IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.604 of 2011 Between: Bade Babu and others .. Appellants AND C. Srilatha .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.78 of 2008 on the file of the Judge, Family Court-cum-Additional District Judge, Mahabubnagar, dated 15-09- 2010, by which the judgment and decree in O.S. No.104 of 2007 on the file of the Senior Civil Judge’s Court, Wanaparthy, dated 13- 08-2008 decreeing the suit of the plaintiff were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The factual background for the dispute is that the plaintiff filed the suit for a permanent injunction against the defendants from interfering with her peaceful possession of the suit schedule property of Ac.1.00 in survey No.820/1 of Gummadam village claiming that she was issued a lavoni patta by the Government in 1998 since when she was in possession and cultivation of the property, which was entered in the revenue records. She claimed the defendants to be unconnected with the suit property and to have made unsuccessful attempts to harvest the paddy crop raised by her and to dispossess her. The defendants, while denying the allegations in the plaint and contending her documents to have been created, pleaded that lavoni patta was granted to various persons in survey No.820 of an extent of Ac.5.24 guntas and defendants 1 and 2 are cultivating and enjoying Ac.0.20 guntas in the remaining Ac.1.00 of the said survey number. The defendants raised paddy crop and the revenue records show their peaceful possession and hence, they desired the suit to fail. The trial Court framed issues about the entitlement of the plaintiff for a permanent injunction, etc. Defendants 3 and 4 were impleaded subsequently as per the orders, dated 26-10-2007 in I.A. No.255 of 2007 and defendants 3 and 4 raised a counter claim stating that they are the pattedars and possessors in respect of Ac.0.20 guntas each in survey No.820/1 cultivating the land. Defendants 3 and 4 claimed to have been issued patta certificate on 19-11-2006 and to have their names mutated in the revenue records consequently. They claimed the plaintiff to have never cultivated the suit land. The plaintiff filed her written statement in reply to the counter claim alleging collusion between defendants 1 to 4 and the revenue officials behind the back of the plaintiff in issuing illegal documents in favour of the defendants without following the legal procedure. The alleged panchanama, dated 28-06-2006 was also contested to be illegal and hence, the plaintiff desired the counter claim to be dismissed. Additional issue was framed by the trial Court about the entitlement of defendants 3 and 4 to a perpetual injunction. The trial Court examined P.Ws.1 to 3 and D.Ws.1 to 5 and marked Exs.A.1 to A.4 and B.1 to B.17 during the trial. The trial Court rendered its judgment noting that Ex.A.2 final patta certificate was with the signature of the Mandal Revenue Officer and the documents Exs.A.1 and 2 are not open to any suspicion. The contents of Ex.A.3 land revenue receipt and Ex.A.4 pahani were noted to be corroborating the claims of the plaintiff and the trial Court further noted that nothing prevented the defendants from obtaining a certified copy of the pahani for the year for which Ex.A.4 was issued if they wanted to rebut the same. Noting that Ex.B.2 was obtained by the defendants only for the subsequent year, the trial Court observed that the defendants did not file any documents to show that defendants 1 and 2 were in possession of the land either prior to or after the patta in favour of the plaintiff. The other documents relied on by the defendants were observed to be not substantiating their case and referring to the ex parte interim injunction granted originally, which was made absolute later on merits in favour of the plaintiff, the trial Court felt that no credence can be given to the panchanama conducted by the Mandal Revenue Officer on 28-06-2006 when the interim injunction was in force. Referring to the contention that the pattas in favour of defendants 3 and 4 were issued during the period between the dismissal of the suit for default and its restoration later, the trial Court analysed the various documents for the defence and for the reasons stated by it, it placed no reliance on the same. Observing that when the plaintiff was able to show the grant of patta in her favour and her consequential possession and the defendants failed to rebut the evidence for the plaintiff, the trial Court was only concerned with the question as to who was in possession of the suit land as on the date of filing of the suit, the Trial Court accordingly concluded that the plaintiff is entitled to a perpetual injunction against the defendants, while the defendants are not entitled to such relief against the plaintiff. The first appellate Court in the impugned judgment again referred to the factual background, the rival pleadings and contentions and the evidence on record and considered the points about the plaintiff’s possession and enjoyment of the suit land and her consequential entitlement to have permanent injunction as well as the possession and enjoyment of defendants 3 and 4 and their consequential entitlement to any permanent injunction. It also considered whether there were any grounds to interfere with the impugned judgment and decree. The first appellate Court analysed the evidence of each witness and found that the evidence of P.Ws.1 to 3 coupled with Exs.A.1 to A.4 established the possession and enjoyment of the suit land by the plaintiff as on the date of the suit. The assignment under Ex.A.1, the final patta under Ex.A.2, the land revenue receipt under Ex.A.3 and the pahani under Ex.A.4 were considered to be corroborating P.Ws.1 to 3 whose cross-examination did not bring out any adverse fact. The first appellate Court considered the evidence for the defendants in opposition and noted that the land originally is Government land and the assignment in favour of the plaintiff was never cancelled. The admissions about the absence of the plaintiff or her father at the time of Ex.B.8 panchanama and the absence of any notice to the plaintiff before Ex.B.8, were also noted to discard Ex.B.8 from consideration. The patta certificate