IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH MONDAY THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL NO. 560 OF 2012 Between:
Vallamsetti Narasamma & Anr. … Appellants/Plaintiffs V/s.
Rajana Gangamma & Ors. … Respondents/Defendants Counsel for Appellant : Sri P. Durga Prasad Counsel for Respondents : Sri B.Sesibhushan Respondents 1 to 3, 5 to 7 appearance R-4 died vide CT The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL NO. 560 OF 2012 O R D E R :
This second appeal is preferred challenging the judgment and decree dated 18/1/2012 passed by the District Judge, Vizianagaram in AS.No. 9 of 2010 whereunder learned District Judge confirmed the judgment and decree dated 22/12/2009 in OS.No. 37 of 2007 on the file of Junior Civil Judge, Kothavalasa, Vizianagaram district.
2. The appellants herein are the unsuccessful plaintiffs. Brief facts which are necessary for the purpose of this appeal are as follows:
Plaintiffs filed OS.No. 37 of 2007 claiming permanent injunction in respect of five items of landed property and the trial court after considering oral and documentary evidence of both sides dismissed the suit holding that plaintiffs failed to establish their possession over the suit schedule property. Aggrieved by the same, they preferred appeal to the District Court, Vizianagaram and the learned District Judge also observed that plaintiffs failed to prove their possession over the plaint schedule property and dismissed the appeal.
3. Now according to the counsel for appellants, appellants have got title over the suit schedule properties by virtue of a registered settlement deed dated 25/5/1957 and both trial court and appellate court without considering the same dismissed the suit only relying on the entries in the revenue records in respect of possession over the suit schedule properties.
4. It is submitted by counsel for appellants that the question of law that is involved in the present second appeal is by relying on revenue entries the suit of the plaintiffs cannot be dismissed.
5. But as seen from the material papers and the grounds of appeal, the main grievance of appellants is in respect of factual findings. As seen from the material, there is a title dispute and the plaintiffs ought to have filed a comprehensive suit relying on settlement deed dated 25/5/1957. But without urging their rights in respect of title they only filed suit for injunction and both the courts dismissed the claim of plaintiffs holding that they are not in possession and enjoyment of the plaint schedule properties. I do not find any wrong appreciation of evidence by the courts below and both the courts on facts held that plaintiffs are not in possession of plaint schedule properties. It is represented that subsequent to the dismissal of first appeal and pending second appeal, first defendant died. Considering this aspect also plaintiffs have to file a comprehensive suit in respect of suit schedule properties by virtue of their claim under settlement deed dated 25/5/1957.
6. In a second appeal, factual findings cannot be interfered. When the plaintiffs are claiming title over the suit schedule properties on the strength of a registered settlement deed dated 25/5/1957 they can as well file a comprehensive suit claiming rights in the suit schedule properties. By observing that plaintiffs are at liberty to file a comprehensive suit if so advised, this appeal is liable to be dismissed.
7. Accordingly, second appeal is dismissed at the admission stage.
No costs.
8. As a sequel, miscellaneous petitions if any, pending in this second appeal shall stands closed.
JUSTICE S. RAVI KUMAR .
17/11/2014
I s L
HONOURABLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL NO. 560 OF 2012 Circulation No.83 Date: 17/11/2014 Court Master : I s L Computer No. 43