HON’BLE MR JUSTICE R. KANTHA RAO S.A.NOs.73 and 81 OF 2004 DATED: 18.07.2011 BETWEEN: Thirthala Rajanna .. Appellant And Kasarapu Jakkaiah (died) per LRs and others .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO S.A.NOs.73 and 81 OF 2004 COMMON JUDGMENT: I have heard the learned counsel appearing for the contesting parties. For the convenience sake, the parties will be referred as ‘the plaintiffs and the defendant’. These two second appeals are filed by the defendant against the decree and judgment dated 29.10.2003 passed by the Senior Civil Judge, Peddapalli in A.S.No.18 of 2001 reversing the judgment and decree dated 24.08.2001 passed by the Junior Civil Judge, Sulthanabad in O.S.No.204 of 1995. The brief facts necessary for considering these second appeals may be stated as follows: The subject matter of the dispute is a vacant land of 250 sq. yards situate in the limits of Grampanchayat, Odela, Karimnagar District. Admittedly the deceased-first plaintiff purchased the schedule mentioned land from Manda Sailu and Manda Uppalaiah, who are the original owners under a registered sale deed, dated 04.05.1984 for a consideration of Rs.8,000/-. This fact is not in dispute. The plaintiffs’ claim is that since the date of purchase, the deceased-first plaintiff has been in possession and enjoyment of the suit land. The deceased-first plaintiff leased out a portion of suit land to one Sutrala Swamy on 19.10.1994 and the lessee had installed a barber shop in the said site. The version of the plaintiffs is that the defendant without any manner of right whatsoever and with an intention to grab the suit land filed suit for eviction against Sutrala Swamy, who is the lessee of the first plaintiff vide O.S.No.111 of 1995 claiming to be the title holder of the suit site and that the deceased-first plaintiff come to know about the decree fraudulently obtained by the defendant against him in O.S.No.650 of 1990. O.S.No.650 of 1990 was filed by the defendant for declaration of his title and injunction. The said suit ended in a consent/compromise decree on the ground that the plaintiffs consented for passing of said decree signing in the written statement filed by the defendant therein. After coming to know about passing of the said decree, the deceased-first plaintiff filed O.S.No.650 of 1990 for cancellation of the decree and also for perpetual injunction against the defendant. The contention of the defendant as could be seen from the written statement filed in O.S.No.204 of 1995 is that the plaintiffs sold the suit land to him in the year 1990 and advised the defendant to file a suit for declaration of title to avoid stamp duty payable to the Government and thereafter, admitted the suit claim by filing written statement and allowed consent decree to be passed. According to the defendant, the plaintiffs never leased out the suit site to Sutrala Swamy, who illegally obtained the suit land and installed a wooden tela (Barber shop) without seeking permission of the defendant. The defendant asserted that the plaintiffs very well knew about passing of the decree in O.S.No.650 of 1990 and in fact, the deceased-first plaintiff sold the suit schedule site to him and subsequently turned round and filed suit in relation to which the second appeals came to be filed. Before the trial Court, PWs.1 to 4 were examined and Exs.A.1 to A.4 were marked on behalf of the plaintiffs and DWs.1 to 4 were examined and Exs.B.1 to B.3 were marked on behalf of the defendant. The learned trial Court upon considering the entire evidence on record with reference to the pleadings of the parties, partly decreed the suit filed by the plaintiffs by cancelling the decree dated 02.05.1990 in O.S.No.650 of 1990, but dismissed the suit as regards the relief of permanent injunction. The view taken by the trial Court is that neither the plaintiffs nor the defendant could be able to prove the possession in respect of the suit site, therefore, the plaintiffs are not entitled for the relief of permanent injunction. Aggrieved by the said decree and judgment, the defendant filed A.S.No.18 of 2001 and the plaintiffs filed cross objections against the said decree. The Senior Civil Judge, Peddapally heard and dismissed the appeal filed by the defendant and allowed the cross objections filed by the plaintiffs granting perpetual injunction in their favour. Against the said judgment in the appeal and the cross objections, the present second appeals are filed by the defendant. The first appellate Court concurred in all respects with the trial Court in so far as the finding of relief of perpetual injunction is concerned on the ground that since admittedly the plaintiff No.1 is the owner of the property and it was found that the defendant is not in possession of the property and also he obtained decree for declaration of title in respect of the suit land in O.S.No.650 of 1990 by playing fraud. The second appeals were admitted on raising the substantial questions of law which are to the effect that the findings of the trial Court as well as the first appellate Court are perverse and not based on evidence. This Court entertains the second appeal only when there are any substantial questions of law involved for consideration. In so far as the findings of fact, arrived at by the first appellate Court are concerned, this Court will not indulge in reappraising the evidence, even though, a view different from that of the first appellate Court is possible. Thus, unless the findings recorded by the first appellate Court are perverse, this Court will not interfere with the findings in the second appeal. For cancellation of the decree and judgment in O.S.No.650 of 1990, both the Courts below have recorded a finding that admittedly the deceased-first plaintiff purchased the suit schedule land on 04.05.1984 under a registered sale deed. In the plaint in O.S.No.650 of 1990, the defendant stated that the deceased-first plaintiff sold the suit land in the year 1990 