IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1000 OF 1998 Between: Syed Abdul Razak Khadri @ Syed Sajjad Pasha and others …Appellants A n d Lateef Basha Khadri and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1000 OF 1998 JUDGMENT: This second appeal is directed against the judgment and decree dated 27.07.1998 in A.S.No.9 of 1994, on the file of the Senior Civil Judge, Adoni, wherein the said appeal filed by the 3rd respondent herein, was allowed, setting aside the judgment and decree dated 18.02.1994 in O.S.No.55 of 1986, on the file of the Junior Civil Judge, Alur and consequently dismissing the said suit filed by the appellant herein. 2. Heard the learned counsel for the appellant/plaintiff and the learned counsel for the respondents/defendants. Perused the record. 3. For the sake of convenience, the parties are hereinafter referred to as arrayed in the suit. 3. The appellant herein, the plaintiff, filed the suit against the respondents/defendants 1 to 3 for a permanent injunction restraining them from interfering with his possession and enjoyment of the plaint schedule lands of Ac.7-60 cents dry in Sy.No.227 and Ac.16.17 cents dry in Sy.No.339 situate in Chippagiri village of Kurnool District. According to the plaintiff, the suit lands are part of ancestral properties and he has been in possession and enjoyment of the same in his own right for the last over 40 years prior to filing of the suit, ever since the death of his father who died in 1945. He further pleads that the suit lands have been leased out to tenants and he has been paying the land revenue and also water cess. He further pleads that there is a Darga in Chippagiri village, popularly known as “Sattar Hadi Swamy” (for short ‘Darga’) and the plaintiff has been managing the same; that defendants 1 to 3, who are his dayadis (agnates), made several attempts to interfere with the plaintiff’s management of Darga, having set up D-4 to D-6 to forcibly take possession of the suit lands. The plaintiff further alleged that on 26.07.1986 the defendants came to the suit land to take forcible possession and the plaintiff thwarted their attempts. 4. The 3rd defendant filed written statement and D-1 and D-2 adopted the same contending that the suit lands and another land of Ac.3-63 cents in Sy.No.76 of Beldona Village are inam lands endowed on the common ancestor of defendants 1 to 3 and the plaintiff for the upkeep and maintenance of the Darga, the plaintiff and D-1 to D-3 and prior to them, their predecessors were in possession of the suit lands jointly and for the purpose of management of the Darga without having any absolute rights therein. The defendants further contended that the plaintiff and defendants 1 to 3 have been in possession and enjoyment through the tenants, who were the highest bidders in the auction of leasehold rights. The defendants would further contend that as they are co- sharers along with the plaintiff in respect of the suit properties which are endowed in favour of Darga and the grant is burdened with service. The defendants further alleged that the plaintiff has wrongfully alienated the other extent of Ac.3-63 in Sy.No.76 of Beldona village and defendants 1 to 3 initiated proceedings under the Wakf Act for recovery of possession of the alienated extent and, therefore, the plaintiff felt aggrieved and filed the suit. Defendants 1 to 3 further contended that since the original tenants failed to pay the rents, D-1 to D-3 leased out the lands in favour of D-4 and D-5 and accordingly D-4 and D-5 carried on agricultural operations and the plaintiff intended to occupy the land under the guise of ex parte interim injunction. The defendants further pleaded that the suit for mere injunction, without the relief of declaration, is not maintainable. 5. D-4 filed written statement and D-5 and D-6 filed a memo adopting the same wherein they also contended that plaintiff is not the absolute owner nor was he in exclusive possession of the suit lands and the suit lands are inam lands endowed for the purpose of upkeep and maintenance of Darga which was managed jointly by plaintiff and D-1 to D-3. D-4 to D-6 further pleaded that in January, 1986 the suit lands were leased out to them by D-1 to D-3 on annual rent of Rs.200/- and Rs.1,800/- respectively and they carried out agricultural operations and sold groundnut and korra. The plaintiff obtained ex parte interim injunction and wrongfully dispossessed defendants 4 and 5 and caused loss to a tune of Rs.6,500/-. 6. The plaintiff filed rejoinder stating that he has not voluntarily executed the agreement dated 10.01.1977 referred to by D-3 in his written statement and that about 10 years back, one Sultan Mohiuddin Quadri approached him and took him to the house of D-1 and Sultan Mohiuddin Quadri threatened him with dire consequences and, therefore, he signed the agreement as it purported to be only for a period of one year and that he signed the agreement which was written in Telugu without knowing the contents. 