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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
A. VENKATESHWARA REDDY, J.
Pilly Gopal – Appellant
Versus
Pilly Ramulu – Respondent
Second Appeal No.9 of 2016
Decided on : 04-03-2022
Mandatory Injunction - Property Dispute - Code of Civil Procedure, 1908 - Section 100 - Order XLI Rule 31 - Sections 96 and 100 - Easementary Act - [KEY LEGAL PROVISIONS: Order XLI Rule 31, Section 100 C.P.C., Easementary Act] - The court discussed the scope of Order XLI Rule 31 C.P.C., and Sections 96 and 100 C.P.C. in relation to the judgment of the first appellate Court. It emphasized the requirement for the first appellate Court to set out points for determination, record the decision thereon, and give its own reasons, even when affirming the judgment of the trial Court. The court also highlighted the need for the existence of a substantial question of law as a prerequisite for the exercise of jurisdiction under Section 100 C.P.C. It emphasized that the High Court's jurisdiction is confined to entertaining only such appeals that involve substantial questions of law specifically set out in the memorandum of appeal and formulated by the Court. The judgment underscored that in a regular second appeal, the High Court can interfere with the concurrent findings of the Courts below only on the substantial question of law framed at the time of admission of appeal or reframed or substituted later at the time of arguments. The court also emphasized that such concurrent findings on facts by the trial Court and the first appellate Court, based on the material available on record, are binding on the second appellate Court and normally cannot be interfered or disturbed in the second appeal.
Fact of the Case:
The plaintiff filed a suit for mandatory injunction against the defendants, alleging encroachment and deprivation of easementary rights. The trial Court dismissed the suit, and the first appellate Court confirmed the decision, leading to the second appeal.
Finding of the Court:
The Court found that no substantial question of law was involved in the grounds of appeal, and the second appeal was dismissed at the admission stage. It emphasized that the existence of a substantial question of law is a prerequisite for the exercise of jurisdiction under Section 100 C.P.C. and that the High Court's jurisdiction is confined to entertaining only such appeals that involve substantial questions of law specifically set out in the memorandum of appeal and formulated by the Court.
Issues: The issues revolved around the plaintiff's claim of encroachment and deprivation of easementary rights, the findings of the trial Court and the first appellate Court, and the grounds of appeal in the second appeal.
Ratio Decidendi: The judgment emphasized the requirement for the existence of a substantial question of law as a prerequisite for the exercise of jurisdiction under Section 100 C.P.C. It underscored that the High Court's jurisdiction is confined to entertaining only such appeals that involve substantial questions of law specifically set out in the memorandum of appeal and formulated by the Court. It also highlighted that concurrent findings on facts by the trial Court and the first appellate Court, based on the material available on record, are binding on the second appellate Court and normally cannot be interfered or disturbed in the second appeal.
Final Decision: The second appeal was dismissed at the admission stage, and there was no order as to costs. Miscellaneous Petitions pending in the second appeal were closed.
JUDGMENT:
This Second Appeal is preferred against the judgment and decree dated 27.02.2015 in A.S.No.15 of 2013 on the file of the Judge, Family Court-cum-VIII Additional District and Sessions Judge, Mahabubnagar. A.S.No.15 of 2013 was preferred against the judgment and decree dated 01.04.2013 in O.S.No.51 of 2005 on the file of the Junior Civil Judge, Mahabubnagar. O.S.No.51 of 2005 was filed for mandatory injunction by the plaintiff against the defendants. The trial Court, after careful appreciation of oral and documentary evidence, dismissed the suit answering the issues 1 to 5 against the plaintiff holding that the plaintiff is not entitled for mandatory injunction.
2. Feeling aggrieved by the said judgment and decree dated 01.04.2013 in O.S.No.51 of 2005, the plaintiff preferred A.S.No.15 of 2013 on the file of the Judge, Family Court-cum-VIII Additional District and Sessions Judge at Mahabubnagar. The first appellate Court has confirmed the judgment and decree passed by the trial Court and dismissed the appeal without costs.
3. The first appellate Court in penultimate paragraph observed as under:
4. Aggrieved by these findings recorded by the trial Court and the first appellate Court, this second appeal is filed by the plaintiff under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’). As per the memorandum of appeal, the following substantial questions of law are mentioned:
ii) Whether the action of the respondent/defendant in raising the compound wall more than the height indicated in the sanctioned plan affects the easement right of the plaintiff/appellant?
iii) Whether the Court below is right in observing that the appellant failed to prove the easement right of free flow of air and light in view of the construction of compound wall contrary to Ex.A2 plan and appellant proved the existence of his house which is going to affect due to construction made by the respondent/defendant under Ex.B7 in 2003? Thus, the plaintiff proved his case from 1960 to 2003 i.e., more than statutory period under the Easementary Act.”
5. I have given my thoughtful consideration to the above substantial question of law extracted from the Memorandum of Appeal, none of these points involved any general question of law much less substantial question of law. However, learned counsel for the appellant has relied on the principles laid down in Malluru Mallappa (Dead) through Legal Representatives Vs. Kuruvanthappa and Other
The existence of a substantial question of law is a prerequisite for the exercise of jurisdiction under Section 100 C.P.C., and the High Court's jurisdiction is confined to entertaining only such app....
In a second appeal, the High Court will not interfere with concurrent findings of fact unless a substantial question of law is involved.
The High Court cannot interfere with concurrent findings of fact unless they are perverse; a substantial question of law must be established for a second appeal under CPC.
The central legal point established in the judgment is the interpretation of the evidence and the application of the legal principles, including the provisions of the Easement Act, 1882, to determine....
The duty of the appellate court to decide on applications filed under relevant CPC rules and the requirement for proper assessment of evidence in property disputes.
The importance of evidence in proving claims and the limited scope of interference in second appeals under Section 100 CPC.
(1) Second Appeal – Second appeal cannot be decided on equitable grounds and conditions mentioned in Section 100 read with Order XLII Rule 2 of C.P.C. must be complied to admit and maintain a second ....
Easementary rights claims must be substantiated by admissible evidence; a second appeal under Section 100 CPC requires a substantial question of law, not mere factual disputes.
Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.
The court's decision was based on the finding that the plaintiff had encroached on the defendant's land and failed to prove their case. The court also held that there was no substantial question of l....
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