IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE EIGHTEENTH (18TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.939 of 2002 Between: Atiya Talath … Appellant And: Salar Jung Museum, rep. by its …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.939 of 2002 JUDGMENT: This appeal is directed against the judgment and decree dated 30.09.2002 in AS No.8 of 2001 on the file of the IX Additional Chief Judge, City Civil Court (FTC), Hyderabad, wherein the said appeal filed by the appellant herein was dismissed confirming the judgment and decree dated 21.12.2000 in OS No.173 of 1995 on the file of the V Junior Civil Judge, City Civil Court, Hyderabad, wherein the said suit filed by the appellant herein-plaintiff for permanent injunction, was dismissed. 2. Heard both sides. Perused the record. 3. The appellant herein filed suit OS No.173 of 195 alleging in brief as follows: The plaintiff is the absolute owner of the plaint schedule property bearing Municipal door No.22-8-587/A & 587/1/D, situated at Lakkad Kote, Chatta Bazar, Hyderabad, having purchased the same under registered sale deed, which is part of old historical building known as ‘Lakkad Kote’ belonging to late Salar Jung, that fell to the share of one Syed Ahmed, who was 2nd defendant in CS No.13 of 1958. Syed Ahmed sold the same to one Mahadev Pershad and Ravinder Kumar and they sold portion of the premises to Naseeruddin Khan, who in turn sold the same to one Muzaffarunnisa Begum, who raised 11 RCC pillars up to roof level, but could not lay the roof and sold the same to the plaintiff. The plaintiff submitted an application and plan to the MCH authorities for permission and sanction for the construction of the ground and first floor, but on the instigation of the defendant, MCH authorities did not accord permission. The defendant boundary is adjacent to the schedule property. The MCH authorities have issued notice of demolition to the plaintiff in 1993. The plaintiff and her purchasers- in-title were in continuous possession and enjoyment of the suit property since 33 years. On 21.01.1995 the MCH officials demolished the boundary wall on three sides and caused loss to a tune of Rs.30,000/- to the plaintiff, in spite of injunction granted by the Court. The defendant authorities brought a bulldozer to demolish the suit property and hence, the suit for permanent injunction. 4. The defendant filed written statement contending in brief as follows: Salar Jung museum is located in an extent of Ac.10.62 cents, which was acquired under compromise deed at the time of taking over by the Government of India on 01.12.1958. The Museum committee donated the land in an extent of Ac.5.865 cents. Subsequently, the land acquisition authority acquired an extent of Ac.4.30 cents and another extent of 45 cents. Out of Ac.4.30 cents, a part of the land, measuring 78’ x 28’ was encroached by the plaintiff and she started construction activity. The MCH authorities have not issued any permission for such illegal construction. Even in 1993 itself, MCH authorities issued notice of demolition. The plaintiff has over night started raising brick walls and setting up water pump connections. The Museum is of National importance and it is the exclusive property of the President of India as per the Salarjung Museum Act 26 of 1961. 5. On the strength of the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to perpetual injunction as prayed for? 2. To what relief? 6. During trial, the plaintiff examined herself as PW.1 and her husband was examined as PW.2 and Exs.A.1 to A.9 were marked. Sri P.Venugopal, Senior guide lecturer was examined as DW.1 and Exs.B.1 to B.9 were marked on behalf of the defendant. On a consideration of the evidence available on record, the trial Court held that the plaintiff failed to establish her claim in respect of the suit property and is therefore not entitled for injunction prayed for. Accordingly, the suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal AS No.8 of 2001. By impugned judgment dated 30.09.2002, the learned Additional Chief Judge, dismissed the appeal and confirmed the findings of the trial Court. Hence, the present second appeal. 7. The suit is for mere injunction. Though the defendant has specifically denied the title of the plaintiff in respect of the disputed property, the plaintiff has not taken any steps to seek declaration of the title. The courts below on scrutiny of the prior sale deeds and title deed of the plaintiff Exs.A.1 to A.4 and A.6, found that Naseeruddin Khan, plaintiff’s vendor’s vendor purchased only 186 sq. yards, whereas he sold an extent of 242.60 sq. yards to the plaintiff’s vendor Shahjadi Nusrat. The plaintiff has failed to explain the discrepancy in the extent and how Naseeruddin Khan happened to sell more extent than what he purchased. Further as per the plans appended to the documents filed by the plaintiff, the property was open plot with zinc shed room, but the plaintiff claimed to have purchased the site along with 11 RCC pillars, said to have been raised by her vendor. The existence of RCC pillars has not been borne-out by the sale deeds. 8. The plaintiff claimed that the schedule property was assigned D.No.22-8-587/H and 22-8-587/1D, but she admitted that she never paid any taxes for the said house. Though she denied suggestion that that no such door number was assigned to the suit property by the municipality, the municipal records show that there was no such house number in the tax register as can be seen from Ex.B.9. It is not disputed that the municipal authorities also issued a notice of demolition to the plaintiff. Neither the plaintiff nor PW.2 was able to explain as to how non-existing municipal door number came to be assigned to the schedule property. It can be seen from Ex.B.9 letter that the door numbers mentioned in Ex.A.1 are not found in the Assessment Registers from 1981 to 2000. Admittedly, the municipal authorities have not granted permission for the plaintiff to make construction over the disputed property. The allegation of the plaintiff that the defendant prevailed upon the municipal authorities not to accord sanction for construction remains unsubstantiated. 