The High Court · 2025

...Respondents/Defendants a:iL:ia: .::3txit:_ '!_ lA NO: 3 OF 2024 Petition under Order 39 Rule 1 and 2 R/w Section '151 CPC praying that in the cirgumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant interim injunction restraining the Respondents, their henchmen and associates, GPA's or anybody claiming through them from interfering in petitioner peaceful possession and enjoyment over the petition schedule/ suit schedule property till disposal of the Second appeal in the interest of justice. PLAINT SCHEDULE OF PROPERry All that shed adm. 137 sq. yards open land admeasuring 5929 sq. yards in sy.No 152 at Langarhouze, Hyderabad, bounded by. North . 6' feet road South . Plaintiff's house East . 12' Feet road West . Neighbours House Counsel for the Appellant Sri T Sanjay Rao Counsel for the Respondent Nos 1 to 3 Sri Sonali Kulkarni Counsel for the Respondent Nos 4 to 6 Sri V Krishna Swaroop The Court delivered the following: Judgment HON'BLE SRT JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.90 of 2024 JUDGMENT: The present Second Appeal is filed questioning thejudgment and decree, dated 13.06.2023, passed by the Chief Judge, City Civil Court, Hyderabad, in A.S.No.28 of 2020, whereunder and whereby the judgment and decree dated 18.10.2019 passed by the VII Junior Civil Judge, City Civil Court, Hyderabad, O.S.No.2929 of 2016 was confirmed.

2. The appellant is the plaintiff and the respondents are the defendants in the suit. For convenience, hereinafter the parlies are referred to as they are anayed in the suit.

3. The brief facts of the case, which led to flling of the present Second Appeal, are that the plaintiff filed the suit claiming that his father by name Kannaiah was the absolute owner and possessor of the suit schedule property having acquired the same by way of a registered sale deed bearing document No.130/1951, dated

16.04.1952; that his father died on26.04.1991; that he constructed a house in part of the propefty and a part of the remaining land was sold to third parties; that he, being a Ganesh devotee, constructed a Mandapam in 137 square yards and had been erecting Ganesh idol 2 LNA, J S.A.No-90 of 2021 every year for the past 30 years; that the defendants with an evil intention to grab the mandapam land, by using political influence, got a Panchayat convened on 10.10.2016, however, in the said panchayat, the defendants promised that they will not interfere with the possession of the plaintiff over the said Mandapam; that when defendants tried to grab the property by creating fabricated and fictitious documents, he resisted the said illegal acts; and that on

30.10.2016, the defendants came to the suit schedule property and tried to grab the same and ai such, he filed the suit for perpetual injunction against the defendants. 4. The defendants filed their written statement denying the averments made in the plaint and submitted that one A.Sathaiah, A.Narayana and A.M.Krishna, who are brothers and constitute a joint family, have purchased the plot in two spells to an extent of 360 square yards from the father ofthe plaintiff; that ever since the said purchase, they were in peaceful possession and enjoyment without any internrption; that due to growth in the family, all the three brothers lived separately in different places; that before construction of a house in the land, Sathaiah disposed of 200 square yards to third parties and a house was constructed in the /" J LNA, J S.A.Na.90 of 2024 remaining extent of 170 square yards; that the defendants leased out the plot of 170 square yards bearing House No.9-1-224151A to a tenan! that Sathaiah died issueless leaving behind his wife and the defendants as his legal heirs to the suit schedule property; that in the year 2015, the defendants divided the suit schedule property into three equal shares; and that the plaintiff filed a case with false averments and prayed to dismiss the suit.

5. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:- (l) Whether the plaintiff is in lawful possession of suit schedule property? (2) Whether the plaintiff is able to prove the alleged interference of the defendants? (3) Whether the ptaintiff is entitled for the relief of perpetual injunction as prayed for? (4) To what relie/?

6. On behalf of the plaintiff, he himself got examined as PWI and Exs.Al to ,A.4 were marked. On behalf of the defendants, DW-l was examined and Exs.B-l to B-6 were marked.

7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the 4 LNA, J S.A.No.90 oJ2024 trial Court dismissed the suit, vide jtdgment and decree dated

18.10.2019. The trial Court categorically observed as hereunder:- "In a suit for injunction, the plaintiff has to establish lawful possession as in the date offiling of the suit and cannot succeed on the weakness of the defendants' case. The plaintffi must establish his own case on the slrength of his own title and other relevant documents to get the relief of injunction Here, the defendants denied the rights and title of the plaintiff over the schedule property. Admittedly no legal documents produced by the plaintiff to prove thal he is in the possession of the suit schedule property as on the date offiling of the suit. The suit is one for granting of perpetual injunction, the only significance is possession, of course, the title will also be looked into after the possession only. Here, the cose on hand, the defendants. disputed the title of plaintiff basing on the documentary evidence. That in the case on hand, the plaintifffailed to produce any iota of documentary evidence that he is in lawful possession of schedule properl! as on the date offiling of the suit. Therefore, in the light of discussion, the plaintiff miserably failed to establish the possession and enjoyment over the schedule property as on the date of filing of the suit. When the plaintiff has failed to prove his possession over the suit schedule property, the question of alleged interference by the defendants does not arise Accordingly, issue Nos.l & 2 are decided negcttive to the plaintiff and in fovour of defendants. " ,, 5 LNA, J S.A.Nq.90 of2024

8. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and material available on record and dismissed the Appeal, vide its judgment dated 13.06.2023, thereby, confirming the judgment of the trial Court.

