not involve any substantial questions of Law. The Appellant has not raised any legal issues in this Second Appeal that warrant consideration. There is no sufficient ground to interfere with the judgment of the Trial Court and the 1st Appellate Court. There is no question of Law, let alone the substantial questions of Law, involved in this Second Appeal, and therefore, the Appeal is liable to be dismissed.

As a consequence, the Second Appeal is dismissed without costs. The judgment dated 08.04.2003 of learned Additional District Judge, Vizianagaram, in A.S.No.50 of 2000, stands confirmed.

Miscellaneous pending applications, if any, shall stand cancelled.