IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF OCTOBER TWO THOUSAND TEN SECOND APPEAL No.1054 of 2009 Between: Ghulam Mohiuddin (died) per L.Rs and others ….PETITIONER(S) and The Municipal Council, Karimnagar, rep. by its Commissioner and another …RESPONDENT(S) HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.1054 of 2009 ORDER: This Second Appeal is directed against the judgment and decree dated 27.07.2009 in A.S.No.13 of 2009 on the file of the I Additional District Judge, Karimnagar, whereunder and whereby the judgment and decree dated 27.01.2009 in O.S.No.61 of 2003 on the file of the Senior Civil Judge, Karimnagar, was confirmed. 2. The brief facts that are necessary for the disposal of the appeal may be stated as follows: Appellants-plaintiffs filed the Suit for declaration of their title and perpetual injunction restraining the respondents-defendants and persons claiming through them from interfering with their peaceful possession and enjoyment over the items 1 to 3 of suit schedule property i.e. 270 sq. yards of land in Sy.No.39, situated at Sahethnagar at tri-junction of Government Civil Hospital road and road leading to Karimnagar to Sharmanagar, Karimnagar, stating that 1st plaintiff is owner and possessor of house plot admeasuring 83 sq. yards in Sy.No.39, 2nd plaintiff is owner and possessor of house site admeasuring 42.36 sq. yards in Sy.No.39 and 3rd plaintiff is owner and possessor of suit schedule land measuring 54 sq. yards in Sy.No.39. It is averred in the plaint that originally 1st plaintiff was the owner and possessor of 181.36 sq. yards in Sy.No.39; that he gifted 83 sq. yards and 54 sq. yards of land in favour of 2nd and 3rd plaintiffs, respectively; that he purchased 274 sq. yards of land in Sy.No.39 from his predecessor-in-title Smt Zohra Bee under simple sale deed dated 07.09.1973; that the lands existing in Sahethnagar locality of Karimnagar town are agricultural lands and they are down stream lands situated in lower level and the water used to flow in its natural flow through those lands; that no drains were constructed at that time and there was a natural flow of water in Sy.No.39 in zig-zag manner and the same is not reflected in the revenue records, municipality records and also in the master plan; that there was a 40 feet road leading to Sharmanagar locality situated at southern side of the suit schedule land and previously the said land was belonging to Burhanuddin; that the municipality entered into a contract with the 2nd defendant for the purpose of construction of drain within 40 feet wide road; that the appellants- plaintiffs raised 12 feet RCC pillars in the suit schedule land on the northern side and three pillars on the southern side with an intention to raise compound wall, and to raise compound wall with the support of RCC pillars, permission from the municipality is not necessary and that the 1st defendant dismantled the RCC pillars in the suit schedule land. Hence, the suit. The 1st defendant filed written statement resisting the Suit stating that the suit property is existing drain and the plaintiffs do not have right over the same; that the 1st plaintiff was neither the owner nor in possession of the suit schedule property; that no rights have been conferred upon 2nd and 3rd plaintiffs under the documents executed by the 1st plaintiff; that the gift deeds executed by the 1st plaintiff do not convey any title to 2nd and 3rd plaintiffs; that the simple sale deed dated 07.09.1993 under which the 1st plaintiff claimed to have purchased the suit schedule land is created one; that the 1st plaintiff’s vendor was not having any right over the suit schedule land; that the suit drain has been in existence in the lands since 50 years; that the drain water and natural water from Subhashnagar area go through the drain constructed by the side of Government Hospital and further flow through a culvert which was constructed on 60 feet road in western side of the suit drain; that the said drain further flow towards the suit drain and there is heavy flow of water in the suit drain; that there is no other way for flowing of the said water and the other drains also join the suit drain; and that the plaintiffs with an intention to grab the land covered by the suit drain created false documents and set up false claim with a view to construct a pacca drain. It is further averred that the land covered by 40 feet road on the southern side of the suit property was acquired by the municipality for laying road and it neither belongs to plaintiffs nor Burhanuddin and that the suits filed by Jahangeer Bee and others in O.S.No.124 of 1979 and Burhanuddin in O.S.No.105 of 1983 against the municipality in respect of the land covered by the 40 feet road on the southern side of the drain were dismissed. Therefore, the suit is liable to be dismissed. On the basis of the pleadings, the following issues have been framed for trial. 1. Whether the plaintiffs are the owners of the plaint schedule property and are entitled for declaration of title? 2. Whether the plaintiffs are entitled for perpetual injunction? 3. To what relief? To substantiate their case, on behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.6 were marked, and on behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.4 were marked. Upon considering the oral and documentary evidence on record, the trial Court came to the conclusion that the plaintiffs failed to establish their case and, accordingly, dismissed the Suit. On appeal, the said judgment and decree of the trial Court was confirmed. Challenging the same, the present appeal is filed. 