The High Court · 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation, execution and effect of the judgment and decree dated 13-03-2025 in A.S.No.9 of 20'15 passed by the Hon'ble Senior Civil Judge Cum Assistant Sessions Judge at Zaheerabad - Counsel for the Appellants: Sri Mohammed Sanaullah Farhan Counsel forthe Respondents: Sri A. Nissar The Court delivered the following: JUOGMENT HON'RLE SRI JUSTICE LAXMI NARAYANA ALISHE:TTY t;ECOND APPEAL No.2O3 of2o25 JUDGMENT: This S;er;ond Appeal is Iiled challenging the judgr n:nt and decree dated 13 C3.2025 in A.S.No.9 of 2015 on tht file ol lhe Senior Civil Judge eL'Zafttrabad, whereby and where under the arll:eal was partly allou,e d se -ting aside judgment and decree rlated 3 .08.2015 in O.S.No..5 r.f 2t115 on the hle of the Junior Civi,. Judge at Narayankhe<I, Medak District.

2. The atrrpr:llants herein are defendants and respolldents herein are plaintiffs. Ifor r:onvenience, the parties are hereinaf el' t e erred to as they were arrall:d before the trial court.

3. Heard Sri I/:hammed Sanaullah Farhan, letuned cottnsel for the appellar-r'-s.

4. Brief fircr.s of the case are that plaintiffs filed a suit ir ().S.No.S of 20 15 for c er: aration of title and recovery of posses,sion and mandatory itrjrttiction in respect of suit open plot il sr- rve" No.22lI admeasuring, er:tent 2O1.66 square yards consisting of 2 bits admeasurinp, . O( t. 33 square yards each situated at Nar'l'rankhed village, MedzLk Dist.rict. In the plaint, it is averred that the piaintiff t "' nts. f and 2 a'c the family friends since Iong time an,1 intt:nded to purchase an olcrr land/plot in Narayankhed village for th: purpose 2 LNA, J s.A.No.203 of 2025 of construction of house; that one Anushamma @ Anshamma is the owner and possessor of the land covered under survey No.22l1 situated at Narayankhed town and Mandal District Medak and the said Anushamma offered to sell a piece of land in survey No.22/ 1 to an extent of 201.66 square yards and the plaintiffs have accepted to purchase the same; and accordingly, Anushamma received the entire sale consideration of Rs.7O,7O0/- and executed registered sale deed bearing document No. 13578/2005 dated 07 .LO.2OOS and delivered possession of the said land to the plaintiffs.

5. It is further averred that the defendants are highly influential persons in the Gram Panchayath having support of the political leaders of Narayankhed; that defendants without having any right, title or interest have illegally raised basement in the suit plot and plaintiffs came to know about the same and questioned the defendants about construction of illegal and unauthorized basement in the suit open plot, but the defendants have denied the title and possession of the plaintiffs; that the plaintiffs demanded to remove the illegal basement in the suit open plot, but defendants denied and refused. Therefore, plaintiffs filed suit for declaration, recovery of possession and mandatory injunction and also to pay damages at Rs. 1,00,000/- peryear. t 3

6. Defencants e:ntered appearance but they faiLed statement ar d thr:refore, they were set ex parte. LNA, J 9.A.^ o.203 of 2025 -o fi [e written

7. Basing on J.Le pleadings in the plaint, the trial Cour1. framed following isstre '' Whether the plaintiffs are entitLed for t\e relief of decree a,s proged for?"

8. To substan-j rte the case, P.W. l was examined or belritlf of the plaintiffs ancl Il;r. A. 1/registered sale deed was marked on their behalf. g. The trjal C)rrrrt on due consideration of oral ancl documentary evidence dismiss-'tl the suit of the plaintiffs vide ju<lgrn':nt dated

