THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.1213 of 2009 Dated : 16.06.2010 Between : S.P.K.H.Government High School & another ….. Appellants a n d Sri Thikkana Literary Association ….. Respondent THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD SECOND APPEAL No.1213 of 2009 ORDER: This Second Appeal arises against the judgment and decree in appeal suit No.25 of 2009 on the file of the IV Additional District Judge, Guntur, dated 04.08.2009. O.S.No.11 of 1998 on the file of the Subordinate Judge’s Court, Guntur, was filed by the respondent herein against the appellants for the relief of possession of the plaint schedule property consisting of a building and a site of 0.32 cents apart from future profits and costs. The claim is based on the registration of the respondent under the Societies Registration Act in 1919-1920 and the assignment of the said land of 0.32 cents by the government in G.O.Ms.No.759, Revenue Department, dated 29.03.1920 to enable the Society to run a reading room and library. After assignment and allotment, the possession was claimed to have been given to the Society, which constructed a pucca two roomed building and a big hall therein in the year 1931 spending about Rs.40,000/- donated by Sri Kanigilpula Subba Rao, which donation was recorded on an inscription on the marble stone fixed on the wall of the building. While so, in 1968, the Police department requested for possession of the building to locate an outpost to deal with communal unrest in the locality, which request was considered by the Society. The Police department was given possession temporarily and it continued to occupy the building till 1987 and notwithstanding the communication of the Superintendent of Police, Guntur, on 14.07.1987, informing about vacating the building by 15.08.1987, the building was suddenly occupied by the first defendant-High School without the knowledge of the Society. In spite of the demands of the office bearers of the Society since then, the first defendant was not vacating the building and a notice under Section 80 of the Code of Civil Procedure was also issued to the Collector and the District Educational Officer on 17.02.1994. Consequently, the plaintiff Society was compelled to file the suit. The suit was resisted by the defendants contending that the allegations in the plaint are false and Sri Tikkana Saraswatha Parishad was established in 1911 with Sri D.Venkata Rao as the General Secretary, which was running a Library at Old Guntur. The subject land of 0.32 cents was not allotted to Tikkana Literary Association and the present school building was not constructed by it. Sri K.Subba Rao constructed the building in memory of his wife and there was no communal unrest in the locality. After the Police department vacated the building, the Collector directed the Superintendent of Police to hand over the building to the first defendant-high school and the plaintiff having kept quiet from 1987 to 1994 filed the suit with false allegations. Assignment of the land to the plaintiff is false and there was also a writ before the High Court in W.P.No.21758 of 1994 at the instance of the donor’s son, in which an interim injunction was granted by the High Court. Hence, the defendants sought for dismissal of the suit with costs. On the basis of the said pleadings, the trial Court has framed appropriate issues about the entitlement of the plaintiff to possession and future profits and examined PWs 1 and 2 and DWs 1 to 4 during the trial. Exs.A.1 to A.16 and Ex.B.1 were also marked during trial. In its judgment dated 24.10.2008, the trial Court found that the evidence on record showed that the defendants did not challenge the documents filed by the plaintiff Society and they did not even suggest that the site was not allotted to the plaintiff Society. The trial Court also noted that grand son of the original donor was examined by the Society as P.W.2, corroborating the claims of P.W.1, whereas DWs 1 and 2 examined on behalf of the defendants obviously had no personal knowledge of the events at the relevant time. The trial Court concluded that the construction of the building by the plaintiff Society in 1931 with the donations of Sri K.Subba Rao was probablized and the trial Court further noted that handing over of the building by the plaintiff Society to the Police department was not disputed. The existence of the Society since 1919-1920 as probablized by Ex.A.1 and assignment of 0.32 cents of land to the plaintiff Society as probablized by Ex.A.3 were not controverted and the trial Court also observed that Ex.B.1 sought to be relied on by the defendants was subsequent to the suit. As the plaintiff Society established its right, title and interest in the property, the suit was decreed against the first defendant as prayed for directing future profits to be determined on a separate application, while the suit against second defendant, which was not in physical possession, was dismissed without costs. In appeal against the said judgment and decree, the IV Additional District Judge, Guntur, delivered judgment in A.S.No.25 of 2009 on 04.08.2009 agreeing with the findings of the trial Court and the first Appellate Court specifically referred to the documents probablizing the formation of the plaintiff Society, assignment of the subject land, construction of the building and delivery of the same to the Police department by the plaintiff Society and observing the defendants evidence adduced by the Educational Institution to be untrue, the first Appellate Court dismissed the appeal. The second appeal by the defendants seeks to contend that perversity of the findings of the trial Court and Appellate Court and the alleged consideration of irrelevant evidence and non consideration of material evidence constitute substantial questions of law. Sri N.A.Ramchandra Murthy, learned Assistant Government Pleader, for the appellants and Sri A.V.A.Shiva Kartikeya, learned counsel for the respondent are heard at length. The only point arises for consideration is whether there are any substantial questions of law to be considered to make the second appeal maintainable in the light of the two questions framed at the time of admission, namely, (a) whether the perverse findings of both the Courts below are substantial in the eye of law? and (b) whether consideration of irrelevant material evidence and non-consideration of material evidence constituted the substantial question of law? Section 100 of the Civil Procedure Code makes satisfaction of the High Court about the case involving substantial questions of law a precondition for any second appeal. Order XLII of the Code of Civil Procedure confines any hearing in such second appeal only to any question so formulated by the High Court and to no other ground. The Apex Court has time and again laid down that entertainment of the second appeal arises only on establishment of involvement of a substantial question of law and not otherwise and the entertainment of the second appeal as a matter of course has been deprecated. The very grounds of appeal herein clearly showed the grievance of the appellants to be against the appreciation of the oral and documentary evidence placed before them by the trial Court and the first Appellate Court concluding the probabilities to be in favour of the respondent herein and ex facie there cannot be said to be any question of law involved in the contentions raised. When the plaintiff Society had been said to probabilze its registration by Ex.A.1, the assignment of the subject land by Ex.A.2, the probability of construction of the building by the Society as claimed through Ex.A.4 and when the grand son of the original donor satisfactorily corroborated the oral claims of P.W.1 on behalf of the Society, the acceptance of the version corroborated by Exs.A.1 to A.16 cannot be considered perverse or unreasoned. If none of the witnesses of the defendants had any personal knowledge about the events that had taken place and if Ex.B.1 had emanated much subsequent to the suit, both the Courts below cannot be said to have deviated from the accepted norms of appreciation of evidence. When the Government itself never claimed to have resumed the land at any time subsequent to the assignment for more than about 70 years and when the construction of the building was in the manner claimed, even according to the first defendant’s written statement, with the donation given by Sri K.Subba Rao, the conclusions of the trial Court and the first Appellate Court cannot be successfully challenged in the second appeal and the concurrent findings, on facts, have therefore, to be confirmed. The learned Assistant Government Pleader Sri N.A.Ramchandra Murthy brought to notice that the first defendant is running a school in the subject premises and that it would be extremely difficult to secure alternate accommodation for this academic year as the classes have already commenced and therefore he desired that in the event of failure of second appeal, reasonable time may be granted to vacate the premises. Any such request for reasonable time cannot be opposed under the circumstances in view of the interest of the students whose classes are being run in the premises. Grant of six moths time would be proper and reasonable under the circumstances. In the result, the second appeal is dismissed without costs. The first appellant/first defendant is granted time for six months from today to vacate the premises and deliver possession to the respondent herein. ______________________ G.BHAVANI PRASAD, J 16th June, 2010 SUR