THE HON’BLE SMT. JUSTICE T MEENA KUMARI Second Appeal No. 604 of 2009 JUDGMENT: The unsuccessful plaintiff, all through, filed the present second appeal aggrieved against the decree and judgment dated 30th September 2008 in A.S. No. 47 o 2006 on the file of the Special Judge for the Trial of offences under SC’s & ST ‘s (PO) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Secunderabad, wherein the learned Additional Chief Judge confirmed the decree and judgment dated 4-2-2006 dismissing O.S. No. 1664 of 2002, on the file of XVII Junior Civil Judge-cum-Additional Rent Controller, City Civil Court, Secunderbad, filed for perpetual injunction. The brief facts of the case are as follows:- The appellants herein are the plaintiffs and they filed O.S. No. 1664 of 2002 on the file of the XVII Junior Civil Judge-cum-Additional Rent Controller City Civil Courts, Secunderabad seeking perpetual injunction over the suit schedule property admeasuring 1300 sq. yards in survey No. 64, 65, 66, 67 & 70 in Boosareddyguda, West Maredpally, Secunderabad and to restrain the defendant from interfering with the same. It is the case of the plaintiffs that the grand father and grand mother of plaintiffs 1 & 2 and 3rd and 4th plaintiffs and M/s. Jayalakshmi Housing Society purchased an extent of 5 acres 2 guntas of land in the house bearing No. 3-6-181 to 217/A situated in Sy.No. 64, 65, 66, 67 and 70 situated at Bossareddyguda, West Maredpally, secunderabad from one Lakshmi Ammal under registered sale deed dated 15.8.1974 and since then they are in possession and enjoyment of the said land, that Jayalakshmi Housing Society sold their share of the land also to the plaintiffs family under a registered sale deed dt. 16-9-1975, that plaintiffs after retaining 1300 sq. yards consisting of a compound wall and two rooms within it, sold away the remaining land to M/s. Suman Co-operative Housing society and others and thereafter the said Society, after obtaining permission from Cantonment Board, divided the same in to plots and sold to various third parties. It is the case of the plaintiffs that they are in peaceful possession and enjoyment of the above 1300 sq. yards property and when the defendant, who has no title and right over the suit schedule property, on 28-10-2002 came to their property and tried to grab the same, filed the present suit. The defendant at first instance made a counter claim with respect to suit schedule land of Ac 0.10 Gts., as of his own, but the same was rejected by the trial court by its order dated 8-7-2004 on the ground that he did not file his written statement in the suit. Thereafter, the defendant contested the suit by filing a written statement contending that the said Lakshmi Ammal sold Ac. 0.10 guntas of land to him through sale deed dt. 5-3-1958, which is even much prior to the sale deeds executed by her in favour of grand parents of the plaintiffs, that the total extent covered by the sale deeds executed by her in favour of grand parents of plaintiffs is only 4 acres 32 guntas and 96 sq. yards, but not 5 acres 2 guntas as claimed by the plaintiffs. He also denied the claim of plaintiffs that they retained 1300 sq. yards with two rooms and sold away the remaining land, that the description of the property in plaint schedule does not tally with the schedule mentioned in the sale deeds and the boundaries are totally different. It is also his case that when the grand father of plaintiffs 1 & 2 i.e., Goli Eshwaraiah and Sri Ferox Bhai of Suman Co-operative Housing Society tried to occupy his property, he got issued a legal notice to them and a compromise agreement was subsequently executed on 7-1-1989 and that the present suit is a counter blast to the suit filed by him in O.S. No. 1308/2002 against Sri Ferox Bhai. It is also his case that he is the absolute owner and possessor of the suit property even before Goli Eshwaraiah and other could purchase the property from Smt V Laxmi Ammal and therefore the plaintiffs are not entitled to the perpetual injunction as prayed for and the suit is liable to be dismissed. Based on the averments made in the plaint and written statement, the trial court framed the following issues for trial: 1. Whether the plaintiffs are entitled to seek the perpetual injunction as prayed for? 2. To what relief? Before the trial Court, plaintiff No.1 was examined himself as P.W.1 and got marked Exs.A1 to A48 and on behalf of defendant, the defendant was examined himself as D.W.1 and got marked Exs.B1 to B19. The trial court after considering both oral and documentary evidence, including the case law relied upon by the respective parties, dismissed the suit holding that the plaintiffs have failed to prove their exclusive title end possession over the suit schedule property and on the other hand the defendant was able to prove his possession through valid evidence. The trial court carefully considered the factual matrix of the case by discussing the crucial documents relied upon by the respective parties and came to the conclusion that the plaintiffs failed to prove their case that they got title to the suit schedule property and are in possession of the same. It is also observed by the trial court that the total area measured under two sale deeds i.e., Exs.A1 and A6, which is equivalent to 4 acres 32 guntas 96 sq. yards only and that except these two sale deeds, the plaintiffs did not produce any other document conveying the property of original owner Smt Laxmi Ammal to their family and that Ex.A7 through which land was sold by plaintiffs family to Suman Co-operative Housing society limited clearly contains the recitals that the plaintiffs family is joint owner of the extent of 4 acres 32 guntas, that the plaintiffs 3 and 4 are also parties to the said document. The trial court also observed that when the documents filed by the plaintiffs themselves show that their family is joint