Madupuru Kesavulu Naidu (died) by LRs. vs Gottipati Narasimhulu Naidu and another

This appeal is directed against the judgment and decree dated 31-12-1988 passed in AS No.107 of 1980 on the file of the Additional Subordinate Judge, Chittoor, confirming the judgment and decree dated 24-3-1975 passed in OS No.75 of 1970 on the file of the Principal District Munsif, Chittoor.

The appellants herein are the legal representatives of the original plaintiff and the respondents herein are the defendants in the said suit OS No.75 of 1970. The said suit was filed for declaration of the first plaintiffs title and for permanent injunction with respect to the suit property which consists of Ac. 10.56 cents in Paimaish No.42 situated in Pulicherlapalem village in Chandragiri taluq in Chittoor District. The second plaintiff is the son of the first plaintiff. The case of the plaintiffs is that the suit land originally belonged to the second defend ant- Karenna as he got it under ryotwari patta issued by the Government in BPRT No.277/57, dated 26-4-1957. The first plaintiff purchased the suit property under two documents dated 10-8-1959; under the registered sale deed Ex.Al the first plaintiff purchased an extent of Ac.3.97 cents; under the agreement Ex.A2 dated 10-8-1959 the first plaintiff purchased the remaining extent of Ac.6.59 cents and he was put in possession of full extent of Ac.10.56 cents on the same date and he remained in exclusive possession and enjoyment of the suit property in his own right, title and interest. When the first defendant attempted to trespass into the suit property in the middle of October, 1969, the plaintiffs filed the said suit seeking the reliefs as stated supra.

The second defendant-Karenna remained ex parte. The first defendant resisting the claim of the plaintiffs filed his written statement contending that he purchased an extent of Ac.6.59 cents in Paimaish No.42 from the second defendant under registered sale deed dated 2-11-1967 (Ex.B1) for a consideration of Rs. 1,000/-and he has been in possession and enjoyment of the said land since date of sale in his favour, that the said extent of Ac.6.59 cents was included in the forest poramboke and that he got it released from the said forest poramboke by the Forest Settlement Officer by an order dated 16-12-1968 (F,x.B6) and that the plaintiffs were never in possession and enjoyment of the said extent of Ac.6.59 cents and that the plaintiffs'' suit is not maintainable.

On the basis of the pleadings, the trial Court settled the following issues for trial:

(i) Whether the agreement dated 10-8-1959 executed by Karrenna in favour of the plaintiff is true and whether the 1st defendant has knowledge about the agreement prior to his purchase ?

(ii) Whether the plaintiff is in possession of the entire suit property ?

(iii) Whether me sale deed dated 2-11-1967 executed by Karrenna in favour of the 1st defendant is true, valid and binding ?

(iv) Whether the patta granted in favour of the defendant covers a portion of the plaint/schedule property ?

(v) Whether the defendant is in possession of Ac.6.68 cents of the plaint schedule property ?

(vi) To what relief ?

During the course of trial, PWs.1 to 3 were examined and Exs.A1 to A7 were marked on behalf of the plaintiffs. The plaintiffs 1 and 2 were examined as PWs.1 and 2 respectively. DWs.1 to 3 were examined and Exs.B1 to B15 were marked on behalf of the first defendant. The first defendant got himself examined as DW1. On a consideration of the oral and documentary evidence on record, the learned District Munsif held on issue No.1 that the agreement Ex.A2 dated 10-8-1959 said to have been executed by the second defendant-Karrenna in favour of the first plaintiff is not true, and that the first defendant had no knowledge of the said agreement prior to his purchase of the suit land under Ex.B1. On issue No.2 it is held that the first plaintiff is not in possession of the suit property and on Issue No.3 it is held that the sale deed, Ex.B1, dated 2-11-1967 executed by D2 Karrenna in favour of the first defendant is true, valid and binding on the plaintiffs. On issue No.4 it is held that the ryotwari patta under Ex.B6 dated 6-12-1968 granted by the Forest Settlement Officer, Nellore, covers the suit schedule property and on Issue No.5 it is held that the first defendant is in possession and enjoyment of the Ac.6.59 cents of the suit property. Consequently, on issue No.6 the trial Court dismissed the plaintiffs'' suit with costs of the first defendant.

On appeal by plaintiffs in AS No.107 of 1980 the learned Additional Subordinate Judge, Chittoor, confirmed all the findings of the trial Court and dismissed the appeal with costs. Aggrieved of that, the plaintiffs have come up with this second appeal.

Heard the learned Counsel on either side and perused the impugned judgment of the lower appellate Court as well as the judgment of the trial Court and also the evidence on record.

The learned Counsel for the appellant submits that both the Courts below failed to appreciate the evidence on record properly and failed to come to correct conclusions and it resulled in miscarriage of justice and as the findings of the both the Courts below are perverse and based on no evidence, this Court has to interfere exercising the jurisdiction u/s 100 CPC. On the other hand, the learned Counsel for the respondent-first defendant submits that both the Courts below have considered the entire oral and documentary evidence on record in correct perspective and the findings are not based on surmises or on no evidence and the findings are concurrent findings of fact and no substantial questions of law involved and there is no justification for interference in well considered judgments of the Courts below.

It is well settled that the jurisdiction of the High Court to entertain a second appeal u/s 100 CPC after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a mere question of law, is the sine qua non for the exercise of the jurisdiction u/s 100 CPC. In Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, , the Apex Court held that "High Court cannot set aside the findings of fact of the first appellate Court and come to a different conclusion on reappraisal of the evidence". There are innumerable subsequent decisions of the Supreme Court which have held that the concurrent findings of fact of the trial Court and the first appellate Court cannot be interfered with by the High Court in exercise of its jurisdiction u/s 100 CPC vide Smt. Kamala Devi Budhia and Others Vs. Hem Prabha Ganguli and Others, , Smt. Jahejo Devi and Others Vs. Moharam Ali, , P. Velayudan v. Kurunghat Imichivia Moidu, etc., 1990 Supp. SCC 9, Ramaswamy Kalingaryar Vs. Mathayan Padayachi, and Kashibai and Another Vs. Parwatibai and Others, ; Ramanuja Naidu Vs. V. Kanniah Naidu and anothers, . Again in Naveneethammal v. Arjun Chetty, AIR 1996 SC 3521, their Lordships of the Supreme Court reiterated thus :

"This Court, time without number, pointed out that interference with the concurrent findings of the Courts below by the High Court u/s 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower Courts."

It is clear from this catena of precedents of the Supreme Court that where the first appellate Court had considered the evidence on record by applying its mind independently and considering the reasoning of the trial Court and thereafter concurred with the findings of the trial Court, the same does not deserve to be interfered with. Interference would be justified if the finding reached by the lower appellate Court is vitiated by the non-consideration of the relevant evidence or the approach to decide the case is quite erroneous. The High Court can also interfere when there is perversity in finding of fact and the findings reached are not based on any evidence or they are the result of surmises and conjectures.

A perusal of the judgment of the trial Court and also the first appellate Court in this case amply discloses that the concurrent findings reached by both the Courts below are based on the evidence on record and they are not the result of surmises or conjectures. There is also no reason to hold that the findings of fact of both the Courts below are perverse or based on no evidence. I do not find any substantial question of law involved in this appeal. Hence, the second appeal is liable to be dismissed.

In the result, the second appeal is dismissed with costs throughout. The judgments and decrees of both the Courts below are confirmed.