H.Naganna v. Pinjari Sanna Babaiah @ Babaich & Ors.

THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO.1107 OF 2009 JUDGMENT: This appeal is directed against the judgment and decree, dated 08-06-2009, in A.S.No.66 of 2008, on the file of the Family Court cum Additional District and Sessions Judge, Anantapur, in confirming the judgment and decree, dated 11-07-2008, in O.S.No.53 of 1987, on the file of the Junior Civil Judge, Kalyandurg.

2. Appellant herein is the plaintiff and the respondents herein are the defendants in the suit.

3. During pendency of the proceedings as the 1st plaintiff died, 2nd plaintiff who is her legal representative came on record. The averments made in the original and amended plaints filed from time to time are as follows: Peddanna @ Gundlayappa abandoned his right in the schedule land in favour of Obanna in lieu of heavy debts incurred land, the schedule by him and settled at Anantapur. He never claimed any right over the schedule land nor enjoyed the same that Obanna was in exclusive possession and enjoyment of the schedule land and sold the same along with others to 1st plaintiff under a registered sale deed, dated 20-02-1982 and delivered possession of the same to her predecessors in title and after them, the 1st plaintiff was in possession and enjoyment of predecessors of the 1st plaintiff perfected their right over the property by virtue of adverse possession also, that 1st plaintiff was a bona fide purchaser of the property, that the defendants 1,2, 7 and 9 have no right, title or possession over the property, that consequent upon the death of defendants 6 and 8 pending proceedings, defendants 10 to 13 and 14 to 16 have been brought on record as their legal representatives respectively. The 1st plaintiff is a bonafide purchaser without notice for value and she is protected under Section 53-A of T.P. Act and D7 was never in possession of suit land and he got fabricated revenue records and neither D7, D1, D2 and D9 were ever in possession and enjoyment of the suit land. Defendants 3 to 6 are also vendors of the 1st plaintiff that the 1st plaintiff filed the suit for declaration and for other reliefs with respect to the schedule land. The defendants have no right to interfere with the schedule land. Hence, the suit.

4. The defendants filed written statements denying the averments of the plaint. The sale deed, dated 20-02-1982 is not binding on the defendants and the vendors of the plaintiff have no right, possession on the suit land at any time, much less after the sale deed. The suit land had fallen to the share of Jarijana Narasimhappa son of Peddanna and the entire land was divided into three shares since 50 years and each share holder is enjoying Ac.16.48 cents of land in the own right with metes and bounds. The defendants purchased the land in the year 1986 and 1987 respectively i.e., Narasimhappa, son of Peddanna. Because of his old age, Narasimhappa sold away his share of land to the defendants and also to Ediga Nagamma and Laskhmidevi and one year prior to the for consideration lawful owner filing of the suit, the defendants raised ground nut crop in the suit land, that one Teepu Sab also purchased the land, who is a necessary party to the suit and the suit is bad for non joinder of necessary parties. D7 was joint with his father Obanna and is the only son and the southern 1/3 rd divided share devolved upon him on the death of his father and D7 sold his 1/3 rd share in favour of D1. Hence, they pray to dismiss the suit.

5. Basing on the above pleadings, the following issues were settled by the trial Court:

1. Whether the 1st plaintiff perfected her title by adverse possession?

2. Whether the 1st plaintiff is a bona fide purchaser for value without notice of the suit land?

3. Whether the 7th defendant has a right to alienate the suit properties?

4. Whether the defendants 1,2, and 9 are the bona fide purchasers for value of the suit land?

5. Whether the plaintiffs are entitled to the relief of declaration of their title over the suit land?

6. Whether the plaintiffs are entitled to consequential permanent injunction?

7. Whether the plaintiffs are entitled to Ac.6.00 of land in the 1/3 rd share of their vendors?

8. To what relief?

6. On behalf of the plaintiff, P.Ws.1 to 7 were examined and Exs.A1 to A12 were marked. On behalf of the defendants, D.Ws.1 to 7 were examined and Exs.B1 to B5 were marked. Exs.C1 and C2 were marked through Court.

7. The trial Court after considering the evidence came to the conclusion that the vendors of the plaintiff failed to establish that the plaintiff has got exclusive right over the entire extent of land, that the properties were divided by the brothers, that therefore, the plaintiff would not get any title unless it is established that he purchased the share in respect of his vendors is concerned and accordingly, dismissed the suit. On appeal, the said judgment and decree were confirmed. Aggrieved thereby, this appeal has been filed by the plaintiff.

8. Now the point for determination is whether there is any substantial question of law involved in this appeal?

9. Learned counsel appearing for the appellant-plaintiff contended that both the Courts below ignored in considering the entire evidence in a proper perspective, that non examination of R7, an adverse inference can be drawn under Section 114 (g) of the Indian Evidence Act, 1872, that the plaintiff established his claim of adverse possession being hostile animus to the true owner and hence, he prays to set aside the impugned judgment.

10. On the other hand, learned counsel appearing for the respondents-defendants contended that there is no documentary evidence to show that Obanna purchased 1/3 rd share of his brother who left the village long back, that the defendants purchased the schedule land from the vendor of one of the brothers, that the findings of both the Courts below are based upon proper appreciation of evidence on record and need no interference by this Court.

