THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1395 of 2008 Date:24th December, 2010 Between: 1. G.Krishna Reddy & Anr. …Appellants/Defendants and 1. Smt.N.Geeta Reddy …Respondent/plaintiff *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1395 of 2008 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 30.09.2008, passed in A.S.No.52 of 2005 on the file of II Additional District Court (Fast Track Court), Mahabubnagar, whereby and whereunder, the learned Additional District Judge dismissed the appeal, confirming the judgment and decree, dated 15.09.2005, passed in O.S.No.83 of 1996 on the file of the Senior Civil Judge, Nagarkurnool. 2. The facts of the case, in a nutshell, leading to filing of this Second Appeal by the appellants/defendants, are: a) The appellants are the defendants and whereas, the respondent is the plaintiff in O.S.No.83 of 1996 on the file of the Senior Civil Judge, Nagarkurnool. The plaintiff filed the suit for declaration of title and recovery of possession of the suit schedule house bearing No.15-69/1 (old) 17-81 (New) apart from other ancillary reliefs. She claimed the property under registered settlement deed, dated 09.08.1984, executed by her father and she constructed two rooms with RCC roof and shed with AC sheets on obtaining due permission from the Gram Panchayat in the year 1984 and got her name mutated in the Gram Panchayat records as the owner of the premises. According to her, first defendant is the son-in-law of her father’s brother and she allowed the 1st defendant to stay in one of the rooms and to collect the rents for other rooms. The 1st defendant collected the rents and paid to her till June, 1995. Subsequently, the 1st defendant failed to pay the rents received from the tenants and instead the defendants forcibly occupied one RCC room which was in the occupation of her father on 29.06.1996 by breaking open the lock. Hence, she filed the suit for declaration of her title and for recovery of possession and for other ancillary reliefs. b) The defendants filed written statement disputing the clam of the plaintiff over the suit schedule property. The 1st defendant pleaded that he purchased the suit schedule premises from the father of the plaintiff in the year 1989 and obtained an agreement of sale, dated 31.12.1992. Subsequently, the 1st defendant handed over the agreement of sale to the father of the plaintiff on his request as the same was said to be required to be submitted to the Department, wherein the father of the plaintiff worked. He further pleaded that he put up constructions in the suit premises and obtained ownership certificate from the Gram Panchayat on 16.06.1995 and he has been paying the house taxes since then. c) The trial Court framed the following issues for trial: 1) Whether the plaintiff is the absolute owner and possessor of 628 sq. yards under suit schedule property under registered gift deed dt.9.8.1984 said to have been executed by her father? 2) Whether the plaintiff is entitled for the relief of declaration as owner of the suit schedule property? 3) Whether the plaintiff is entitled to be put in possession of the suit schedule property by dispossession of the defendants from therein? 4) Whether the plaintiff is entitled for necessary mutation in the property tax register of gram panchayat, Nagarkurnool in her name as owner of suit schedule property? 5) Whether the plaintiff is entitled for recovery of arrears of rents of Rs.15,000/- from the month of June, 1995 to August, 1996 and further rents till the suit schedule property is restored possession to the plaintiff? 6) Whether the father of the plaintiff sold the suit schedule property to D1 in the year 1989 for consideration of Rs.90,000/- under agreement of sale dated 31.12.1992, if so, whether same is binding on the plaintiff? 7) Whether the suit is filed within limitation? 8) To what relief? d) On behalf of the plaintiff, she examined 4 witnesses and marked 7 documents to substantiate her claim over the suit schedule property. On behalf of the defendants, 7 witnesses were examined and 28 docuemnts were marked to substantiate the claim of the 1st defendant over the suit schedule property. e) The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiff established her right over the suit schedule property and therefore, she is entitled for recovery of possession and also rents from June, 1995 till the restoration of possession at the rate of Rs.15,000/-, and accordingly, decreed the suit, by judgment dated 15.09.2005. f) The defendants assailed the judgment and decree dated 15.09.2005 passed in O.S.No.83 of 1996, by filing A.S.No.52 of 2005 on the file of II Additional District Court (Fast Track Court), Mahabubnagar. g) The learned Additional District Judge, on hearing the counsel appearing for the parties, formulated the following points for adjudication: 1) Whether the plaintiff is owner and possessor of the suit schedule house and entitled for declaration of title and recovery of possession? 2) Whether the father of the plaintiff sold the suit schedule property to the first defendant for a consideration of Rs.90,000/- under an agreement of sale dt.31.12.1992, if so, whether the same is binding on the plaintiff? 3) Whether the plaintiff is entitled for mutation of her name in the property tax register of Grampanchayat, Nagarkurnool as owner of the suit schedule property? 4) Whether the plaintiff is entitled for recovery of arrears of mesne profits of Rs.15,000/- from June, 1995 to August, 1996 and future mesne profits till the possession of suit schedule house is restored to the plaintiff? 