issued in favour of defendants 3 and 4 without cancelling the original patta in favour of the plaintiff was considered not sufficient to base any claim of title or possession over the suit land. The first appellate Court, therefore, agreed with the scanning of the evidence by the trial Court and dismissed the appeal. The defendants are before this Court with this second appeal again contending that the pattas in favour of the defendants, the panchanama Ex.B.8, the mutation in the revenue records, the absence of possession of the plaintiff, her admission as P.W.1 about panchanama dated 28-06-2006, etc., should have been properly appreciated and therefore, substantial questions of law arise concerning the grant of injunction in spite of existence of a serious dispute about the patta, proper appreciation of the evidence by the Courts below, grant of injunction in spite of the failure of the plaintiff to prove her possession and dismissal of the counter claim in spite of the defendants proving their possession. Sri V. Raghu, learned counsel for the appellants and Sri J. Suresh Babu, learned counsel for the respondent are heard. The point for consideration is whether any substantial questions of law arise in the second appeal for formulation by the High Court so as to entertain the second appeal ? Point: Section 100 of the Code of Civil Procedure and Order XLII Rule 2 thereof make it mandatory that the High Court should be satisfied about the existence of substantial questions of law involved in the second appeal and formulate them for consideration in the second appeal as a pre-requisite for entertaining the same. The Apex Court deprecated time and again routine admission of second appeals without existence of substantial questions of law. The questions raised by the defendants herein in the second appeal were attempted to be projected as substantial questions of law, but in their content and substance, the questions indicated only controversial issues of fact and not of any law. The success or failure of either party to prove their respective possession over the suit property and appreciation of evidence by the Courts below on the said question are obvious questions of fact, unless any perversity is discernable in appreciation of the evidence by the Courts below. When there was no denial of any opportunity to both parties to place all oral or documentary evidence desired to be produced by them before the court and when the same was analysed in depth and logical conclusions were drawn therefrom, no perversity can be presumed. The truth of Ex.A.1 pattadar pass book or Ex.A.2 patta certificate or Ex.A.3 land revenue receipt or Ex.A.4 pahani for 2004-2005 is not in dispute and as rightly noted by the Courts below, the evidence of P.Ws.1 to 3 did not indicate anything contrary to the claims of the plaintiff in the suit. With no allegation of cancellation of the patta granted in favour of the plaintiff, the fresh grant of patta in favour of defendants 3 and 4 could not have resulted in extinguishing the rights of the plaintiff under the original patta granted to her. When the issuance of fresh pattas was not alleged or proved to be with notice to the plaintiff, the alleged delivery of possession to the defendants under the fresh pattas was noted to be without notice to and not in the presence of, the plaintiff or her father and even if P.W.1 admitted that a panchanama was conducted on 28-06-2006, the evidence does not disclose any further admission about notice to the plaintiff of such panchanama or her presence at that time. Both the trial and first appellate Courts have found that the absence of any knowledge for D.W.2 about the purpose of Ex.B.8 panchanama and the absence of notice to the plaintiff before conducting Ex.B.8 were crucial in not acting upon Ex.B.8. While the first appellate Court is the final Court of fact finding, with which the High Court rarely interferes unless appreciation of evidence is perverse, there are no reasons to presume that the possession of the plaintiff was not probablised or possession of the defendants was probablised by the evidence on record or the broad human probabilities arising out of it. Though there was a dispute about the patta, the dispute was in respect of the pattas granted to defendants 3 and 4 and not about the original patta granted in favour of the plaintiff as seen from the contents of the pleadings and evidence and therefore, none of the four suggested questions can form the basis for arriving at any substantial question of law involved in the second appeal. In the absence of any such substantial questions of law, the second appeal should fail. However, it should be noted that neither the trial Court nor the first appellate Court had come to any final conclusion about the conflicting claims of title to property on the strength of the pattas respectively granted in favour of the plaintiff and defendants 3 and 4. In fact, the trial Court specifically observed in its judgment that it was concerned with and adjudicating only the question of possession of the plaintiff by the date of the suit. The first appellate Court did not indicate, in any manner, that it was travelling beyond what was considered by the trial Court, though there was an observation about issuing pattas in favour of defendants 3 and 4 without cancelling the patta in favour of the plaintiff, due to which the defendants cannot claim any title or possession over the suit land. Except that passing observation in course of discussion, the conclusion again of the first appellate Court was only about failure to establish the possession and enjoyment over the suit land by the date of the suit by the defendants. As the question of title arises for determination in a suit for injunction simpliciter only incidentally and as there was no final determination of the question of title herein of either party, it is needless to state that it is open to the defendants to pursue any appropriate remedies available to them under law concerning the assertion of their title over the subject property, if they are so advised and they so desire. Accordingly, the second appeal is dismissed at the stage of admission without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-09-2011 Svv