9. The proposed construction by the plaintiff over the disputed site being without prior sanction of the municipal authorities is illegal. The plaintiff has not impleaded the municipal authorities in the present suit. The courts below have on careful scrutiny of the oral and documentary evidence on record held that the plaintiff failed to establish her title and possession in respect of the disputed property. No doubt, in a suit for bare injunction, the question of title can be gone into incidentally. The courts below have recorded a concurrent finding to the effect that the plaintiff failed to establish even prima-facie her title over the disputed property and her claim of possession. The said concurrent finding on question of fact does not call for interference in the second appeal. 10. In a recent decision in ‘Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi[1]’, the apex court while considering the question as to when a finding on fact would give rise to substantial question of law, held as follows: “A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.” 11. None of the aforementioned circumstances is shown to exist in the present case so as to warrant interference with the concurrent findings on fact recorded by the courts below. 12. In ‘Dinesh Kumar v. Yusuf Ali[2]’, while dealing with the scope of High Court’s power under Section 100 CPC, the apex Court held as follows: “Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same. It was further held as follows: “There may be a question, which may be a “question of fact”, “question of law”, “mixed question of fact and law” and “substantial question of law”. Question means anything inquired; an issue to be decided. The “question of fact” is whether a particular factual situation exists or not.” It was further held as follows: There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. 13. In the present case, the trial Court has scrutinized both oral and documentary evidence adduced by both parties and recorded a finding on the question of fact to the effect that the plaintiff failed to show prima-facie title in respect of the suit property and further failed to establish her claim of possession over the suit property and the said finding has been confirmed by the appellate court on re-appreciation of the evidence. It is not the case where the findings are vitiated by non-consideration of the relevant evidence or taking into consideration inadmissible evidence. 14. Learned counsel for the appellant relies on a decision in ‘Hero Vinoth (Minor) v. Seshammal[3]’, wherein the apex court held as follows: “If the judgments of the trial court and the first appellate court are based on misinterpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact have ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal.” 15. Relying on the above decision, learned counsel for the appellant would submit that the Courts below have not considered the admissions made by DW.1 in his evidence and hence, the findings are vitiated due to non-application of mind. DW.1 was working as Senior guide Lecturer in Salarjung museum since 1969. Admittedly, he had no knowledge of the transaction that took place prior to his joining service in the defendant museum. DW.1 further admitted that he does not know the exact extent of land belonging to the museum or the constructed area, but he said that it may be approximately Ac.10.62 cents and the constructed portion occupied about 8 or 9 acres. He further admitted that he has no idea whether the museum authorities have taken any legal steps for removal of the encroachment from 1985. He also admitted that the plaintiff raised pillars away from the boundary wall of the museum and the suit property is part of Lakkad Kote. 16. It is to be noted that the burden squarely lies on the plaintiff to establish the claim of possession over the disputed property as absolute owner thereof. It is only when the plaintiff establishes prima-facie title over the suit property and also her claim of lawful possession that she would be entitled for the relief of injunction. Without establishing the same and in order to cover up the failures to discharge the burden cast on her, the plaintiff cannot seek to rely upon the so called admission of DW.1 in the evidence, especially when DW.1 was only an employee of the defendant museum and was not acquainted with the transaction that took place prior to his joining service in 1969. Even other wise, the courts below have considered the entire evidence available on record and recorded concurrent findings on the question of fact. It cannot therefore be said that the judgment of the courts below are vitiated by any non-application of mind as contended by the learned counsel for the appellant. 17. The Apex Court in the case of ‘State of Kerala V. Mohd.Kunhi[4] has reiterated the principle that the High Court is not justified in interfering with the concurrent findings of fact. The Apex Court observed that, in doing so, the High Court has gone beyond the scope of Section100 of the Code of Civil Procedure. 18. In view of the principles laid down in the above decisions, it is held that no question of law much less a substantial question of law arises for consideration in the second appeal and the concurrent findings on the question of fact recorded by the courts below, do not call for interference in the second appeal. 19. In the result, the second appeal is dismissed. No order as to costs. _________________ G.V.SEETHAPATHY, J Date: 18.08.2011 bss [1] (2011) 1 SCC 673 [2] (2010) 12 SCC 740 [3] (2006) 5 SCC 545 [4] (2005) 10 SCC 139