5) To what relief? h) The learned Additional District Judge, on re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiff established her right over the property and therefore, she is entitled to recover possession of the same along with rents at the rate of Rs.15,000/- from June, 1995 to the date of restoration of the possession and thereby proceeded to dismiss the appeal, by judgment, dated 30.09.2005. The said judgment is assailed in this Second Appeal. 3. Heard learned counsel appearing for the appellants/defendants and learned counsel appearing for the respondent/plaintiff. 4. Learned counsel appearing for the appellants/defendants submits that as per Ex.A2 registered settlement deed, dated 09.08.1984, the plaintiff got only open land and whereas super structures came to be put up by her father, who has been examined as PW.1 and in which case, the suit filed by the plaintiff for recovery of possession of the suit schedule premises along with structures therein is not maintainable. Learned counsel refers Ex.A7 construction permission, dated 3.4.1985. By referring the construction permission, it is contended by the learned counsel that the constructions were put up by the father of the plaintiff and whereas, the registered settlement deed, dated 09.08.1984, refers only open plot and in which case, the respondent/plaintiff cannot clam any title over the super structures. 5. Learned counsel appearing for the respondent/plaintiff submits that the appellants/defendants never pleaded in the trial Court or before the lower appellate Court that the suit is not maintainable in respect of the super structures since the same are put up by the father of the plaintiff and whereas, the registered settlement deed, dated 09.08.1984, pressed into service by the plaintiff is in respect of open plot, in which case, it is impermissible for the appellants/defendants to advance such a plea in the Second Appeal. In support of his submissions, reliance has been placed on the decision of the Supreme Court in Chander Kali v. Jagdish Singh[1], wherein, it has been held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. New question of fact could not be entertained at any appellate stage. 6. The respondent/plaintiff filed the suit basing on Ex.A2 registered settlement deed, dated 09.08.1984, executed by her father. PW.1 is the father of the plaintiff and also the power of attorney holder of the plaintiff. PW.1 categorically stated that he executed Ex.A2 registered settlement deed, dated 09.08.1984, and after the settlement deed, the plaintiff put up constructions and let out the premises to the Executive Engineer, Panchayat Raj, who executed lease deed in favour of the plaintiff. Both the trial Court as well as the lower appellate Court accepted the evidence of PW.1 with regard to the execution of Ex.A2 registered settlement deed, dated 09.08.1984, and found to be valid. The trial Court as well as the lower appellate Court negatived the plea advanced by the appellants/defendants that the 1st defendant purchased the property under an agreement of sale in the year 1989 and subsequently reduced into writing on 31.12.1992 on the ground that the defendants failed to place on record the very agreement of sale itself. When once the agreement of sale is not placed on record, any amount of evidence to prove the contents therein, is of no avail. Indeed, both the trial Court as well as the lower appellate Court appreciated the evidence adduced by the appellants/defendants on the alleged agreement of sale in right perspective and rejected the plea advanced by them. There no is perversity in the appreciation of evidence brought on record by the trial Court or the lower appellate Court. 7. A new plea has been advanced by the appellants/defendants that PW.1 conveyed only open plot to the plaintiff under Ex.A2 registered settlement deed, dated 09.08.1984, and whereas, the super structures are made by PW.1 after execution of the registered settlement deed, in which case, the suit filed by the plaintiff for recovery of the suit schedule premises along with structures is not maintainable. PW.1 has categorically stated in his evidence that after the execution of Ex.A2 registered settlement deed, dated 09.08.1984, the plaintiff put up constructions basing on the permission obtained in the year 1984. When PW.1, who is the executant of Ex.A2 registered settlement deed, dated 09.08.1984, himself stated that the constructions are put up by the plaintiff, it is impermissible for the appellants/defendants to contend that the super structures on the property covered under Ex.A2 registered settlement deed, dated 09.08.1984, have been made by the father of the plaintiff. The appellants/defendants have not pleaded in the written statement that the suit is not maintainable on the ground of the super structures being put up by the father of the plaintiff after the Ex.A2 registered settlement deed, dated 09.08.1984. This is purely a question of fact, which the appellants/defendants failed to plead in the written statement. The appellants/defendants having failed to plead such a question of fact in the written statement, cannot be permitted to contend for the first time in the Second Appeal. The cited decision squarely applies to the facts of the case on hand. There is no substantial question of law involved in this Second Appeal warranting admission. 8. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:24th December, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1395 of 2008 Date:24th December, 2010 [1] AIR 1977 S.C. 2262