1
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
BEFORE THE COURT OF THE PRINCIPAL DISTRICT JUDGE VISAKHAPATNAM
Present: Sri A.Hari Haranadha Sarma
Principal District Judge
Monday , the 26 th day of September, 2022.
COMMON JUDGMENT IN APPEAL SUIT No. 1/2013 and ORDERS IN
I.A.NOS.872/2019, 873/2019 and 874/2019 IN A.S.1/2013
A.S.1/2013
Between:
1. Vadde Venkata Subbayya, S/o Subramanyam, Hindu, aged 60 years, residing at D.No.48366, Srinagar, Visakhapatnam – 16.
2. Smt.Tripurana Nirmala Devi, W/o Naranagula Gopala Krishna, Hindu, aged 57 years, R/at Brindavan Towers, Balajinagar, Visakhapatnam.
...Appellants/Defendants
And:
1. Chilukuri Veera Raghava Rao (died) Respondent/Plaintiff
2. Ch.Pattabhirama Rao, S/o Veera Raghava Rao, Hindu, aged 64 years, business, R/at Kirlampudi Arcade, near Meghalaya Hotel, Visakhapatnam.
3. Ch.Satyanarayana Murthy, S/o Veera Raghava Rao, Hindu, aged 61 years, R/at Brindavan Towers, Balaji Nagar, Visakhapatnam.
4. Smt.Ganapathineedi Jhansi Lakshmi bai, W/o G.Narasimha Rao, Hindu, age not known to the appellants, R/at H.No.336, Post Office Street, Penugonda Mandal, Vadali, West Godavari District, Andhra Pradesh 534 324. (Respondents 2 to 4 are added as legal heirs of deceased 1st respondent as per the orders dated 03062019 in IA 1713/2019)
...Respondents
I.A.NO.872/2019 IN A.S.1/2013
Between: Smt.Trinurana Nirmala Devi, W/o Nalanagula Gopala Krishna, Hindu, aged 68 years, residing at Flat No.101, Vietla Vintage Apartment, Peda Waltair, Visakhapatnam – 530 017. …Petitioner/2 nd Appellant And:
1. Chilukuri Veera Raghava Rao (died)
2. Chilukuri Pattabhirama Rao, S/o late Veera Raghava Rao, Hindu, aged 75 years, Busienss, R/at Kirlampudi Arcade, Near Meghalaya Hotel, Visakhapatnam.
3. Ch.Satyanarayana Murthy, S/o late Veera Raghava Rao, Hindu, aged 72 years, R/at Brindavan Towers, Balaji Nagar, Visakhapatnam.
4. Smt.Ganapathineedi Jhansi Lakshmi Bai, W/o Narasimha Rao, Hindu, age not known to the appellants, R/at H.No.336, Post Ofice Street, Penugonda Mandal, Vadali, West Godavari District, Andhra Pradesh – 534 324.
(Respondents 2 to 4 brought on record as LRs of deceased 1st respondent) …Respondents
5. Vadde Venkata Subbayya, S/o Subrahmanyam, Hindu, aged 61 years, residing at D.No.48366, Srinagar, Visakhapatnam – 16.
...Respondent/1 st appellant
2
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP This petition has come up on 25.06.2021 for final hearing through video conference in the presence of Sri A.Rammohan, Advocate for the petitioner/2nd appellant and R1 died and Sri K.S.Shankar, Advocate for R2 to R4 and Smt.K.Prabhavathi, Advocate for R5/1st appellant and this application having stood over for consideration till this day, and this court delivered the following:
I.A.NO.873/2019 IN A.S.1/2013
Between: Smt.Trinurana Nirmala Devi, W/o Nalanagula Gopala Krishna, Hindu, aged 68 years, residing at Flat No.101, Vietla Vintage Apartment, Peda Waltair, Visakhapatnam – 530
017.…Petitioner/2 nd Appellant And:
1. Chilukuri Veera Raghava Rao (died)
2. Chilukuri Pattabhirama Rao, S/o late Veera Raghava Rao, Hindu, aged 75 years, Busienss, R/at Kirlampudi Arcade, Near Meghalaya Hotel, Visakhapatnam.
3. Ch.Satyanarayana Murthy, S/o late Veera Raghava Rao, Hindu, aged 72 years, R/at Brindavan Towers, Balaji Nagar, Visakhapatnam.
