HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.889 of 2010 Date: September 09, 2010 Between: Begari Kanakaiah. …Plaintiff/Appellant And Abbenda Sangameshwar. …Defendant/Respondent * * * HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.889 of 2010 JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.13 of 2007 on the file of I Additional District and Sessions Judge, Sangareddy, dated 01.4.2010, and it is being disposed of at the stage of admission after hearing Sri M. Rajamalla Reddy, learned counsel for the appellant. 2. The suit was filed for a permanent injunction in respect of a plot of 55.25 square yards in Kamkole village of Munipally mandal, Medak District alleging that the said plot was purchased by the appellant herein under a simple sale deed dated 02.7.1986 for Rs.1,000/- from the brother of the defendant/respondent herein. The appellant herein claimed that earlier he purchased another plot of 36 square yards from the same vendor under a simple sale deed dated 20.4.1983 and he is in possession and enjoyment of the properties purchased in which he constructed a house and two mulgies in Door No.3-62/21 after obtaining permission from Gram Panchayat. In the adjoining suit plot, the appellant herein proposed to construct a residential house for which he obtained permission from the Gram Panchayat on 30.12.2004, but the defendant was interfering with the possession and enjoyment of the plaintiff over the suit plot and hence the suit. 3. The defendant contested the suit contending that the vendor of the plaintiff is not the owner of the suit plot, the description of which cannot help in identifying the property sold under the simple sale deed. The defendant denied even the transaction of the simple sale deed or the earlier purchase of 36 square yards or the permission for construction from the Gram Panchayat etc. He further contended that the alleged permission from the Gram Panchayat did not specify any survey number and under the guise of simple sale deed, the plaintiff cannot interfere with his Ac.2-31 guntas in S.No.264/A. Hence, the defendant desired that the suit be dismissed. 4. The trial court framed issues on the entitlement of the plaintiff for a permanent injunction and during trial, examined P.Ws.1 and 2 and D.Ws.1 and 2 and marked Exs.A-1 to A-9, Exs.B-1 and B-2. 5. The trial court rendered its judgment on 18.12.2006 referring to the rival contentions and evidence and received Ex.A-1 unregistered sale deed in evidence for a collateral purpose but not for signifying conveyance of title. The trial court noted that P.W.1 admitted that Ex.A-1 did not contain the survey number of the land and its boundaries and observing that the burden of proof was on P.W.1, the plaintiff, the trial court was of the opinion that the proof of identity of the property is essential. It further observed that the permission, sanctioned plan and proceedings under Exs.A-2 to A-4 also do not refer to the survey number of the suit plot and referring to O.S. No.404 of 2000 between the defendant and the vendor of the plaintiff and the written statement filed by the defendant therein, the trial court concluded that it was an admitted fact that the defendant’s brother Sivaraj sold the land under Ex.A-1 in S.No.262. But it took into account the plea of the defendant that the permission obtained by the plaintiff from the Gram Panchayat was in respect of S.No.264 and not S.No.262. While noting that P.W.2 admitted that he cannot give boundaries of the land, the trial court analysed the evidence of P.W.1 to be showing vacillation regarding the facts. The trial court considered the evidence of D.Ws.1 and 2 about the ownership and possession of D.W.1 in Ac.2-31 guntas in S.No.264/A in support of which Ex.B-1 pattadar passbook and Ex.B-2 village map were filed and in view of the absence of the specification of the boundaries in Ex.A-1 which makes it difficult to identify the property and in view of the failure of the plaintiff to establish the boundaries of the suit plot and the boundaries of the property purchased under Ex.A-1 to be the same, the trial court concluded that the identification of the property is not established and hence dismissed the suit without costs. 6. In appeal in A.S. No.13 of 2007 the I Additional District and Sessions Judge, Sanga Reddy in his judgment dated 01.4.2010 again referred to rival contentions and evidence and also the grounds of challenge by the plaintiff to the judgment of the trial court. The appellate judge was of the opinion that the conclusion of the trial court is justified, as the recitals of Ex.A-1 do not support the plaintiff’s claim about the boundaries of the suit schedule property. The appellate court also observed that Exs.A-2 to A-4 were issued by the Gram Panchayat even without the particulars of the survey number or location of the plot and the admissions of P.W.1 in this regard were also referred to. The appellate court agreed with the trial court about Ex.A-1 not being dependable for proof of ownership being unregistered and the argument that the written statement in the other suit, Ex.A-9 itself is sufficient to identify the property was repelled, as the defendant cannot be burdened with any duty to prove the case of the plaintiff. Opining that the plaintiff failed to prove the existence of the suit property, while the defendant proved himself to be the owner of S.No.264/A of an extent Ac.2-31 guntas, the first appellate court upheld the refusal to grant a perpetual injunction. 7. The unsuccessful plaintiff is again before this Court contending that the admissions of the defendant as D.W.1 in his cross- examination extracted in the grounds of appeal being ignored by the trial and first appellate courts is itself a substantial question of law, apart from the absence of justification for the courts below to dismiss the suit when the evidence probablised his possession and enjoyment of the suit property. 8. The question at this stage is whether there are any substantial questions of law involved to ensure entertainment of the second appeal. 9. Section 100 of the Code of Civil Procedure mandates that a second appeal shall lie only if the High Court is satisfied that the case involves a substantial question of law and a memorandum of appeal is mandatorily to precisely state the substantial question of law involved in the appeal. The High Court is made duty bound to formulate the substantial questions of law on which alone the appeal shall be heard. Order XLII Rule 2 of the CPC also prescribes that it shall not be open to the appellant to urge any other ground in the appeal without the leave of the court than the substantial questions of law formulated under Section 100. The Apex Court has time and again deprecated admission of second appeals as a matter of course without existence of substantial questions of law. 10. If the facts of the present case are appreciated in that background, it is clear that what are sought to be raised are pure questions of fact against the concurrent findings of fact by the trial court and the first appellate court. When Ex.A-1 unregistered sale deed admittedly did not specify the boundaries of the suit plot and when Exs.A-2 to A-4 permission, approved plan and proceedings of the Gram Panchayat do not specify the survey number, which omissions have been admitted by the plaintiff as P.W.1, the trial and first appellate courts cannot be considered to have gone substantially wrong in appreciation of evidence when they doubted the establishment of identity of the suit plot by the plaintiff. When Exs.B-1 and B-2 corroborated the claims of defendant and his witness as D.Ws.1 and 2 about the defendant owning Ac.2-31 guntas in S.No.264/A and when the contention of the defendant is that under the guise of the purchase under Ex.A-1, a permanent injunction is sought to be obtained in respect of his property, the trial and first appellate courts are justified in not placing any reliance on any weaknesses in the defence and in stressing upon the need for the plaintiff to succeed or fail on the strength of his own case. 11. The alleged admissions of D.W.1 are not such unequivocal admissions about the identity of the property to dispense with any further proof of the case of the plaintiff and even if he had admitted sale of some land by his younger brother under Ex.A-1, the same cannot be construed as an admission about the identity of such property sold being the same as the property described in the plaint schedule. Under the circumstances, either any absence of reason or any perversity cannot be discerned from the trial and appellate judgments and in the absence of involvement of any substantial questions of law in the second appeal, the same cannot be admitted. 12. Accordingly, the second appeal is dismissed. No costs. _________________________ G. BHAVANI PRASAD, J Date: September 09, 2010. BSB