11. In view of amendment to Section 100 CPC, admission of Second Appeal is not routine or automatic. There must be substantial question of law. The word ‘substantial question of law’ is not defined under CPC. But it must mean it would affect the rights of the parties substantially. If both the Courts below gave perverse findings or the findings are not based upon admissible evidence or inadmissible evidence was taken into consideration or mis conception of law are some of the circumstances where it can be said that it involved substantial question of law. On this aspect, it is pertinent to refer to a decision reported in K.VENKATARTNAM V P.VENKAYAMMA [1], wherein it was held thus (para 5): “ARREARS: the primary cause of the accumulation of arrears of second appeal in the High court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Section 100 C. P. C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C. P. C. The question which is often asked is why should a litigant have the right of two appeals even on questions of law" The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts. Rationale behind permitting second appeal on question of law: the rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C. P. C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. The fact that, in a series of cases, this court was compelled to interfere was because the true legislative intendment and scope of Section 100 C. P. C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. When Section 100 C. P. C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law. Some leading Cases decided after 1976 amendment in Bholaram v. Amirchand (1981) 2 SCC 414 a three-Judge Bench of this court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the high Court to interfere in the absence of a clear error of law. In Kshitish Chandra Purkait v. Santosh Kumar Purkait [ (1997) 5 SCC 438], a three judge Bench of this court held: (a) that the involved a High Court should be satisfied that the case substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.”

12. The suit was filed for declaration of title over the suit schedule property to an extent of Ac.6.00 of land situated in Sy.No.38 of Kalvapalli village, Anantapur District. The plea of the plaintiff is that total extent of land of Ac.49.44 cents was belonging to the three brothers and that one of the brothers by name Peddanna abandoned his right in the schedule land in favour of vendor of the plaintiff and thereafter Obanna is enjoying 2/3 rd of the property since then till he sold the property to the 1st plaintiff under Ex.A1-registered sale deed and the defendants have no right or title in respect of the property.

13. The case of the defendants is that D1 purchased the property of Ac.6.00 from one of the sons of Peddanna, who is D7 and who is no other than the brother of Obanna. The brother of vendor of D1 has got valid title and interest over the property which has been denied by the D1.

14. It is not in dispute before this Court that total extent of land of Ac.49.44 cents in Sy.No.38 of Kalvapalli village, originally belong to Harijana Vannappa, who had three sons by name Peddanna, Obanna and Paturappa. D7 is the son of Peddanna from whom D1 said to have been purchased the property. It is also not in dispute that three brothers partitioned the property and each got Ac.16.48 cents. Therefore, as seen from the evidence, only the vendors of plaintiff has got Ac.16.48 cents of land. Unless the plaintiff shows that the land of Ac.6.00 forms part out of Ac.16.48 cents that was derived by Obanna, the plaintiff will not succeed. Plaintiff’s case is that one of the brothers of Peddanna relinquished his right in favour of Obanna in the year 1952 and to substantiate the same, Ex.A10 was filed. As seen from Ex.A10, which is the register of holding, it is clear that entire extent of Ac.49.44 cents of land stands in the name of Obanna. This document does not reveal about Peddanna relinquishing his right in favour of Obanna. Such is the case, the plaintiff cannot claim his right over the entire extent of land of Ac.49.44 cents. That is the reason why, the trial Court as well as the appellate Court came to the conclusion that 1st plaintiff has not placed any material to prove that Peddanna abandoned his right over the property in favour of Obanna.

15. The other contention is that in view of the fact that Obanna has been in continuous possession and enjoyment of the property for the entire extent, he perfected his title by adverse possession. When the plaintiff claiming a right, title and interest by virtue of registered sale deed under Ex.A1, the question of claiming adverse possession does not arise. Even assuming for a moment that Obanna was in continuous possession and enjoyment of the property, but absolutely there is no evidence to show that Obanna was in continuous possession and enjoyment of the property to the knowledge of his brother by name Peddanna except Ex.A10. Ex.A10 only shows that total extent of land Ac.49.44 cents stand in the name of Obanna. This document does not show that Obanna was in possession and enjoyment of the property. Ex.A11 is the pattadar passbook. Ex.A12 is said to have been obtained after filing of the suit. Ex.A2 is the cist receipt, which shows about possession in the year 1984. Except Exs.A2 and A3, no document is filed by the plaintiff that he was in possession of the property.

16. The contention of the learned counsel for the appellant that P.W.4 who is the daughter of P.W.7, admitted that her father relinquished his share in favour of Obanna cannot be accepted in the absence of any documentary evidence. There cannot be any dispute that admission of a party cannot confer any title to the property when there is a serious dispute with regard to the property. Therefore, oral evidence adduced on behalf of the plaintiff only shows that he is in possession of the property after he purchased the property from Obanna. Possession shall preceded by clear title to the property. Possession, however long, cannot confer any title to the parties. The initial burden on the plaintiff with regard the property has not been established. The oral evidence of P.Ws. 1 to 7 cannot be accepted because their evidence is only with reference to adverse possession. After proper appreciation of evidence on record, the trial Court as well as the appellate Court rightly gave findings, which cannot be interfered with unless it is shown that the findings are perverse. But no such perverse findings are shown to have been made. Hence, the second appeal is liable to be dismissed.

17. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. ________________ K.C. BHANU, J DATED: 21-02-2011 Hsd [1] (2009) 4 SCC 244