The High Court · 2025

Petition under Section 151 of C.P.C., praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the judgment and decree Dated 03-01-2025, passed in A.S.No. 203 of 2023, on the file of the Chief Judge, City Civil Court, Hyderabad, which was partly allowed and partly dismissed conforming he judgment & decree dt.12-09-2o23, passed in O.S.No.4B5 ot 2O1B,by the XVlll Additional Senior Civil Judge, City Civil Court, Hyderabad including the E.P.No.238 of 2023 on the file of XVlll Additional Senior Civil Judge, City Civil Court, Hyderabad. Counsel for the Appellant Counsel for the Respondent No.{ :SRl NOOR MOHD :SRl MOHAMMAD ADNAN Counsel forthe Respondent No. 2 & 3:NONE The Court made the following : JUDGMENT HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.l 14 of2025 JUDGMENT: The Second Appeal is filed questioning the judgment and decree, dated 03.01.2025, passed by the Chief Judge, City Civil Court, Hyderabad in A.S.No.203 of 2023, whereby and whereunder the judgment and decree, dated 72.09.2023, passed by the XVIII Additional Senior Civil Judge, Ciry Civil Court, Hyderabad in O.S.No.485 of 2015 was confirmed

2. The appellant No.1 is defendant No.l, respondent No. I is plaintiff and respondent Nos.2 and 3 are defendant Nos.2 bnd 3 in the suit. For convenience, hereinafter the parties are refe,rred to as they were arrayed in the suit.

3. The brief facts of the case, which led to hling of the present Second Appeal, are that the plaintiff filed a suit for eviction against the defendants in respect of suit schedule property i.e., M.No.17-3-398181A admeasuring 97 square yards corresponding to old number i.e., portion of H.No.17-3-398/8, situated at Imblibun, Yakathpura, Hyderabad. It is averred in the plaint that the plaintiff is the owner of the suit schedule property having purchased the same fiom defendant Nos.2 and 3 through registered sale deed dated 2 LNA, ,I sa.No.t t4 of2025

22.04.2017, vide document No.1782 of 2017. Defendant No.1 is no way concerned with the suit schedule property and in fact defendant No.l was inducted into possession of the said suit schedule property by defendant No.3. Defendant No.3 is the vendor of the plaintiff and the induction of the defendant No.l was as per a mortgage of the year 2014. However, the vendor of the plaintiff paid the entire mortgage amount to the defendant No.l. At the time of entering into the sale deed by the plaintiff, the defendant No. I agreed to vacate and hand over possession of the suit schedule propefy to the ptaintiff within a period of 15 days. The plaintiff approached defendant No.l on 10.03.2018 and demanded to vacate the properry and also got issued legal notice on 16.03.2018 calling to vacate and hand over the suit schedule property. However, despite receiving notice, defendant No.1 did not vacate the prop€rty. Therefore, plair-rtiff filed suit for eviction and damages @ Rs.15,0001 per month for illegal occupation of the surt propeffy

4. Defendant No.l filed the Written Statement denying that plaintiff is the absolute owner of the suit schedule property and he never purchased the suit property fiom defendant Nos.2 and 3. He further stated that plaintiff is not entitled for recovery of the possession from defendant No.l and stated 3 LNA, J SA.No.l l4 of2025 that no cause of action has arisen to file the suit and no appropriate Court fee was paid and thus, prayed to dismiss the suit.

5. On the basis of the above pleadings of both the parties, the trial Coutl framed the following issues and additional issues for trial:- i) Whether plaintiff is entitled for recovery of possession of suit schedule property from defendant No. I as prayed for? ii) IYhether defendant No.l is liable to pay Rs.15,000/- per month towards damages from date offiltng of xdt? iii) If so, to what relief.2

6. To substantiate his claim, plaintiff examined himself as PWI and Exs.Al to A8 were marked on his behalf. The plaintiff also examined PW2 in support ofhis contention. Though defendant No.1 frled chiefafhdavit, she remained absent. Therefore, chief affidavit of defendant No. I was eschewed.

