IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1028 OF 2009 BETWEEN: Kummari Yadagiri S/o. Chithari and another …. Appellants AND Cheriala Sathyanarayana S/o. Balaiah and others …. Respondents THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1028 OF 2009 JUDGMENT: Heard Sri K.Raghuveer Reddy, learned counsel for the appellants. 2. The suit was filed by the appellants in O.S.No.178 of 2001 on the file of the Junior Civil Judge’s Court, Gajwel for a permanent injunction in respect of the plaint schedule land, claiming to be joint owners and possessors, purchased from Fathima Begum and Jamalunnisa Begum on 30-12-1982. They claimed that they were issued Pattedar pass books and title deeds after mutation and are enjoying the property without any interference. A part of the suit land is stated to be a hillock in which a road was laid and the area also had a temple existing since long. The defendants were alleged to be interfering with the peaceful possession of the plaintiffs. But it is the contention of the defendants that the temples of Konda Pochamma and Komuravelli Mallikarjuna Swamy located in the area are visited by a significant number of devotees throughout the year including at the times of special Jatara and on the bank of Konda Pochamma tank, the devotees had also installed Nalla Pochamma temple and Anjaneya Swamy temple. The Pattadars of survey No.273 of Teegul Narsapur village or Government of Andhra Pradesh never objected for the use of the land in survey Nos.831 and 832 and such adverse possession uninterrupted since times immemorial hostile to the owners of survey No.273 by the defendants and other devotees cannot be interfered with by the plaintiffs and the attempt of the plaintiffs to construct permanent structures for commercial purpose were resisted. In fact, the plaintiffs are the priests of Konda Pochamma temple. Hence, the defendants desired that the suit be dismissed. 3. After framing appropriate issues and after examining PWs.1 to 3 and DWs.1 and 2 and after marking Exs.A-1 to A-13 and Exs.B-1 to B-30 and Exs.C-1 and C-2, the trial Court rendered its judgment on 09-10-2006, concluding that the burden of proof is on the plaintiffs to establish the identity and the extent of the suit property, in which they failed. In so far as Ex.C-1 report of the Commissioner and Ex.C-2 panchanama are concerned, the trial Court refused to place any reliance on the same, due to its finding that the Commissioner did not give any notice to the defendants before executing the warrant and that the defendants were not present at the time of the relevant visit of the Commissioner. The trial Court also found that even otherwise Exs.C-1 and C-2 did not show where the suit land is situated, and are no way helpful to the plaintiffs. The trial Court also came to the conclusion that the evidence of PW-1 itself shows that the suit land is completely a hill area without cultivable land and that the temple choultry room, Executive Officer’s Room, Lingam, temples of Anjaneya and Pochamma, Kaman and steps, new temple etc., are located in the suit land. Coming to a positive conclusion that the plaintiffs are not in physical possession of the suit land, the suit for permanent injunction was consequently dismissed. 4. In an appeal before the VI Additional District Judge, Siddipet in A.S. No.7 of 2008, the judgment was rendered on 02-04-2009 confirming the judgment and decree of the trial Court with a finding that the plaintiffs are at liberty to file a suit basing on their title against the defendants and evict them by establishing their better right to possession over the suit land, if they are so advised. The first appellate Court reconsidered the entire oral and documentary evidence on record and agreed with the conclusions of the trial Court about the absence of possession of the plaintiffs further based on the discrepancies in the versions of the plaintiffs about the boundaries and absence of establishment of the identity of the land by them. In fact, the first Appellate Court found that it was not for the trial Court to appoint a Surveyor for establishing the identity of the suit land as it would amount to gathering the evidence to establish such identity of the suit land. Therefore, the appellate Court did not find any merits in the first appeal. 5. The appellants challenged the said judgment of the first appellate Court herein on the ground that the Courts below did not appreciate the pleadings and oral and documentary evidence placed by the parties before them and they contend that Exs.C-1 and C-2 could not have been brushed aside in the manner they were brushed aside. 6. They claimed that substantial questions of law arise for consideration in the second appeal about discarding the documentary evidence Exs.C-1 and C-2 and about wrong interpretation of a judgment of this Court. They also contend that the refusal to grant injunction when the title of the plaintiffs is admitted is also a question of law. Sri K. Raghuveer Reddy, learned counsel for the appellants, reiterated the contentions and also relied on DUBARIA v. HAR PRASAD AND ANOTHER[1]. The decision relied on is a case where the High Court, while considering the second appeal filed before it failed to take into consideration the admissions made by the respondents therein in the evidence that the appellant was living in one room, built by one Rajjan, who executed the sale deed in favour of the plaintiffs-appellants. The Apex Court considered that non- consideration of the documentary evidence in respect of the suit property, which was material to come to a correct finding on the question of fact, was failure of the High Court to perform its duty and the matter was remanded by the Apex Court to the High Court for consideration of such relevant materials to avoid manifest injustice. 7. The present case is not one, where any such relevant oral or documentary evidence placed by the parties before the trial Court was left unconsidered by the trial Court or by the first appellate Court. The trial Court had given positive reasons as to why Ex.C-1 Commissioner’s report and Ex.C-2 panchanama did not enure to the benefit of the plaintiffs and as the defendants had no notice of the execution of the warrant by the Commissioner and as even otherwise the Commissioner’s report and panchanama were not helpful in establishing the identity of the suit land, the trial Court cannot be considered to have gone wrong on fact or in law in refusing to act upon the documents as establishing or probablising the possession of the plaintiffs. When the admissions of PW-1 himself persuaded the trial Court to believe in the absence of the possession of the plaintiffs, the judgment of the trial Court confirmed by the appellate Court, cannot be considered to have been wrongly rendered on fact. 8. The conclusion of the first appellate Court about the impropriety of gathering the evidence about the identity of the suit land through appointment of a surveyor or Commissioner is in tune with established principles of law under Order 26 of the Code of Civil Procedure and the re-appreciation of the entire evidence by the first appellate Court coming to its own conclusion for its own reasons also does not appear to have gone wrong in any manner. Even otherwise, the questions raised do not involve any substantial question of law and Section 100 of the Code of Civil Procedure restricts any intervention by the High Court through a second appeal only to cases where the High Court is satisfied that the case involves a substantial question of law and the Apex Court has deprecated the admission and entertainment of a second appeal where any such substantial questions of law are not involved. As the refusal to grant a permanent injunction by the Courts below does not involve any questions of law as sought to be contended by the appellants herein, the second appeal has to fail and infact, the first appellate court protected the interest of the plaintiffs by specifically declaring the right of the plaintiffs to file a suit based on their title to establish their superior right to possession vis-à-vis the defendants in respect of the suit property. 9. In the result, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _____________________ G. BHAVANI PRASAD, J December 04, 2009 KTL [1] 2009(13) SCALE 506