The High Court · 2025

Counsel for the Respondent : Sri S. Prasad Babu The Court delivered the following: HON'BLE SRT JUSTICE LAXMI NARAYANA .\I-ISI{ETTY SECOND APPEAL No.72 oI 21123 JUDGMENT: This Second Appeal is filed chatlenging the .judgmcnr and decree, dated 17.03.2022, passed by thc II Adciitionrl Disrrict and Sessions Judge Judge(FTC), Adilabad ar Mancherial. irr A.S.No.(rj ol 201 8 whereunder and whereby the judgment and cjecree, ciatcd

08.02.2018, passed by the Junior Civil Judgc. L.uxerripcr, in O.S.No. l7 o12009 was contirmed.

2. Thc appellants herein are plaintiffs and rcspondcnt hcrein is defendant, before the trial Courl. For convenicnce, lrer.einaftcr thc parties arc relerred to as thcy are arrayed in the suit.

3. The brief facts of the case as nanated in the plaint are thar plaintilf filed suit in O.S.No. l7 of 2009 for dcclararion o1'title and recovery ofposscssion of land bearing Sy.No. 120/4, adnreasuring l2 % guntas and a portion of the housc bearing Cp.No.g- l.l(r, situatcd at Uthkur shivar, Gampalapalli Village, Adilabad Distrrct (hercinaltcr referrcd to as'schedule property'). lt was averrcd in the :laint that thc fathcr of thc plaintiffs by namc Ncrella @ Chakah l_asmaiah has \ 2 1N,4, J S.A.No 72 of 2023 acquired agricultural land admeasuring 25 guntas in Sy'No 120 in Uthkur shivar of Luxettipet revcnue Mandal along with lands irr Sy.Nos.2l0 and 221 under Scction 38(E) of A'P'Tenancy(TA) Act and the same was mutated in his name in the revenuc rccords; that the father of the plaintiffs in thc capacity of a protected tenant constructed two rooms house, which was given House No 8- 136; that father of the plaintiffs on humanitarian grouncls has allowcd the defcndant' who is his hatf brother to stay in onc room of his house and when their grandfathcr died, clefendant did not vacatc the room' Later' In the ycar 1998, when the plarntiffs havc applled to the MRO' Luxettipet for mutation of tands in thcir namc in respect of the lands in Sy.Nos. I 20, 2 10 and 221 , the rcvenuc authorities havtDnsferred half of the propcrty from every survcy number in thc name of the defendant, as such 12 lz gtntas of land in Sy No l 20 went into the hands of the defendant and the tlelendant occupied it in June, 1999; thatthcplaintiffscamctoknowaboutthefraudulenttransfcrofthe land in Sy.No.120 on reccipt of summons in O S No' 23 of 2007 filed bythedefendantandwhcntlrcptaintiffspressurizcdthcdcfendantto vacate thc room, the dcfendant and his son havc given an undertaking to thc plaintiffs that thcy will vacate thc room by April' 2007' l t.\ t. J Sl No 7) tt/ )t)).1 horvevcr, instcad of vacating the room the clet'enclant filed a suit against thc ptaintiffs. The plaintilLs appealed ro tlre Iahsildar, Luxettipet for rectification ofrecord and thc Tahsililar:iont a,oticc on 11 .10.2007, but did nor take any f urther action againsr thc dcf'cndant. It was further averred that the father of the plaintir),s wus issued owncrship ccrtificate under Section 38 (E) of Tenanc,i Acr in 1974, but thc del-cndant has lraudulently got entercd his name in thc rcvenue records and pahanies as 'occupant'. Hcnce the suit.

4. Def'endant filed writtcn statement denying rhe allegation madc in the plaint and averred that the fathcr of thc plai rrifls and the dclendant are own brothers and sons of Late Ncrella \rcnkaiah. The I.ther of the plaintiffs is the elder son and Kartha of ttt,lanrrly; rhat tenallcy certificate rvas issued to both the defendant anrl hthcr of the plaintiffs and both of them jointly cultivated the suit larrrl alorg with some other lands. Thercafter, thc father of thc plainrifls and the dcfendant had orally partitioned their rands including rvith suit lancl and as per the partition, delendant and Lasmaiah got half'sharc each in the lands. ln 1975, Ryotwari pass book was issued to thc dcl'endant and both dcfenclant and f ather of plaintiffs were culrii,ating thcir respectivc share of lands without any dispute. The plainrif l.s ard their t \ I 4 t.N{. .1 Sl No.72 of 2023 father did not interferc with the peacclul possession of the defendant till thc dcath of Lasmaiah and whcn dclendant constructed a house in schedule property, ptaintiffs did not objcct the samc. The defendant has been peacefully cnjoying thc schcdulc propcrty, since more than 30 years and the plaintiffs have no right over the schedulc property Hence prayed to dismiss the suit