4. Smt.Ganapathineedi Jhansi Lakshmi Bai, W/o Narasimha Rao, Hindu, age not known to the appellants, R/at H.No.336, Post Ofice Street, Penugonda Mandal, Vadali, West Godavari District, Andhra Pradesh – 534 324. (Respondents 2 to 4 brought on record as LRs of deceased 1st respondent) …Respondents
5. Vadde Venkata Subbayya, S/o Subrahmanyam, Hindu, aged 61 years, residing at
D.No.48366, Srinagar, Visakhapatnam – 16.
...Respondent/1 st appellant
This petition has come up on 25.06.2021 for final hearing through video conference in the presence of Sri A.Rammohan, Advocate for the petitioner/2nd appellant and R1 died and Sri K.S.Shankar, Advocate for R2 to R4 and Smt.K.Prabhavathi, Advocate for R5/1st appellant and this application having stood over for consideration till this day, and this court delivered the following:
I.A.NO.874/2019 IN A.S.1/2013
Between:
Smt.Trinurana Nirmala Devi, W/o Nalanagula Gopala Krishna, Hindu, aged 68 years, residing at Flat No.101, Vietla Vintage Apartment, Peda Waltair, Visakhapatnam – 530 017. …Petitioner/2 nd Appellant And:
1. Chilukuri Veera Raghava Rao (died)
2. Chilukuri Pattabhirama Rao, S/o late Veera Raghava Rao, Hindu, aged 75 years, Busienss, R/at Kirlampudi Arcade, Near Meghalaya Hotel, Visakhapatnam.
3. Ch.Satyanarayana Murthy, S/o late Veera Raghava Rao, Hindu, aged 72 years, R/at Brindavan Towers, Balaji Nagar, Visakhapatnam.
4. Smt.Ganapathineedi Jhansi Lakshmi Bai, W/o Narasimha Rao, Hindu, age not known to the appellants, R/at H.No.336, Post Ofice Street, Penugonda Mandal, 3
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP Vadali, West Godavari District, Andhra Pradesh – 534 324. (Respondents 2 to 4 brought on record as LRs of deceased 1st respondent) …Respondents
5. Vadde Venkata Subbayya, S/o Subrahmanyam, Hindu, aged 61 years, residing at
D.No.48366, Srinagar, Visakhapatnam – 16.
...Respondent/1 st appellant
This petition has come up on 25.06.2021 for final hearing through video conference in the presence of Sri A.Rammohan, Advocate for the petitioner/2nd appellant and R1 died and Sri K.S.Shankar, Advocate for R2 to R4 and Smt.K.Prabhavathi, Advocate for R5/1st appellant and this application having stood over for consideration till this day, and this court delivered the following:
On appeal against the decree and judgment dated 08112012
in O.S.No.390/1997 passed by the III Addl.Sr.Civil Judge, Visakhapatnam.
Between : Chilukuri Veera Raghavarao, S/o late Pattabhiramayya, Hindu, aged 65 years, Land Lord, residing at Kodamanchili, Achanta Mandalam, West Godavari district, represented by his General Power of Attorney Holder Ch.Pattabhiramarao, S/o Veera Raghava Rao, Hindu, aged 46 years, Business, residing at Kirlampudi Arcade, near Meghalaya Hotel, Visakhapatnam.
... Plaintiff
And
1. Vadde Venkata Subbayya, S/o Subbaramayya, Hindu, aged 45 years, business, residing at 48366, Srinagar, Visakhapatnam – 16.
2. Smt.Trupurana Nirmala Devi, W/o Nalanagula Gopala Krishna, Hindu, aged 40 years, residing at Brundavan Towers, Balaji Nagar, Visakhapatnam.
... Defendant S
This appeal has come up before me on 25062021 for final hearing through video conference in the presence of Smt.K.Prabhavathi, advocate for the appellant no.1 and Sri A.Ram Mohan, advocate for appellant no.2 and Sri K.S.Shankar, Advocate for respondents and the matter having been heard virtually and stood over for consideration till this day and this Court made the following:
APPEAL JUDGMENT & ORDERS IN I.A.NOS.872/2019, 873/2019 & 874/2019
The regular Civil Appeal/A.S.1/2013 is directed against the decree and judgment dated 08.11.2012 passed in O.S.390/1997 by III Additional Senior
Civil Judge (FTC), Visakhapatnam.
2. Appellants are the defendants before the court below and they suffered the decree. Respondent No.1 herein was the plaintiff and on his death during the pendency of appeal, respondents No.2 to 4 were added as 4
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP his legal heirs. For the sake of convenience, parties will be hereinafter referred to as plaintiff and defendants as and how they are arrayed in the impugned proceedings in O.S.390/1997.
