IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1106 of 2011 Between: Ausali Nagarathnamma & another .. Appellants AND Boya Kavali Chinna Pentaiah & 3 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1106 of 2011 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.19 of 2009, on the file of the Judge, Family Court-cum-Additional District Judge, Mahabubnagar, dated 21.04.2010, by which the judgment and decree in O.S.No.98 of 2007, on the file of the Senior Civil Judge’s Court, at Wanaparthy, dated 13.08.2008, dismissing the suit without costs were confirmed. 2. The facts leading to the second appeal are that the appellants filed the suit against the respondents for declaration of the title of the appellants and delivery of possession of the plaint schedule property said to be consisting of 148 square yards towards the share of the first appellant and 74 square yards towards the share of the second appellant within the specified boundaries in Pebbair Village and Mandal. The appellants also sought for correction of the public records since 2004 and they claimed that by virtue of a Settlement Gift Deed, dated 18.01.2000, the plaint schedule property came under the absolute ownership of the appellants respectively, but the first respondent encroached into the said property and erected a hut in collusion with the Executive Officer of the Gram Panchayat who allotted House No.5-69 to the said hut. The Divisional Panchayat Officer and District Panchayat Officer also made wrong entries in the Revision Registers, accordingly, in the years 1992 to 2004 and as the first respondent refused to remove the hut and vacate the property in spite of demands and as the officials did not rectify the wrong entries made in the Panchayat Records in spite of a notice, the suit was filed. 3. The first respondent denied the title of the appellants or any encroachment by him into the suit property. He claimed that when the appellants filed O.S.No.96 of 2004 against him before the Junior Civil Judge’s Court, Wanaparthy, the appellants withdrew the suit after an Advocate Commissioner appointed in that suit, made a local inspection and filed a report. The first respondent’s father late Gattanna purchased the suit property and erected a hut 25 years earlier which was recorded in the Gram Panchayat Records and in which address, a ration card was also issued to the first respondent. The first respondent perfected his title through continuous possession for more than the prescribed period and, hence, he desired the suit to fail. 4. The officials, impleaded as respondents 2 to 4, denied any wrong entries in the records and stated that no Plot No.94 exists in the lay out plan submitted by the father of the appellants in respect of S.No.492 and the first respondent has been recorded as the owner of Door No.5-69 since 1985 to 1996. The officials, therefore, desired the suit to fail. 5. The trial Court framed issues about the entitlement of the plaintiffs/appellants for declaration of title and recovery of possession as well as the existence of any valid title for the father of the appellants. The bar of limitation for the suit and correctness of court fee paid are also the subject of issues framed by the trial Court. 6. During trial, P.Ws.1 to 5 and D.Ws.1 to 3 were examined, but P.W.3 was not tendered for cross-examination and his evidence was eschewed. Exs.A-1 to A-8 and B-1 to B-12 were also marked during trial. 7. The trial Court rendered its judgment firstly noting that the plaint schedule did not describe any constructions to be in existence in the property with any house numbers. The trial Court also noted that Exs.A-6 and A-7, Pattadar Pass Book and Title Deed, show different survey numbers and Exs.A-1 and A-2- Gift Deeds and Exs.A-3 and A-4-Rectification Deeds did not mention any survey numbers so as to verify the identity of the suit property with reference to the survey numbers mentioned in Exs.A-6 and A-7. The trial Court also noted that in Ex.A-5- Notice, the appellants stated for the first time that Door No.5-69 was assigned to a hut in Plot No.94 and any lay out plan to identify Plot No.94 in S.No.492 was not filed by the appellants, while the first respondent denied the existence of any such plot. The trial Court also noted that the appellants filed O.S.No.96 of 2004, the copy of which is Ex.B-10 and in that suit, the property was described with reference to the survey number and plot number. The trial Court further noted that the absence of any lay out plan in the evidence for the appellants is fatal to the case of the appellants with reference to the identity of the plot claimed by them. The trial Court also found from the oral evidence that the same is not consistent with reference to the boundaries of the property claimed and the trial Court further found that Ex.B-1- Ownership Certificate issued by the Gram Panchayat and Exs.B- 2 to B-10-copies of the relevant records and proceedings show that the father of the appellants approached the District Panchayat Officer in this regard but failed and even Ex.B-8- Advocate Commissioner’s Report in O.S.No.96 of 2004 noted the boundaries which do not tally with the boundaries given in the plaint schedule herein. The trial Court also found that in the light of the documents produced by the first respondent, the hut in the site is in existence since more than 20 years prior to the filing of the suit and though the first respondent did not file the unregistered