THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1206 OF 2013 Date: 29-04-2014 Between Mohammed Ashar Pasha …..Appellant And G. Srikanth and two others …..Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1206 OF 2013 JUDGMENT:
This second appeal arises out of the judgment and decree dated 28-11-2013 in A.S. No. 210 of 2013 wherein and whereby the learned X Additional Chief Judge, City Civil Court, Hyderabad confirmed the judgment and decree dated 11-06-2013 passed in O.S No. 1666 of 2010 by the learned VIII Junior Civil Judge, City Civil Court, Hyderabad.
The appellant is the plaintiff who filed suit O.S No. 1666 of 2010 against the respondents – defendants seeking grant of perpetual injunction restraining the defendants from interfering with his possession over the suit schedule property. The appellant averred that he is the absolute owner of the suit schedule property bearing M.Nos.19-5-38, 19-5-38/1 and 19-5-38/2 having purchased the same from the father of the 1st respondent late G. Krishna by entering into agreement of sale on 19-07-2007 and got possession over the same. The plaintiff further averred that as he was busy with family disputes and away from Hyderabad, some unknown persons damaged the property in question. It was further alleged that on 12-04-2010 when the plaintiff was on the suit property, the staff of the 2nd defendant along with defendant Nos.1 and 3 came and directed him to stop work. According to the plaintiff, the defendants have no authority to stop the work on the property in question which is purely a repair and building work.
Defendant Nos.2 and 3 filed written statement stating that Survey No.1 correlated to T.S No. 16/1, Block ‘A’, Ward No.244 of Nandimuslaiguda Village, Bahadurpura Mandal has been declared as ceiling surplus land to an extent of 8,206.60 square meters by the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad vide proceedings dated 17-01-1989 and that the possession of the vacant land admeasuring 4000 square yards was handed over by the Urban Land Ceiling Authorities to the Mandal Revenue Officer, Bahadurpura Mandal under panchanama dated 17-
01-1989. During the course of inspection of the government land on 12-03-2010, it was noticed by the executive staff that the plaintiff was marking and digging pits for raising columns and the executive staff stopped the work, but taking advantage of public holidays on 13-03- 2010 and 14-03-2010, he again tried to raise 12 columns on the land and when it was noticed by the executive staff on 15-10-2010 the same was stopped. Taking advantage of public holiday on 25-04- 2010, the plaintiff was alleged to have constructed compound wall. On noticing the same on 26-04-2010, the executive staff tried to remove the compound wall on 27-10-2010 but the plaintiff with some unsocial elements obstructed the same by threatening with dire consequences and therefore, they left away. It is the case of the defendants that the plaintiff is trying to interfere with the government land without any valid document and that the agreement of sale upon which reliance was placed by the plaintiff is an unregistered one created for the purpose of suit. The defendants further stated that the suit land was allotted to the Social Welfare Department on 24-10-2002 for the benefit of the poor and unprivileged scheduled caste boys of the locality for construction of a hostel. The suit is bad for non-issuance of notice under Section 80 of the CPC.
Based on the pleadings of the parties, the trial Court framed the following issued for settlement:
“1. Whether the plaintiff was in possession and enjoyment of the suit schedule property as on the date of filing of the suit and such possession was threatened to be disposed by the defendants?
2. Whether the plaintiff is entitled for relief of perpetual injunction as prayed for?
3. To what relief?”
In order to prove his case, PWs 1 to 3 were examined and Exs.A-1 to A-5 were got marked on behalf of the plaintiff. On behalf of the defendants, DW 1 was examined and Exs.B-1 to B-6 were got marked.
The trial Court after hearing both sides and considering the material on record, dismissed the suit holding that the plaintiff failed to prove his possession and enjoyment over the suit schedule property and, therefore, he is not entitled for any injunction. Aggrieved by the same, the plaintiff carried the matter in appeal before the learned X Additional Chief Judge, City Civil Court, Hyderabad which was also dismissed confirming the judgment and decree passed by the trial Court.
Heard the learned counsel for the appellant – plaintiff and perused the record.
It is the case of the plaintiff that he purchased the suit schedule property from the father of the 1st defendant and except filing an unregistered agreement of sale, he did not file any documentary evidence in proof of the same. Further in his cross examination he deposed that though he paid the entire sale consideration no sale deed was executed in his favour and no steps were taken by him when the government put a notice board at the site that the property belongs to the government. The evidence of PWs 2 and 3 was also of no help to the plaintiff.
The plaintiff also filed Ex.A-1 rental agreement dated 16-02-2006, but PW 3 who is alleged to be the tenant of the plaintiff did not state the door number of the property. Therefore, no reliance can be placed on Ex.A-1. The plaintiff also filed Exs.A-2 and A-3 agreements of sale which also do not convey any right or title on him. Exs.A-4 and A-5 electricity bills and payment receipts pertain to house No.1-5-38/1 but the suit schedule property consists of house Nos.19-5-38, 19-5-38/1 and 19-5-38/2. The plaintiff has not filed any documents such as property tax receipts etc., to show his possession and enjoyment over the suit schedule property.
On the other hand, the Government got marked Ex.B-1 panchanama showing that the Deputy Tahsildar, Charminar got possession of 4000 square meters of surplus vacant land from the Special Officer of Urban Land Ceiling by proceedings dated 01-08-
1988. Ex.B.-2 is also attested copy of panchanama dated 28-12- 1989. Ex.B-3 is the plan showing the surplus land and Ex.B-4 is also panchanama dated 24-10-2002. Ex.B-5 is the proposed construction of hostel and Ex.B-6 is the location sketch of the property in question.
Thus, defendant Nos.2 and 3 proved that the property in question was taken over by them and was allotted for construction of hostel building vide Ex.B-5 plan.
In the circumstances, both the Courts below are justified in passing decree against the plaintiff. The findings of fact recorded by both the Courts do not give rise to any question of law much less substantial question of law warranting interference of this Court.
It is well settled that under Section 100 CPC jurisdiction of this Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on this Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.
The second appeal is accordingly dismissed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 29-04-2014 ks