HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

+SECOND APPEAL No.267 of 2015

Between:

# Chinna Kullayappa, S/o Pullaiah

R/o. Syndicate Nagar, Anantapur and 2 others.

… Appellants

And

$ G. Sambasiva Rao, S/o Narayanappa,

R/o. D.No.2/4, Syndicate Nagar, Ananthapur

…. Respondent

JUDGMENT PRONOUNCED ON 18.08.2023

THE HON’BLE DR.JUSTICE K. MANMADHA RAO

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

- Yes -

2. Whether the copies of judgment may be marked

to Law Reporters/Journals

- Yes -

3. Whether Their Ladyship/Lordship wish to see

the fair copy of the Judgment?

- Yes -

___________________________________

DR.JUSTICE K. MANMADHA RAO

2

* THE HON’BLE DR.JUSTICE K. MANMADHA RAO

+SECOND APPEAL No.267 of 2015

% 18.08.2023

Between:

# Chinna Kullayappa, S/o Pullaiah

R/o. Syndicate Nagar, Anantapur and 2 others.

… Appellants

And

$ G. Sambasiva Rao, S/o Narayanappa,

R/o. D.No.2/4, Syndicate Nagar, Ananthapur

…. Respondent

! Counsel for the Petitioner : Sri I. Venkata Prasad

Counsel for Respondent: Sri N. Ranga Reddy

<Gist :

>Head Note:

? Cases referred:

1. 2001(4) SCC 262

3

HON’BLE DR. JUSTICE K. MANMADHA RAO

SECOND APPEAL No.267 of 2015

JUDGMENT:

The present Second Appeal is preferred by the

appellants aggrieved by the Decree and Judgment dated

30.04.2014 passed in A.S.No.93 of 2012 on the file of III

Additional District Judge (FTC), Anantapur, confirming the

decree and judgment dated 18.08.2012 passed in O.S

No.136 of 2006 on the file of Additional Senior Civil Judge,

Anantapur.

2. The appellants herein are the defendants and the

respondent herein is the plaintiff in O.S.No.136 of 2006 on

the file of Additional Senior Civil Judge, Anantapur (for

short “the trial Court”).

3. For convenience the parties are hereinafter referred

to as arrayed before the III Additional District Judge (FTC),

Anantapur (for short “the first appellate Court”) in A.S.No.93

of 2012.

4. Brief facts of the case are that the plaintiff is the

absolute owner of plaint schedule property and he

purchased it from its rightful owner, under registered sale

4

deed dated 21.4.2005 for a valid consideration of

Rs.75,000/- and since then he has been in peaceful

possession and enjoyment of the same. Originally the

property belonged to one Dhanpat Raj and Company rep. by

its partner Lakshmichand has purchased the same from

him. The defendants are strangers and have no right over

the property. But they are claiming that they are the

rightful owners and are claiming their right under sale

deeds dated 26.5.2001 and 31.1.2003 respectively and said

documents were obtained by impersonating the original

owner cum partner Dhanpat Raj. Hence, the plaintiff filed

suit in O.S No.136 of 2006 before the trial Court.

5. The 1

st defendant filed written statement and the

same was adopted by 2

nd and 3

rd defendants and they

denied the right and title of the plaintiff. Dhanpat Raj and

Co., rep. by its partner Lakshmi Chand purchased the

property from one Shyamala Devi who was its rightful owner

on 7.9.1977 for a valid consideration of Rs.1500/-. The

plaintiff purchased the property from one Kantilal Pratap

Chand and he was not rightful owner. In fact the

defendants purchased the property from said Lakshmi

5

Chand who was its rightful owner and since their purchase,

they have been in possession and enjoyment of the property.

Since the plaintiff purchased the property from a stranger,

he is not entitled to any declaration and hence prayed to

dismiss the suit.

6. Basing on the above pleadings, the trial Court

framed the following issues:

1. Whether the sale deed dated 21.4.2005 in favour of plaintiff

is true, valid and confirms title in favour of plaintiff

2. Whether the plaintiff is in possession of plaint schedule

property?

3. Whether the sale deed in favour of the defendants dated

26.5.2001, 5.9.2001 and 31.1.2003 and true valid on binding

on the plaintiff?

4. Whether the plaintiff is entitled to the relief of permanent

injunction?

5. To what relief?

7. During course of trial, on behalf of the plaintiff, he

himself was examined as PW.1 and his vendor was

examined as PW.2 and Ex.A1 to Ex.A7 were marked on his

behalf, and on behalf of the defendants, 1

st defendant was

examined as DW.1 and one of the attestors was examined as

DW.2 and Ex.B1 was marked on their behalf.

