CIVIL PROCEDURE CODE, 1908 — Section 100 — Second Appeal — Scope of interference with findings of fact — Concurrent findings of trial Court and first appellate Court — When revisable.
High Court cannot interfere with findings of fact recorded by the first appellate Court, which is the final Court on facts, unless such findings are contrary to mandatory provisions of law, settled legal position, based on inadmissible evidence, or arrived at without evidence. On facts, both Courts below having concurrently held that plaintiff failed to prove title and identity of suit property and failed to establish entitlement to demolition or refund, no substantial question of law arose. Second appeal dismissed.
(Relied on: Bhagwan Sharma v. Bani Ghosh, AIR 1993 SC 398; Kondira Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 471.)
PROPERTY LAW — Declaration of title and mandatory injunction — Identity of property — Purchaser’s burden to prove vendor’s title, identity and delivery of property — Effect of vendor’s and purchaser’s admissions.
In a suit for declaration of title and demolition of structures, plaintiff must prove her own title, her vendor’s title, and exact identity of the property. Where plaintiff’s vendor admits that boundaries and survey number in sale deed were mentioned only on information given by plaintiff’s husband, that the property was never measured and never enjoyed by them, and that the house of defendant No.1, constructed in 1996 with municipal permission, stands on a different property; and where plaintiff admits property was not physically delivered, and that defendant No.1’s house existed since 1996 on the disputed land, held: plaintiff failed to establish either title to or identity of the property claimed against defendant No.1. Relief of declaration and mandatory injunction rightly refused.
CONTRACT / SALE OF IMMOVABLE PROPERTY — Refund of sale consideration — When purchaser can claim refund — Need to seek cancellation of own sale deed.
Where plaintiff purchased 5.00 acres from defendants 2 to 5 under registered sale deed and sought in alternative refund of sale consideration on the footing that vendors had no title to 1.50 acres allegedly in possession of defendant No.1, but (i) plaintiff admits there was no contract for refund if title failed, (ii) admits not having sought cancellation of her own sale deed, and (iii) her own vendors assert they never induced her and that her husband verified title and possession before purchase, held: without seeking cancellation of the sale deed and without establishing defect in title to the very property conveyed, plaintiff is not entitled to refund of sale consideration in a separate declaration/money suit.
CIVIL PROCEDURE CODE, 1908 — Order XLI Rule 31 — Judgment of first appellate Court — Requirements — Compliance.
Where first appellate Court framed points for determination, discussed evidence of each witness, considered documents and recorded reasons for its conclusions, judgment satisfies requirements of Order XLI Rule 31 CPC. Contention that appellate judgment is vitiated for non-compliance rejected.
(Relied on: B.V. Nagesh & another v. H.V. Sreenivasa Murthy, 2010 (7) Supreme Court 438; Nafees Ahmad and another v. Soinuddin and others, 2025 Live Law SC 458.)
II. ANALYSIS OF FACTS AND LAW
1. Procedural Background
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Suit: O.S.No.316 of 2005, Additional Senior Civil Judge, Anantapuramu.
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Reliefs:
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Declaration of plaintiff’s title over suit schedule property against defendant No.1.
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Mandatory injunction for demolition of structures raised by defendant No.1.
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Alternative: if defendants 2 to 5 have no title to convey, refund of Rs.2,60,765/- with 24% p.a. interest.
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Trial Court: Suit dismissed on 06.06.2013.
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First Appeal: A.S.No.66 of 2013, I Additional District Judge, Anantapuramu — dismissed on 15.06.2018, confirming trial Court.
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Second Appeal: S.A.No.744 of 2019 under Section 100 CPC, by plaintiff.
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During pendency, R1 died and R6–R8 were brought on record as his LRs.
2. Plaintiff’s Case and Claimed Chain of Title
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Plaintiff claims to be absolute owner of suit schedule property (Ac.1.50 cents out of Ac.5.00 cents at Papampeta village).
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She purchased the property from defendant Nos.2 to 5 under registered sale deed dated 12.05.2003 for Rs.1,45,000/- and incurred stamp/registration expenses totalling Rs.1,63,730/-.
