HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.1483 OF 2007 Dated 19-12-2014 Between:
Syed Afzal.
And:
..Appellant.
S.A.Rahman and another.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.1483 OF 2007 JUDGMENT:
This appeal is against judgment dated 8-3-2007 in A.S.No.104 of 2006 on the file of III Additional Chief Judge, City Civil Court, Hyderabad whereunder judgment dated 30-1-2006 in O.S.No.2542 of 1999 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad, is reversed.
Brief facts leading to this appeal are as follows: Appellant herein is plaintiff and he filed O.S.No.2542 of 1999 for permanent injunction contending that suit schedule property is a premises bearing No.10-4-41/1/2/A in an extent of 100 square yards in Pochamma Basthi and that the wife of plaintiff purchased the said property in the year 1970 under Ex.A.1 sale deed and after the death of his wife, plaintiff has become owner and 1st defendant who is related to second defendant occupied the premises as tenant for a period of 11 months under a rental agreement and subsequently, vacated the property on 10-5-1999, after that second defendant started creating trouble and problems and interfering with the enjoyment of the plaintiff with a view to grab the property and the plaintiff lodged a police complaint and to protect his possession, the defendants have to be restrained by permanent injunction.
First defendant remained exparte.
Second defendant filed the written statement contending that the sale deed Ex.A.1 is not in respect suit property and the plaintiff in order to grab the land at Pochamma Basthi, in collusion with D.1 created story of tenancy and created documents for the purpose of suit and the present suit is filed as a counter blast for the suit in O.S.No.4956 of 1997.
On these contentions and rival contentions, trial court examined one witness on plaintiff’s side and marked seven documents and examined two witnesses on defendants’ side and marked fourteen documents and on a consideration of oral and documentary evidence, decreed the suit. Aggrieved by which, D.2 preferred appeal to Chief Judge, City Civil Court, Hyderabad and III Additional Chief Judge, on reappraisal of evidence, allowed the appeal by reversing the judgment of the trial court and dismissed the suit. Now, aggrieved by the same, present appeal is preferred.
Heard arguments.
Advocate for appellant mainly contended that the documents Exs.A.1, A.4 and A.5 would clinchingly prove that plaintiff is owner and possessor of the suit schedule property and as there was interference from second defendant, plaintiff was forced to file injunction petition and trial court rightly granted injunction but the appellate court without any justification reversed findings of the trial court.
He further submitted that Ex.A.1 registered sale deed dated 18-12-1970 coupled with the tax receipts Exs.A.4 and A.5 would clingingly establish possession of plaintiff over the suit schedule property and plaintiff is entitled for injunction and that Municipal Corporation assessed tax for the premises and allotted door No. bearing 4-41-/1/2/A and the tax was also paid for the same property.
He submitted that wife of the plaintiff purchased the property in the year 1970 and since then, plaintiff has been managing the property and at that time, D.1 approached plaintiff and requested to lease out the property to carry out on their own scrap business for a temporary period and both plaintiff and D.1 entered into a mutual agreement for a period of 11 moths on monthly rent of Rs.700/- and first defendant vacated the premises on 10-5-1999 and handed over the property and also made cancellation endorsement and that D.2 is brother of D.1 and he approached plaintiff on 15-5-1999 with a request to lease out the property to him and when plaintiff refused, he started creating problems and on 19-6-1999, D.2 along with his friends came to the schedule property and threatened with dispossession and therefore, plaintiff was constrained to file suit for injunction.
He also submitted that evidence of P.W.1 is supported and corroborated with documents Exs.A.1 to A.8 and as the plaintiff proved title, possession and interference, he is entitled for injunction.
On the other hand, advocate for respondents/defendants submitted that in a suit for permanent injunction, the burden is on the plaintiff to prove his case independently with regard to possession as on the date of suit and the documents particularly Exs.A.5 and A.6 are prior to the suit and plaintiff failed to produce any document showing possession as on the date of the suit or during the pendency of the suit and the appellate court rightly reversed judgment of the trial court. He further submitted that plaintiff failed to produce any evidence to prove the alleged incident dated 19-6-1999 except relying on the self serving testimony of P.W.1. He submitted that there is no substantial question of law involved in this second appeal and therefore, the appeal has to be dismissed.
This court admitted appeal on 3-11-2010 in view of the question of law raised in the grounds of appeal which are as follows:
1. Whether the reasoning given by the lower appellate court regarding Ex.A.1 the registered sale deed dated 18-12-1970 is not perverse?