31.08.20 15 by mirl:ir-rg following observations: "(i) 1'ltt sketch mop filed bg plaintiffs LLereirt along tuiih. th,z suit onlg the suit plot u.ta.s slnutn. There is tc, t'lear euidence before the Court uthere- suit ptot s situated in surueg No.22/ 1 becou se qetLe:ntll.A anA surueA number corslbts man1l plots. 'rolal ;l;etch of surueg No.22/ 1 because generally on,7 :urueg number consisrs mang plots. Total :;kr;tc:l,, o.f surueg No.22/ 1 i.s not filed bertlre the t:o rt as to shotu the exact location of suit plot in :;urue.1 No.22/ 1 . It is further obserued uhether the plaint frs haue purclutsed the suit plot in ang uetlllt)'(, is not clearlg mentbned before the Cou rt. 'M ell .<'r surueg No.22/ 1 b an agrianltural land or t:or unzrcial one is not brought on record. V*rctlrcr ont4 pk.'tttng taas done in surueg No.22/ 1 is rtot <'la trltt \rought on reard. 1 4 s.A,N",2or:l/;2!s (ii) It is further seen that the plaintiffs are pleading that the defendants haue constntcted basement in suit plot, no photograpls or CD is fibd. before tLLe Court to shotlt the con-structions made bg the defendants. No other ruitnesses except p.W. 1 is examined before the Court, euen onlg Ex.A.l b marked before this Court. Taking into consideration the reliefs sought in this plaint the plaintiffs hns to establish regarding the occupying of the suit plot bg defendants and euen the constnlction made bg the defendants. Thb Court feel"s that basing on mere oral euidence it connot be said th.at the dekndants haue occupied the suit plot and made construction upto basement leuel as the defendants set ex parte in thb suit and it is does not automaticallg giue ight to the plaintiffs for the reliefs a-s praged for. The plaintiffs Lnue to proue their uersion before the Court." 1O. Aggrieved by the judgment of the trial Court dated 31.08.2O15, plaintilfs preferred appeal in A.S.No.9 of 2015 before the Senior Civil Judge-cum-Assistant Sessions Judge, Zaheerabad.

11. The first Appellate Court being hnal Court on facts, re- appreciated entire oral and documentary evidence placed on record and partly-allowed the appeal uide judgment and decree dated

13.03.2025 and set aside the judgment and decree dated 31.08.201S passed by the trial Court. Consequently, the suit in O.S.No.S of 2015 was partly decreed declaring the plaintiffs as the absolute owners and title holders of the suit schedule property. Further, the 5 LNA, J S.A.t\o 213 of 2025 defendants ale directed to remove the structures mado in the suit plot and hani over 1hc vacant possession of the samrl to the p aintiffs within a peri:d o lhree months failing which appellants/ plaintiffs are entitled t() 1ak3 possession of the suit schedule propertf by due process of lavr. Llowever, the suit in respect of dar'lirges of Rs. 1,O0,O0Oi - I)cr 1'ear was dismissed' t2. The fir:;t Appellate Court while allowing the appt:al nade the following obs,:ntat r: n "i. o,, 1t':rusal of the entire jud-gment of triol Court' th's Cou rl lln a substance in the contentio'o 111i5srt bg e Ieorne d. :runseL for appetlants The tial ()our on'g obszrt tirttt th.at there is no mention of uenture and t tc pLtotoqro t^s or C.Ds ore ftled apporentlg came to a wrcnr. L:cn:lusion that, the ptaintiffs haue not establisht:a their t a:; z Thus tlrc obseruatiotts made bg the tnai Cot r' ore not su,cported bg ong cogent and conuincin'g re'lsor s On pe,t,s:al of ex.A.1/ regi-stered sole d"e:ed dat' tc'' 07.1(',2( 05 it is euident that the plainttffs purchased t):.tt sui'. :;chzdule propertA from tlrc p'reutous owne' 'St'Lt Naruc.'. t\r :ushrtmma for uolid cottsideration an d t te occupo.tiotL bg the defendants bg raising basetnent in tztt stlit : clut,|ule propertA appears to be itlegol and r':titht ut anq tt,rlh ritg. The plaintiffs lutue not adduced at11 euiCe,LC:< , respect of their ctaim of Rs'1,O0'00()/' I'er geor front the defendants from the date of suit tiLi the- ptoin;.if,f:; ore put in possession' Therefore, the sa'nz canrncst it<, qranted. Therefore, toking into consideration" the er,,iTence of P.W.1 'supported bg docurr enk r'1 euiden.cc \r.A. 1/ registered sale deed dated 07'10 2OC5 I 6 s.n.*".zotlll,izl ., \ am of the considered uieut that tLLe judgment and decree of the tial Court suffers from inegulaitbs and infinnities and require interference bg this Court. The point is ansruered. accordingly in fouour of the plaintiffs".

13. Aggrieved by the judgment and decree dated 13.03.2025, the present second appeal is hled by the defendants.

14. Learned counsel for the appellants submitted that the trial Court has rightly dismissed the suit since plaintiff failed to place any evidence and material on record, but the first appellate Court erroneously partly-allowed the appeal and set aside the judgment and decree passed by the trial Court. The learned counsel for the appellants would further submit that the hrst appellate Court decreed the suit without there being any material on record and came to erroneous conclusions and thus, allowed the appeal which is unsustainable and is liable to be set aside. Learned counsel for the appellants would further submit that the hrst Appellate Court recorded perverse hndings that plaintiffs proved the suit claim without there being any evidence on record and therefore, the said finding of the first Appellate Court is unsustainable and the present Second Appeal is deserves to be allowed and the judgment of the hrst Appellate Court is liable to be set aside.