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Plaintiff’s title is traced as:
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Husband of defendant No.2 (father of defendants 2–4) allegedly purchased in 1956 (Doc.No.1936/1956) from Utti Chadrayudu and his wife Utti Roshamma.
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Roshamma allegedly purchased under sale deed dated 09.09.1947 (Doc.No.2332/1947) from G. Shankaraiah, Seetharamaiah and others, whose title was further supported by settlement patta in S.R.No.181/15(1)/69 under Estates Abolition Act.
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Plaintiff alleges:
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Defendant No.1 occupied a portion of suit property and denied her title.
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She earlier filed O.S.No.598 of 2003 (dismissed).
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Defendant No.1 purchased a site from Bayanna, took municipal permission and constructed a pucca building claiming ownership over part of suit land, leading to present suit.
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3. Defences
Defendant No.1
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Purchased portion of Plot No.15 under registered sale deed dated 07.12.1971 from Bayanna (Ex.B-5).
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Bayanna had earlier purchased the property under registered sale deed dated 13.04.1967 (Ex.B-6).
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Defendant No.1:
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Initially raised a hut and later constructed a house after obtaining municipal permission B.A.No.62/96G2 dated 16.05.1996.
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Has been paying municipal, electricity and telephone charges; there is compound wall around the house.
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Contends:
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Suit property is a vacant site and house; he has long possession and construction predating plaintiff’s purchase.
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Defendants 2 to 5 (vendors of plaintiff)
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Adopt D2’s written statement.
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Assert:
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Husband of D2 purchased suit property in 1956 and they are his legal heirs.
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Plaintiff purchased after verifying title deeds; they delivered possession.
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Suit for refund is not maintainable without seeking cancellation of the sale deed.
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They deny liability to refund any amount or exemplary costs.
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4. Issues and Evidence Before Trial Court
Trial Court framed ten issues including:
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Plaintiff’s entitlement to declaration, demolition, refund;
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Exemption of Court fee;
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Vendors’ right to alienate;
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Existence and identity of suit property;
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Maintainability without cancellation of sale deed;
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Alleged collusion and exemplary costs.
Evidence:
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Plaintiff: P.Ws.1–4; Exs.A-1 to A-21.
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Defendants: D.Ws.1–3; Exs.B-1 to B-14.
Trial Court, after appreciation, dismissed the suit.
5. First Appellate Court’s Points and Findings
Points for determination:
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Whether plaintiff is entitled to declaration, mandatory injunction, and alternatively refund from D2–D5?
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Whether judgment and decree in O.S.No.316/2005 dated 06.06.2013 are liable to be set aside?
First appellate Court, on reappreciation, answered both against plaintiff and dismissed the appeal.
6. Substantial Questions of Law in Second Appeal
On 05.07.2021, the High Court framed:
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Whether lower appellate Court justified in holding plaintiff failed to affirmatively establish better title and entitlement to demolition?
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Whether appellate Court rightly rejected Exs.A1–A21 as not inspiring confidence and correctly interpreted and appreciated Exs.A1 and A21 (foundation of plaintiff’s right)?
7. High Court’s Legal Analysis
(a) Section 100 CPC — Limited Scope
The Court reiterated:
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Under Section 100 CPC, interference lies only if findings are:
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Contrary to mandatory law or settled Apex Court pronouncements;
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Based on inadmissible evidence; or
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Without evidence.
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This is supported by:
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Bhagwan Sharma v. Bani Ghosh, AIR 1993 SC 398.
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Kondira Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 471.
(b) Plaintiff’s Title and Identity of Property
Key factual findings:
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The disputed portion is Ac.1.50 cents out of Ac.5.00 cents at Papampeta.
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Plaintiff claims purchase of entire Ac.5.00 cents in 2003; defendant No.1’s house allegedly exists over Ac.1.50 cents.
Admissions and evidence:
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Vendor of plaintiff / D.W.3 (defendant No.4):
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Does not know boundaries of suit property in Ex.A-2.
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Never had property surveyed; they sold vacant land.
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Survey number and boundaries in Ex.A-3 (plaintiff’s sale deed) were included only on information given by plaintiff’s husband (P.W.2), without independent verification.
