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.576 of 2010 Between: N. Devidas ..Appellant AND T. Musaliah and others .. Respondents JUDGMENT: Heard Sri V. Subramanyam, learned counsel for the appellant. This Second Appeal is directed against the judgment and decree in A.S.No.5 of 2006 on the file of the Court of III Additional District Judge (Fast Track Court), Medak, dated 14-11-2008. The factual background for the second appeal is that respondents 1 and 2 herein filed O.S.No.17 of 2001 on the file of the Court of Junior Civil Judge, Medak, against the appellant and the 3rd respondent herein, claiming a permanent injunction from interfering with the possession and enjoyment of respondents 1 and 2 over the suit property. Respondents 1 and 2 claimed that their family came and settled in Medak about 30 years back and constructed a hut in Jambikunta locality of Medak town in the land belonging to the Government and later the Government assigned 160 square yards to each of the respondents 1 and 2 in Survey No.567 totalling to 320 square yards. Then the respondents 1 and 2 obtained permission from the authorities for constructing a hut and a door number was also given by the Municipal Authorities in 1-12-15/P. Thereafter, the respondents 1 and 2 also raised a compound wall around the land and the Tap connection permission, Ration Card, Patta certificates, demand for water charges, the voters list, the payment of property tax, the electricity connection and consumption bills etc., proved their possession and enjoyment. The respondents 1 and 2 claimed that the appellant and the 3rd respondent herein were pressuring them to sell the suit property and trying to interfere with their possession and hence, the suit. The appellant and the 3rd respondent contested the suit claiming that the suit property was allotted by the Municipality to them and their names were mutated in the municipal records and taxes are being collected against the same. The appellant and the 3rd respondent further claimed that they are in possession and enjoyment, which the Municipal Council never objected and hence, sought for dismissal of the suit. They also referred to W.P.No.10504 of 2001 filed by them before the High Court against the Municipality and the Mandal Revenue Officer and other unofficial respondents in which they obtained an interim direction in W.P.M.P.No.13096 of 2001 against dispossession and they also claimed that they initiated criminal action against the respondents 1 and 2 in Cr.No.47 of 2001 also. On such conflicting pleadings, the trial Court framed issues about the possession of respondents 1 and 2 on the date of the suit, their entitlement to the permanent injunction, the ownership of the property with the Municipality and the possession of the appellant and the 3rd respondent herein on the date of the suit. During trial, the trial Court examined PWs.1 and 2 and DW.1 and marked Exs.A.1 to A.13 and C.1. The trial Court in its judgment dated 24-11-2005 discussed the rival contentions and evidence in detail and found that the defendants in the suit did not produce any documentary evidence and the evidence of PWs.1 and 2 and the documents relied on by them were considered to have probablised the title and possession of the plaintiffs over the suit property and it was noted that the writ petition said to have been filed by the defendants was not against the plaintiffs in the suit. The inconsistent stands taken by DW.1 about the property belonging to the Government, which was allotted to him or about the property belonging to the Municipality, which was allotted, were also noted. Therefore, the trial Court came to the conclusion that the plaintiffs are entitled for permanent injunction in the light of the property being probablised to be the Government property, which was granted patta to the plaintiffs and not the property of the Municipality. The decree of the suit accordingly with costs led the appellant and the 3rd respondent herein to file A.S.No.5 of 2006 before the III Additional District Judge (Fast Track Court) and the first Appellate Court rendered its judgment on 14-11-2008, dismissing the first appeal, agreeing with the conclusions arrived at by the trial Court. The first Appellate Court also observed that the documents clearly show the possession of the plaintiffs over the suit property and noted that in the absence of marking the orders of the High Court in W.P.M.P.No.13096 of 2001 in W.P.No.10504 of 2001, the same could not have received any consideration. The first Appellate Court also noted that on issuance of Patta Certificates in favour of the plaintiffs, their illegal possession was legalized by the Government itself and the defendants did not produce any document to the contrary. Therefore, the appeal was also dismissed with costs. The appellant challenges the said judgment and decree in the second appeal primarily on the ground of the Courts below not appreciating the evidence on record in a proper manner. The appellant also contended that substantial questions of law, which arise for consideration, are about justification for the Courts below to decree the suit of the plaintiffs and granting permanent injunction and the absence of justification for not taking into consideration the order of the High Court in W.P.10504 of 2001. Section 100 of the Code of Civil Procedure makes it mandatory that a second appeal shall be admitted for consideration only if the High Court is satisfied that there are substantial questions of law involved in the matter. The High Court is obliged to formulate such questions of law and under Order XLII of the Code of Civil Procedure, the hearing of the Second Appeal shall be confined only to such questions so formulated and the Apex Court has made it clear repeatedly that a Second Appeal cannot be admitted as a matter of course without the existence of any substantial question of law for consideration. With that background, if the facts and circumstances in the present case are examined, there appeared no substantial question of law involved and the justification for the Courts below to grant a decree in favour of the plaintiffs for a permanent injunction is based on the appreciation of evidence placed before them by the plaintiffs and a close perusal of the material on record disclosed that the plaintiffs have not only deposed orally through PWs.1 and 2 about their possession and enjoyment by the date of their suit, but also probablised such possession by the production of Patta Certificates, the receipt for payment of tax, Ration Card, permission for tap connection, electricity bills and voters list to contradict which there was no acceptable evidence for the defendants except the interested claims of DW.1 himself. Though it is true that W.P.No.10504 of 2001 was referred as governing possession of the suit property by the defendants in the written statement and the evidence of DW.1, apart from not marking any proceedings connected with W.P.No.10504 of 2001 through DW.1, it is also to be noted that the plaintiffs in the suit were not parties to the said writ petition, and therefore, could not have been bound by any proceedings or orders in the said writ petition. No provision or principle of law has been brought to notice by which the plaintiffs can be said to be vitiated in their claim by the proceedings in W.P.No.10504 of 2001 to which they were not parties. If so, no substantial question of law is arising in the Second Appeal and the second appeal has to fail at the stage of admission. In the result, the Second Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-07-2010 Ksn