Civil Procedure Code, 1908 – Section 100 – Second appeal – Concurrent findings – Scope of interference.
Suit for permanent injunction dismissed by Trial Court on the ground that plaintiff failed to establish lawful possession over suit schedule property; dismissal confirmed by First Appellate Court. In second appeal, plaintiff assailed exclusion of Ex.A1 sale deed and non-acceptance of oral evidence of his witnesses. High Court held that both Courts below had properly appreciated the entire oral and documentary evidence; exclusion of Ex.A1, on the vendor’s own denial of boundaries and mismatch of survey particulars, was a factual appreciation. No perversity, misreading, or non-consideration of material evidence shown. No substantial question of law arises; second appeal dismissed at admission stage.
Specific Relief – Perpetual injunction – Requirement of settled lawful possession – Plaintiff’s burden – Registered sale deed and pattadar passbook not sufficient by themselves.
Plaintiff sought permanent injunction claiming to have purchased Ac.0.22 cents in Sy.No.252/12 through Ex.A1 registered sale deed from D1 and to be in possession (cattle shed and threshing floor). Plaintiff neither produced title deed book nor tax receipts to prove possession; pattadar passbook Ex.A2 alone was relied upon. Trial Court and Appellate Court held that for equitable relief of injunction, plaintiff must prove settled lawful possession as on the date of suit and cannot succeed merely on the basis of a registered sale deed and passbook, particularly when vendor denies the boundaries and possession is not otherwise established. Injunction refused.
Evidence – Registered sale deed – Vendor turning hostile – Boundaries and identity of property in dispute – Effect on probative value.
Ex.A1 sale deed stood in plaintiff’s name for land in Sy.No.252/12 to an extent of Ac.0.22 cents. However, D2 was not claiming any land in that survey number and only disputed boundaries; and DW2 (vendor/1st defendant) himself denied the boundaries of the suit schedule property and did not support plaintiff’s version. Trial Court, therefore, excluded Ex.A1 from consideration for purposes of establishing possession over the actual land in dispute. High Court upheld this approach, holding that a registered document, when not supported by its own executant as to boundaries/identity, cannot by itself entitle plaintiff to an injunction over the land which is in controversy.
Evidence – Revenue entries – Pattadar passbook – Limited value without supporting material – Injunction suit.
Ex.A2 pattadar passbook in plaintiff’s name covered various lands, including Sy.No.252/12, Ac.0.22 cents. In the absence of title deed book, tax receipts, or other corroborative material linking plaintiff’s actual possession to the disputed site, the passbook was held insufficient to prove present possession. Both Courts below held that revenue entries and passbooks, without more, do not by themselves prove settled possession for the purposes of granting perpetual injunction.
Pleadings and Issues – Scope of suit confined to particular survey number – Effect.
Plaintiff throughout confined his claim to Sy.No.252/12, Ac.0.22 cents, and asserted that he is not concerned with land in Sy.No.252/7 or new Sy.No.252/9, which were involved in earlier disputes and decrees in favour of D2. Trial Court treated this as a clear delimitation of the suit claim and examined only whether plaintiff proved possession over the claimed land in Sy.No.252/12. On evidence, that possession was not proved. High Court accepted this approach and refused to convert the second appeal into a re-trial on title disputes in other survey numbers.
Civil Procedure Code, 1908 – Section 100 – Substantial question of law – Tests reiterated – Concurrent findings not to be interfered with.
Relying on Govindaraju v. Mariamman and Santosh Hazari v. Purushottam Tiwari, High Court reiterated that a second appeal lies only when a substantial question of law arises: the question must be debatable, not previously settled; must be founded in pleadings; must emerge from sustainable findings of fact; and must be necessary for decision of the case. Observed that plaintiff’s proposed “substantial questions” merely sought re-appreciation of findings on Ex.A1, PW4’s evidence, and possession, and did not disclose any legal question of that nature. Second appeal held not maintainable on facts.