3.The case of plaintiff Ch.Veera Raghavulu, represented by his GPA holder Ch.Pattabhi Rama Rao (2nd respondent herein) in brief, is that he is the owner of flat bearing No.B2 in the first floor of Brindavan Towers situated at Balaji Nagar, Visakhapatnam. Details of the property are given in the schedule to the plaint. Brindavan Towers were constructed by M/s.Happy
Home Builders in an undivided extent of land measuring 925sq.yds., situated in block No.TS NO.68, Plot No.15(part) in Waltair ward,
Visakhapatnam which was originally owned by J.Radha Krishna. The plaintiff is the owner of an extent of 42sq.yds., undivided portion of vacant land in 925sq.yds. by virtue of sale deed, dated 26.03.1993. There were several others who are the owners of different extents in entire site of 925sq.yds.
Municipal Corporation of Visakhapatnam sanctioned permission for construction of building in the entire site. As per the sanction plans under permit BA No.247/92, dated 23.01.1993, plaintiff entered into an agreement
dated 10.04.1993 with M/s.Happy Home Builders for construction of Flat
No.B2 in the first floor at the cost of Rs.3,80,000/- to be paid by the plaintiff to the builder in the manner provided in the agreement. 1 st Defendant is the owner of Flat No.A1 in the ground floor of Brindavan Towers. He owns piece of vacant land in undivided share in the entire 925sq.yds. of land. He entered into agreement with M/s.Happy Home Builders for construction of
A1 flat in the ground floor of Brindavan Towers. Like other owners of bits of land respective flat owners occupied their respective flats for the reason of availability of auspicious days while construction was in process.
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP 3(2). Further case of plaintiff is that 1st defendant approached the plaintiff and informed that he is the owner of Flat A1 in the ground floor of Brindavan
Towers and that the same is two bed room flat not sufficient to accommodate his family members and as the plaintiff kept his flat B2 in the first floor vacant after taking possession of the same from Happy Homes and plaintiff is residing at Kodemanchili in West Godavari district and asked the plaintiff to give his flat B2 the schedule property in exchange of 1st defendant’s A1 flat and different costs will be paid by the 1st defendant.
3(3). Further case of plaintiff is that the suit property is three bed room flat while flat A1 is two bed room flat. The plaintiff was made to believe that he would get A1 flat duly registered in his name and that he would get B2 flat registered in his name only after payment of difference in costs.1 st
Defendant thereafter occupied the suit property with the permission of plaintiff and put the plaintiff in possession of flat A1. The 1st defendant has taken loan from LIC to a tune of Rs.2,00,000/- in respect of A1 flat which was not within the knowledge of plaintiff. The plaintiff is unaware of the suit filed by Happy Homes against 1st defendant for mandatory injunction not to sell or transfer the rights of 1st defendant in respect of A1 flat and also for recovery of Rs.1,09,000/- from 1st defendant in respect of A1 flat.
Meanwhile, 1st defendant applied to Visakhapatnam Municipal Corporation for assessment of property in his name and APSEB for electricity connection in his name. The plaintiff never authorized 1st defendant to apply for either assessment or service connection. The 1st defendant might have forged the signature of plaintiff or might have misled the authorities concerned. The 1st defendant played trick on the plaintiff and committed a series of acts of breach of trust and cheated the plaintiff.
3(4)Further case of plaintiff is that for the first time in the last week of 6
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP February, 1996 he came to know authentically that 1st defendant trying to sell away the suit property without any manner of right in respect of schedule property to the 2nd defendant. In that context the plaintiff got issued legal notice dated 29.02.1996 to both the defendants informing that he is the owner of suit schedule property and 1st defendant has no rights or authority to sell the property and any purchaser from 1st defendant will not get any right. Further plaintiff came to know that 1st defendant sold the plaint schedule property to 2nd defendant under registered sale deed, dated 29.12.1995 for a sum of Rs.3,46,000/- and plaintiff came to knows that 2nd defendant has taken loan of Rs.2,00,000/- from General Insurance Company
Housing Finance. Hence, plaintiff is obliged to file the suit for declaration etc., reliefs. The reliefs praying for by the plaintiff are:
1. For declaration that he is the owner of the suit schedule property (flat
B2 in first floor of Brindavan Towers), hence, the registered sale deed,
dated 2 9.12.1995 executed by 1st defendant in favour of 2nd
defendant in respect of schedule property is invalid and not binding on the plaintiff;
2. Consequential relief of recovery of possession from the defendants or other agents.
4.Contention of 1st defendant as per his written statement, in brief, is that :
(i) Plaint allegations are incorrect and denied and plaintiff is put to strict proof.