7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the triat Court decreed the suit with costs directing the defendant No.l to vacate the suit schedule property within two months from the date of decree and also ordered that defendant No.l is liable to pay Rs.15,000i- per month liom the date of suit till the date ofdelivery ofpossession.

8. The trial Court categorically observed as hereunder:- 4 LNA, J SA No.l l4 of2025 (i) Plaintiff by examining himself with regard to the execution of Ex.Al and examining one of the attesting witness as PW2 and producing Ex.Al clearly established that the transfer of property under Ex.Al took place in his J'avour. Nothing is elicited in the cross-examination of PWI and Plt2 to disprove execution of Ex.A I . Since the title of the plaintffi in respect oJ the suit property stands established, Plaintiff is entilled for recovery of possession. (i, Plainti/f established through positive evidence that he got title over the suit schedule property and the posse.rsion of defendant in unlawful. Defendant having replied that her possession is under dn agreement of sale executed by Md. Abdul Raoof Jani, failed to prove it and also failecl. to prove that Ab&tl Raoof Jani got salable right over the suit schedule property. (ii, There is no cross-examination of PWI by de_fendant No.l thnt suit schedule property does not fetch Rs./5,000/- p.m. and that she is not in unlawful possession. Hence, the testimon! o.f PWI that suit schedule property fetches Rs.15,000/- p.n. remained unchallenged and remained disproved.

9. By observing as hereinabove, the trial Court opined that there is proper and sufficient evidence in support of the plaintiff s contentions and 5 LNA, J SANo.l14of2025 that there is no reliable or acceptable evidence on behalf of the defendants either to disprove the contentions of the plaintiff or to prove the contentions ofthe defendants.

10. On appeal, the hrst Appellate Court, being the final fact-finding Couft, re-appreciated the entire evidence and material available on record and partly allowed the Appeal, vide judgment and decree, dated 03.01.2025 confiming the judgment in so far as direction to defendant No.l to vacate and handover the suit schedule property within a period of two months from the date of decree. However, the appellate Court has granted Iiberly to the plaintiff to file an independent application under Order XX Rule 18 of the Civil Procedure Code to determine the quantum of damages for illegal and unauthorized occupation of the suit schedule properly by the appellant from the date of the suit till the date of delivery of vacant possession to the plaintiff/respondent No. 1 .

11. The first Appellate Court in its judgment observed as hereunder:- (i) The only defence taken by the appellant is that there is no lease agreement between the respondent No.l and herself that there is no privity of contract therefore, she cannot be evicted- The appellant while admitting the sale transaction between the respondent No.l on one hand and respondent Nos-2 and 3 on the 6 LNA, J SA.No.l l4 of2025 other httnd is denying the right of respondent No.l h seek her eviction as owner. However, as per established legal principles, the owner of immoveable property can seek recovery of possession of said property on the basis of title. In the instant case, Ex.Al establishes title, Er-A2 to A8 establishes correspondence between the purties vherein, the respondent No.l demanded the uppellant to yocate the property and she failed to do so. Failure to prosecute the case diligently is a lapse on the part of appellant and the said blame connot be placed at the door step of respondent No.l or the court. The docket proceedings show that inspite of giving sufficient opportunity, the appellant ond her counsel failed to appear and cro.ss-exaninc PWl. In uddition, there is also failure b leatl evidartce.There was direction from the lIon'ble High Court lo the learned .*'L'I Addilionol Senior Civil Judge, City Civil Court, Hyderabad to dispose off the matter within four months. Consequently, the learned XI/III Additional Senior Civil Judge, City Civil Courl, Hyderabad adhering to the direction of Hon'ble High Court uhile giving fair opporlunity to the appellant tlisposed ofi'thc matter. The trial co rt gave ample opporhmitl to the appellant to (ross-examine PWI and to lead her defence evidence, but tlrc appellantfailed to utilize the same. In the circumstances, no fault can he./ittud on the part of the the trial court for expediting the disposal. Tlrcre is no case of violation of pinciples o/ natural jtstice as fair opportunity is given to appellant to lead her evidence and cross-examine PWs.land 2 (i, Coming to the aspect of damages there is no positive evidence on the part of respondent No.l to prove that the suit schedule property would fetch rent @ Rs.15,000/- per month. The respondent No.l could have examined his vendors to prove the quantum of rents payable by the appellant and seek some extra 7 LNA, J SA No.l l4 oJ2025 damages. In the absence of neither oral nor documentary evidence to prove the rentaL value of the suit schedule property, ordering damages of Rs.1 5,000/- per month is unjwtifiable to said extent the judgment ofthe trial court needs to be modified.