sale deed under which the property was claimed to have been purchased, the appellants could not have depended on the weakness in the case of the first respondent. The trial Court also dismissed the strong reliance placed by the appellants on Ex.A-8-Khasra Pahani and found that Ex.A-8 was relied on to claim ownership of entire Ac. 7.31 guntas by P.W.2 whose name was recorded only in respect of Ac. 3.35 guntas in Ex.A-8. The trial Court, therefore, considered that the oral evidence of P.Ws.1 to 5, contradicted by the claims of D.Ws.1 to 3, showed that the claim of title of the first respondent cannot be brushed aside and the claims of D.Ws.2 and 3 about purchasing plots under registered sale deeds in the suit locality was not contradicted by the appellants in any manner. Therefore, the trial Court concluded that the plaintiffs/appellants are not entitled for declaration of title and recovery of possession and the first respondent has perfected his title by prescription making the suit barred by limitation. Accordingly, though the court fee paid by the appellants was not found to be incorrect, the suit was dismissed without costs. 8. In first appeal, the impugned judgment was rendered by the first Appellate Court again referring to the rival pleadings, contentions and evidence on record and the first Appellate Court considered the points about the ownership of the suit property with the appellants, their right to have any declaration of title and recovery of possession and rectification of entries in the Panchayat Records and the grounds on which the judgment and decree of the trial Court can be interfered with. 9. After noting the rival pleadings and contentions before the trial Court that arose for consideration, the first Appellate Court analysed the oral and documentary evidence on record and noted that there was no cultivation in the suit locality since 30 years as per the evidence of P.W.1 and P.W.1 did not file any lay out plan to show into how many plots the land in S.No.492 was converted. The ignorance of P.W.1 about the existence of only 39 plots and absence of any reference to plot No.94 in the Gram Panchayat Records was also noted. The first Appellate Court further noted that the copy of the lay out plan, allegedly submitted by P.W.2, was also produced before the Court to suggest that 34 plots were in existence and P.W.4 was also noted to be ignorant as to how many plots were in total sold in the suit locality. The first Appellate Court further observed that even P.W.5 threw no light on the lay out plan allegedly submitted by P.W.2 to the Gram Panchayat and, hence, it was concluded that there was no acceptable evidence about submission of any lay out plan concerning 94 plots being made out in the suit survey number. The first Appellate Court further observed that except Exs.A-1 and A-2-Gift Deeds of the year 2000, there was no other evidence to accept the claims of the appellants and the appellants could not succeed on the weakness in the version of the first respondent. The first Appellate Court also noted that O.S.No.96 of 2004 was withdrawn by the appellants without any decision on merits and Ex.B-8-Report of the Advocate Commissioner in that suit showed the suit property to be an open place with a hut existing therein which was stated by the neighbours to the Advocate Commissioner to be in existence since long time with Door No.5-69. The documents filed by the first respondent in Exs.B-1 to B-9 were also referred to by the first Appellate Court as probablising the existence of a hut of the first respondent in the suit property since 1985 and, therefore, the first Appellate Court concluded that the reasons assigned by the trial Court in the judgment for rejecting the suit reliefs of the appellants are cogent and have to be accepted. The first appeal, accordingly, failed without costs. 10. The plaintiffs/appellants contend herein that they established their title through oral and documentary evidence and the first respondent who had no title and who is an illegal encroacher could not have been preferred in the face of the positive evidence for the appellants. The claim of adverse possession has not been made the subject of any specific issue and Exs.A-6 to A-8 were not discussed at all by the Courts below. Hence, the appellants pleaded that the absence of an issue about adverse possession, the absence of proof of any bar of limitation and the failure to consider and discuss Exs.A-6 to A- 8 involve substantial questions of law which have to be considered in the second appeal. 11. Sri R. Prasad, learned counsel for the appellants and Sri N. Chandra Sekhar Reddy, learned counsel for the first respondent are heard at the stage of admission. 12. The point for consideration at this stage is whether any substantial questions of law exist, for the High Court to entertain the second appeal. 13. Section 100 of the Code of Civil Procedure, 1908, and Order XLII Rule 2 thereof make it mandatory that the High Court should be satisfied about the involvement of substantial questions of law and the High Court should formulate such questions for entertaining any second appeal. The Apex Court had time and again deprecated admission of second appeals as a matter of course and, thus, the involvement of substantial questions of law is a sine qua non for considering any second appeal. 