7. D-3 filed an additional written statement refuting the allegations contained in the rejoinder filed by plaintiff pertaining to the execution of the agreement dated 10.01.1977 and contending that the plaintiff and D-1 to D- 3 voluntarily executed the said agreement dated 10.01.1977 regarding the management of the Darga. 8. On the strength of the above pleadings, the trial Court framed the following issues: i. Whether the suit for bare injunction without the relief of declaration is maintainable? ii. Whether the plaintiff is entitled for permanent injunction as prayed for? iii. Whether the 6th defendant is necessary party to the suit? iv. To what relief. 9. The plaintiff was examined as P.W.1 and he also examined P.Ws.2 to 4 and Exs.A-1to A-22 were marked on his side. D-1 to D-6 were examined as DWs.1 to 6 and Exs.B-1 to B-16 were marked on their behalf. 10. On issue No.1, the trial Court held that the suit for bare injunction is maintainable, on issue No.2, it was held that the plaintiff is entitled for permanent injunction and on issue No.3, it was held that D-6 is a necessary party to the suit. Accordingly, the suit was decreed by the trial Court on 18.02.1994 granting permanent injunction. Aggrieved by the same, the defendants filed an appeal in A.S.No.9 of 1994. By the impugned judgment dated 27.07.1998, the learned Senior Civil Judge, Adoni, allowed the appeal and set aside the judgment and decree of the trial Court and consequently dismissed the suit dissolving the injunction granted by the trial Court. Hence, the present second appeal by the plaintiff. 11. The plaintiff filed the suit for a bare injunction claiming to be the absolute owner and in exclusive possession and enjoyment of the suit land. Defendants 1 to 3 refuted the claim of the plaintiff and contend that the suit lands are inam lands endowed for the upkeep and maintenance of Darga and the grant is burdened with service. The defendants would further contend that the common ancestors of plaintiff and D-1 to D-3 were in possession and enjoyment of the suit lands rendering service for the upkeep and maintenance of Darga and the plaintiff and defendants 1 to 3 have accordingly succeeded to the same rights. Thus, according to D-1 to D-3 themselves and plaintiff are joint co-sharers of the suit land, which is inam land burdened with the service of upkeep and maintenance of Darga. As the plaintiff claimed absolute title and exclusive possession as basis for his claim for the relief of injunction, the burden squarely lies on him to establish the same. Though the plaint is silent about the nature of the suit lands, in the evidence P.W.1, the plaintiff, categorically admitted that the suit lands are inam lands. He also admitted that the Inam Deputy Tahasildar served notice Ex.A-17 on him in respect of the suit lands. P.W.1 has also admitted that he was not granted any ryotwari patta in respect of the suit land. The admissions of P.W.1 in the evidence, therefore, falsify his claim of absolute title and exclusive possession and, on the other hand, would support the contention of D-1 to D-3 that the suit lands are inam lands. 12. The plaintiff seeks to rely upon Ex.A-18 extract of No. 10(1) account relating to the suit lands issued by the Mandal Revenue Officer on 10.01.1987. The suit was filed in 1986. Ex.A-18 was, thus, obtained subsequent to filing of the suit. In Ex.A-18, the name of the plaintiff is found as one of the pattadars along with others, but the names of those other persons were found struck off. Mohiuddin Quadri, who is father of D-2, and Sultan Bi, mother of D-3, and others were issued notices Exs.B-14 and B-15 regarding the enquiry under the Inams Abolition Act and subsequently ryotwari pattas Exs.B-13 and B-16 were granted in their favour. Their names were found entered in the 10(1) Account Ex.A-18, but were struck off. The plaintiff has not placed any material to show as to when and under what circumstances the names of the other pattadars came to be rounded off and he has not produced any document to show that the ryotwari pattas Exs.B-13 and B-16 issued in favour of Sulthan Bi, mother of D-3, Mohinuddin Quadri, father of D-2, were cancelled. In the absence of any such material and in the light of Exs.B-13 to B-16, the learned Appellate Judge has rightly held that the rounding off of the names of other pattadars in Ex.A-18 10(1) account, for no stated reason, rendered the said document suspicious and, therefore, unreliable. The learned counsel for the appellant contended that the appellate Court has discarded Ex.A-18 for no valid reason. The learned Appellate Judge has discussed the suspicious circumstances surrounding Ex.A-18 in detail and furnished cogent reasons for discarding Ex.A-18 in paras 21 to 26 of the impugned judgment. 