3. The learned counsel for appellants contended that under Ex.A.1 sale deed, the plaintiffs got title to the property and in pursuance of Ex.A.1 the plaintiffs were put in possession of the property, and even if Ex.A.1 was not registered, the same can be used for collateral purpose namely proving possession of the plaintiffs and, therefore, in view of the fact that they are in possession of the property, they are entitled for injunction and that aspect has not been considered by both the Courts below and, therefore, perverse findings of both courts below can be said to be substantial questions of law involved in the appeal. 4. For entertaining a second appeal under Section 100 CPC, the appellants must show that substantial questions of law are involved therein. Even the question of law does not confer any right to the parties to file a second appeal. If the findings of the courts below are not based upon proper appreciation of evidence on record or the findings are perverse, they can be said to be substantial questions of law. The plaintiffs’ suit is based upon Ex.A.1, which is admittedly an unregistered document. The value of the property is more than Rs.100/- as the sale consideration mentioned in Ex.A.1 is Rs.4,500/-. So, a right, title and interest in an immovable property of the value of more than Rs.100/- cannot be transferred except by way of registered instrument as contemplated under Section 54 of the Transfer of Property Act, 1882. Similarly, an instrument creating a right, title and interest is compulsorily registerable as contemplated under Section 17 of the Registration Act, 1908. Since Ex.A.1 sale deed whose value is more than Rs.100/- is not registered, it does not confer any right, title or interest to the plaintiffs. Therefore, both the Courts below rightly resolved the issue holding that the plaintiffs failed to establish their right, title or interest in respect of the suit schedule property and, therefore, they are not entitled to the declaration as sought. 5. The learned counsel for appellants-plaintiffs contended that in view of the recitals in Ex.A.1 the plaintiffs have proved that they are in possession of the property and so they are entitled to the relief of perpetual injunction against the defendants and the persons claiming through them in respect of the suit schedule property. In support of his contention, he placed reliance on the decision of this Court in VANGALA LAXMAMMA vs. PASHAM NARSI REDDY AND OTHERS[1] wherein in para-13 it is held that- “It is also well settled that if an unregistered document is sought to be relied on for collateral purpose under proviso to Section 49, the party has to pay the stamp duty and penalty, vide decision of this Court in Palampalli Rama Subba Reddy v. Palampalli Subba Reddy 2005 (6) ALT 601 = 2005 (5) ALD 274.” There is no dispute that under Section 17 of the Registration Act, 1908, a document, the registration of which is compulsory, is not registered, in view of the proviso to Section 47 of the Registration Act, it can be used for collateral purposes. 6. The learned counsel for the appellants has also placed reliance on the decision of the Apex Court in M.K.SETTY v. M.V.L. RAO[2] wherein in para-5 it is held that- “So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff’s case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore in our opinion, the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No.2.” In that case a categorical finding has been given by the trial Court as well as the first appellate Court to the effect that the plaintiff therein was in possession of the property. But, in the instant case, except the oral assertion of the appellants-plaintiffs that they were in possession of the suit schedule land, absolutely no evidence is placed before the trial Court to prove the same. The recitals in Ex.A.1 cannot be taken as a substantive evidence so as to conclude that in pursuance of Ex.A.1 the plaintiffs were in possession and enjoyment of the property in the absence of any other supporting evidence. On the other hand, the evidence of the defendants would clearly go to show that the suit property is a drain which is in existence for the last 50 years and the drain water and rain water from Subhashnagar area flow through a pacca drain constructed in Government Hospital area and further flow through a culvert of 60 feet road and joins in the suit drain. Further P.W.1 admitted with regard to natural flow of water through the suit land. He also admitted that the waste and syllage water from the Government Hospital flows through the suit land and that there is a 50 feet road between the hospital and the suit land. If such is the case, question of plaintiffs being in possession of the suit schedule property does not arise in view of the fact that the suit land appears to be a drainage whereby the wastewater and syllage water from the Government Hospital flows. Therefore, the possession as claimed by the plaintiffs in pursuance of Ex.A.1 cannot be accepted. There is absolutely no evidence to show that the plaintiffs have been in continuous and uninterrupted possession of the property since long time and so they are not entitled to the relief of injunction sought. Therefore, having regard to the concurrent findings recorded by both the Courts below, there is no question of law much less substantial question of law involved in the appeal. When there is no substantial question of law involved in the appeal, question of admitting the same does not arise and, therefore, the same is liable to be dismissed. 7. Hence, the Second Appeal is dismissed at the stage of admission. No costs. _______________ K.C.BHANU, J 19th OCTOBER 2010 CVRK [1] 2010 (3) ALT 165 [2] AIR 1972 SUPREME COURT 2299