| SA 134 / 2013 | SASR 4701 / 2013 |
|
published in http://164.100.12.10/hcorders/orders/2013/sa/sa_134_2013.html
HON'BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL No.134 of 2013
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 22.11.2012, passed in A.S.No.14 of 2007 on the file of the Senior Civil Judge, Tadepalligudem, whereunder and whereby, the judgment and decree, dated 11.08.2006 passed in O.S.No.357 of 2000 on the file of the Principal Junior Civil Judge, Tadepalligudem, were set aside.
2. The appellant herein is the plaintiff and the respondents herein are the defendants, in O.S.No.357 of 2000. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial court
3. The suit, O.S.No.357 of 2000 is filed by the plaintiff for declaration that the suit schedule property belongs to him and for consequential relief of its possession.
4. The brief facts that are necessary for filing of the second appeal are that, the first defendant-Mandal Revenue Officer, Ganapavaram is authorised to issue House site allotment orders according to the orders of the third defendant-District Collector, West Godavari District, Eluru.
Thereafter, the plaintiff was allotted House site of an extent of Ac.0-02 cents in R.S.No.344/1 under Ex.A-1 order in ROC.A 305/99 on 24.06.1999.
But the said house site was not delivered to the plaintiff for the reasons best known to defendants 1 to 3. Hence the suit.
5. The first defendant filed a written statement stating that on the basis of the recommendations made by the Revenue Inspector, the allotment orders were issued and thereafter during enquiry, it is revealed that the alottee and his father are financially sound and having house and house sites of their own. Then a report was submitted to the District Collector, West Godavari District, Eluru. Subsequently, the Joint Collector, West Godavari District, Eluru vide order dated 03.03.2001 cancelled the house site allotment orders and therefore the plaintiff has no right to challenge the same.
6. Basing on the above pleadings, the following issues have been framed for trial:
1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the plaintiff is entitled for possession of the plaint schedule property as prayed for?
3. If so, to what relief?
7. During trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-6 were got marked. On behalf of the defendants, DW.1 was examined and Exs.B-1 to B-3 were got marked.
8. The trial Court after considering the evidence on record, came to conclusion that Ex.B-3 cancellation order is not binding on the plaintiff, the allotment order under Ex.A-1 is valid and enforceable and therefore, the plaintiff is entitled for declaration as prayed for and decreed the suit.
9. On appeal, the judgment and decree of the trial court have been set aside. Challenging the same, this second appeal has been filed.
10. The learned counsel for the appellant/plaintiff contended that at the behest of the local M.L.A and the Minister, Ex.B-3 cancellation order was issued; that the lower appellate Court has wrongly placed the burden of proof on the plaintiff; that Ex.B-3 cancellation order during the pendency of the suit is not binding and Ex.B-2 report is biased and motivated and hence, he prays to admit the appeal.
11. In view of the amendment to Section 100 CPC admission of Second Appeal is not routine and the appellants must show the Second Appeal involves a substantial question of law. Substantial question of law has not been defined but it has been stated that it substantially affects the rights of the parties. When the findings are not based upon admissible evidence or when inadmissible evidence has been taken into consideration or when both the courts below gave a perverse finding, then it can be said that a substantial question of law is involved.
12. The suit is based upon Ex.A-1 allotment order of house site to the appellant/plaintiff of an extent of Ac.2-00 cents of land in Survey No.344/1 of Appannapeta, Ganapavaram Mandal. It is not in dispute before this Court that after issuance of Ex.A-1 allotment order dated 24.06.1999, revenue officials conducted an enquiry with regard to the properties of the plaintiff. Since the M.R.O is not competent to cancel Ex.A-1, they submitted the report to the District Collector. Basing on Ex.B-2 report given by the Mandal Revenue Officer, Ganapavaram, the Joint Collector of West Godavari District passed Ex.B-3 orders canceling the allotment orders issued in Ex.A-1.
13. The basis for cancellation was that the plaintiff and his father are affluent persons and they are having their own house sites and houses in the same village. When the reasons for cancellation of Ex.A-1 allotment order are not acceptable to the plaintiff, then the remedy of the plaintiff is to challenge the cancellation order Ex.B-3. So long as Ex.B-3 is steering at the plaintiff, he cannot have any right to seek for declaration. Similarly, there is no factual foundation, as to why Ex.B-3 has to be set aside or revoked. No doubt, Ex.B-3 was passed during the pendency of the suit. But at the same time, the plaintiff has not taken any steps to amend the plaint so as to challenge Ex.B-3.
14. In the absence of any factual foundation and in the absence of any evidence, the trial Court came to a conclusion that Ex.B-3 is not binding on the plaintiff. So, such a finding is perverse and that is the reason why, the first appellate Court set aside the same and dismissed the suit.
15. The appellate Court rightly appreciated the evidence on record and came to correct conclusion. The appreciation of evidence is not shown to be perverse or contrary to law. When there is no substantial question of law in the second appeal to admit the same, the appeal has to be dismissed at the stage of admission. Therefore, there are no grounds to admit the appeal.
16. Accordingly, the Second Appeal is dismissed at the stage of admission leaving open to the appellant the remedies available under law. No costs. Miscellaneous Petitions, if any, pending in this Second Appeal shall stand closed.
______________________
JUSTICE K.C.BHANU
MARCH 01, 2013.
sr/pn
HON’BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL No.134 of 2013
March 01, 2013
sr/pn
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.