8. After considering the oral and documentary

evidence, the trial Court decreed the suit with costs.

Aggrieved by the same, the defendants preferred an appeal

6

in A.S No.93 of 2012 before the first appellate Court. After

hearing the both sides, the first appellate Court has framed

point for consideration as under:

i) Whether the decree and judgment of trial Court is

sustainable?

9. Basing on the facts and circumstances of the case,

the first appellate Court has dismissed the Appeal suit with

costs by confirming the decree and judgment in O.S.No.136

of 2006. Challenging the same, the present second appeal

came to be filed.

10. Heard Sri I. Venkata Prasad, learned counsel

appearing for the appellants and Sri N. Ranga Reddy,

learned counsel appearing for the respondent.

11. This Second Appeal is filed under Section 100

CPC on the ground that the judgment and decree of both

courts below is totally basing on the presumption, surmises

and conjectures, ignoring the material facts available on

record and interpretation of law.

12. There cannot be any dispute that, under the

amended Section 100 C.P.C., a party aggrieved by the decree

passed by the first appellate court has no absolute right of

7

appeal. He can neither challenge the decree on a question of

fact or on a question of law. The second appeal lies only

where the High Court is satisfied that the case involves a

substantial question of law. The word ‘substantial’ as

qualifying ‘question of law’, means and conveys – of having

substance, essential, real, or sound worth, important,

considerable, fairly arguable, in contradiction with –

technical, formal, or no substance, no consequence or

academic only. A substantial question of law should directly

and substantially affect the rights of the parties. A question

of law can be said to be substantial between the parties if

the decision in appeal turns one way or the other on the

particular view of law. But, if the question does not affect

the decision, it cannot be said to be substantial question

between the parties. Recording a finding without any

evidence on record; disregard or non consideration of

relevant or admissible evidence; taking into consideration

irrelevant or inadmissible evidence; perverse finding- are

some of the questions, which involve substantial questions

of law.

8

13. According to Section 100 CPC, a definite

restriction on to the exercise of jurisdiction in a second

appeal so far as the High Court is concerned. Needless to

record that the Code of Civil Procedure introduced such an

embargo for such definite objectives and since the Courts

are required to further probe on that score and the Courts

while detailing out, but the fact remains in second appeal

finding of fact, even if erroneous, will generally not be

disturbed but where it is found that the findings stand

vitiated on wrong test and on the basis of assumptions and

conjectures and resultantly there is an element of perversity

involved therein, the High Court will be within its

jurisdiction to deal with the issue. The High Court can

interfere with such finding recorded by the trial Court

though not on law in view of judgment reported in Kulavant

Kaur v Gurdial Singh Mann

1

14. Keeping in mind the scope of Section 100 CPC, I

would like to decide the present appeal at the stage of

admission.

1

2001 (4 SCC 262

9

15. Learned counsel for the appellants mainly

contended that the first appellate Court failed to address

itself with reference to question when the sale deeds in

favour of the defendants from the rightful owner and they

are first in point of time and will prevail over the subsequent

sale deed in favour of the plaintiff and in the circumstances

as the title with possession is already conferred in favour of

the appellants by its true owner, nothing remains either

title, possession or interest in the suit schedule property in

order to convey the same in favour of subsequent purchaser,

who is respondent/plaintiff herein and the court below

ought to have dismissed the suit of the respondent/

plaintiff. He further submits that the court below, though

came to the conclusion that, admittedly except Ex.B1-sale

deed of original owner, no other documents are placed on

record ignoring the fact that the respondent/plaintiff himself

produced the sale deeds. As such it presupposes that the

defendants are in possession and enjoyment of the suit

schedule property basing on the said documents which are

admitted in evidence and the respondent/plaintiff himself

produced the same, therefore the trial Court has wrongly

10

held that the defendants have not produced any documents

so as to presume that delivery of possession from the date of

sale deeds in their possession. The trial Court admitted that

the sale deeds in favour of the defendants i.e., dated

26.5.2001, 5.9.2001 and 31.1.2003 respectively and the

sale deed in favour of respondent/plaintiff is dated

21.4.2005. But as on that date, the company or

representative of the company has got no right, title and

interest so as to convey the same in favour of the

respondent/ plaintiff and therefore, both the courts wrongly

held that the respondent/plaintiff is in possession.

