IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.448 of 2010 Between: Mohd. Mahboob Ali and 6 others .. Appellants AND Shakera Begum .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.46 of 2009 on the file of the Court of III Additional District Judge (Fast Track Court), Medak, dated 28-01-2010. The factual background for the second appeal is that O.S.No.38 of 2002 was filed by the appellants before the Court of Junior Civil Judge, Narsapur, for a permanent injunction in respect of the suit schedule property against the sole defendant, claiming that they are legal heirs and successors of Smt. Zainab Bee, wife of Maqdoom Ali, who died on 26-08-2001. The appellants claimed that earlier Ahmed Bee, the first wife of Maqdoom Ali, died on 23- 3-1997 and as both the wives of late Maqdoom Ali died issueless and as Maqdoom Ali is the paternal uncle of the appellants, the appellants inherited the entire property and are cultivating the suit schedule property. The appellants claimed that the defendant was trying to interfere with the possession of the suit property claiming herself to be the daughter of the first husband of the deceased Zainab Bee and hence, the suit for permanent injunction. The defendant contested the suit claiming that Maqdoom Ali had two wives viz., Ahmed Bee and Zainab Bee and Ahmed Bee died issueless, but Zainab Bee, the second wife of Maqdoom Ali, had the defendant as her daughter. The defendant and her husband were cultivating the suit lands as absolute owners under a Will executed by Maqdoom Ali dated 25-05-1969. The Will bequeathed all the properties only to the defendant and after the death of Maqdoom Ali, the lands were recorded in the name of Ahmed Bee and Zainab Bee and after the death of Ahmed Bee, the lands were mutated in the name of Zainab Bee. The defendant, therefore, requested for dismissal of the suit also claiming that she perfected the title to the suit schedule property even by adverse possession. The trial Court framed issues on the question of possession of the appellants over the suit schedule property as on the date of filing of the suit and the relief to which they were entitled. During trial, the trial Court examined PWs.1 and 2 and DWs.1 to 3 and marked Exs.A.1 to A.17 and B.1 to B.10. The trial Court rendered its judgment on 29-08-2006 referring to the rival contentions and evidence and noting that Exs.A.1 to A.13 reflect the names of Zainab Bee and Ahmed Bee and the documents filed by the defendant reflected that Zainab Bee was the owner of the suit schedule property. The trial Court also noted that PW.1 in the cross-examination admitted that Exs.B.3 and B.4 passbook and title book were with the defendant and that the defendant was residing with Ahmed Bee and Zainab Bee at Nagulapally and that Maqdoom Ali performed the marriage of the defendant. The trial Court also noted that apart from the appellants not seeking any declaration of title in spite of averments of the defendant in the written statement, the appellants also have not filed any document to show either title or possession over the suit schedule property. Therefore, the trial Court was of the opinion that the plaintiffs did not prove their possession over the suit property by the date of the suit, more so, in the absence of any document or any entry in the revenue records in their favour and hence, dismissed the suit with costs. In A.S.No.46 of 2009 on the file of the Court of III Additional District Judge (Fast Track Court), Medak, the first Appellate Court rendered its judgment on 28-01-2010 on the challenge to the judgment and decree of the trial Court. The first Appellate Court also noted that the property was admittedly the property of late Maqdoom Ali, who had two wives and none of the documents filed by the appellants disclosed that the appellants are in possession of the property at any time. The appellants had not even tried to get a Legal Heir certificate from the concerned Mandal Revenue Officer and the first Appellate Court further noted that the entitlement of Maqdoom Ali to execute a Will can be decided only in a declaration suit and not in this suit for an injunction simplicitor. The first Appellate Court also relied on the admission of PW.1 that the defendant was residing with Zainab Bee till her death, which probablised the possession of the defendant, and therefore, concurring with the finding of the trial Court on the failure of the appellants to prove their possession or balance of convenience in their favour, the appeal was dismissed with costs. It is against the said judgment and decree that the appellants have approached this Court with this Second Appeal reiterating their claims and trying to suggest six substantial questions of law to be arising for consideration by this Court. The first question sought to be presented by the appellants is about the maintainability of the suit without any claim for declaration of title. Though it is true that the trial Court and the first Appellate Court made observations about the appellants not converting their suit into one for declaration in spite of the defence taken in the written statement, neither the Court had given any conclusion that the suit for permanent injunction simplictor is not maintainable and therefore, this question does not arise. The second question is about the defendant being the daughter of Maqdoom Ali or not and whether she is entitled to any inheritance, if she is the daughter of Zainab Bee through her former husband. Similarly, the other questions sought to be raised are about the Will Ex.B.1 and whether the Will was really executed, whether it confers any title, whether Maqdoom Ali was competent to execute said Will etc. Similarly, the pattadar and title books Exs.B.3 and B.4 are sought to be questioned as illegal. But, it is seen from the judgments of the trial and the first Appellate Courts that it is not on the basis of oral and documentary evidence of the defendant that the plaintiffs failed, but it was on their failure to prove their possession of the suit schedule property by the date of the suit. Therefore, the questions about the acceptability or otherwise of the defence taken in the written statement becomes superfluous and as the plaintiffs failed for want of proof of their possession, these questions do not fall for consideration in the Second Appeal. Then the appellants are also seeking to question the findings of the Courts below about their failure to prove their possession, but on the pure questions of fact, appreciation of evidence before them by the trial Court or the first appellate Court not being unreasonable or perverse or perfunctory, the same cannot be considered to be raising any substantial questions of law in this second appeal. Section 100 of the Code of Civil Procedure positively mandates that a second appeal lies to the High Court only if the High Court is satisfied that the case involves a substantial question of law and the High Court is duty bound to formulate such substantial question of law before admitting any such appeal. The provisions of Order XLII of the Code of Civil Procedure also make it obligatory more particularly in Rule 2, that a second appeal can be heard only on the substantial question of law formulated by the High Court. The Apex Court has time and again deprecated the admitting of second appeals as a matter of course unless there are positive substantial questions of law and as a close consideration of the material on record disclosed that no substantial question of law arises in this second appeal for consideration, the second appeal has to fail. Sri Mohd. Ghulam Hussain, learned counsel for the appellants, requested that positive liberty may be given to the appellants to take recourse to a suit for declaration of title and any consequential reliefs to which the appellants may be entitled. No such specific permission or liberty need be recorded in this judgment and if the appellants are entitled to file such a suit, it is open for them to do so which requires no permission from this Court. Accordingly, the Second Appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 16-07-2010 Ksn