IN THE
HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT
HYDERABAD
THE
HON’BLE SRI JUSTICE B.CHANDRA KUMAR
SECOND
APPEAL No.404 of 2010
Dated:-
16th August, 2010
Between:-
Vavilapalli Appa Rao and another
…Appellant
AND
Nambala Rambabu
…Respondent
ORDER:-
This
appeal is directed against the judgment and decree dated 11.12.009 passed in
A.S.No.246 of 1998 by the VIII Additional District and Sessions Judge (Fast
Track Court) at Visakhapatnam (for short, ‘appellate Court’) whereby and
whereunder the appellate Court dismissed the appeal filed by the defendants and
confirmed the judgment and decree dated 06.05.1997 made in O.S.No.472 of 1994
passed by the Principal District Munisif, Visakhapatnam (for short, ‘trial
Court).
2. The
respondent herein filed a suit in O.S.No.472 of 1994 before the trial Court for
permanent injunction restraining the appellants herein, their men and agents
from interfering with the peaceful possession and enjoyment of the plaint
schedule property. Their case is that one Late Adinarayana, in the
year 1948, purchased the suit schedule property from the vendors under the
original of Ex.A.2. His case is that he obtained a sanction plan
from the municipal authorities vide B.A.No.264 of 1994 and got approved the
sanction plan on 25.03.1994 under Ex.A.1. Alleging that the
appellants herein are interfering with the peaceful possession and enjoyment of
the plaint schedule property, he filed a suit for permanent injunction. The
case of the appellants is that there is a 10 feet pathway leading from west to
east and that the respondent is closing the said 10 feet pathway and,
therefore, the respondent is not entitled for injunction order.
3. On
behalf of the respondent, P.Ws.1 and 2 were examined and Exs.A.1 to A.3 were
marked. On behalf of the appellants, D.Ws.1 to 3 were examined but
however no exhibits were marked.
4. The
trial Court, having observed that Ex.A.2 – Sale Deed is not legible and that
the other neighbours of the plaintiffs and defendants have not raised any
objection and that the municipality itself had sanctioned plan in favour of the
respondent enabling him to construct house, decreed the suit. Aggrieved
by the same, the appellants herein filed an appeal before the appellate Court
and the appellate court also, having considered the oral and documentary
evidence available on record, came to the conclusion that the immediate
neighbours of both the plaintiffs and defendants did not come forward to speak about
the 10 feet passage and that the plaintiff had denied the existence of the said
10 feet passage and that the municipality has sanctioned plan in favour of the
respondent and that the witnesses examined on behalf of the appellants are not
the competent persons to speak about the pathway, dismissed the appeal
confirming the judgment of the trial Court.
5. Heard
the learned counsel on record.
6. The
main contention of the learned counsel for the appellants is that as Ex.A.2 –
the document filed by the respondent himself recites about the 10 feet pathway,
the Courts below failed to consider the recitals of Ex.A.2 and thereby did not
consider the material evidence and that non consideration of material evidence
effecting the result of the case raises a substantial question of law.
7. In
reply, learned counsel for the respondent submitted that the appellants have
not let in any satisfactory evidence and that both the Courts below have
categorically held that there is no passage dividing the plaint schedule
property into two parts and that the first respondent herein was granted
temporary injunction till the disposal of the suit and when the appellants
herein filed an appeal but the appellate Court did not grant any injunction in
their favour, now, i.e. at the second appeal stage, they have obtained
injunction order and that the respondent has already completed its construction
and the appellants ought to have filed suit for mandatory injunction and that
suit for bare injunction is not maintainable and the suit has become
infructuous and that in the suit filed by the respondent, the appellants cannot
seek any injunction order particularly when both the Courts have held in favour
of the respondent.
8. The
only point that arises for consideration is whether the Courts below failed to
consider the recitals of Ex.A.2 and thereby raises a substantial question of
law and the their findings are liable to be set aside.
9. It
is not in dispute that the respondent is the owner of the plaint schedule
property which was purchased by his father under Ex.A.2. It is also
not in dispute that the respondent seems to have obtained sanction plan from
the municipal authorities under Ex.A.1. Admittedly, injunction order
was in favour of the respondent before the trial Court. Admittedly,
the appellants failed to obtain any injunction order during the pendency of the
appeal. But as seen from the contents of the judgment of the appellate
Court, the appellate Court, in para 11 of its judgment referred Ex.A.1 as plan
but in para 12, referred Ex.A.2 as plan (in fact, Ex.A.2 is copy of sale deed)
and the recitals of the Ex.A.2 – sale deed under which the respondent is
claiming his title over the property seems to have not been
discussed. Admittedly, since the appellate Court seems to have not
discussed about the recitals of Ex.A.2 but however discussed the evidence of
D.W.2 and D.W.3 and other circumstances of the case, it appears that the
appellate Court committed a mistake in not considering the material
evidence. When the Court ignores the material evidence, the High
Court has to interfere even at the stage of second appeal. Since the
judgment of the appellate Court is not based on material evidence, a
substantial question of law arises for adjudication.
10. In
case between Hero Vinoth (Minor) Vs. Seshammal[1],
the Apex Court held as follows:-
“The High Court should be satisfied that the
case involves a substantial question of law, and not a mere question of
law. Also, a substantial question of law has to be distinguished
from a substantial question of fact. The phrase ‘substantial
question of law’, as occurring in the amended Section 100 CPC is not defined in
CPC. The word substantial, as qualifying ‘question of law’, means –
of having substance, essential, real of sound worth, important or
considerable.”
It
was further held as follows:-
“An interference of fact from the recitals or
contents of a document is a question of fact. But the legal effect
of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a document or
wrong application of a principle of law in construing a document, it gives rise
to a question of law.”
It
was further held as follows:-
“The
general rule is that High Court will not interfere with the concurrent findings
of the Courts below. But it is not an absolute rule. Some
of the well-recognized exceptions are where (i) the Courts below have ignored
material evidence or acted on no evidence; (ii) the Courts have drawn wrong
inferences from proved facts by applying the law erroneously; or (iii) the
Courts have wrongly cast the burden of proof. When we refer to
‘decision based on no evidence’. It not only refers to cases where
there is a total dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of supporting the
finding.”
11. In
case between Kashmir Singh Vs. Harnam Singh and another[2],
the Apex Court observed as follows:-
“Where the Courts have ignored material
evidence or acted on no evidence, the High Court may interfere under Section
100 CPC.”
12. It
is true that the other neighbours of plaintiffs and defendants seem to have not
raised any dispute and they have also not appeared as witnesses on behalf of
either the appellants or respondents. Since it is contended that the
respondent had already constructed the wall, the subsequent charges may have to
be taken into consideration. Anyhow, it appears that the matter
requires reconsideration.
13. In
the above circumstances, the Second Appeal is allowed and the judgments of both
the Courts below are set aside. The matter is remanded back to the
trial Court. The parties, if they are so advised, may lead further
evidence and the trial Court may dispose of the matter in accordance with
law. Since it appears that the appellants herein were not granted
any injunction during the pendency of the appeal and the injunction order was
in favour of the respondent before the trial Court, the interim injunction
granted by this Court on 25.06.2010 stands vacated and it is for the parties to
approach the trial Court and seek appropriate relief, pending disposal of the
matter. No costs.
_______________________________
JUSTICE
B.CHANDRA KUMAR
August 16, 2010
Bvv
No comments:
Post a Comment