12. Heard Mr. Mohammed Sarshar Ahmed, leamed counsel for the appellant. Perused the entire material available on record

13. Leamed counsel for the appellant contended that the judgment and decree passed by the trial Court as well as the Appellate Court are contrary to the evidence on record, provisions of law and principles of natural justice. He further contended that the plaintiff failed to adduce cogent and reliable evidence and especially his right to file suit and seek eviction of appellant/defendant No.l from the suit schedule property. The trial Court as well as the Appellate Court erroneously decreed the suit by recording perverse f,rndings on the basis of assumptions and presumptions contrary to the evidence and facts on record. He further contended that appellant/defendant No.1 could not able to lead the evidence and participate in the trial, and the appellant ought to have been given an opportunify to substantiate her contention. Therefore, Judgment and decree passed by trial Court as 8 LNA, J SA.No.l l4 of2025 well as first Appellate Court is liable to be set aside and prayed to allow the Second Appeal.

14. A perusal of record would disclose that the trial Court as well as the flrst Appellate Court have concurrently held that plaintiff has proved his title over the suit schedule property by ptacing Ex.A.l, copy of registered sale deed and also examined one of the attesting witness as PW.2, '"vhereas the defendants except denying the claim of the plaintiff has not placed any evidence or material in support of their contention. Both the Courts have fuilher observed that defendant No.1 claimed rights over the suit schedule property under an agreement of sale executed by one Mr.Mohammed Abdul, however, failed to prove the same and fur1her failed to prove their title over the suit schedule property. The first Appellate Courl has categorically held that despite giving specific oppoffunity, defendant No.1 failed to cross examine and also failed to lead any evidence and therefore, there is clear lapse on the part of defendants in prosecuting the case and thus came to conclusion that there is no violation of principles of natural justice.

15. In considered opinion of this Court, leamed counsel for the appellant failed to raise any substantial question of law to be decided 9 LNA, I SA.No.l l4 oJ2025 by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualiff as the substantial questions of law in terms of Section 100 C.P.C. L6. It is well settled principle by a catena of decisions of the Hon'ble Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the hndings on facts arrived at by the first Appellate Court, which are based on proper appreciation of the oral and documentary evidence on record t7 Further, in Gurdev Kaur v. Kakil, 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 Section 100 C.P.C. is very limited and it can be exe:cised only where a substantial question of law is raised and falls for consideration.

18. Having considered the entire material available on record and the findings recorded by the trial Court as well as first Appellate Court, this Court finds no ground or reason warranting interference with the said findings, under Section 100 C.P.C. Moreover, the t 7zool1 t Supreme Court Cases 5.+6 i i I 10 LNA, J SA No Ii4 of2025 grounds raised by the appellants are factual in nature and no question of law, much less a substantiaI question of law arises, for consideration in this Second Appeal

19. Hcnce, [he Second Appe al lails and the same is accordingly dismissed at the stage oladmission. No costs.

20. Pending miscellaneous applications, ifany, shalt stand closed /iTRUE COPY// SD/- MOHD. ISMAIL EPUTY REGISTRAR SECTION OFFICER To, t The Court of the Chief Judge, City Civil Court at Hyderabad. 2. The Courtof the XVlll Additional Senior Civil Judge City Civil Court, Hyderabad.

3. One CC to SRI NOOR MOHD, Advocate IOPUC] 4 One CC to SRI tUOHAI\iltVAD ADNAN Advocate [OPUC] 5. Two CD Copies pcsdigh HIGH COURT DATE D : 1 510412025 JUDGMENT SA.No.114 ot 2025 |! i 1E sEP zrili ), n DEspelcH ,.-o :: L) .i' DISMISSING THE SECOND APPEAL AT THE STAGE OF ADMISSION