0*^ APHC010164132014 IN THE HIGH COURT OF ANDHRA PRADESH ATAMARAVATI i THURSDAY,THE TENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V GOPALA KRISHNA RAO SECOND APPEAL NO. 399 OF 2014 Appeal under section 100 of C.P.C, aggrieved by the Decree and Judgment dt 29-07-2013 in A.S No 53 of 2011 on the file of the Court of the Senior Civil Judge at Mangaligiri, Guntur District confirming the Decree and Judgment dt. 22-09-2011 in O.S No. 317/2007 on the file of the Court of the Principal Junior Civil Judge at Mangaligiri, Guntur District. Between; Lukka Venkateswara Rao, S/o.Srinivasa Rao, aged about 37 years, R/o.Vidyadharapuram, Vijayawada City, Krishna District. ...Appellant/Appellant/Plaintiff AND Mandamala Ramesh Babu, S/o.Sanjeeva Rao, aged about 57 years, Smt Madamala Padma Kumari, W/o. Pramesh Babu, aged about 50 1. 2. years, Mandamala Lakshmi Rajesh, S/o.Ramesh Babu, aged about 34 (All Respondents are residents of D.No.41-12-4, Gundu 3. years, Kotaiah Street, Krishna Lanka, Vijayawada, Krishna District.) ...Respondents/ Respondents/defendants Counsel for the Petitioner: Sri Sai Gangadhar Chamarty Counsel for the Respondent Nos. 1 to 3 : Sri Venkat Chalasani the Court made the following order: HONOURABLE SRI JUSTICE V. GOPALA KRISHNA Second Appeal No.399 of 2014 RAO Judgment: This second appeal under Section 100 of the Code of Civil Procedure ( C.P.C. for short) is filed aggrieved against the Judgment and decree, dated 29.07.2013 in A.S.No.53 of 2011, on the file of the Senior Civil Judge, Mangalagiri (“First Appellate Court” for short), confirming the Judgment decree, dated 22.09.2011 in O.S.No.317 of 2007, on the file of Principal Junior Civil Judge, Mangalagiri (“Trial Court” for short). 2. The appellant herein is the plaintiff and respondents herein are the defendants in O.S.No.317 of 2007. and 3.The plaintiff initiated action in O.S.No.317 of 2007 with a prayer for declaration to declare that the plaintiff is absolute and exclusive owner and title holder to the plaint ‘B’ schedule property and for consequential possession of the same to the plaintiff free from objection or obstruction from the defendants and for permanent injunction restraining the defendants, their men, etc., from in any way interfering with and/or causing obstruction to the possession and enjoyment of the plaint ‘A’ schedule property by the plaintiff absolute owner thereof and for costs. vacant as 4. The trial Court dismissed the suit without costs. Felt aggrieved of the same, the unsuccessful plaintiff in the above said suit filed A.S.No.53 of 2011 before the First Appellate Court. The First Appellate Court dismissed the appeal confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff in the above suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. VGKR, J. ' sa_399_2014 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.317 of 2007, is as follows; The plaint 'B' schedule property an extent of about 131 sq. yards is part of plaint -A' schedule, purchased by plaintiff from one Thamiri Annapurna under a registered sale deed, dated 06.10.2006 and ever since the purchase, the plaintiff has been in possession and enjoyment of the said so, during the month of June, 2007, the defendants property. While who are boundary holders encroached plaint ‘B’ schedule and on the western side of plaint ‘A’ schedule got constructed a compound wall after removing the old wall arranged with stones as fencing and that the plaintiff is constrained to file the suit. 7. The defendant filed written statement denying the averments in the plaint and the defendant Nos.2 and 3. The brief follows: before the trial Court by same was adopted by the averments in the written statement are as The plaint ‘B’ schedule property has never in possession and enjoyment l"‘ defendant. The defendants purchased of the plaintiff and it belongs to 1 jointly an extent of 4,844.07 sq. yards, 700.7 sq. yards and 167 sq. yards of site under three registered sale deeds, dated 26.06.2003 from one Cherukuri Vijaya Mohan and ever since the purchase, they have been i enjoyment of the said properties as absolute in possession and owners thereof. Immediately after got constructed a joint wall and possession from the property of purchase of the properties, 1"* defendant i such, he perfected his title by separating his others. as 8. On the basis of above pleadings, the learned following issues for trial; (1) Whether the plaintiff is entitled for decree of declaration, declaring the plaintiff is the absolute owner of plaint ‘B’ sqjiedule property or not? Trial Judge framed the , 3 VGKR, J. sa 399 2014 (2) Whether the plaintiff is entitled for permanent injunction against the defendants, the.ir men, etc., from interfering with the possession and enjoyment of plaint ‘A’ schedule property with costs or not? (3) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 to P.W.3 were examined and Exs.A.1 to A.6 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.8 were marked. 10. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit. Felt aggrieved thereby, the unsuccessful plaintiff filed the appeal suit in A.S.No.53 of 2011 before the First Appellate Court, wherein the following points came up for consideration: 1) Whether the plaintiff could establish that plaint ‘B’ schedule is part of plaint ‘A’ schedule? 2) Whether the plaintiff had cause of action to file the suit? 3) Whether the plaintiff is entitled to get a decree of declaration as prayed for? 4) Whether the plaintiff is entitled to get permanent injunction as prayed for in respect of plaint ‘A’ schedule property? 5) To what relief? II.^The learned First Appellate Judge after hearing the arguments, I answered the points, as above, against the plaintiff and dismissed the appeal confirming the judgment and decree of the trial Court. Felt aggrieved of the VGKR. J. sa_399_2014 same, the plaintiff in O.S.No.317 of 2007 filed the present second appeal before this Court. 12. Heard Sri Sai Gangadhar Chamarthy, learned counsel for the appellant and heard Sri Ch. Venkaiah, learned counsel, representing Sri Chalasani Venkat, learned counsel appearing for the respondents through virtual mode. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Angela Laxmi\ the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising a substantial question of law. mere *(2007)8 see 155 ) 5 VGKR, J. sa_399_2014 14. The plaintiff having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question ' of law. 15. The second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant have shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The specific case of the plaintiff is that the plaint ‘B’ schedule property is the part of plaint ‘A’ schedule property, plaint ‘A’ schedule property is purchased by the plaintiff from one Thamiri Annapurna under a registered sale deed, dated 06.10.2006 and ever since the time purchase, the plaintiff has been in possession and enjoyment over the suit schedule property. The another specific plea is taken by the appellant/'plaintiff is that in the month of June, 2007, the respondents who are boundary holders on the western side of plaint ‘A’ schedule property, encroached plaint ‘B’ schedule and got constructed a compound wall after removing the old wall arranged with stones as fencing and that the plaintiff is constrained to file the suit. 17. The learned counsel for the appellant/plaintiff would contend that Ex.A.1 to Ex.A.6 itself sufficient to prove the title of the plaintiff, but both the Courts blow negatived the relief of declaration of title and possession. The plaintiff relied on Ex.A.1 to Ex.A.6. Ex.A.1 is the sale deed under which the plaintiff purchased plaint ‘A’ schedule property of 200 sq. yards. The plaintiff relied on iEx.A.2 which is his vendor document. The specific case of the defendants is that they have jointly purchased an extent of 4,844.07 sq. yards. 6 VGKR, J. sa 399_2014 700.7 sq. yards and 167 sq. yards of site under three registered sale deeds, dated 26.06.2003 under Ex.B.1 to Ex.B.3 from one Cherukuri Vijaya Mohan and after purchase of the properties in the year 2003 itself, the defendant got constructed a wall by separating his possession from the property of others.. 18. The title of the plaintiff in the ‘B’ schedule property itself is disputed by the defendants, therefore, it is for the appellant/plaintiff to prove his case by producing oral and documentary evidence. It is a trite law that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration relief and the weaknesses, if any, of the case set up by the defendant would not be a ground to grant relief to the plaintiff. 19. The legal position in this regard is no more re-integra and the same has been well settled by the Apex Court in a suit for declaration of title and possession of the plaint schedule property. In a case of Union of India vs. Vasavi, Co-operation Housing Society Limited^, the Apex Court held “the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited”. 