13. The plaintiff next seeks to rely upon the adangal extracts Exs.A-13 to A-16 in support of his claim of possession. Ex.A-13 relating to Fasli 1390 (1980) contains the names of all the pattadars whose names are mentioned in Ex.A-18. Ex.A-14 to A-16 pertaining to Fasli 1392 (1982), Fasli 1385 (1975) and Fasli 1387 (1977) also contains similar particulars. Though the name of the plaintiff is mentioned as person in possession and enjoyment, the fact remains that he is shown only as one of the joint pattadars, which does not support his claim of absolute right. Even according to the plaintiff, he was not in physical possession and enjoyment, but the lands were always leased out to various tenants. In support of the said plea, he examined P.Ws.2 to 4 and also filed Exs.A-1 to A-4 and A-22, the lease deeds. It is also the case of D-1 to D-3 that the lands were always leased out and the successful bidders in the auction were entering into the lease agreements. Exs.A-13 to A-16, the adangal extracts do not bear out the names of the lessees as cultivators to show the name of the plaintiff, though admittedly the plaintiff was not a resident of the village. Even D-2 and D-3 were also not residing in the village. Though D-1 to D-3 raised objection regarding the admissibility of Exs.A-1 to A-4 and 22 on the ground of non-registration, the plaintiff sought to rely upon the same for collateral purpose for proving the nature of possession. D.W.3 (D-3) categorically admitted in the evidence that the plaintiff has been leasing out the lands to P.Ws.2 to 4. Thus, from the evidence on record, it is established that neither the plaintiff nor D-1 to D-3 was in physical possession and enjoyment of the suit lands and that the lands were being cultivated only by the tenants. The plaintiff has not adduced any evidence to show that he was in exclusive possession and enjoyment of the suit land by the date of filing of the suit, as claimed by him. The learned appellate Court has, therefore, rightly held that the plaintiff failed to establish both his claim of absolute title and exclusive possession in respect of the suit land. 14. In fact, the plaintiff, as P.W.1, admitted in the cross- examination that the income accruing from the suit land has to be spent for the upkeep and maintenance of Darga by paying the electricity charges and meeting the expenses of sweeping and supply of water to the devotees. The above admission of P.W.1 supports the claim of defendants that the lands are inam lands meant for the maintenance and upkeep of Darga and the grant was burdened with service. 15. It is also not disputed that Sattar Hadi Swamy whose Darga is situate in the village was a common ancestor of plaintiff and D-1 to D-3. Exs.B-3 is an agreement dated 04.07.1961 between the plaintiff and father of D-2 regarding management of the Darga and its properties. P.W.1 also admitted in the cross-examination about execution of Ex.B-3. Ex.B-3 also refers to leasing out the lands. Ex.B-1 is another agreement dated 10.01.1977 wherein the suit lands are referred to as belonging to Darga and described as inam pattis. The plaintiff sought to disown Ex.B-1 alleging that on that day while he was waiting for a bus at Guntakal bus stand, he was taken by D-2 to the house of D-1 and, therefore, he was asked to execute the agreement and while he was reluctant he was forced to sign the same under threat of dire consequences. He further pleaded that the said agreement was in Telugu language with which he was not conversant and that his signature was obtained without his knowing the contents. The learned Appellate Judge has rightly rejected the said plea which was raised for the first time about 10 years after execution of the document as being baseless and unsubstantiated. The appellate Court also found that the plea of plaintiff that he was not conversant with Telugu was false as he has admittedly executed several other documents which were written in Telugu. As seen from Ex.B-1, the suit lands which were described as inam pattis belonged to the Darga. Exs.B-4 and B-6 (the English translations being Exs.B-5 and B-7) auction proceedings also show that the suit lands belonged to the Darga and the said auction proceedings were signed by the plaintiff, father of D-2, D-3 and others. P.W.1 admitted that he was the scribe of Ex.B-4 and defendants also signed the same as also Ex.B-6. He further admitted that all the lands possessed by them are all inam lands and the extent of Ac.7-00 acres noted as pakirwandla patti i.e., item 1 in Ex.B-6 is also an inam land. Relying on Exs.B-1, B-3, B-4 to B-7 coupled with the admissions of P.W.1 in the evidence, the appellate Court has rightly held that the suit lands belonged to Darga as service inam lands and are not the exclusive and absolute properties of the plaintiff as claimed by him. It was also found from the evidence that D-1 and father of D-2, mother of D-3, and others were also joint pattadars along with the plaintiff and thus they are all co-sharers enjoying the property so long as they render service. It follows neither of them as got any absolute rights of ownership nor can they claim exclusive possession and enjoyment. The suit filed by the plaintiff for bare injunction claiming to be the absolute