14. The dispute herein about the property, as described in the suit schedule, is in respect of the alleged plot No.94 within the specified boundaries. The appellants have earlier approached the civil Court in O.S.No.96 of 2004 with a suit for perpetual injunction against the first respondent herein, but they had withdrawn the suit after an Advocate Commissioner filed his report after making a local inspection. The relief prayed for in the second suit herein is for declaration of title and delivery of possession obviously due to the first respondent herein being shown to be in possession of the suit schedule property by the time of the Advocate Commissioner’s visit in the earlier suit. While the appellants are relying upon acquisition of title over the suit property under Settlement Gift Deeds, dated 18.01.2000, the first respondent is relying on the alleged purchase of the suit property above 25 years prior to the suit by his father and his erecting a shed therein. The version of the first respondent found corroboration from the contents of the written statement of the Panchayat Officials, who specifically referred to the non-existence of plot No.94 in the lay out plan submitted by the father of the appellants and the recording of the existence of Door No.5-69 in the name of the first respondent since 1985 in the Gram Panchayat records. The consistent entries in the Gram Panchayat Records since such a long time cannot be considered to have been manipulated or fabricated with an eye on the litigation that had arisen decades later and Exs.B-1 to B-9 with reference to the public records can, in the absence of any contrary evidence, be presumed to be duly made in accordance with due procedure under Section 114 of the Indian Evidence Act, 1872. As opposed to the said entries concerning the hut admittedly existing in the property claimed by the appellants as the suit schedule property, the registered Gift Deeds-Exs.A-1 and A-2 or the Rectification Deeds-Exs.A-3 and A-4 were noted by the trial Court to not disclose the survey number of the property which was gifted or the property said to be clarified in the Rectification Deeds. The trial Court, on a reasonable analysis of the documents on record, has found that the entries in Exs.A-6 to A-8 could not have been cross-checked with reference to the contents of Exs.A-1 to A-4 and the oral evidence adduced on behalf of both parties was also analysed in detail by both the Courts below to conclude that the claims of D.Ws.2 and 3 were not specifically controverted by the appellants, while the evidence of P.Ws.2 to 5 did not satisfactorily corroborate the interested claims of P.W.1. The conclusions of the Courts below are, thus, on pure questions of fact not involving any legal issues in such consideration. 15. It is true that there was no specific issue about the perfection of title of the first respondent by adverse possession, but the first respondent was specific in his written statement about perfecting his title being in continuous possession for more than the prescribed period. It was in consequence of such a plea that the suit was claimed to be barred by limitation. The trial Court had, in fact, specifically framed an issue about the bar of limitation of the suit and it has also decided the same with reference to the title of the first respondent and his predecessor being in exclusive possession of the suit property since more than 20 years prior to the suit. It is such exclusive possession, which was capable of converting such possession by prescription into a possession with title, that made the trial Court to conclude that the suit is barred by limitation. The absence of any specific words in the issues framed referring to adverse possession did not make the parties to the suit surprised on the questions involved in the contest and the parties were clear and categorical in their evidence and arguments as to what they were projecting before the trial and the first Appellate Courts in this regard. Therefore, the absence of a specific issue about the first respondent’s perfection of title over the suit schedule property need not be considered as fatal to the decisions of the Courts below. Even otherwise, the trial and the first Appellate Courts, in their well considered judgments, specifically concluded that the appellants failed to prove the identity of the suit schedule property and also their title over the suit schedule property and even assuming that the first respondent failed in proving any perfection of title and adverse possession over the suit schedule property, the same will not automatically result in the consequence of declaring the title of the appellants to the suit property. The appellants have to succeed or fail on the strength of their own case and if, on facts, the trial and the first Appellate Courts found that the appellants failed to prove the title over the suit property or the identity of the suit property, the same cannot be considered to involve any substantial questions of law to reopen the final findings on fact by the first Appellate Court through the second appeal. 16. Under the circumstances, as no substantial questions of law appear to be involved in the second appeal, the second appeal cannot be entertained. In view of the restricted jurisdiction conferred by Section 100 read with Order XLII Rule 2 C.P.C, the second appeal has to fail. 17. Accordingly, the Second Appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 19th September, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1106 of 2011 Date: 19th September, 2011 KL