IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT
HYDERABAD
WEDNESDAY, THE 09TH DAY OF
FEBRUARY TWO THOUSAND AND ELEVEN
PRESENT::
HON’BLE SRI JUSTICE G.V.SEETHAPATHY
S.A.No.1313 OF 2010
Between:-
Rangu
Gangamma
…Appellant
A n d
Rangu
Jaya
…Respondent
JUDGMENT:
This
second appeal is directed against the judgment dated
28-08-2009 in A.S.No.59 of 2006, on the file of the Principal District Judge, Adilabad, wherein the said appeal filed by the appellant herein was dismissed, confirming the judgment and decree dated 03-04-2006 in O.S.No.2 of 2003, on the file of the Junior Civil Judge, Adilabad, wherein the suit filed by the respondent herein for permanent injunction, was decreed.
28-08-2009 in A.S.No.59 of 2006, on the file of the Principal District Judge, Adilabad, wherein the said appeal filed by the appellant herein was dismissed, confirming the judgment and decree dated 03-04-2006 in O.S.No.2 of 2003, on the file of the Junior Civil Judge, Adilabad, wherein the suit filed by the respondent herein for permanent injunction, was decreed.
2. Heard
the learned counsel for the appellant and the learned counsel for the
respondent. Perused the record.
3. The
respondent herein filed the suit for perpetual injunction against the appellant
restraining her from interfering with the plaintiff’s peaceful possession and
enjoyment of the plaint schedule land. According to the
plaintiff, she acquired the ownership of land by way of registered gift deeds
on 11-11-2002 and 27-11-2002 by her husband, who got the same under a gift deed
dated 06-03-1991 executed by his elder brother Rangu Laxminarayan
Goud. Laxminarayana Goud purchased Plot No.22 measuring 122’x 200’
in an open auction from Adilabad Municipality. Out of the same, he
gifted a piece of land measuring 25’ x 40’ in favour of plaintiff’s husband
Rangu Rajeshwar Goud and ever since, the said Rajeshwar Goud and after him, the
plaintiff have been in possession and enjoyment of the said
plot. The defendant is second wife of Laxminarayana Goud, who died
in 1993, leaving behind the defendant and her children and children through
first wife. The plaintiff alleges that on 04-01-2003 when she tried
to erect the shed over suit site, the defendant tried to obstruct and dismantle
the shed. Hence, the plaintiff filed the suit for injunction.
4. The
defendant filed written statement contending that the plaintiff has been
residing in Jubilee Hills, Hyderbad since many years and the document dated
06-03-1991 was created by the plaintiff in collusion with her husband and that
after the death of her husband, Laxminarayana Goud, the defendant and her
children succeeded to the property.
5. The
trial Court framed the following issues:
i) Whether the
plaintiff is entitled for a perpetual injunction restraining the defendant and
their men from entering into the peaceful possession and enjoyment of the suit
schedule property as prayed for, together with costs or not?
ii) Whether there is any cancellation of
the gift settlement dated 24-12-2002 or not?
iii) To such other relief
6. During
trial, the plaintiff was examined as P.W.1 and also examined P.Ws.2 to 4 and
marked Exs.A-1 to A-4. The defendant was examined as D.W.1 and she
also examined D.Ws.2 to 4 and marked Ex.B-1.
7. On
a consideration of the evidence available on record, the trial Court held that
the plaintiff is entitled for a permanent injunction as prayed
for. The trial Court further held that the validity of Ex.B-1
cancellation deed dated 24-12-2002 cannot be decided in the present suit, which
is filed for bare injunction. Aggrieved by the judgment and decree,
the defendant preferred appeal in A.S.No.59 of 2006, on the file of the
Principal District Judge, Adilabad. The learned District Judge, by judgment
dated 28-08-2009, dismissed the appeal and confirmed the judgment and decree
passed by the trial Court. Aggrieved by the same, the present second
appeal is filed.