5. On the basis of the abovc pleadings ol both thc partics, the trial Couft framed the lollowing issucs for trial:- "(l) I4/hether the plainri// is entitled./br declaration of title over lhe suit schedule propcrtl, ? (2) ll/hether the plainti/J u etiitled lbr rccoverv ql pos.session of suil .schedule property I (3) To what relieJ? "

6. During the course of thc trial, on bchalf of plaintiffs, plaintiff No.l, was examined as PW. I and one Eggidi Sayan}jv^ examincd as PW.2 and Exs.Al to .A9 were markcd. On behalf of defendant, DW. I was examined and Exs.B I to 87 wcrc ntarked '7. After fult-fledged trial and upon considering the oral and documentary cvidence and the contentions olboth the parties, the trial Court dismissed the suit, vide.judgment and dccree datcd 0t1.02.2018 I 7 ) I \..1. J S.t \i,7: o/ )A)l

8. In the .ludgmcnt, the trial Court categorically observed hcrcunder.- " .. -18(t)) tcrtificote yvas issued in favour ol the firrhtr o1.thc phinti/1.s. l)trt the contention of the cle/cnclant i.y baing tlte kurtu o/ joint./itnily patta t,as issLred in the nante ol tltt,.lotlter ol' the pluintil/.i and that the defentlant and farlrr o/ /1rc plainri/[s t ultit'a/ed the suil land and partition twt.t t,//i,t.tetl long ltack..4t per lhe parlition, the suit land i.e., ltlt/ o/ rha htttl in S_t,.No. I20 tas nulated in .favout. oJ. the tl,:li,trrlunt .lccorclittp to his case, the de/bnrlant is itt pos.ses.sir,tt of .rtrit land stnct 1970. On the other hand,the plainti,ffs ditt not /ile un.t'rlocuntent to shoyt, their possession over lhe sttit l,trttl ulter 1970. Sintc ltulf of the lotrd in Sy.No.l20 was ntt,rtttt,d itt lovotu'of.tht: de./bnclont, lhe contention o.l the JeJbn,trtnt tltat porlition u'uli e/fbcted betwecn them long bock ttnd lt,t.sing on their partitiott, the name o/' the defendanl wo.t filutut(.(.1 in rct'enuc ratttnl slull not ba ruled out completeltt. Iiru-thL,t_, ldmittcrll;', tlrc defendont is in possession of the strit lultd .since 30 y,s11r" ttso und the po.s.:t,ssion of the tlefcnNpnt t.s hcirt.g \ulrpt)t tc(l l+ tltt ,locttntt,nts...., I

8.1. The Trial Clourt has further observed as hereunder._ ''...the plainti//s did not./ile any docttntetrt to sho: tltt,tr. possession t'itltin I2 yeors prior to filing of.this suit. On tlta otlrcr hond, os per the plaint avermenls, the name of tht, tlcfbnrlont t a.s nutatetl rtnd Raittari pcrss book v,as i.:;trttl in " -"'1 6 \A No 7) of 2t) 2.1 the year 1975. Therefore it cun be in/brred that tlte defetulanl is in possession o.[ suit lond since long back. [n the light of above discussion, thi.s Court is of the viev, that, the ptainti//i are failed to prove their title over the suil land..."

9. Aggrieved by the said judgmcnt dated 08.02.2018 ol the trial Court, the plaintiff preferred appeal vide A.S.No.63 of 2018 and the first Appcllate Court, being the final fact-finding Court, rc-appreciated the entire evidence and material availablc on record and dismisscd thc Appeal, vide its judgment dated 17.03.2022,thercby, confimring thc judgment of the trial Court.