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
THURSDAY, THE SIXTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI
SECOND APPEAL NO: 97 OF 2025
Appeal under Section 100 of CPC, Aggrieved by the Judgment and
decree of the Senior Civil Judge, Bobbin passed in A.S. No. 20 of 2017
dated 29.10.2024 in confirming the judgment and decree passed by the
Principal Junior Civil Judge, Bobbin passed in O.S. No. 38 of 2010 dated
06.11.2017.
Between:
Palla Ganapathi, S/o Late Narasam Naidu @ Narasimhulu, Aged about
62 years, R/o Pedapenki Village, Balijipeta Mandal, Vizianagaram
District
...Appellant/Appellant/Plaintiff
AND
1. Jada Sanyasi, S/o Jada Akkayya, Aged about 63 years, R/o Pedapenki
Village, Balijipeta Mandal, Vizianagaram District
2. Jada Appayya, S/o Late Jada Dibbayya, Aged about 64 years, R/o
Pedapenki Village, Balijipeta Mandal, Vizianagaram District
...Respondents/ Respondents/ Defendants
Counsel for the Appellant: SRI TADDI NAGESWARA RAO
Counsel for the Respondents: SRI V. V. N. NARAYANA RAO
The Court made the following:
f
APHC010041422025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3332]
THURSDAY JHE SIXTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI
SECOND APPEAL NO: 97/2025
Between:
Palla Ganapathi ...APPELLANT
AND
Jada Sanyasi and Others
Counsel for the Appellant:
1.TADDI NAGESWARA RAO
...RESPONDENT(S)
Counsel for the Respondent(S):
1.VVN NARAYANA RAO
2.
The Court made the following order:
This second appeal is filed questioning the judgment and decree in
A.S.No.20 of 2017 dated 29.10.2024 passed by the Senior Civil Judge, Bobbili
confirming the judgment and decree dated 06.11.2017 passed in O.S.No.38 of
2010 by the Principal Junior Civil Judge, Bobbili.
2. The appellant herein is the plaintiff and the respondents are defendants
in the suit O.S.No.38 of 2010.
f
&
3. The suit in O.S.No.38 of 2010 is filed seeking permanent injunction. It
was pleaded by the plaintiff (appellant herein) that he purchased the plaint
schedule land admeasuring Ac.0.22 cents covered in Sy.No.252/12 from the
1®* defendant. It was averred that, there was a family partition orally long time
ago in which the property purchased by the plaintiff fell to the share of the
father of the defendant and after his demise, 1®* defendant came into
possession and enjoyment of the plaint schedule property. And the plaintiff
purchased the same from the defendant and constructed cattle shed in
some extent and using the remaining part as his thrashing floor. It was further
averred that the 2'^'^ defendant filed a suit in O.S.No.293/2009 in collusion with
1®* defendant, which was decreed in favour of 2^^ defendant and under the
guise of the said decree, the defendants are trying to occupy the suit schedule
property without having any right or title over the same. Hence, the suit.
Whereas, the 2""^ defendant filed the written statement contending that,
the property covered by Patta No.1315 (Settlement Patta) was purchased by
him and his father under registered sale deeds dated 28.04.1980 and
21.02.1980 respectively from one Sri Pedappalanaidu and ever since they
were in possession and enjoyment of the same. After the demise of the 2
defendant’s father, the 2^^ defendant being legal heir, succeeded the property
nd
from his father and was in possession of the same with absolute rights. His
right and title over the suit schedule property was also confirmed by the Court
below in O.S.No.226/1980, O.S.No.41/1993 and A.S.No.44/1992. It was
further pleaded that the plaintiff (appellant herein) is interfering with the
possession over the suit schedule property on the strength of the document
executed by the defendant, who is a distant relative of the plaintiff and who
has no title and possession over the suit schedule property. The plea of the
plaintiff that he was in possession and enjoyment of the suit property was
specifically denied. On the basis of the said pleadings, the trail Court framed
the following issues:
1) Whether the plaintiff has been in peaceful possession and
enjoyment of plaint schedule property at the time of filing of
suit?
2) Whether the defendants have been interfering with the
peaceful possession and enjoyment of suit schedule property
without having any manner of right?