2. Whether Ex.A1, the certified copy of the sale deed dated 18-12-1970 coupled with Ex.A.4 and A.5, tax receipts dated 30-12- 1997 and 30-3-1998 do not prove the possession of the plaintiff and whether a decree for injunction can be denied for not filing of the tax receipts after filing of the suit?
3. When the plaintiff has not established his title and possession under Ex.A.1, A.4 and A.5 when the document filed by the defendant do not show title and possession over the suit schedule property ?
POINT No.1:
According to appellant, lower appellate court reasoning in respect of Ex.A.1 registered sale deed is perverse and that would attract a substantial question of law for determination. This Ex.A.1 is the sale deed, through which, wife of plaintiff purchased the property. As seen from the document Ex.A.1, it is in respect of vacant site. From the recitals of Ex.A.1, an extent of 382 square yards in ward No.1, situated at Talab Masab, Hyderabad is purchased from one Mohd Asghar. The suit schedule property, according to plaintiff is 100 square yards out of this 382 square yards. By comparing the boundaries in Ex.A.1 document and the boundaries of the suit schedule property, the appellate court held that to the North and south of 100 square yards of site, the remaining site of 282 square yards of plaintiff purchased under Ex.A.1 should be reflected. But Eastern boundary in the Ex.A.1 is mentioned as houses of others but in the suit schedule, Eastern boundary is shown as 7 ½ feet road. Considering this aspect, the appellate judge held that the plaintiff failed to correlate this Ex.A.1 document to the suit property. I do not find any wrong appreciation of Ex.A.1 document with reference to the evidence, by the appellate court. Further, this is purely a finding on fact and no question of law is involved. On scrutiny of the evidence, finding of the appellate court with regard to this document can never be treated as perverse and therefore, the objection of the appellant on this score is not tenable.
POINTS 2 and 3:
According to the appellant, this Ex.A.1 coupled with Exs.A.4 and A.5 would prove possession of the plaintiff and the appellate court erred in not considering the same.
With regard to Ex.A.1, the objection of the appellant can not be sustained as already observed on point No.1. So far as Exs.A.4 and A.5 are concerned, these two are tax receipts. As seen from the dates of these two documents, both the documents are prior to filing of the suit. The suit is filed on 24-6-1999 and Exs.A.4 and A.5 are dated 30-12- 1997 and 30-3-1998, respectively.
As rightly pointed out by advocate for respondents, the possession as on the date of suit is the criteria in deciding grant of relief of injunction. Though plaintiff contended that he is in possession and enjoyment of the property after the death of his wife in the year 1990, he failed to produce any documents like electricity bills, ration card voter card or voter list etc., besides property tax receipts to prove his possession continuously from 1990. Simply by producing two tax receipts which are of the year 1997 and 1998 i.e., which are just two years prior to the suit, possession as claimed by the plaintiff cannot be accepted. Further if really, he was in continuous possession, even the tax receipts during pendency of the suit are also not filed. Therefore, the objection of the appellant with regard to these documents cannot be sustained and even this ground is also on factual aspect and there is no substantial question of law involved in this case. Therefore, these points are also held against the appellant.
Advocate for appellant further argued that appellate court judgment is to be vitiated for not considering additional evidence petition filed under Order 41 Rule 27 C.P.C. He also submitted that suit filed by defendant in O.S.No.2575 of 1999 which was referred in the written statement was dismissed and appeal preferred against that judgment is also dismissed and the second appeal against the same was also dismissed and those documents are filed as additional evidence but the appellate court failed to consider the same.
In reply to this, advocate for respondents submitted that plaintiff cannot get the relief of injunction on the basis of weakness of the opposite party and he has to prove his case independently and therefore, these documents are no way helpful and appellate court rightly discarded these documents.
As seen from the certified copies of judgments in O.S.No.2575 of 1999 and appeals thereon, the first respondent herein filed the above suit as G.P.A. Holder on behalf of Amjada Begum, Shabana Begum and Mehraj Begum for injunction and that suit was dismissed and the appeals preferred against dismissal of the suit were also dismissed.
On a consideration of the material, the appellate court has rightly discarded these documents as there is no relevancy of these documents to the dispute involved in this suit. Further, as rightly pointed out by other side, plaintiff has to stand or fall on his own material and he cannot rely on the defects in the case of the opposite party. This ground is also on factual aspect and no substantial question of law is involved. Therefore, this point is also held against appellant.
As seen from the material, all the grounds are in respect of question of facts only and there is no question of law involved in this second appeal, therefore, the appeal must fail.
In view of my findings and observations on points 1 to 3, this Second Appeal is dismissed with costs.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 19-12-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs SECOND APPEAL No.1483 OF 2007 Dated 19-12-2014