IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.109 of 2007 Between: Veeranki Devasahayam and 9 others .. Appellants AND Veeranki Aseervadam (died) and 5 others .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.9 of 1999 on the file of the Principal Senior Civil Judge’s Court, Tenali, dated 18-11-2005, by which the judgment and decree in O.S.No.58 of 1995 on the file of the Principal Junior Civil Judge’s Court, Tenali, dated 19-11-1998 dismissing the suit without costs were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The factual background for the second appeal is that the 1st plaintiff filed the suit for declaration of his ownership of the plaint schedule site of Ac.0.01½ cents and for its consequential possession and on his death during the pendency of the suit, plaintiffs 2 to 10 were impleaded as his legal representatives. The claim of the plaintiffs is that the 1st plaintiff’s father Peda Venkataswamy, his brother Veerlankaiah and 8 others jointly purchased Ac.0.30 cents in Donepudi village under a registered sale deed dated 26-08-1915 and during subsequent division between the purchasers, Peda Venkataswamy and Veerlankaiah jointly got Ac.0.06 cents, which were again partitioned between them at Ac.0.03 cents each. The Ac.0.03 cents of Veerlankaiah devolved on his only daughter Kancharla Veerlankamma and then her son Kancharla Hussain. Veerlankamma and Hussain sold Ac.0.01 ½ cents to Kesavulu, the father of the 1st defendant, under a registered sale deed dated 09-09-1951 and the remaining Ac.0.01 ½ cents were sold to the 1st plaintiff by Hussain under a registered sale deed dated 04-04-1986. The interference by the 1st defendant over the property of the 1st plaintiff led to filing a suit O.S.No.407 of 1986 for a permanent injunction, which was dismissed leading to the present suit. The 1st defendant resisted the suit contending that Veeranki Veerlankaiah purchased the sites for himself and his brothers, while obtaining the sale deed in his name and the names of nine others as he was the eldest of the brothers and Manager of the family. While Samuel and Narayana (Narayudu), the other brothers, died issueless and intestate, Veerlankaiah and Kesavulu got 1½ cents each, which they enjoyed during their lives and the 1st defendant is enjoying the said 1½ cents in his own right since 40 years. Another 1½ cents was purchased by the 1st defendant’s father on 09-09-1951 from Hussain and Veerlankamma. The 1st defendant’s father constructed a house in the site and the plaintiffs or any others have no right or possession in Item-4 of the plaint schedule. In fact, in the registered sale deed dated 21-11-1945 (21-01-1945) by the 1st plaintiff in favour of Yesuratnam, the eastern boundary was described as the site of Kesavulu. The suit is also bad for not impleading the other sons and daughter of Kesavulu and hence, the 1st defendant, who claimed that he and his father perfected their right even by prescription and adverse possession, desired the suit to fail, further on the ground of the bar o f res judicata due to the dismissal of O.S.No.407 of 1986 on merits. The trial Court framed issues about the entitlement of the 1st plaintiff for declaration, possession and mesne profits and examined PWs.1 to 4 and Dws.1 to 3 and marked Exs.A.1 to A.7 and B.1 to B.7 during trial. The trial Court in its judgment referred to the rival pleadings and evidence and noted that Peda Venkataswamy, Veerlankaiah, Kesavulu, Samuel and Narayudu were brothers out of whom Samuel and Narayudu died issueless. While the 1st plaintiff and Narsimhulu, father of PW.4, are the sons of Peda Venkataswamy, Veerlankaiah had only one daughter Veerlankamma whose only son is PW.2. DW.1 is the son of Kesavulu and the site of Ac.0.06 cents was purchased by Peda Venkataswamy and Veerlankaiah under Ex.A.7 dated 26-08-1915. Peda Venkataswamy and Veerlankaiah divided Ac.0.06 cents into Ac.0.03 cents each or four plots of 0.01½ cents each. The 1st and 3rd plots came to Peda Venkataswamy and the 2nd and 4th plots came to Veerlankaiah. The 1st plaintiff and father of PW.4 respectively got the 3rd and 1st plots, while the 1st plaintiff sold his 3rd plot under Ex.B.1 dated 21- 11-1945. DW.1, the 1st defendant, purchased the 2nd plot from Veerlankamma and Hussain and except the oral evidence of both parties, there was no documentary evidence to show that Peda Venkataswamy divided from the joint family prior to Ex.A.7 or Veerlankaiah purchased Ac.0.03 cents as a manager of the joint family or Veerlankaiah and Kesavulu divided Ac.0.03 cents into two equal shares and the circumstantial evidence only points out to Kesavulu, father of the 1st defendant, being in possession of the 4th plot since long time. The trial Court further noted that under Ex.B.1 dated 21-11-1945 executed by the 1st plaintiff, the eastern boundary was shown as the site of Kesavulu and the document, which was more than 30 years old, probablised the boundaries mentioned therein to be true. The trial Court also concluded further from the evidence of DW.2 and Ex.B.7-Agreement dated 12-08-1980 that DW.1, the 1st defendant, was in possession of the suit schedule property, which was since more than 12 years prior to the suit. The trial Court also referred to the evidence of PW.2 admitting the possession of the 1st defendant to be since more than 20 years and the admission of PW.4 about Kesavulu getting the site in partition. The trial Court, therefore, concluded the possession of the 1st defendant to be adverse to others and consequently, decided the issues against the plaintiffs and dismissed the suit without costs. In appeal, the impugned judgment was delivered by the First Appellate Court again referring to the rival pleadings, contentions and evidence and considering the judgment and decree of the trial Court on merits. The First Appellate Court also referred to the genealogy of the parties and considered the claim that the boundaries in the sale deeds dated 09-09-1951 and 04-04-1986 were wrongly mentioned cannot be accepted and the claim of the 1st defendant about the allotment of plots appeared to be as per custom. Agreeing with the analysis of the evidence by the trial Court, the First Appellate Court also concluded that