15. A perusal of the record discloses that the trial Court has observed that the plaintiffs have not frled photographs or CD before the trial Court to show that the construction were made by the LNA, J S.A.l\"o.203 oI2025 defendants ancl 1-]tztt no witness was examined and exce pt r;rrrking of ] Ex.A 1 , no or-hr:r :,zidence was placed on record and thus , came to conclusion thiLt -here was no sufficient evidence anrl m ll'erial on record and disrni:rsed l-hc suit.

16. The fir st a pl.rellate Court reconsidered the erLtire e',' ir le rnce and material pla,:e,l c n record and came to conclusion thrLt o rsrervation made by the trial Oourt was not supported by cogent and r onvincing reasons ancl urthcr observed that plaintiffs purchzLsed the suit schedule plc t th r o ugh registered sale deed dated 07 .O2 .2( tCr5 which is marked as ll-rr.A1, The hrst Appellate Court considerin3 the oral evidence of P.rU, and documenlary evidence in the frrrrr cf Ex.A1, came to conclus,ion that plaintiffs proved their case and partly allowed the zrp ccirl

17. Admil.teCl), plainliffs did not contest the marter and remained ex parte befrrrr' t.riztl Court as well as hrst Appellate Ccurt and there is no challerrgr: t,> claim of plaintiffs and further, thertr is no contra evidence to <tispr,rve the claim by the plaintiffs. In consrder':cl opinion of this Cour-, :he '-rial Court has failed to examine an<l corlr;ider the registered sale deel executed in favour of plaintiffs and oral evidence of P.W. 1 in .rr,rpx,r perspective and erroneously gone into h e aspect whether sui - plo - is part of layout or not without thr:re r,:ing any challenge to the same. 8 LNA, J 5.A.No.203 o! 2025

18. In considered opinion of this Court, the first appellate Court has rightly appreciated the evidence on record placed by the plaintiffs particularly Ex.A. 1, wherein clear boundaries were mentioned and it is settled principle of law that in case of dispute with regard to identity of a property, the same can be identihed by boundaries and therefore, hndings recorded by the trial Court are erroneous and are unsustainable.

19. In considered opinion of this Court, the learned counsel for the appellants 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 qualifu as the substantial questions of law in terms of Section 100 C.P'C.

20. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interl-ere with the .o.r"r....r, findings arrived at by the I-rrst appellate Court, which are based on proper appreciation of the oral and documentary evidence on record. ''', l':

21. Further, in ourdea xou" o".''*&Lir, the Apex eturt held that the High Court sitting in Second Appeal qannot .*i-rrr" the evidence once again as a third trial Court and the power under Section 10O t (2007) 1 Supreme Court Cases 546 C.P.C. is very limited and it can be exercised LNA, J s..4..,tt.203 0f 2025 only where a 9 substantial ,luest iorl of law is raised and fell for considt:ratic e.

22. Havin;3 r:or sidered the entire material available x re:ord and the hndings re corced by the first Appellate Court, t.his tlou -t finds no ground or r3ason warranting interference with thc said < oncurrent hndings of firsl .,{ppellate Court, under Section 1O0 C.P.C. A{oreover, the grounds rais;r:cl by the respondents are factual in rratt rr: and no question of .arr,, rruch less, a substantial question of law e rises for consideratio-r in this Second Appeal.

23. Hence, the liecond Appeal fails and the same s ar:<:ordingly dismissed al tnc stage of admission. There shall be rro o:<[er as to costs. Pendir g mi s<:ellaneous applications, if any, shall r;tan d closed. //TRUE COPY// SDI.,A.PRATHIMA \DEPUTY REGISTRAR "l :SECIlON OFFICER \\ \ I I j To, 1 2 3 4 5 Kam/PSL The Senicr Oivi .ludge at Zaheerabad (with record\' if any) The Junio' C:ivil . udge, Narayankhed O"" CC t,, liri Mohlmmed Sanaullah Farhan' Advocate IOP'Jr]l One CC to S;ri l\ Nissar, Advocate [OPUC] Two CD C;oPrie:; HIGH COURT DATED:2810412025 JUDGMENT SA.No.203 of ;2025 l:i i:,3 l?i'i=' 13 JJil 20h C \ \l!\i ._ ' "tr.. .',1, - t -.t.' .t' DISMISSING'THE SECOND APPEAL AT THE STAGE: OF ADMISSION \bIb led