THE HON’BLE Ms. JUSTICE G. ROHINI Second Appeal No. 234 of 2009 Dated: 28.04.2010 Between: Chapiri Hanumanthappa … Petitioner And Kuruba Marenna and 3 others. … Respondents HON’BLE Ms. JUSTICE G.ROHINI Second Appeal No. 234 of 2009 J U D G E M E N T: This Second Appeal is preferred against the Judgment and decree in A.S.No.66 of 2004 dated 10.03.2006 on the file of the Court of the IV Additional District Judge, FTC, Ananthapur thereby confirming the judgment and decree dated 18.11.2004 in O.S.No.177 of 2000 on the file of the Court of the Junior Civil Judge, Kalyandurg. The plaintiff, who lost in both the Courts below, is the appellant herein. The suit was filed for permanent injunction restraining the defendants/respondents herein from interfering with the possession and enjoyment of the suit schedule property. It was pleaded by the plaintiff that the plaint schedule property was assigned in his favour vide proceedings of the Mandal Revenue Officer, Belugappa, dated 02.05.2000 and that he was put in possession of the said land on the same day. Alleging that the defendants, who did not have any right or interest in the land in question were trying to attempt to encroach upon and raise hayricks over the said land, the suit was filed seeking a decree for permanent injunction. The defendants/respondents herein filed a written statement stating that the suit schedule land had been in possession and enjoyment of their forefathers for the past more than 25 years who made representations to the authorities requesting to assign the said land in their favour. It was alleged that the plaintiff, with the influence of the political leaders had brought pressure upon the Mandal Revenue Officer, Belugappa and obtained a ‘D’ form patta in his name without following due process of law. However, the possession was never handed over to the plaintiff. The plea of the plaintiff that he was in possession and enjoyment of the suit property was specifically denied and it was also stated that the defendants preferred an appeal before the Revenue Divisional Officer, Dharmavaram against the order of the Mandal Revenue Officer, Belugappa granting ‘D’ form patta in favour of the plaintiff and the same was pending. On the basis of the said pleadings, the trial Court framed the following issues: 1) Whether the plaintiff is entitled for permanent injunction as prayed for? 2) To what relief? The plaintiff got himself examined as P.W.1 and one more witness was examined on his behalf as P.W.2. So far as the defendants are concerned, four witnesses were examined as D.Ws.1 to 4. Whereas the plaintiff marked Exs.A.1 to A.7 documents to substantiate his claim, the defendants marked Exs.B1 and B.2 documents. That part, Ex.C.1 to C.4 documents were marked through Court. On appreciation of the evidence, both oral and documentary, the trial Court found that the plaintiff had failed to establish that he was in possession of the plaint schedule property and therefore, he was not entitled to the relief of permanent injunction as prayed for. Accordingly, the suit was dismissed. Against the said judgment, the plaintiff preferred A.S.No.66 of 2004 in the Court of the IV Additional District Judge, FTC Ananthapur. The lower appellate Court on re-appreciation of the entire material available on record confirmed the finding of fact recorded by the trial Court and dismissed the appeal by judgment dated 10.03.2006. Hence, the present second appeal by the plaintiff. I have heard the learned counsel for both the parties and perused the material available on record. Learned counsel for the appellant contended that as the plaintiff was granted ‘D’ form patta by the competent authority, there was no justifiable reason to disbelieve the plea of the plaintiff that he was in possession and enjoyment of the plaint schedule property. While submitting that having regard to the admitted fact that the ‘D’ form patta was granted in favour of the plaintiff, the burden of proof was upon the defendants to establish their possession by the date of filing of the suit, the learned counsel for the appellant further contended that as the defendants failed to prove their possession as on the date of the suit, both the Courts committed a grave error in dismissing the suit. It is true that the suit schedule property was assigned in favour of the plaintiff under Ex.A.1-‘D’ form patta. The said fact could not be disputed by the defendants, but it was contended by them that the possession was never handed over to the plaintiff. It was also their specific case that they had been in possession and enjoyment of the suit schedule property for the past more than 25 years and that they had also preferred an appeal against the order of assignment in favour of the plaintiff. In the circumstances, Ex.A.1-‘D’ form patta alone is not sufficient to establish the possession claimed by the plaintiff. It is to be noticed that except Ex.A.1 none of the other documents produced by the plaintiff substantiated the possession claimed by him. More over, whereas Ex.A.1 shows that the assignment was in respect of Sy.No.53/1A-3, Ex.A.4-cist receipt and Ex.A.3 adangals related to Sy.No.53/1A/1. Similarly, Ex.A.5-pattadar passbook also did not contain Sy.No.53-1A-3. Having regard to the discrepancies in the evidence on behalf of the plaintiff, both the Courts disbelieved the plea that the plaintiff was put in possession pursuant to Ex.A.1-‘D’ form patta. In the absence of any evidence to show the plaintiff’s possession, both the Courts below held that the plaintiff was not in possession of the plaint schedule property. However, learned counsel for the appellant vehemently contended that since the lower appellate Court had failed to frame points for determination in compliance with order 41 Rule 31 of C.P.C., the entire judgment is vitiated and therefore, on that ground itself, the judgment of the lower appellate Court is liable to be set aside and the matter shall be remanded for fresh consideration. The law is well settled that the requirement under Order 41 Rule 31 is not mandatory so as to vitiate the judgment on the sole ground of non- compliance with the said requirement. On a perusal of the judgment of the lower appellate Court it is clear that the appellate Court had considered in detail the pleadings as well as evidence adduced by the parties and on an independent appreciation of the entire material available on record, confirmed the finding recorded by the trial Court. In the circumstances, the mere fact that points were not framed as provided under Order 41 Rule 31 of C.P.C., the judgment of the lower Appellate Court cannot be held to be vitiated. For the aforesaid reasons, this second appeal is devoid of any merit. As expressed above, the concurrent findings of fact, recorded by the Courts below are based upon proper appreciation of the evidence available on record, and the same warrant no interference by this Court in exercise of jurisdiction under Section 100 of C.P.C. It is also apparent that the matter does not involve any question of law much less substantial question of law. Hence, the Second Appeal is dismissed. No costs. ______________ G. ROHINI, J Date: 28.04.2010 KLP