APHC010041452025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] THURSDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI SECOND APPEAL NO: 117/2025 Between: Palla Ganapathi ...APPELLANT AND Jada Appayya and Others ...RESPONDENT(S) Counsel for the Appellant: 1. TADDI NAGESWARA RAO Counsel for the Respondent(S): 1. V V N NARAYANA RAO The Court made the following order: This second appeal is filed questioning the judgment and decree in A.S.No.19 of 2017 dated 29.10.2024 passed by the Senior Civil Judge, Bobbili confirming the judgment and decree dated 06.11.2017 passed in O.S.No.293 of 2009 by the Principal Junior Civil Judge, Bobbili. 2. The appellant herein is the 1st defendant and the 1st respondent herein is the plaintiff in the suit O.S.No.293 of 2009. 3. The suit in O.S.No.293 of 2009 is filed seeking permanent injunction. It was pleaded by the plaintiff (1st respondent herein) that the suit schedule property covered by Patta No.1315 (Settlement Patta) was purchased by him and his father under registered sale deeds dated 28.04.1980 and 21.02.1980 respectively from one Sri Pedappalanaidu and ever since they were in possession and enjoyment of the same. After the demise of the plaintiff’s father, the plaintiff being legal heir, succeeded the property from his father and was in possession of the same with absolute rights. His title & possession over the suit schedule property was also confirmed by the Court below in O.S.No.226/1980 & O.S.No.41/1993. It was further pleaded that the 1st defendant (appellant herein) is interfering with the possession over the suit schedule property on the strength of the document executed by the 2nd defendant (2nd respondent), who is a distant relative of the plaintiff and who has no title and possession over the suit schedule property. Hence, got filed the suit. Whereas, the 1st defendant (appellant herein) filed written statement contesting the suit stating that, there was a family partition orally long time ago in which the property purchased by the 1st defendant fell to the share of the father of the 2nd defendant and after his demise, 2nd defendant came into possession and enjoyment of the plaint schedule property. And 1st defendant purchased the same from the 2nd defendant and constructed cattle shed in some extent and using the remaining part as his thrashing floor. The plea of the plaintiff that he was in possession and enjoyment of the suit property was specifically denied. The 2nd defendant did not file any written statement and was set exparte. On the basis of the said pleadings, the trail Court framed the following issues: 1) Whether the plaintiff has been in lawful possession and enjoyment of plaint schedule properties at the time of filing of suit? 2) Whether the defendants have been interfering with the peaceful possession and enjoyment of suit schedule property without having any manner of right? 3) Whether the plaintiff is entitled for permanent injunction as prayed for? 4) To what relief? During the course of trial, on plaintiffs side, PWs 1 to 4 were examined and Ex.A1 to Ex.A8 were marked. On defendants side DW-1 to DW-3 were examined and Ex.B-1 and Ex.B-2 were marked. 4. The trail Court has observed that the 1st defendant disputed with the boundaries mentioned in the plaint stating that he purchased the property covered under the Ex.B1 sale deed. Admittedly survey number and extent mentioned in the Ex.B1 did not tally with the suit schedule items 1 to 3. Moreover, PW2 who is the vendor of the 1st defendant denied the boundaries of the 1st defendant. Therefore, the extent and survey number mentioned in the Ex.B1 are held in doubtful position as the vendor himself denied the boundaries. On appreciation of the evidence, both oral and documentary, the trial Court found that the plaintiff established his possession over the suit schedule property and therefore, he was granted the relief of permanent injunction as prayed for. Accordingly, the suit was decreed in favor of the plaintiff. 5. Against the said judgment, 1st defendant (appellant herein) preferred A.S.No.19 of 2017 on the file of Senior Civil Judge, Bobbili. The lower Appellate Court on re-appreciation of the entire material available on record confirmed the finding of fact recorded by the trial Court and dismissed the appeal by judgment dated 29.10.2024. Hence the second appeal by the 1st defendant (appellant herein). 6. Heard Sri Taddi Nageswara Rao, learned counsel for the appellant and Sri V.V.N.Narayana Rao, learned counsel for the respondents. 7. Learned counsel for the appellant while reiterating the grounds of the appeal contended that, the plaintiff has failed to prove the possession over the suit schedule property by examining the witnesses and by placing the documents i.e., Ex.A1 to Ex.A8. He further submitted that the Trial Court as well as the lower Appellate Court has grossly erred in taking into consideration the documents relied by the plaintiff and accordingly decreed the suit in favour of the plaintiff and lower appellate court has dismissed the appeal confirming the order of the trail court. Impugning the said order of the lower appellate court, the present second appeal has been filed and proposed the following substantial questions of law for consideration and prayed to allow the second appeal. 1. Whether the courts below acted legally in decreeing the suit even though the 1st defendant has filed written statement saying that he constructed cattle shed in some extent and using the remaining part of the written statement schedule property as thrashing floor which shows that he is in possession of the property? 2. Whether the Courts below are right in not taking into consideration, depositions of DW1 to DW3 and Ex.B1 and B2 which clearly established the possession and enjoyment of the property by the 1st defendant? 3. Whether the courts below are right in decreeing the suit even though the Ex.B2 i.e., the certified copy of pattedar passbook issued by the Government stood in the name of the DW1 for the written statement property? 8. Perused the material available on record and considered the submissions of the learned counsel. 9. The trail Court has observed that the plaintiff has established his lawful possession over the suit schedule property by examining PW-1 to PW-4 coupled with Ex.A1 to Ex.A8 documents. Further, the trail Court has found that the extents in plaint schedule and written statement schedule do not tally with each other. The written statement schedule consists of Ac.0.22 cents in Sy.No.252/12, whereas plaint schedule items include extents in Sy.Nos.252/9 and 251/7 with different boundaries. Ex.B2 is the certified copy of the pattadar passbook issued in the name of the 1st defendant in respect of several properties including Sy.No.252/12 admeasuring Ac.0.22 cents. Further Ex.B1 and Ex.B2 establish that 1st defendant purchased the property mentioned in the written statement schedule, but not established his right and possession over the plaint schedule mentioned property and the evidence of DW2 and DW3 is no way helpful to prove the possession of the 1st defendant over the plaint schedule property. In view of the same, the trail Court has decreed the suit in favor of the plaintiff and granted injunction. Being the final court of fact finding, the Appellate Court has scanned the evidence, documents and findings of the lower Court and upon such, the Appellate Court had also came to a conclusion that the plaintiff is in the possession of the plaint schedule property. 10. Section 100 of C.P.C., 1908, has been amended and now a second appeal is not a matter of right. The existence of a substantial question is a sine qua non for entertaining a second appeal. In the words of the Hon’ble Supreme Court of India in Govindaraju v. Mariamman1 following Santosh Hazari v. Purushottam Tiwai (dead) by L.Rs2 it was held: “It was observed in Santosh Hazari's case (supra) that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case", it was observed that to be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.” 1 AIR 2005 SC 1008 2 AIR 2001 SC 965 11. In these circumstances, this Court is of the opinion that the present case fails to meet the test laid down by the Hon’ble Supreme Court as there is no question of law much less substantial question of law. 12. As expressed above, the concurrent findings of fact, recorded by the Courts below are based upon proper appreciation of the evidence available on record, and the same warrant no interference by this Court in exercise of jurisdiction under Section 100 of C.P.C, 1908 Hence, the Second Appeal is dismissed at the admission stage itself. No costs. As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed. ________________________ JUSTICE RAVI CHEEMALAPATI 06.03.2025 BRS