20. The specific case of the plaintiff is that from out of Ac.0-17 1/3 cents purchased by Kotamarthy Kameswari, she sold an extent of 200 sq. yards i.e., plaint ‘A’ schedule property to Alasapuri Sarojini under original of Ex.A.4. As per the own case of the plaintiff, Kotamarthy Kameswari purchased an extent of Ac.0-17 cents from legal heirs of late Reka Venkata Swamy under a registered sale deed, dated 18.09.1967. The appellant contended that ReKa^ ^ AIR 2014 SC 937 I 7 VGKR, J. sa 399_2014 Venkata Swamy purchased an extent of Ac.0-26 74 cents of land from Thota . Veeraiah and his sons under a registered sale deed, dated 31.01.1954. to Allam Lakshmi under original of Alasapuri Sarojini in turn sold the same Ex.A.3; the said Allam Lakshmi in turn sold the same property to Thamiri under original of Ex.A.2 and the said Thamiri Annapurna in turn Annapurna sold the same to the plaintiff under original of Ex.A.1. The two crucial sale deeds, dated 18.09.1967 and 31.01.1954, are not yet filed by the plaintiff. The interest to produce the same before the First plaintiff did not evince any Appellate Court by obtaining registration extract of the aforesaid sale deeds, Both the Courts below have drawn adverse inference against the plaintiff for aforesaid two sale deeds. Therefore, it cannot be said non-production of the that the land in ‘I property. B’ schedule property is part and parcel of ‘A schedule The title of the defendants is based on Ex.B.1 to Ex.B.3. Ex.B.1 to dated 26.06.2003. The 21. relates to the year 2006 and those are Ex.B.3 are specific case of fhe defendanfs is that they have jointly purchased an extent of 4844.07 sq. yards, 700.7 sq. yards and 167 sq. yards respectively under Ex.B.1 to Ex.B.3 sale deeds dated 26.06.2003. As per the evidence of D.W.1 i.e., 1"* defendant, the compound wall on the eastern side of the property has been constructed after purchase of the property in the year 2003 itself by separating the property of others. Admittedly, the defendants purchased the side of the plaint schedule property. property situated on the western boundary of the plaint schedule property is compound wall Therefore, western of the 1=‘ defendant, the same is supported by Ex.A.1. The western boundary of the plaint schedule property Is compound wall of Seed Manufacturing the evidence of D.W.1, he constructed Kalyana Company Limited. As per Mandapam in ... fact, north, south, east and west also there was he leased out the said property to . the western side of the property with his own expenses and in existing compound wall and an Cirkaru Laxmi Industries and Universal f VGKR, J. sa_399 2014 Company and the wall referred to in Ex.A.1 is the wall of the lessee of the defendants. 22. The material on record coupled with admissions of D.W.1 clearly goes to show that there was a compound wall of defendant on the western side of the plaintiff property and the said compound wall is in existence since 2003 onwards. Therefore, the plea put forth by the plaintiff in the plaint that in the month of June, 2007 the defendants boundary owners on the western side of the plaint ‘A’ schedule property encroached and constructed wall after removing the old wall arranged with stones as fencing is nothing but a false. The same is well supported by the defence put forth by the defendants in the written statement itself. a compound 23. As per the case of the plaintiff, his vendor title is Ex.A.2 document, dated 12.06.2006, her vendor document is dated 13.04.2006 under Ex.A.3. But the western boundary mentioned in Ex.A.2 and Ex.A.3 are the properties of V. Maha Lakshmi, but not the property of the defendants. The gap in between Ex.A.2 and Ex.A.3 sale deeds are only for about 2 months and the gap in between Ex.A.1 and Ex.A.2 sale deeds are only 3 Va months. All the Ex.A.1 to Ex.A.3 sale deeds are relates to the same year, dated 13.04.2006, 12.06.2006 and 06.10.2006 respectively. It is not at all the case of the plaintiff that in between 12.06.2006 and 06.10.2006 the defendants encroached and constructed a compound wall. The said discrepancy is not at all explained by the plaintiff. The specific case of the plaintiff is that the defendants made encroachment in the month of June, 2007 and constructed on the western side of the plaint schedule property. As stated compound