(ii) The plaintiff has fabricated certain material and filed the suits on frivolous grounds.
(iii) 1st Defendant is not aware whether the plaintiff was allotted flat B2 7
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP in first floor and whether the plaintiff purchased undivided land in his favour from Brindavan Towers R.J.Radhakrishna.
(iv) The 1st defendant is not aware whether Happy Home Builders have entered into any agreement. Infact the Happy Home Builders entered into agreement with 1st defendant regarding flat B2 but not flat A1 and flat B2 was allotted to the 1st defendant and handed over the same.
(v) Electricity connection and approval of municipal authorities was got by Happy Home Builders.
(vi) The allegations of plaintiff that 1st defendant made the plaintiff to believe to honour the word of plaintiff and occupied/plaint schedule property with the permission of plaintiff is not true. The 1st defendant has no connection with plaintiff at any point of time.
(vii) 1st Defendant is not aware what extent the plaintiff purchased from the builder.
(viii) The averments of the plaint are self-serving and the plaintiff has no legal right in the suit schedule property B2 flat.
(ix) The 1st defendant never had any sought of right over flat A1 as claimed by plaintiff.
(x) If at all the plaintiff has any grouse or right, he should have proceeded against the builder Happy Homes.
(xi) Nowhere plaintiff claimed that he has any right or possession over flat A1.
(xii) The power of attorney given by Ch.Veera Raghavulu to Ch.Pattabhi 8
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP Rama Rao is not proper and there is no authority to file suit as GPA as per the document, hence, the suit is must fail. The plaintiff is not entitled for any relief.
5.The written statement of 1st defendant is adopted for 2nd defendant.
Further amended written statement is filed by the defendants is indicating the following stands :
(i) The defendants are reserving the right to file separate suit for damages against plaintiff.
(ii) The plaintiff has not filed all the relevant documents in respect of his case. Hence, defendants are reserving right to file additional written statement as and when necessity arises.
6.On the strength of pleadings following issues are settled for trial :
1. Whether the plaintiff has valued the suit reliefs properly and court fee paid is correct?
2. Whether the plaintiff is the absolute owner of the suit schedule property?
3.Whether the plaintiff is entitled for declaration that he is the owner of the property?
4.Whether the plaintiff is entitled for declaration that the sale deed
dated 29.12.1995 executed by 1st defendant in favour of 2nd defendant is not
binding on plaintiff?
5. Whether the plaintiff is entitled for the relief of recovery of possession?
6. To what relief?
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
7.During trial, plaintiff examined PW1 to 4 and Exs.A1 to A10 documents are marked on behalf of plaintiff. The defendants examined DW1 and got marked Exs.B1 and B2 and Ex.X1 on their behalf. The relevancy and appreciation of evidence placed by both sides will be addressed infra at proper stage.
7(a) Chilukuri Pattabhi Rama Rao, Power of Attorney Holder of the plaintiff
Ch.Veera Raghava Rao, was examined as PW1. He has reiterated the contents in the plaint during his chief examination in the form of affidavit filed in lieu of chief examination. One C.F.Murthy, erstwhile Managing
Partner of M/s.Happy Home Builders was examined as PW2. One K.Rama
Mohan a summoned witness working in LIC Housing Finance was examined as PW3 and he has stated about availment of loan in the name of 1st defendant and his wife. Plaintiff Ch.Veera Raghava Rao was examined as
PW4. Relevance, importance and impact of cross-examination of PW1 to
PW4 will be addressed infra at proper stage.
7(b) Plaintiff relied on :
1.Construction agreement Ex.A1 between the plaintiff and Happy
Homes.
2.Legal notice got issued by plaintiff to 1st defendant dated 29.02.1996 Ex.A2.
3.Postal acknowledgments in respect of Ex.A2 vide Exs.A3 & A4.
4.Registration extract of sale deed, dated 29.12.1995, sale transaction between defendants 1 and 2 Ex.A5.
5.Judgment and decree in O.S.1886/1995 between Happy Homes and 1st defendant Exs.A6 & A7.
6.Certified copy of agreement for construction between 1st defendant and Happy Homes Ex.A8.
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
7.Sale deed in favour of plaintiff Ex.A9.
8.GPA document by plaintiff in favour of PW1, Ex.A10.
7(c)1st Defendant has taken witness stand as DW1. No other witnesses are examined for defendants. Further defendants relied on, Ex.B1 Caveat
Petition filed by plaintiff against defendants 1 & 2, office copy and photograph with negative Ex.B2 indicating assessment of tax in favour of 2nd defendant.