owner to the extent of 4 acres 32 guntas, they cannot claim 5 acres 2 guntas. Aggrieved against the decree and judgment passed by the trial Court, the plaintiffs therein preferred appeal in A.S. No. 47 of 2008 on the file of the Special Judge for the Trial of offences under SC’s & ST ‘s (PO) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Secunderabad. Along with the appeal, the lower appellate court decided the two petitions filed by the appellants/plaintiffs one is to receive office copy of letters (five in number) as an additional evidence to compare the signature of late Goli Eshwaraiah and Goli Ramesh in Ex.B13 document and the other is to frame additional issue as to whether the signatures of G Eshwaraiah and G Ramesh are forged and the signature of late Lakshmi Ammal on Exs. B3 with Exs.A1 and A3 are different and also to direct the trial court to receive the additional evidence on the above issue. The lower appellate court after careful scrutiny of the material on record, dismissed these two petitions observing that the signature of Goli Eshwariah and Goli Ramesh are already available on record in Exs.A7 and A8 registered sale deeds filed by the plaintiffs themselves and that since the plaintiffs have not whispered even in the chief or cross examination of P.W.1 or by way of rejoinder that the title deeds relied by the defendant are forged one, no grounds are made out to frame any additional issue and to remand the appeal to that extent for fresh disposal. The appellate court also framed the point for consideration as to Whether the Appellants/plaintiffs are entitled for the relief of permanent injunction as prayed for? In the appeal, the learned XX Additional Chief Judge, City Civil Court, Secunderabad, after re-appreciation of the material available on record and after elaborately discussing on all the factual and legal aspects and considering the oral and documentary evidence adduced on either side, confirmed the findings of the trial Court observing that in the absence of Ex.B3 title deed and Ex.B13 compromise agreement (defendant’s documents) and as the plaintiffs filed the suit and failed to establish their title and possession in the plaint schedule property, the plaintiffs are not entitled to the relief of permanent injunction and therefore upheld the judgment of the trial court and dismissed the appeal. Aggrieved thereby the appellants/plaintiffs therein preferred the present second appeal contending that the courts below failed to note that when the respondent is claiming property through an unregistered document it is for the respondent to prove the same by adducing sufficient evidence and that the appellate court erred in dismissing the petition filed to frame an issue with regard to genujineness of the signature of Lakshmi Ammal and Goli Eshwaraiah. Heard both the counsel on record and perused the judgments of the courts below. A perusal of the record including the grounds of appeal filed on behalf of the appellants/plaintiffs show that the plaintiffs, at every stage are changing their stand and wanted the court to attack on the weaknesses, if any, on the case of the defendant instead of succeeding on their own merit i.e., right and title over the suit schedule property in a suit for perpetual injunction. Further, the courts below elaborately discussed the merits of the case both on facts and law and held against the plaintiffs. The appellate court rightly observed that the plaintiffs did not deny the signatures of Lakshmi Ammal, Goli Eshwaraiah and Ferox Bhai of Suman Co-operative Housing Society either in the written statement or by taking amendment in the pleadings before the trial Court and that when the defendant questioned the title of the plaintiffs by producing title deeds, it is for the plaintiffs to prove their possession with prima facie title to succeed the suit. The appellate court on facts observed that there is no whisper even either in the chief or cross examination of P.W.1(4th plaintiff) that the title deeds relied by the defendant are forged one. The plaintiffs did not take any plea of resjudicata before the courts below. In the absence of specific plea such questions cannot be entertained and permitted to be raised for the first time in the second appeal. More over, no such contention having been raised before the appellate court, it would not be proper to accept such submission made for the first time in the present appeal. In this regard reliance can be placed on the decision between BabuRam alias Durga Prasad v., Indra Pal Singh (dead) by L.Rs,[1], wherein the Apex court held that in Second Appeal under Section 100 C.P.C, giving a finding on issue which was not pressed in trial Court is not permissible. The apex Court observed at paragraph No.15 that “15. Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised on accepted under Section 100, CPC for the first time in Second Appeal. There was no such issue in the Courts below and the defendant’s evidence was contrary to such a theory” Further, both the courts concurrently found that the plaintiffs failed to establish that they are the owners of the suit schedule property and are in possession of the same. The said finding of fact is based on evidence on record and cannot be interfered with in Second Appeal under Section 100, CPC. Therefore, in view of the concurrent findings of both the Courts below that the plaintiffs are not entitled to the relief sought for, I am of the opinion that the judgments of both the Courts below are neither illegal nor irregular to warrant interference of this Court. I see no substantial question of law to admit this second appeal, and accordingly, the Second Appeal is dismissed, at the admission stage. -------------------------- T MEENA KUMARI J 28/4/2010 kvrk THE HON’BLE SMT. JUSTICE T. MEENA KUMARI SECOND APPEAL NO. 604 of 2009 28th April 2010 [1] AIR 1998 SUPREME COURT 3021