and thereafter, he obtained consent decree on 02.05.1990. His evidence before the trial Court is that he purchased the suit land even prior to 1984 and asserted that even before the plaintiff obtaining the registered sale deed he purchased the property from the plaintiff under a simple sale deed The version that the plaintiff himself advised the defendant to file a suit to avoid huge amount of stamp duty and registration charges payable to the Government is not believed by both the Courts below. One of the vendors of the plaintiff was examined as PW.4 and he had categorically stated in his evidence that the plaintiff purchased the suit site from him under registered sale deed in the year 1984. It was rightly held by both the Courts below that the plaintiff himself purchased the suit land in the year 1984, and the question of defendant purchasing the suit land even prior to 1984 does not arise. Whereas DW2, who was examined on behalf of the defendant stated that the defendant purchased the suit land from the first plaintiff for a consideration of Rs.14,000/- under simple sale deed and when the defendant demanded execution of registered sale deed, the deceased- first plaintiff stated that the registration requires more money for stamps and registration charges and advised him to obtain a Court decree. Both the Courts below found the evidence of DW2 inconsistent with that of DW1 with regard to purchase of land under simple sale deed and any such simple deed was not filed before the trial Court. Both the Courts below have accepted the factum of handing over the original sale deed-Ex.P.2 by the plaintiff No.1 to the defendant but no other evidence has been placed on record by the defendant to show that he purchased the suit land from the first plaintiff. Thus, basing on the evidence adduced on either side both the Courts below concurrently held that the defendant himself filed the suit and got filed written statement of the deceased-first plaintiff by forging the signature and also held that it had been fraudulently obtained by the defendant. The first appellate Court also expressed the view that since a decree was obtained with a view to defraud the Government by avoiding stamp duty and registration charges, the alleged sale deed is invalid under Section 64 of the Transfer of Property Act. Thus, both the Courts below have rightly recorded concurrent findings that the decree and judgment obtained by the defendant in O.S.No.650 of 1990 is by fraudulent means and consequently cancelled the said decree. The decree and judgment passed by both the Courts below canceling the said decree do not require any interference in the second appeal since they are based on evidence and also in consideration of the pleadings of both the parties. In so far as the relief of permanent injunction is concerned, admittedly, the plaintiff purchased the suit land under a registered sale deed, dated 04.05.1984 for an amount of Rs.8,000/- from Manda Sailu and Manda Uppalaiah. Therefore, he is the absolute owner of the property. The defendant failed to prove the sale of the said land to him by the plaintiff. The decree obtained by him which was said to be with the consent of the deceased-first plaintiff was cancelled by both the Courts below by recording a finding that it had been obtained by fraudulent means and as rightly contended by the learned counsel appearing for the deceased-first plaintiff (respondent) since it is only a vacant land in the Grampanchayat, it was not possible for the plaintiff to produce any pahanies or any other documentary evidence in proof of his possession. The defendant stated in his oral evidence that he constructed a house in the suit land and leased out the same for running a small hotel and selling the liquor. The evidence of PWs.1 to 3 shows that the plaintiff leased out the suit land to Sutrala Swamy for running a barber shop, he was evicted by the defendant by the decree of Court in O.S.No.111 of 1995. Absolutely, there is no evidence to show that the defendant occupied the land and thereafter he is in continuous possession of the land. Exs.B.1 and B.3 are the certificates issued by the Sarpanch, Odela Grampanchayat showing that the defendant has got house in the plaint schedule vacant site. But, as rightly held by both the Courts below, the defendant did not plead in the written statement that he constructed any house in the plaint schedule vacant site. Only in his oral evidence, he stated that he constructed a house in the suit schedule site. Thus, both the Courts below rightly held that the theory that he was in possession of the suit land and also constructed thatched house in the schedule mentioned site and leased out the same for selling liquor and running a small hotel cannot be accepted since there is no such pleading in the written statement. Though, the trial Court refused the relief of perpetual injunction, the first appellate Court rightly granted decree of permanent injunction by allowing the cross objections on the ground that the plaintiff has been in possession of the suit land and the said finding does not require any interference, because admittedly the title of the suit land vests in the plaintiffs and unless contrary is proved the plaintiffs are deemed to be in possession of the plaint schedule site. The defendant failed to prove that he is in possession of the suit schedule site. Therefore, the first appellate Court did not commit any error in coming to the conclusion that the deceased-first plaintiff was deemed to be in possession of the schedule mentioned property which is a vacant site and rightly granted permanent injunction in favour of the plaintiffs. No substantial question of law arises for consideration in these second appeals. The second appeals are therefore, dismissed. There shall be no order as to costs. ___________________ Date: 18.07.2011 R. KANTHA RAO, J Kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NOs.73 and 81 OF 2004 DATE: 18.07.2011