7(d) Further, through summoned witness PW3 Ex.X1 loan sanction proceedings by LIC Housing Finance are got marked.
8.The learned III Additional Senior Civil Judge (FTC), Visakhapatnam decreed the suit under the impugned judgment dated 08.11.2012. The reasons assigned by the learned trial judge for decreeing the suit are as follows:
(i) Primary burden of proof lies on the plaintiff to show that he is the owner of property but simultaneously since the 1st defendant asserted that he is the owner of plaint schedule property, the burden lies on defendants also on shifting of onus of proof from plaintiff to defendants.
(ii) The plaintiff has filed agreement of construction as well as sale deed indicating owning of 42sq.yds., the agreement of construction of 1st defendant is also filed by plaintiff vide Ex.A8. The measurement and value of the same is lessor to the measurement and value of the plaintiff’s flat by which the plaintiff is able to establish that he is owning a three bed room flat with 42sq.yds. Whereas the extent of land of 1st defendant is also shown as lessor and the plaintiff is able to show that flat A1 is allotted to 1st defendant.
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
(iii) With the evidence of plaintiff particularly Exs.A6 & A7, the judgment and decree in respect of O.S.1886/1995 on the file of III Additional
Junior Civil Judge, Visakhapatnam allotment of flat A1 in ground floor to the 1st defendant gets established but the defendants failed to show acquisition of title and possession over flat B2 from the builders and he failed to prove that flat B2 was allotted and he got title over the same. The authorities relied on by the defendant No.1 as to plaintiff succeeding on the strength of his own right and title does not squarely apply to the facts of the present case and the plaintiff discharged his burden. Further on adducing evidence of both sides burden of proof loses its significance.
(iv) The defects pointed out by the defendants as to non-production of original agreement between the plaintiff and defendant, seeking of relief of
Specific Performance if the case of exchange is true are negligeable and they are not sufficient to reject plaintiff’s claim. The 1st defendant as DW1 admitted about depositing the original title deed, dated 29.02.1992 with LIC and also the suit in O.S.1886/1995 and its decree and that he did not pay the decretal amount in O.S.1886/1995 to the decree holder. Further, DW1 has admitted that extent and costs of flat B2 are more than the value/cost of flat A1. Further, the learned trial judge observed that issue/objection relating to court fee does not deserve consideration as the plaintiff paid court fee under Section 24(a) i.e., 3/4th’s of the market value and that the relief of recovery of possession is consequential. Since the 1st defendant has no title over B2 flat, 2nd defendant will not get any title, hence, the sale deed between defendants 1 and 2 is not binding on the plaintiff and plaintiff is entitled for recovery of possession.
(v) Evidence adduced by the defendants is not sufficient to accept their stand whereas the evidence adduced by the plaintiff indicated his 12
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP stand.
9.Questioning the impugned judgment and decree, the present appeal is filed on the grounds :
(i) The trial court went into wrong tract and reached the wrong destination.
(ii) The trial court and failed to consider the pleadings of parties particularly the suit is based on the contract of exchange according to pleadings in the plaint. The case of plaintiff is that he is the owner of the plaint schedule property and 1st defendant is owner of A1 flat there was contract of exchange between them, 1st defendant occupied B2 flat and violated terms of contract so the suit is filed for declaration of title. The 1st defendant denied the exchange, claimed the property as that of himself and the very maintainability of the suit as framed, was challenged. Plaintiff initially did not take the witness stand but got reopened the matter and filed his sale deed, examined himself as PW4/plaintiff and stated that he do not know the 1st defendant. There are no dealings between the plaintiff and 1st defendant. This is sufficient to dismiss the suit.
(iii) The trial court ought to have dismissed the suit taking note of admission of plaintiff as PW4 (plaintiff).
(iv) The trial court ought to have dismissed the suit for non-filing of original construction agreement inspite of undertaking to file the same during trial. Trial court failed to appreciate the evidence of PW1, PW2 and
PW4 (plaintiff) judiciously and the relationship between PW1 and plaintiff as well as PW2 who is builder, and younger son of PW4.
(v) The stand of PW2 is contradictory stage to stage.
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
(vi) The trial court failed to address itself as to how the 1st defendant got possession of the property and whether he has any liability to deliver the same and erred in vaguely mentioning that 1st defendant is in permissive possession.
(vii) The trial court failed to note that when plaintiff pleaded contract of exchange he should have filed suit for specific performance. Having agreed to said contention at para 60 of the judgment grossly erred in holding the possession of 1st defendant as that of licensee.