the disputed 4th plot was claimed by the plaintiffs to have fallen to the share of Veerlankaiah and to have been sold by Hussain to the 1st plaintiff and was claimed to have fallen to the share of Kesavulu and to have been in possession of the 1st defendant in his own right by the defendants. The First Appellate Court again referred to the description of the eastern boundary as the plot of Kesavulu in Ex.B.1 and opined that the probability of the said land being allotted to Kesavulu being the youngest brother is acceptable. The First Appellate Court also could not draw any other conclusion from the documents on record and confirmed the dismissal of the suit. In the second appeal, the plaintiffs claimed that substantial questions of law arise about the earlier decision in the injunction suit operating as res judicata or otherwise and about the trial and First Appellate Courts not appreciating the evidence on record completely. The appellants pleaded that the oral and documentary evidence was overwhelmingly in favour of the plaintiffs and the result of O.S.No.407 of 1986 could not have overweighed that evidence. Mere description of the boundaries in Ex.B.1 could not have resulted in dismissal of the suit. At the time of admission of the appeal, this Court formulated the following substantial question of law: Whether the finding in the earlier suit filed for a bare injunction by the plaintiffs would operate as res judicata in the present suit filed for declaration of the plaintiff’s title and for recovery of possession? Heard Sri T. Vishnu Teja, learned counsel, representing Smt. S. Nanda, learned counsel for the appellants and Sri Ravi Shankar Jandhyala, learned counsel for respondents 2 to 6, who are brought on record as legal representatives of the deceased 1st respondent-defendant. The point for consideration in this appeal is the substantial question of law framed at the time of admission. A careful perusal of the judgments of the trial and First Appellate Courts disclosed that the failure of the plaintiffs before the Courts below was not on the ground of res judicata due to any findings in O.S.No.407 of 1986 between the parties. In the judgment of the trial Court, the entire discussion was on the merits of the oral and documentary evidence of the parties and there was not a whisper about the impact of the judgment and decree in O.S.No.407 of 1986 on the present suit. It is only in the First Appellate Court’s judgment that a reference was made about the plea of the present suit being barred by res judiciata. But neither the pleading nor the argument in that regard formed the basis for the discussion or conclusions of the First Appellate Court in any manner, which again went into the merits of the oral and documentary evidence placed by the parties before the trial Court. Therefore, when the suit and the first appeal were not decided on the question of res judicata, the question framed herein as to whether the findings in the earlier suit for a mere injunction would operate as res judicata in the present suit for declaration of title and recovery of possession does not arise for consideration at all. However, it may be incidentally noted that the findings in the earlier suit were clear and categorical on merits against the claim of the plaintiffs herein, but the same not having been made the basis for conclusions of the Courts below, the judgments cannot be assailed on the ground of any wrong application of the principle of res judicata in this suit. Otherwise, it is seen from the judgments of the Courts below that it was only pure questions of fact that were under the consideration of the trial and First Appellate Courts and it is well settled that in a second appeal, it is only a substantial question of law that can be considered, but not pure questions of fact, more so, with the First Appellate Court being ordinarily considered as a final fact finding Court. Even otherwise, there appeared no perversity or unreasonableness of such a magnitude as would make the judgments of the Courts below interferable in the second appeal. It is seen from the evidence on record that apart from the interested and self-serving evidence of PWs.1 and 2 and DW.1, what was produced by the parties before the trial Court was the evidence of PWs.3 and 4 and DWs.2 and 3 and the respective support extended by the witnesses to the alleged possession and enjoyment of the disputed property being with either party cannot overweigh the conclusions drawn by the Courts below from the documents on record. While Exs.A.2 and A.4 to A.6 relate to O.S.No.407 of 1986, which did not form the basis for conclusions of the Courts below, the admitted description of the boundaries in the documents dated 09-09-1951 and 04-04-1986 formed the basis for conclusions of the Courts below in the absence of any other dependable evidence in this regard. The specific description in these two registered documents, which emanated at a point of time when there was no eye on the litigation for either party cannot be considered to be a mere wrong description or a mistake as sought to be projected by the plaintiffs, more so, when none connected with the said documents as scribes or attestors or identifying witnesses had been examined to explain any such mistake in description that found place unintended or unnoticed or inadvertently in the said documents. When the description of the boundary in the said two documents itself points out the probability of the correctness of the defence version, apart from the various other circumstances, which were elaborated by the Courts below, the conclusions of the Courts below cannot be considered to be deviant from the broad human probabilities arising out of the evidence on record and apart from the fact that no fact finding exercise could have been made by this Court in the second appeal, even if such an exercise were to be undertaken, the mere possibility of the evidence leading to this Court/ having some scope for taking a second view cannot be a ground for interference with the concurrent findings of fact by the Courts below and the second appeal should, hence, fail. Accordingly, the second appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 15-09-2011 Ksn