3) Whether the plaintiff is entitled for permanent injunction as
prayed for?
4) To what relief?
During the course of trial, on plaintiffs side, PWs 1 to 4 were examined
and Ex.A1 to Ex.A3 were marked. On defendants side DW-1 to DW-4 were
examined and Ex.B-1 to Ex.B-8 were marked.
4. The trail Court has observed that the plaintiff herein is claiming
possession of the land admeasuring Ac.0.22 cents covered in Sy.No.252/12
(which is purchased from 1®* defendant, mentioned in Ex.A1) and the 2
nd
defendant is not claiming any land in the said survey number but disputed the
boundaries mentioned in the plaint schedule property. Further, the DW2, who
is the vendor of the plaintiff also denied the boundaries of the suit schedule
property. In view of the same, Ex.A-1 is eliminated from consideration.
Admittedly survey number and extent mentioned in the Ex.A1 did not tally with
the property claimed by the 2'"'^ defendant. Moreover, PW1 testifies survey
number of his land as 252/12 which consists of Ac.0.22cents and he is not
concerned with the land covered under Sy.No.252/7 or New Sy.No.252/9. The
trail court has duly taken the same into consideration and treated that the
plaintiff is not claiming any land in Sy.No.252/7 or New Sy.No.252/9. On
appreciation of the evidence, both oral and documentary, the trial Court found
that the plaintiff failed to establish his possession over the suit schedule
property and therefore dismissed the suit.
5. Against the said judgment, plaintiff (appellant herein)
A.S.No.20 of 2017
Appellate Court on
preferred
on the file of Senior Civil Judge, Bobbili. The lower
re-appreciation of the entire evidence and material
available on record confirmed the finding of fact recorded by the trial Court
and dismissed the appeal by judgment dated 29.10.2024. Hence the second
appeal by the plaintiff (appellant herein).
6. Heard Sri Taddi Nageswara Rao, learned counsel for the appellant
Sri V.V.N.Narayana Rao, learned counsel for the respondents.
7. Learned counsel for the appellant while reiterating the grounds of the
appeal contended that, the plaintiff has proved the possession over the suit
schedule property by examining the witnesses and by placing the documents
i.e., Ex.AI to Ex.AS. He further submitted that the Trial Court
lower Appellate Court has grossly erred in taking into consideration the
and
as well as the
V
documents relied by the plaintiff and dismissed the suit as well as appeal.
Impugning the said order of the lower appellate court, the present second
appeal has been filed and proposed the following substantial questions of law
for consideration and prayed to allow the second appeal.
Whether the reasoning of the trail court in disbelieving and
eliminating Ex.A1 for consideration and believing the evidence of
DW2(1®* defendant herein) who in collusion with defendant no.2
gave evidence as PW2 in O.S.No.293 of 2009 which was filed by
defendant no.2 herein against the plaintiff/appellant herein?
Whether the Courts below acted legally in dismissing the
suit even though the trail court has come to conclusion at para 20
that Ex.A1 document or survey number, extent or boundaries were
not cancelled till today and that the said document is registered
under due process of law?
Whether the courts below acted legally in not considering
the evidence of PW4 who supported the execution of Ex.A1 but
believed the evidence of DW2 who in collusion with 2"^ defendant
herein have filed suit against plaintiff herein in O.S.No.293 of 2009
without any reasoning?
1.
2.
3.
8. Perused the material available on record and considered the
submissions of the learned counsel.
Being the final court of fact finding, the Appellate Court has scanned the
evidence, documents and findings of the lower Court and upon such, the
9.
Appellate Court had also came to a conclusion that when Ex.A1 is excluded
from consideration, there is no evidence available on record to support the
case of the plaintiff and had rightly dismissed the appeal.
The trail Court has observed that the plaintiff has not established his
lawful possession over the suit schedule property by examining PW-1 to PW-4
10.