(viii) The trial court failed to appreciate the evidence of PW1, PW2 and
PW4 (plaintiff) when PW1 clearly stated that his father has not occupied any flat and when PW2 stated that his son is in possession of A1 flat the inferences legally drawn shall be otherwise then what concluded by trial court.
(ix) The trial court erred in properly appreciating Ex.A6 document and the admission, if any, as to no objection to pass decree against him with respect to flat A1 would show that 1st defendant is claiming ownership over
B2 flat.
(x) The trial court failed to note and appreciate the flat is built by PW2 taking advantage of his position as builder and his relationship with PW1 and
PW4 (plaintiff).
(xi) The trial court failed to note that PW4 (plaintiff) claimed that builder failed to deliver the flat which was agreed to be delivered, so the plaintiff has cause of action against builder only.
(xii) The trial court did not consider the written arguments filed by defendant No.1 and Ex.A5 document which clearly proves that defendant 14
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP purchased an extent of 42sq.yds., under two sale deeds, one for 35sq.yds., at first instance and other for 7sq.yds., at second instance which was admitted by PW1 and PW2 in their cross-examination. So, as per the Ex.A9 plaintiff owns undivided extent of 42sq.yds., and as per Ex.A5 defendant owns an undivided extent of 42sq.yds. Ex.A5 was filed by plaintiff himself without disputing the contents therein except stating that 1st defendant executed sale deed by following terms of contract exchanged.
(xiii) Trial court failed to note that ownership of 1st defendant on undivided extent of 42sq.yds., under two registered sale deeds mentioned in
Ex.A5 was admitted by PW1 and PW2.
(xiv) Trial court ought to have rejected the construction agreement
Ex.A1 in the light of other evidence before it and grossly erred in observing that relationship of PW1, PW2 and PW4 (plaintiff) is not fatal to decide the title.
(xv) The trial court failed to consider the vital aspects like :
(a) Collusiveness among PW1, PW2 and plaintiff(PW4);
(b) GPA holder signed plaint in individual capacity but not as GPA which fact was admitted by him in cross-examination.
(c) Ex.A5 disclosed the title of 1st defendant over 42sq.yds.
(d) Details of contract of exchange are not produced by plaintiff.
(e) Payment of extra amount by 1st defendant to builder.
10.Though appeal is filed by defendants 1 and 2 jointly, but subsequently, for 2nd defendant separate advocate entered appearance and 2nd defendant filed three applications, I.A.Nos.872/2019, 873/2019 invoking Order 41 Rule 27 of CPC for receiving adducing evidence and I.A.874/2019 invoking Order 41 Rule 25 of CPC for framing additional issues. I.A.872/2019 is filed to 15
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP adduce additional evidence regarding his possession and also title, like sale deed, property tax passbooks etc., I.A.873/2019 is filed for permitting him to file documents by condoning the delay. It can be understood from
I.A.873/2019 that the 2nd appellant/petitioner therein is considering the application as a petition filed for condoning delay and receiving of documents and considering I.A.872/2019 is for permitting adducing evidence in respect of those documents filed along with I.A.873/2019. In
I.A.874/2019 the 2nd appellant/2nd defendant prayed for framing additional issues invoking Order 41 Rule 25 of CPC viz.,
(i) Whether valuation of suit is properly adjudicated by trial court?
(ii) Whether PW1 is having any power to present the suit or depose on behalf of his father in terms of Ex.A10?
(iii) Whether suit is hit by Order 2 Rule 3 of CPC and Rule 32 of Civil
Rules of Practice?
(iv) Whether plaint is barred by law under Order 7 Rule 11 (a)(b) & (d) of CPC?
(v) Whether there is any valid transaction between the plaintiff and 1st defendant in relation to suit schedule property?
11.The reasons assigned by the 2nd defendant/2nd appellant for accepting his contention in applications I.A.872/19 & 873/19 in respect of receiving are almost similar and they are as follows :
(i) He was advised that several legal aspects were not raised before the trial court and appeal being continuation of suit, mistakes, if any, can be rectified by the first appellate court.
(ii) He gave Vakalat along with 1st appellant/1st defendant and during 16
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP trial 1st defendant assured that he will take care of the suit and all of a sudden in 2013 he received an information that defendants lost the case but on request of 1st defendant he gave Vakalat and he realized that witnesses were not cross-examined on his behalf and no evidence was reported on behalf of him, hence, he changed the advocate. Present counsel asked the 2nd defendant about the link documents of the schedule property. Inspite of asking his vendor, 1st defendant did not supply the documents, hence, he secured registration extracts. He has been obliging the advise of his vendor, there was no default on his part, mistake if any is committed by his vendor but 2nd defendant has been diligent.