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Admits that since their father’s purchase, the suit property was kept vacant and never enjoyed by them.
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Crucially admits that:
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Dispute relates to house constructed by D1.
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Plaint mentions D1’s construction in 1996.
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Property sold under Ex.A-3 is different from property where D1 constructed his house in 1996.
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Plaintiff’s own evidence:
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Admits property was not physically delivered to her; she purchased without measurement.
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Accepts that D1 constructed the house in 1996 and that apart from that house, D1 has no other house.
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Simultaneously asserts that at the time of her purchase in 2003 the entire property was vacant — a statement inconsistent with her own pleadings that D1’s house existed since 1996 with municipal permission.
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Defendant No.1’s evidence and documents:
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Ex.B-5: his purchase from Bayanna (07.12.1971).
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Ex.B-6: Bayanna’s prior purchase (03.04.1967).
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Municipal permission dated 10.05.1996 and subsequent construction of house.
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Electricity, tap, telephone connections and compound wall surrounding the house.
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From these, both Courts below held:
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Plaintiff failed to establish that the property in D1’s possession is the same as the property purchased under Ex.A-3.
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The identity of suit property is in serious dispute, and plaintiff’s own evidence plus her vendor’s evidence do not support her claim that the disputed structure stands on what she purchased.
The High Court agreed: plaintiff did not discharge the primary burden in a title suit — to prove her own title, vendor’s title, and identity of the property sought to be recovered.
(c) Effect on Reliefs: Declaration and Mandatory Injunction
Given failure to prove:
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Clear title to the disputed site, and
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That D1’s construction stands within the land purchased by her,
the Courts rightly concluded:
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Declaration of title against D1 cannot be granted.
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Mandatory injunction for demolition of D1’s house is also untenable.
Relief of demolition is consequential and cannot stand without clear proof of title and identity.
(d) Alternative Relief of Refund of Consideration
Plaintiff sought refund of Rs.2,60,765/- (principal plus expenses) from D2–D5.
The High Court noted:
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D2 (for D2–D5) pleaded that plaintiff’s husband had verified title and possession and that they did not induce plaintiff.
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Plaintiff’s own admissions:
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There was no contract with vendors for refund in the event of title defect.
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She has not filed any suit for cancellation of the sale deed (Ex.A-3).
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She admits vendors had “absolute rights” in property sold to her.
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The Court observed:
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Disputed area is Ac.1.50 cents allegedly occupied by D1; plaintiff’s purchase covers Ac.5.00 cents.
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Plaintiff failed to prove that D1’s property falls within Ex.A-3 land.
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Without seeking cancellation of Ex.A-3 and without showing lack of title to the land actually conveyed, plaintiff cannot demand refund.
Thus, alternative relief of refund was rightly rejected.
(e) Order XLI Rule 31 CPC — Appellate Judgment
Appellant argued non-compliance with O.41 R.31 and relied on:
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B.V. Nagesh & another v. H.V. Sreenivasa Murthy, 2010 (7) Supreme Court 438.
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Nafees Ahmad and another v. Soinuddin and others, 2025 Live Law SC 458.
High Court held:
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First appellate Court framed points for determination,
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Discussed evidence of witnesses and documents,
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Recorded its decision and reasons.
This satisfies the mandate of O.41 R.31 CPC; hence, appellate judgment is not vitiated.
(f) No Substantial Question of Law
Given:
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Concurrent, reasoned factual findings,
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Proper application of settled Section 100 CPC principles, and
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Compliance with O.41 R.31,
the High Court held that the substantial questions of law framed at admission do not, in fact, survive. There is no perversity or legal error requiring interference.
III. CONCLUSION
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The High Court dismissed Second Appeal No.744 of 2019, confirming the judgment and decree of the first appellate Court (A.S.No.66 of 2013), which in turn confirmed dismissal of O.S.No.316 of 2005.
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It held that:
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Plaintiff failed to establish her title and identity of the disputed property,
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Failed to make out a case for demolition, and
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Is not entitled to refund without seeking cancellation of her own sale deed and proving defect of title.
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Pending applications, if any, were ordered to stand closed.
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Each party was directed to bear their own costs in the second appeal.
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