10. Thc first Appellatc Courl in its judgmcnt observed as hereundcr:- "30. In the present case defendant neyer pleodetl hinself to be a protecled tenant. He was in possession o[ llte property Jbr an eflent of Ac. 0.12 % gts., which is the pttrt of the property against which his brother was decktred os protected tenant. Admittedly, original tenant Losmaiah or his glildreu neverl9 <tl 22 A.S.No.63 oJ 20 t8 dispuracl thn porr"r(i,,,, or culrirarion o.f deJbndant. in respect o/ Ac. 0.l2 % gts., in Sy.No. 120. No objection appears to have been Jiled against the entrie.r of defendant name in pahanies in possession column. Wen the plainliJfs very much have the knoy,letlge altout the posscssion '7 I \, .1. .t .\.1 lb 7) ol l0: I of de/bndanr right /i'on 1986 87, w,hen they hovc the Lnowlt,tlgc of mutation in rt,t'cntre records in 1998 as pkatlcl ltt, thant, llreir t'et siott thut tht,_t' lo nol knoyv his suit.for injun(.tion w,as ./iled is not ltL'licvoblc. It cleat.l_y appeat.s that lo ot,t,rt.ona the linitatton a.;pt't'r. pluintil/i pleaded the same. Apltur an/|t,, the pos.se.s.siott o/ ltlt,ttdant is adverse Io the interest o.1 ptuinti//. His intennon 1, /7.).r.s(,,ss lhe property con be Ltnder.\trxxl -fionr his entrtes itt rt't,<,ttut, rttcords. Inspite of having lhe l;,ttr,t,lctlge plointi/l.s' /hilcl to olt jrcl or protest agoinst thc po.;.ta.s:;iorr of delbndant.s. On thL, other hand, they categoricall)' rncnlionetl Ihot dt,fbrtLlottt wtr.t irt posse.ssiotr of one of the tr rt rtxtns con-ttnrcttl lt_t' tltt'tr f ther-s even pt.ior lo declaritt;-: hin crs. pt'otected tcttttnt sltows the long stonding posses.cion \rnce lhe Stos.sas.ricttt of u ltut lt,over o property assumes importttnt.e cvctt itt the ab:t'rtt't, of title, the defendant case cen nt. yit,ett credencc. 'l-ltotrgh tlte dc[endont being the brother catrrutt cluinr ovlner.ship o\ u n er o/-right against the propo.rt, o/ his lvotlret ovcr thc properly acquired under prolcctt:tl tt,nrtncv, lis posses.sion has lo lrc protected because of his unintarntprtttl o tul cotttittuoLt.s 1to.s.tes.siott. "

10. l. The Firsr Appcllate Court has furlher observed as lrcrcunder:- ''ccrlai l_t, ploitrti// lo:;t their tille in respect oI thc lnrrion v,hich is in tltc ltos:c.s.sion of deJbndant, They cannot rl(titn u y right nuch lc.s.t titlc uguin.st said properly. When lhc.y, trttapted llte critivatton rrl prnp", tfid"l"niont lhey cannot (ILtint said propertr o.s ltcir.; of th<,original protected tenant. Tht,trqh the tttttttre of lltt, l)11)l)(,t l\' -fenancv *,ill not give righl lo ut,1tttt.c ,tr 8 LNA, J \.4 No.72 of 202 ] lran.tfbr the properq' by any oJ'the known modes like srtle' gi/i' lcase or partition, the righl under Article 65 of Indian l,imilalion Act is autonnlic lt is b' virlue of the circloltstdnces prcvoils. The person need not claim undcr Article 65' but hc ocqltires right autonalically. The party acquircd if prov'es lhol he is in possession ond lhe possession is knou'n to the adverse l)urtv- and a period of l2 yettrs elapsed ln thc present case' lhe casc of the defendant lhat he is in possessnn i's evident through pttlnnies. In these circltmstances, the claim rt[ the plainti//'s do nol stand. Wen thc docunenktry evidcncc produced bt' the ptaintiffs is not cont'incing, the declaratory relief ol-title cannot ba granled. " t l. Llcard Sri C.A.R. Seshagiri Rao, learncd counscl lor the appcllants and Sri. S. Prasad Babu, leamed counsel lbr thc rcspondcnt' Pcruscd the entire material available on rccord'