(iii) During the pendency of appeal sole respondent died, there after respondents 2 to 4 brought on record, considering the Will, dated 28.01.2015 alleged to have executed by Veera Raghava Rao in favour of his younger son C.F.Murthy PW2. On verification of the same, 2nd defendant/petitioner noticed that there are two items shown, one relating to suit schedule property and another is for extent of 35sq.yds., undivided and unspecified share. As on the date of Will, the appeal is pending for adjudication there is no mention of it in the Will but entire 925sq.yds., were built-up, possession was delivered to respective purchasers and the same was admitted by PW2 in his cross-examination. When the construction was completed long back by 1995, vacant site is not available, therefore, execution of Will for item No.2 is meaningless. 2nd Defendant is the absolute owner of the schedule mentioned flat B2 having purchased for valuable consideration in good faith and he has even perfected right, title and possession under registered documents and also under law for adverse possession against Veera Raghava Rao and his legal representatives.
Hence, additional evidence is necessary.
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AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
12.The grounds on which framing of additional issues is sought by 2nd appellant are as follows :
(i) GPA document Ex.A10 is not authorizing PW1 for filing of suit.
(ii) An application in terms of Rule 32 of Civil Rules of Practice is not filed and no permission is obtained. Even if such permission is granted, it is not proper as the permission to file the suit or legal proceedings in respect of flat B2 is not mentioned in Ex.A10.
(iii) Requirements of Order 2 Rule 3 of CPC are not satisfied by the plaintiff.
(iv) Three is clear admission by PW1 that he signed plaint in the capacity as plaintiff.
(v) Though there was objection, there is no issue regarding capacity of
PW2 to file the suit etc.
(vi) Value adopted for paying court fee is basing on the sale deed of 1995, value of 1997 should have been adopted.
(vii) The adjudication of suit proceedings ought to have been rejected in view of non-compliance of Order 2 Rule 3 of CPC, therefore, additional issues are to be framed.
13.The applications are objected by respondent Nos.2 to 4 in the appeal viz., LRs of plaintiff that :
(i) The change of counsel cannot be a ground to permit evidence.
(ii) The decree was passed by court below on full trial and vehemently contesting.
(iii) It is for the litigant or a party to a case to pursue the status of 18
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP case. He cannot blame co-party.
(iv) The alleged request of 2nd defendant made to 1st defendant to supply certain documents is denied. Whenever the property is purchased all link documents will be supplied.
(v) The petition is not satisfying the requirements of Order 41 Rule 27 of CPC, hence, no document can be received at this appellate stage.
(vi) The stand of the petitioner (2nd defendant) that her vendor acted against her interest cannot be a ground to permit whatever the 2nd defendant/ petitioner asks for.
(vii) The trial court framed all issues necessary and there is no need to frame additional issues.
(viii) Execution of Will is true, the objections regarding the Will are not warranted and untenable.
(ix) The 2nd defendant/2nd appellant is silent for over six years and suddenly wake up and coming with the petitions, is unacceptable.
(x) There cannot be two advocates arguing in two different ways complaining against each other in respect of two appellants. Instead the 2nd appellant can be transposed as 5th respondent for which the application is also filed.
The application filed for transposing of 2nd appellant is dismissed.
14.Application filed for framing additional issues in terms of Order 41 Rule 25 of CPC and applications filed for receiving additional evidence in terms of
Order 41 Rule 27 of CPC are heard along with the appeal, observing and following the directives of Honourable Superior Courts as to considering the 19
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP applications for additional evidence etc., along with the appeal.
15.Evidence of PW1 to PW4, DW1, Exs.A1 to A10, X1, observations in the impugned judgment, grounds urged in memorandum of grounds of appeal are carefully perused. Thoughtful consideration is given to the arguments advanced in both oral and written, contents of petitions and counters in I.A.
Nos.872, 873, 874 of 2019 are carefully perused and arguments advanced in respect of these interlocutory applications, both oral and written filed for the petitioner/2nd appellant are noted.
16.Now the points that arise for determination in this appeal are :
1. Whether the plaintiff is absolute owner of the flat B2 described in the schedule to the plaint and entitled for such declaration and consequential relief of delivery of possession?