Therefore, the judgments and decrees passed by both the

Courts below is against the facts on record and against the

well settled principles of deciding the rights with reference to

passing of declaratory decrees and the reliefs sought for by

the respondent/plaintiff, as such it is illegal and against the

law and hence liable to be set aside.

16. The main issue in this case is whether the

plaintiff/respondent purchased the suit schedule

property from its rightful owner Lakshmi Chand, who

was representing Dhanpat Raj and Co., or that the

11

defendants/appellants purchased said property from

same person?

17. On perusing the material available on record, it is

observed that, admittedly, one Syamala Devi was rightful

owner of suit schedule property and from her one Lakshmi

Chand, who represented Dhanpat Raj and Co. purchased

the property. Ex.B1 is the certified copy of registered sale

deed. There is also no dispute that said Lakshmichand was

representing Dhanpat Raj and co. and the property was sold

by him. But now the issue is whether the said

Lakshmichand sold suit schedule property to the

respondent/plaintiff under Ex.A1 or to the respondents/

defendants under Ex.A2 to Ex.A4 which are certified copies

of registered sale deeds.

18. This Court further observed that, the

respondent/plaintiff to prove his case, has examined his

vendor as P.W.2 and according to him, he sold suit schedule

property to the respondent/plaintiff under Ex.A1 and also

delivered its possession. However, the appellants/

defendants in the cross examination of PW.2 elicited that his

name is mentioned as Lakshmichand S.Shah in Ex.A5 and

12

his father’s name is mentioned as Shankar Narsinhlal Shah

instead of Shankar Lal. But nowhere, it is stated that he

was not representing Dhanpat Raj and co. In the

examination of PW.2, he clearly stated that he sold suit

schedule property only to the respondent/plaintiff and not

to the appellants/ defendants. Further, as seen from the

record, it is very clear that the sale deed of the respondent/

plaintiff was marked as Ex.A1-original copy of sale deed, but

the appellants/defendants have not filed their original sale

deeds before the trial Court.

19. As seen from the Ex.A1 original sale deed, it is

clearly mentioned that Dhanpatraj and Co. rep by its

partner Lakshmichand is the vendor and the same is not

evident from Ex.A2 and Ex.A4. In both Ex.A2 and Ex.A4, it

is only mentioned that one Lakshmichand sold said property

to the 1

st and 2

nd defendant in his individual capacity but

not in the capacity of partner of Dhanpatraj and Co. The

signatures of vendor are one and the same. Therefore, it is

clear that all the appellants/ defendants purchased the

property from same person.

13

20. Learned counsel for the appellants/defendants

argued that the respondent/plaintiff got prepared Ex.A6 by

taking photograph from the sale deeds of the

appellants/defendants. But the said plea is not considered

for the reason that DW.1 and DW.2 in their cross

examination admitted that they purchased property from

same person. When the plaintiff has taken specific plea that

Ex.A2 to Ex.A4 came into existence by impersonating his

vendor and hence to discharge his burden the

respondent/plaintiff has also examined his vendor as PW.2

and also marked the identity cards. It is the duty of the

appellants/ defendants to examine their vendors and prove

his identify and mere disputing genuineness of Ex.A6 is not

enough when the respondent/plaintiff has discharged his

burden.

21. Admittedly, the appellants have not examined

their vendor. On verifying the photographs and name tallied

with regard to name Lakshmichand who is the vendor of the

respondent but not with regard to the claim of the

appellants. Moreover, in the evidence of DW.2 he

categorically admitted that he executed an undertaking on

14

14.9.2001 stating that he will be responsible for any

disputes with regard to Ex.A2 to Ex.A4, as he knows said

Lakshmichand gave said undertaking to resolve the dispute

through Lakshmichand and that to resolve any disputes

between the appellants in the year 2001 itself when Ex.A2 to

Ex.A4 belong to 2001, 2002, 2003 also creates a doubt

about the genuineness of said transactions because nobody

will anticipate any dispute if the transaction is genuine.

Further, since the 2

nd appellant in his cross examination

also stated that except attesting the documents, he did not

involve in said transaction.

22. For the above-mentioned reasons, I do not find

any reason to interfere with the well-considered judgments

of the Courts below.

23. Accordingly, the Second Appeal is dismissed at

the stage of admission. No order as to costs. As a sequel, all

the pending miscellaneous applications shall stand closed.

______________________________

DR. K. MANMADHA RAO, J.

Date : -08-2023

Note : L. R copy to be marked.

(b/o)Gvl

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HON’BLE DR. JUSTICE K. MANMADHA RAO

SECOND APPEAL No.267 of 2015

Date : .08.2023

Gvl