HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1201 OF 2010 DATED 14TH SEPTEMBER, 2011. BETWEEN Smt. Thota Krishna Veni …..Appellants and Maddula Srinivasa Rao @ SeetharamaNagaVenkata Srinivasa Rao …..Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1201 OF 2010 JUDGMENT: This Second Appeal under Section 100 of Code of Civil Procedure is filed against the judgment and decree dated 26.07.2010 in A.S.No.118 of2004 on the file of the learned V Additional District Judge, at Eluru, West Godavari District, confirming the judgment and decree dated 9.1.2004 in O.S.No. 69 of 1997 on the file of the learned I Additional Junior Civil Judge, Eluru, West Godavari District. The respondent/plaintiff filed the aforesaid suit for declaration of his title and ownership over the suit schedule land admeasuring Ac.0.26 cents situated in R.S.No. 751/1 of Eluru in West Godavari District and for consequential relief for possession of the plaint schedule land and future mesne profits. It was the case of the respondent/plaintiff that in the family partition, he got Ac.2.07 cents OF land in RS.Nos. 751/1, 751/2, 752/1 and 774 of Eluru towards his share apart from other properties and later the Government acquired an extent of Ac.2.33 ½ cents of land situated in R.S.Nos. 751/2B and 752/1B of Eluru out of the extent of Ac.3.07 cents for providing house sites to the weaker section people and after the said acquisition, Ac.0.26 cents remained in R.S.Nos. 751/1 and the plaint schedule property is part of the same. It was also his case that the Revenue Authorities also issued pattadar passbooks in respect of the suit schedule land in his favour and he is in possession and enjoyment of the same. When the appellant/defendant tried to encroach the suit land with view to make some illegal constructions thereon, the respondent/plaintiff got issued notice, to which the appellant/defendant replied claiming title and ownership over the suit land. Thereafter, as the appellant/defendant sought to raise constructions, the respondent/plaintiff filed the aforesaid suit. The appellant/defendant filed written statement denying the suit averments. It was stated that an extent of 290 sq.yards in T.S.No. 7 was settled in her favour through a registered settlement deed dated 27.9.1988 and possession was also delivered to her and since then she has been in possession and enjoyment of the same. She also narrated the sale transactions that took place in respect of the said land prior to settlement of the same in her favour. During the pendency of the suit, the boundaries of the plaint schedule property were amended pursuant to the application of the respondent/plaintiff. Then the defendant filed additional written statement alleging that the boundaries of the plaint schedule property as mentioned by the respondent/plaintiff are not correct and he did not mention the correct boundaries and the same were amended as per the report of the Advocate Commissioner. Based on the above pleadings, the trial Court framed the issues for trial. To prove the claim, on behalf of the respondent/plaintiff, P.Ws. 1 to 5 were examined and Exs.A.1 to A8 were marked. On behalf of the appellants/defendants, D.Ws. 1 to 3 were examined and Exs.B.1 toB.11 were marked. The trial Court upon consideration of the oral and documentary evidence adduced before it held that the respondent/plaintiff was able to establish his title and ownership over the plaint schedule property and decreed the suit as prayed for. Aggrieved by the judgment and decree of the trial Court, the appellant/defendant preferred an appeal being A.S.No.118 of 2004 before the Court of the V Additional District Judge, Eluru, West Godavair. The lower appellate Court upon re-appreciation of the evidence on record dismissed the appeal while confirming the findings of the trial Court. Hence the Second Appeal. The learned Counsel for the appellant/defendant submits that the Courts below failed to consider the documentary evidence at Exs.B.1 to B.11 in proper perspective which clearly demonstrate the title and possession of the appellant/defendant over the plaint schedule property. He submits that the amendment of the boundaries of the plaint schedule property by the respondent/plaintiff based on the Advocate Commissioner’s report and finding of the Courts below thereon is not in conformity with Section 105 CPC. He asserted that the revenue records are not the conclusive proof of title and as such the Courts below erred in decreeing the suit based on the entries in the revenue records. He therefore sought to raise substantial questions of law as reflected under Ground.No.2 of the Memorandum of Grounds appended to the Second Appeal. On the other hand, the learned Counsel for the respondent/plaintiff supported the judgments and decrees of the Courts below and that there are no grounds for this Court to interfere with the concurred judgment and decree of the lower appellate Court. Before adverting to the contentions of the learned Counsel, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it has to be seen, whether any substantial questions of law raised by the learned Counsel for the appellants in the Memorandum of Grounds need consideration and warrant any interference. Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise. I n Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 the Supreme Court while explaining the scope of Section 100 CPC observed thus: “7. A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 Amendment is confined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ‘substantial question of law’ is thus the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 CPC.” In Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, it has been held by the Apex Court as under: “ A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.” Keeping in mind the law laid down by the Supreme Court, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact. As can be seen from the established facts on record, it is the case of the respondent/plaintiff that the plaint schedule land was situated in R.S.No.751/1 of Eluru, whereas it was the case of the appellant/defendant that it is situated in RS.No.7 of Eluru. Pursuant to the same, an Advocate Commissioner was appointed, who got surveyed the plaint schedule land with the help of Mandal Surveyor. The report of the Advocate Commissioner reveals that the plaint schedule land is situated in R.S.No.751/1 but not in T.S.No.7 of Eluru. A sketch prepared by the Mandal Surveyor and Town Surveyor according to the FMB and Town Survey Record also reveals that the plaint schedule land is situated in R.S.No.751/1 of Eluru. To corroborate the same, Ex.A.1 shows that the father of P.W.1 (plaintiff) purchased Ac.20.00 from the Official Receiver in the Court auction and out of which an extent of Ac.1.76 cents in RS.No.751 is also included and Ex.A.2 shows that pursuant to the family partition, an extent of Ac.1.71 cents in R.S.Nos. 751/1 and 751/2 fell to the share of the respondent/plaintiff, Ex.A.3 is the copy of the Award passed by the LAO which shows that an extent of Ac.0.89 ½ cents was acquired by the Government which is a part of the plaint schedule property and Ex.A.4 is the pattadar pass book issued to the plaintiff by the Mandal Revenue Officer, Eluru for an extent of Ac.0.26 cents in RS.No. 751/1. PWs. 2 to 4 who are residing in the locality where the plaint schedule property is situated deposed that the suit property belongs to the respondent/plaintiff. P.W.5 Mandal Surveyor, who surveyed the suit land pursuant to the appointment of the Advocate Commissioner, deposed that the plaint schedule land is situated in R.S.No.751/1, but not T.S.No.7 of Eluru. The defendant in support of her claim, brought on record Ex.B.1, a registered settlement deed dated 27.9.1988 whereunder a vacant site to an extent of 290 square yards in T.S.No.7 of Eluru was settled in her favour. She also brought on record Ex.B.2 to 4 which reveals transactions took place in respect of the land in TS.No.7 prior to settlement in her favour. Except producing Exs.B.1 to B4 and examining D.Ws.2 and 3, the defendant did not produce any municipal record or revenue record to show that the plaint schedule property is located in TS.No.7 of Eluru. Further, the boundaries in Exs.B.1 to B4 did not tally with the plaint schedule property. The eastern boundary of the suit land in all Exs.B.1 to B4 was noted as ‘Road’ whereas the Eastern boundary of the suit land is the land of one V.Jagannaykulu, but not road. Exs.B. 6 to 10 also relate to the land in TS.No. 7 of Eluru,but the same could not establish the title of the appellant/defendant over the plaint schedule land. From the aforesaid discussion of the evidence, it is clear that the respondent/plaintiff is able to establish that the suit land is situated in R.S.No. 751/1 of Eluru beyond any reasonable doubt. Therefore, in my considered opinion also, the respondent/plaintiff is entitled for declaration that he is the owner of the suit schedule land. The appellant/defendant failed to establish that the schedule property is situated in T.S.No. 7 of Eluru Municipality and that she is the owner of the suit property. A perusal of the judgment of the trial Court demonstrates that it considered the evidence both oral and documentary in proper perspective and rightly decreed the suit. Further, a careful reading of the judgment of the lower Appellate Court it is manifest that upon re- appreciation of the entire evidence on record, it concurred with the findings of the trial Court. Having examined the matter on the touchstone of the principles laid down by the Supreme Court and considering the evidence on record, it is apparent that, the trial Court rightly arrived at the findings based on the evidence adduced before it. It also considered the relevant admissible evidence but while doing so, it did not take into consideration any inadmissible evidence and did not misread the evidence on record. In the process, the trial Court also scrupulously followed the legal principles in sifting the evidence and considering the same. The lower appellate Court on re-appreciation of the evidence on record rightly concurred with the Judgment and Decree of the trial Court. I therefore do not find any valid ground to interfere with the well reasoned Judgments and Decrees of the Courts below. For the foregoing discussion, there is no question of law, much less a substantial question of law, involved in this second appeal. The second appeal is liable to be dismissed and the same is accordingly dismissed. No order as to costs. ----------------------------------------------- JUSJTICE ASHUTOSH MOHUNTA Dated 14th September, 2011. Msnr.