owner of the suit land and exclusive possession thereof is, therefore, not maintainable. The claim of the plaintiff that he was having absolute title and exclusive possession over the suit lands and the contention of defendants 1 to 3 that the suit lands are inam lands endowed for the upkeep and maintenance of Darga and that themselves and plaintiffs are co-sharers enjoying the suit land, the grant of which is burdened with service, are all questions of fact and the learned Appellate Judge has on re-appraisal of the entire evidence recorded findings thereon supported by cogent reasoning while reversing the judgment of the trial Court. The re-appraisal of the evidence by the appellate Court has led to the correct findings on questions of fact which do not call for any interference. It is not a case where the findings are based on no evidence or any admissible evidence was left out or inadmissible evidence was let in. 16. I n BHOLARAM V. AMIRCHAND[1] a three-Judge Bench of the Apex Court reiterated the proposition of law stating as follows: “The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the Courts below are perverse and were given in utter disregard of the important materials on record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the Courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law”. 17. I n THIAGARAJAN V. SRI VENUGOPALASWAMY B.KOIL[2], the Apex Court held that the High Court in exercise of its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The court observed that “it is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same”. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 18. The Apex Court again reminded the High Courts in COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS V. P.SHANMUGAMA[3] that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. 19. In HARJEET SINGH V.AMRIK SINGH[4], the Apex Court has observed that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the appellate Court. In the above case, the findings of the trial Court and the lower appellate Court regarding readiness and willingness to perform their part of contract was set aside by the High Court in exercise of its jurisdiction under Section 100 CPC. 20. In H.P.PYAREJAN V. DASAPPA[5], the Apex Court found serious infirmity in the judgment of the High Court. The Apex Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 CPC (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it involves re- appreciation of evidence. 21. In CHANDRIKA SING (dead) BY LRS & ANOTHER V. SARJUG SINGH & ANOTHER[6], the Apex Court again reiterated legal position that the High Court under Section 100 CPC has limited jurisdiction. To deal with cases having a substantial question of law, the Apex Court observed as under: “……While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the Courts below are binding on the High Court…..” 22. I n CHACKO & ANOTHER v. MAHADEVAN[7] while dealing with the jurisdiction of Sections 96 and 100 CPC, the Apex Court laid down as under: “It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate Court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law.” 23. In a decision in GURDEV KAUR AND OTHERS V. KAKI AND OTHERS [8] the Apex Court dealt with the scope of Section 100 CPC. The question that arose for consideration in the above case was also whether according to the true delineated scope of Section 100 CPC, the High Court was justified in interfering with the concurrent findings of fact. After discussing the case law on the subject, the Apex Court held as follows:- “The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 CPC by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. 24. In NARAYAN RAJENDRAN AND ANOTHER V. LEKSHMY SAROJINI AND OTHERS[9], the Apex Court reiterated the above proposition. 25. In HERO VINOTH V. SESHAMMAL[10], the apex Court held as follows: “Though the scope for interference with concurrent findings of fact while exercising jurisdiction under S. 100, CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under S. 100, CPC after formulating a substantial question of law.” 26. I n P.CHANDRASEKHARAN V. S.KANAKARAJAN[11] the apex Court held that there cannot be any doubt whatsoever that a substantial question of law is different from a question of law. 27. In the present case, it must be held that the well considered judgment of the appellate Court duly recording correct findings on questions of fact based on proper appreciation of evidence does not throw up any question of law, much less substantial question of law warranting interference of this Court in exercise of jurisdiction under Section 100 CPC. 28. In the result, the second appeal is dismissed. There shall be no order as to costs. ________________________ G.V.SEETHAPATHY, J 05th September, 2011 Lrkm [1] (1981) 2 SCC 414 [2] (2004) 5 SCC 762 [3] (2005) 9 SCC 232 [4] (2005) 12 SCC 270 [5] (2006) 2 SCC 496 [6] (2006) 12 SCC 49 [7] (2007) 7 SCC 363 [8] (2007) 1 SCC 546 [9] (2009)5 SCC 264 [10] (2006) 5 SCC 545 [11] (2007) 5 SCC 669