4^
coupled with Ex.A1 to Ex.A3 documents. Ex.A1 is the registered sale deed
executed by 1®* defendant in favour of the plaintiff. The survey number and
extent mentioned in the Ex.A1 did not tally with the property claimed by the 2
defendant and the 2
nd
nd defendant is not claiming any land in the plaint
schedule property but disputed the boundaries mentioned in the same. The
DW-2, who is the vendor of plaintiff also, did not support the contents of Ex.A1
sale deed and denied the boundaries. In the said circumstances, the trial
court has rightly excluded Ex.A1 from consideration as the vendor of the
plaintiff did not come to support the claim of vendee i.e., plaintiff and held that
registered document would not entitle the plaintiff to get a relief. Moreover,
the plaintiff did not even produced title deed book and tax receipts evidencing
his possession over the suit schedule property. Ex.A2 is the certified copy of
the pattadar passbook issued in the name of the plaintiff, in respect of several
properties including Sy.No.252/12 admeasuring Ac.0.22 cents, also does not
any purpose in the absence of title deed book and tax receipts. It is
settled law that, to grant equitable relief of injunction, settled lawful possession
over the suit schedule property as on date of filing of the suit is pre-condition.
In the present case, the plaintiff has failed to prove his possession over the
suit schedule property. Therefore, in the absence of any evidence to show the
plaintiff’s possession over the suit schedule property, both the Courts below
have rightly dismissed the suit as well as the appeal.
serve
11. Section 100 of C.P.C., 1908, has been amended and
appeal is not a matter of right. The existence of a substantial question is a
now a second
sine qua non for entertaining a second appeal. In the words of the Hon’ble
Supreme Court of India in Govindaraju v. Mariamman^ following Saiitosh
Hazari v. Purushottam Tiwai' (dead) by LRs^ it was held:
. “It was observed in Santosh Hazari's
(supra) that a point of law which admits of no two
opinions may be a proposition of law but cannot be a
substantial question of law. To be a 'substantial'
question of law must be debatable, not previously settled by law of the land or a binding precedent and
answer to the same will have a material bearing as to
the rights of the parties before the Court. As to what
would be the question of law "involving in the case",
it was observed that 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 the
court of facts and it must be necessary to decide that
question of law for a just and proper decision
between the parties.”
case
As stated supra, the Trail Court as well as Appellate Court have
categorically came to a conclusion that the appellant herein has failed to prove
possession over the suit schedule property and also eliminated Ex.A1 crucial
document relied by the plaintiff. The plaintiff has not made out any
warranting the interference of the Court with well versed judgments
particularly substantial questions of law. The grounds raised cannot be
termed as substantial questions of law.
12.
case
'AIR 2005 SC 1008
2 AIR 2001 SC 965
/a*-:
13. In these circumstances, this Court is of the opinion that the present
case fails to meet the tests laid down by the Hon’ble Supreme Court as there
is no question of law much less substantial question of law.
14. As expressed above, the concurrent findings of fact, recorded by the
Courts below are based upon proper appreciation of the evidence available on
record, and the same warrant no interference by this Court in exercise of
jurisdiction under Section 100 of C.P.C, 1908.
Hence, the Second Appeal is dismissed at the admission stage itself.
No costs.
As a sequel, miscellaneous petitions, if any, pending in this appeal shall
stand closed.
Sd/- M RAMESH BABJLi-^ DEPUTY REGISJI^ //TRUE COPY//
SECTION OFFICER To,
1. The Civil Judge [Senior Division], Bobbili
records if any]
2. The Principal Civil Judge [Junior Division]
District [with records if any]
3. One CC to Sri. Taddi Nageswara Rao, Advocate [OPUC]
4. One CC to Sri. V V N Narayana Rao, Advocate [OPUC]
5. The Section Officer, VR Section
Amaravati
6. Three CD Copies
Vizianagaram District [with
Bobbili, Vizianagaram
High Court of Andhra Pradesh at
MV
sree
HIGH COURT
DATED: 06/03/2025
JUDGMENT
SA.No.97 of 2025
^ 0 5JUL2I)25 jg
^>«£g£4ifiass^
DISMISSING THE SECOND APPEAL AT THE
ADMISSION STAGE WITHOUT COSTS
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