wall of the defendants is in existence since 2003 onwards much prior to the purchase of property under Ex.A.1 by the appellant. a compound wall supra, the 24. The law is well settled that in a suit for declaration of title and possession, the plaintiff could succeed only on the strength of his own title and could be done by adducing proper and cogent evidence. Admittedly, in the I 9 VGKR, J. sa_399_2014 on hand, the plaintiff failed to produce proper and cogent evidence show that he is having valid right and title in the plaint schedule property. In the absence of proof of valid title and right in the plaint schedule property, the possession cannot be ordered to the plaintiff. In the case on hand, the learned trial Judge on appreciation of the entire evidence on record dismissed the suit and the learned First Appellate Judge on re-appreciation of the entire evidence record confirmed the findings given by the learned trial Judge. Both the Courts below recorded concurrent findings. The aforesaid findings, in my considered view, remain unimpeachable from the evidence led by the parties. 25. The general rule is that the High Court will not interfere with the concurrent findings of the Courts below, but does not absolute rule some of the well recognized exceptions are where: case to on (1) The Courts below have ignored material evidence or acted on no evidence; (2) The Courts have drawn wrong inference from proved facts by applying the law wrongly or; (3) The Courts have wrongly casts the burden of proof. But, the instance case does not come within the ambit of the aforesaid exceptions. On appreciation of the entire evidence on record, the Trial Court came to a conclusion that the plaintiff is not entitled the relief of declaration of title and perpetual injunction as sought in the plaint. On re-appreciation of the entire evidence on record, the First Appellate Court also came to the same conclusion and both the Courts below given a concurrent finding that the plaintiff is not entitled relief of declaration of title and possession of ‘B’ schedule property and consequential relief of permanent injunction in respect of plaint A schedule property. The findings given by both the courts below based on evidence. The present second appeal is not even admitted till so far, it is at the stage of admission, this Court being a second appellate Court are 10 VGKR, J. - sa_399_2014 Should be satisfied that the facts involves the substantial question of law and not a mere question of law. In fact, substantial questions of law raised by the appellant in the grounds of appeal are not even substantial questions of law. 26. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below issues/points in favour of the defendants and against the plaintiff do not brook interference and that both the Courts below are justified in dismissing the suit of the plaintiff. The findings of fact recorded by both the Courts based on proper appreciation of evidence and the material on all the below were on record and there was neither illegality nor irregularity, in those findings and therefore, the findings do not require to be upset and there is no perversity in the judgments of the Courts below. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised strictly speaking, are not even pure questions of law, let alone substantial questions of law. 27. Viewed thus, this Court finds that none of the questions raised substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur V. Kaki^. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code. are that no ^ AIR 2006 SC 1975 J 11 VGKR, J. sa_399_2014 28. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree passed by both the Courts below. Considering the facts and circumstances of the bear their own costs in both the second appeals. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. case, each party do Sd/- K TATA RAO DEPUTY REGISTRAR //TRUE COPY// r SECTION OFFICER ■f To, 1. The Civil Judge(Senior division), Mangaligiri, Guntur District 2. The Principal Civil Judge(Junior division) at Mangaligiri, Guntur District. 3. One CC to Sri. Sai Gangadhar Chamarty Advocate [OPUC] 4. One CC to Sri. Venkat ChalasaniAdvocate[OPUC] 5. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. 6. THREE CD Copies Stu AL HIGH COURT DATED;10/07/2025 JUDGMENT SA NO. 399 OF 2014 O O’ 5 31JUL m ^ . Current Section . ^ ml e®. DISMISSING THE SECOND APPEAL AT THE STAGE OF ADMISSION