APHC010041422025 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: 97/2025 Between: Palla Ganapathi ...APPELLANT AND Jada Sanyasi and Others ...RESPONDENT(S) Counsel for the Appellant: 1. TADDI NAGESWARA RAO Counsel for the Respondent(S): 1. V V N NARAYANA RAO 2. The Court made the following order: This second appeal is filed questioning the judgment and decree in A.S.No.20 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.38 of 2010 by the Principal Junior Civil Judge, Bobbili. 2. The appellant herein is the plaintiff and the respondents are defendants in the suit O.S.No.38 of 2010. 3. The suit in O.S.No.38 of 2010 is filed seeking permanent injunction. It was pleaded by the plaintiff (appellant herein) that he purchased the plaint schedule land admeasuring Ac.0.22 cents covered in Sy.No.252/12 from the 1st defendant. It was averred that, there was a family partition orally long time ago in which the property purchased by the plaintiff fell to the share of the father of the 1st defendant and after his demise, 1st defendant came into possession and enjoyment of the plaint schedule property. And the plaintiff purchased the same from the 1st defendant and constructed cattle shed in some extent and using the remaining part as his thrashing floor. It was further averred that the 2nd defendant filed a suit in O.S.No.293/2009 in collusion with 1st defendant, which was decreed in favour of 2nd defendant and under the guise of the said decree, the defendants are trying to occupy the suit schedule property without having any right or title over the same. Hence, the suit. Whereas, the 2nd defendant filed the written statement contending that, the 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 2nd defendant’s father, the 2nd defendant being legal heir, succeeded the property from his father and was in possession of the same with absolute rights. His right and title over the suit schedule property was also confirmed by the Court below in O.S.No.226/1980, O.S.No.41/1993 and A.S.No.44/1992. It was further pleaded that the plaintiff (appellant herein) is interfering with the possession over the suit schedule property on the strength of the document executed by the 1st defendant, who is a distant relative of the plaintiff and who has no title and possession over the suit schedule property. The plea of the plaintiff that he was in possession and enjoyment of the suit property was specifically denied. On the basis of the said pleadings, the trail Court framed the following issues: 1) Whether the plaintiff has been in peaceful possession and enjoyment of plaint schedule property 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 plaintiff’s side, PWs 1 to 4 were examined and Ex.A1 to Ex.A3 were marked. On defendants side DW-1 to DW-4 were examined and Ex.B-1 to Ex.B-8 were marked. 4. The trail Court has observed that the plaintiff herein is claiming possession of the land admeasuring Ac.0.22 cents covered in Sy.No.252/12 (which is purchased from 1st defendant, mentioned in Ex.A1) and the 2nd defendant is not claiming any land in the said survey number but disputed the boundaries mentioned in the plaint schedule property. Further, the DW2, who is the vendor of the plaintiff also denied the boundaries of the suit schedule property. In view of the same, Ex.A-1 is eliminated from consideration. Admittedly survey number and extent mentioned in the Ex.A1 did not tally with the property claimed by the 2nd defendant. Moreover, PW1 testifies survey number of his land as 252/12 which consists of Ac.0.22cents and he is not concerned with the land covered under Sy.No.252/7 or New Sy.No.252/9. The trail court has duly taken the same into consideration and treated that the plaintiff is not claiming any land in Sy.No.252/7 or New Sy.No.252/9. On appreciation of the evidence, both oral and documentary, the trial Court found that the plaintiff failed to establish his possession over the suit schedule property and therefore dismissed the suit. 5. Against the said judgment, plaintiff (appellant herein) preferred A.S.No.20 of 2017 on the file of Senior Civil Judge, Bobbili. The lower Appellate Court on re-appreciation of the entire evidence and 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 plaintiff (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 proved the possession over the suit schedule property by examining the witnesses and by placing the documents i.e., Ex.A1 to Ex.A3. 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 dismissed the suit as well as appeal. 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 reasoning of the trail court in disbelieving and eliminating Ex.A1 for consideration and believing the evidence of DW2(1st defendant herein) who in collusion with defendant no.2 gave evidence as PW2 in O.S.No.293 of 2009 which was filed by defendant no.2 herein against the plaintiff/appellant herein? 2. Whether the Courts below acted legally in dismissing the suit even though the trail court has come to conclusion at para 20 that Ex.A1 document or survey number, extent or boundaries were not cancelled till today and that the said document is registered under due process of law? 3. Whether the courts below acted legally in not considering the evidence of PW4 who supported the execution of Ex.A1 but believed the evidence of DW2 who in collusion with 2nd defendant herein have filed suit against plaintiff herein in O.S.No.293 of 2009 without any reasoning? 8. Perused the material available on record and considered the submissions of the learned counsel. 9. 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 when Ex.A1 is excluded from consideration, there is no evidence available on record to support the case of the plaintiff and had rightly dismissed the appeal. 10. The trail Court has observed that the plaintiff has not established his lawful possession over the suit schedule property by examining PW-1 to PW-4 coupled with Ex.A1 to Ex.A3 documents. Ex.A1 is the registered sale deed executed by 1st defendant in favour of the plaintiff. The survey number and extent mentioned in the Ex.A1 did not tally with the property claimed by the 2nd defendant and the 2nd defendant is not claiming any land in the plaint schedule property but disputed the boundaries mentioned in the same. The DW-2, who is the vendor of plaintiff also, did not support the contents of Ex.A1 sale deed and denied the boundaries. In the said circumstances, the trial court has rightly excluded Ex.A1 from consideration as the vendor of the plaintiff did not come to support the claim of vendee i.e., plaintiff and held that registered document would not entitle the plaintiff to get a relief. Moreover, the plaintiff did not even produced title deed book and tax receipts evidencing his possession over the suit schedule property. Ex.A2 is the certified copy of the pattadar passbook issued in the name of the plaintiff, in respect of several properties including Sy.No.252/12 admeasuring Ac.0.22 cents, also does not serve any purpose in the absence of title deed book and tax receipts. It is settled law that, to grant equitable relief of injunction, settled lawful possession over the suit schedule property as on date of filing of the suit is pre-condition. In the present case, the plaintiff has failed to prove his possession over the suit schedule property. Therefore, in the absence of any evidence to show the plaintiff’s possession over the suit schedule property, both the Courts below have rightly dismissed the suit as well as the appeal. 11. 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.” 12. As stated supra, the Trail Court as well as Appellate Court have categorically came to a conclusion that the appellant herein has failed to prove possession over the suit schedule property and also eliminated Ex.A1 crucial document relied by the plaintiff. The plaintiff has not made out any case warranting the interference of the Court with well versed judgments particularly substantial questions of law. The grounds raised cannot be termed as substantial questions of law. 1 AIR 2005 SC 1008 2 AIR 2001 SC 965 13. In these circumstances, this Court is of the opinion that the present case fails to meet the tests laid down by the Hon’ble Supreme Court as there is no question of law much less substantial question of law. 14. 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