8. As
can be seen from the grounds of appeal, no question of law, much less a
substantial question of law, has been raised, except contending that the
evidence on record has not been properly appreciated. The suit is
filed for mere injunction. The plaintiff adduced oral and documentary
evidence in support of her claim of ownership and possession over the suit
land. The defendant, while denying the plaintiff’s claim, pleaded
that under Ex.B-1 herself and her daughter cancelled the transaction under
Ex.A-1. Ex.A-1 is the gift deed dated 06-03-1991 executed by the defendant’s
husband Laxminarayana Goud in favour of the plaintiff’s husband Rajeshwar
Goud. Thus, Ex.B-1 recognizes the existence of Ex.A-1 under which
the plaintiff based her claim. Both the Courts below have rightly
held that the validity or otherwise of Ex.B-1 does not fall for determination
in the present suit, which is filed by the plaintiff for bare
injunction.
It is for the defendant to take appropriate proceedings to vindicate their rights, if any, under Ex.B-1. Insofar as the present suit is concerned, suffice for the plaintiff to establish that she has been in possession and enjoyment of the suit site by virtue of Exs.A-1 and
A-2. Both the Courts below have, on proper appreciation of evidence, oral and documentary available on record, upheld the claim of ownership and possession made by the plaintiff. The said concurrent finding recorded by the Courts below on a question of fact, cannot be interfered with in the second appeal. It is well settled that the scope of second appeal is limited.
It is for the defendant to take appropriate proceedings to vindicate their rights, if any, under Ex.B-1. Insofar as the present suit is concerned, suffice for the plaintiff to establish that she has been in possession and enjoyment of the suit site by virtue of Exs.A-1 and
A-2. Both the Courts below have, on proper appreciation of evidence, oral and documentary available on record, upheld the claim of ownership and possession made by the plaintiff. The said concurrent finding recorded by the Courts below on a question of fact, cannot be interfered with in the second appeal. It is well settled that the scope of second appeal is limited.
“That the High Court was not justified in interfering
with the findings of fact recorded by the first appellate Court in favour of
the appellants. There is no jurisdiction to entertain a second appeal on the
ground of an erroneous finding of fact, however, gross or inexcusable the error
may seem to be. To enable the High Court to interfere under Section 100(1)(c)
of the Code of Civil Procedure there must be a substantial error or defect in
the procedure which may possibly have produced error or defect in decision of
the case upon the merits; it is not enough that there is an error or defect in
the appreciation of evidence. Even where the appreciation of evidence made by
the first appellate court is patently erroneous and the finding of fact
recorded in consequence is grossly erroneous, it cannot be said to introduce a
substantial error or defect in procedure”.
10. In
‘KSHITISH
CHANDRA BOSE VS. COMMISSIONER OF RANCHI[2]’ the Apex Court held that
‘the High Court had no jurisdiction to entertain second appeal on findings of
fact even if it was erroneous. It exceeded its jurisdiction under section 100
in reversing pure concurrent findings of fact given by the trial Court and the
then appellate Court both on the question of title and that of adverse
possession.’
11. In
‘VEERAYEE
AMMAL VS. SEENI AMMAL[3]’, the Apex court held while
deprecating the practice of liberal construction and generous application of
provisions of Section 100 by the High Courts, observed as follows:
“It is distressing
that despite amendment, the provisions of Section 100 of the Code have been
liberally construed and generously applied by some judges of the High Courts
with the result that the objective intended to be achieved by the amendment of
Section 100 appears to have been frustrated. Even before the amendment of
Section 100 of the Code, the concurrent finding of facts could not be disturbed
in the second appeal”.
It was further held as follows:
“In this case the question was covered under
Issue 1 as framed by the trial court and issue 1 was, admittedly, an issue of
fact which was concurrently held in favour of the appellant-plaintiff and did
not justify the High Court to disturb the same by substituting its own finding
for the findings of the Courts below, arrived at on appreciation of evidence.’
12. Unless
the appellant in the second appeal is able to canvass the substantial question of law, the concurrent findings of fact recorded by the Courts below cannot be disturbed by re-appraisal of the evidence. It is not the case of the appellant
nor does the record also show that the impugned judgments suffer from any
perversity in the matter of appreciation of evidence.
13. Under
those circumstances, it s held that no question of law, much less a substantial
question of law, arises for determination in the present second
appeal. There are no merits in the second appeal.
14. In
the result, the second appeal is dismissed. There shall be no order
as to costs.
_____________________
G.V.SEETHAPATHY, J
09th February, 2011
Lrkm.
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