12. Lcamed counsel for the appeltants contended that thc trial Couft as well as first appcllate Court have failed to apprcciate thc oral and documentary evidence placed on record by plaintiffs in proper perspcctive and dismisscd the suit as well as appcal on crroneous and pcrversc findings. Leamed counsel further contended that the trial Court as wcll as first appellate Court failed to appreciate the fact that tenancy certificate was in favour of father of plaintiffs and thus they are entitlcd to the rcliel.s sousht lor in the suit. I Ience, prayed to allow 9 1,.\' 1. J \.1 .t"o t2 oJ lD-| the appeal

13. A pcrusal of rccord would disclose that the trial Courl as well as the flrst Appcllate Clourt concurrently held that plaintills have not filed any docur.ucnt to substantiate their claim and further. obscrved that thc defenclant has bccn in possession since 197() which is nrore than 30 ycars fiom thc clate ol filing ol the suit. Both the Courts have observed that on onc hand plaintills thcmselves admitted that narne of the dclcndant lr'as rnutatcd irr the revenue rccord in respect of half share of land in Sy.No. 120, in the year 1975, and orr the other hand have takcn contradictor1, stand that name of the defendant was mutated in the revcnue rccords in the year [998 and the dcfendant occupied the land in thc year 1999, which clcarty shows the inconsistency in the stand ol'thc ptaintifls. The trial ('ourt has rightty observed that linritation lor filing suit for declaration and recovery of possession is l2 1,'ears fiom thc date of cause o[ actit,n, whereas, the suit was lllcd in thc ycar 2009 i.e., about 34 ycars alier rrutation of thb names of the defendants in the revenue record anrl therefore, suit is clearly banecl b1'limitation. l0 I- VI, J SA.No 12 oI202l

14. Further, as pcr material placed on record' mutation has taken place in the name ol the defendant in the year 1975 and since then' he has been in possession of his share of tand in Sy'No'120 and thus possession of defendant can be traced to, the year 1975' i'e'' more that 30 years, therefore, suit is barred by limitation and thus' not maintainablc I 5. [n consiclered view of this Court, the leamed counsel for appellant tailecl 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 appcal are factual in nature and do not quati! as the substantial questions of law in terms of Section 100 C'P'C'

16. lt is well senled principle by a catena of decisions of the Ilon'bte Apex Court that in the Second Appeal fited under Section l00C.P.C.,thisCourtcannotinterferewiththefindingsonfacts arrived at by thc first Appellate Courl, which are based on proper appreciation ol the oral and documentary evidence on record' II I,NA. J SA.\'o 72 of )D3 t7. Furlher, it Gurdev Kaur v. Kakit , Lhe Apcx (iourt hcld that thc I{igh Court sitting in Second Appeal cannot exaniine the evidence once again as a third trial Court and the power under Section 100 C-P.C. is vcry lirnited and it can be excrcised only r.r here a substantial question of lau, is raised and lalls lor consideration.

18. Having considercd thc cntire material availablc on record and the findings recorded by the fir'st Appctlate Court, this Courl finds no ground or reas()n warrauting intcrf-erencc with the said findings under Section 100 CI.P.C. Moreover, lhe grounds raised b1, the appellant are factual in nature and no question of law, much less a substantial question of law arises for considcration in this Secon<l Appeal.

19. Hence, the Second Appcal laits and the santc is accordingly dismissed at the stagc of admission. No costs. Pending miscellaneous applications, if any, shall stand closed. '(*D , We coorr cML' Eq6 //TRUE COPYII To 1 The ll-Additional District and Sessions Judge

2. a 4 r.0)z s It/la nche ria l. (With records, if any) The Junior Civil Judge, Luxettipet. One CC to Sri. C A R Seshagiri Rao, Advocate tOpUCl One CC to Sri S. Prasad Babu, Advocate tOpUCI Two CD Copies L SD/- K.AMMAJI DEPUTY REGISTRAR 6- SECTION OFFICER I (FTC), Aditabad at HIGH COURT DATED:3O1O412025 JUDGMENT SA.No.72 ot 2023 ./:1.-. ^a\ \ ; i.. l. :t 0 [[i 2025 I I .. ^ ,...-;- .,,' S.A IS DISMISSED AS THE STAGE OF ADMISSION /v ..J +