9. The first Appellate Court in its judgment observed as hereunder:- "The above evidence of the appellant and PW2 does not inspire confidence as there are no details about the boundaries of huge extent of 5929 square yards of land, the extent of 370 sqware yards of land sold to the respondents, the partition of the remaining extent of 4900 square yards of land and which part of 170 square yards of land is used for installing the stage for Ganesh iclo I for celebrating the festival. There is no evidence of possession of the appellant over the suit schedule properry,, neither documenlary nor oral, except the self serving evidence of the appellant. "

9. t . The first Appellate Court further observed as hereunder:- "The lacunae in the case of the respondents cannot be of oid to the appellant. The appellant has no stand and foll on the strength of his own case. There is complete failure on the part of the appellant to shot4) that the possession over the suit schedule property in the form of 6 LNA, J S.A.No.90 of 2024 both oral and documentary eyidence. Further, according to the appellant, he is in possession of the suit schedule property as he got a temporary stage erected for in.stalling Ganesh ldol. lYhile so, it is the case of the respondents that the stage for Ganesh idol is erected with their permission. Further, there is a reference to panchayat being held by the elders. Iryilh the contradicting claims of the resolution of the said panchayat, the appellant should have examined one of th.e panchayat elders for eliciting the truth of the versions presented by the rival parties in whose favour the panchayat had passed a resolution. Therefore, in the absence of such evidence i.e., evidence as to posse,ssion, et,idence as to interJbrence and evidence as to irreparable loss, the appellant would not be entitled to grant of perpetual injunction. The reason stated by the appellant for being in possession is erection of a stage for installing Ganesh idol. Said stage would be in existence only for a period of I I to 15 days in a year. Therefore, the temporary stage has to be pulled down. I'

10. Heard Sri T.Sanjay Rao, learned counsel for the appellant and Sri Solanki Kulkami, learned counsel for the respondents Perused the entire material available on record

11. Leamed counsel for the appellant contended that the Courts below failed to take into consideration Exs.A-1 to A-4 filed bv the appellant to prove his case, which shows that the appellant,s father .. 7 LNA, J S.A.No.90 of2024 was owner of an extent of 5929 square yards including the suit schedule propefty and also other unsold plots and open land; that the Courts below failed to consider the admissions made by D.W-l that Ex.B-l does not contain the boundaries of 370 square yards claimed by the defendants; and that the Courts below failed to look into the plea of the defendants in their written statement about the alienation of 200 square yards and construction of house over the remaining 170 square yards, which falsifies their case and supports the case of the appellant. Hence, he prayed to allow the Second Appeal.

12. Per contra, leamed counsel for the respondents/defendants contended that the trial Court on appreciation of the evidence on record, rightly dismissed the suit and the first Appellate Court, on re-appreciation of the evidence, has rightly conf,rrmed the judgment and decree passed by the trial Court.

13. Leamed counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualifr as the substantial questions of law in terms of Section 100 C.P.C. 8 LNA. J S.A.No.90 of 2021

14. It is well settled principle that in a suit for injunction, the plaintiff has to prove his prima./acle possession over the suit schedule propefiy. In the instant case, perusal of record discloses that the plaintiff failed to prove his possession over the suit schedule property by way of oral and documentary evidence. The suit of the plaintiff shall stand or fall on its own merits and weakness of the defendants cannot be ground or factor for allowing the suit. In the present case, the trial Courl as well as first appellate Cour1, on appreciation of the evidence on record, concurrently held that the plaintiff failed to prove his possession over the suit schedule propefty. 1 5. It is well settled principle by a catena of decisions of the Hon'ble Apex Court that in rhe Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the findings on facts amived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record.

16. Further, in Gurdev Kaur v. Kakit, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under | (2007) ! Supreme Court Cases 546 }. !:{d!ri - 9 LNA, J S.A.No.90 oI2024 Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and falls for consideration.

17. Having considered the entire material available on record and the findings recorded by the first Appellate Court, this Court finds no ground or reason warranting interference with the said findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law, much less a substantial question of law arises, lbr consideration in this Second Appeal.

18. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage ol admission. No costs

19. Pending miscellaneous applications, if any, shall stand closed. \ To, //TRUE COPY// Sd/- SAILESHI DEPUW REGISTRAR S CTION OFFICER

1. The Chief Judge, CityCivil Court, Hyderabad 2. The Vll Junior Civil Judge, City Civil Court, Hyderabad. 3. One CC to Sri T Sanjay Rao, Advocate [OPUC] 4. One CC to Sri Sonali Kulkarni, Advocate [OPUC] 5. One CC to Sri V Krishna Swaroop, Advocate [OPUCI 6. Two CD Copies ADK € HIGH COURT DATED:1910212025 / , I JUDGMENT SA.No.90 ot 2024 r rtf trt i(- o 2 B FE8 2OZ5 o( C t t)r DISMISSING THE SECOND APPEAL AT THE STATGE OF ADMISSION WITHOUT COSTS .9 @q %k