2. Whether the sale transaction relied on by defendant Nos.1 and 2 are binding on the plaintiff ?
3. Whether there is any necessity to frame additional issues as prayed for in I.A.874/2019? If so, whether such framing of additional issue will necessitate receiving of additional evidence prayed for in I.A.872/2019 & 873/19 or any other procedural consequence like remanding the matter to trial court etc.?
4. What is the result of I.A.872/19 and 873/19?
5. What is the result of I.A.874/19?
6. Whether the impugned decree and judgment of the trial court dated 08.11.2012 passed in O.S.390/1997 by III Additional Senior Civil Judge,
Visakhapatnam, are sustainable in law or on facts or whether any interference is necessary, if so, on what grounds and to which extent?
20
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
7. What is the result of the appeal?
17.POINT NOS.1 & 2 : Points 3, 4 & 5 are inter-linked and they are relating to necessity of framing additional issues and receiving of additional evidence. They are relating to compliance of procedural formalities involving certain procedural rights. Whereas point No.1 and 2 are relating to the rights and contentions of the parties touching the substantial rights and obligations involved in the matter, determining on those points will have bearing on answering point Nos.6 & 7 and result of the appeal. Therefore, discussion is also necessary as to whether the formalities of procedure and the rights under procedural law claimed for, now would place the parties with further advantage and whether the court would have been in better position to answer the points or rights involved in the matter in a better manner and better achieving the interest of justice.
In page 4 continuation para of III, the plaintiff mentioned as follows :
“The 1 st defendant herein approached the plaintiff and told him that he is the owner of the flat A1 in ground floor of Brindavan Towers and that the same is two bed room flat and found to be not sufficient to accommodate his family members and since the plaintiff has kept his flat B2 in first floor of the Brindavan Towers after taking possession of the same from M/s.Happy Homes Builders and that since the plaintiff is residing at
Kodamanchili in West Godavari District, the plaintiff may give B2 flat i.e., suit property in exchange of his (1 st defendant) A1 flat and that he would pay difference in cost for suit property. The suit property is three bedded flat while flat A1 is two bedded flat. The 1 st defendant also made the plaintiff to believe that he would get A1 flat duly registered in the name of the plaintiff and that he would get the suit property registered in his name 21
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP only after paying the difference in cost of the same. The 1 st defendant made the plaintiff to believe that 1 st defendant would honour his word and would do as promised. The 1 st defendant thereafter occupied the suit property with the permission of the plaintiff and put the plaintiff in possession of flat A1.”
This suggests that according to plaintiff there was understanding of exchange between the parties and the same was acted upon to some extent but certain other procedural and legal formalities are to be fulfilled by both sides. Added to this further paragraphs in the plaint would show that certain efforts are put in by the 1st defendant like getting electricity service connection, mutation in municipal records etc. It is also there in the plaint that the 1st defendant sold the property to 2nd defendant but without involvement of the plaintiff. Whether the 1st defendant has got right over flat B2 in first floor and whether the conveyance of the same in favour of 2nd defendant by 1st defendant is proper and what was the mode of acquisition?
are to be considered.
18.The contention of the 1st defendant adopted for 2nd defendant, as per the original and amended written statement, relevant is Happy home builders entered into agreement with 1st defendant regarding flat B2 but not flat A1 and allotment was made in respect of flat B2. Accordingly, the flat B2 was handed over to him (vide para VI Page 2). 1st Defendant was never having any certain right over flat A1 as alleged by plaintiff (vide para VIII).
19.If the plaintiff has any right and if he feels that the builder has cheated him he should proceed against the builder but not against the 1st defendant (vide para IX of the written statement). It is the contention of the 1st defendant that plaintiff has not mentioned anywhere in the plaint whether he is in possession of flat A1 or not.
22
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
20. In one breath the 1st defendant claims that flat No.B2 was allotted to him and in other breath he is claiming that the plaintiff could have filed the suit for specific performance. However, it is relevant to note that defendant is entitled to take alternative pleas. But it is pertinent to note that the plea as to the plaintiff should have filed the suit for specific performance, shall be understood in the context of taking the defense and attacking the case of the plaintiff. Therefore, such plea cannot be constructed as a mutually destructive plea or as an admission of the contention of the plaintiff. It shall be primarily seen whether there was exchange of transaction and what is the effect of such transaction had there been such transaction?
21.The documents filed are as follows :
(i) Ex.A1 viz., construction agreement dated 10.04.1993 between
Happy Home Builders and Chilukuri Veera Raghava Rao the plaintiff. The description of property or the flat proposed to be constructed is that undivided land measuring 42sq.yds., 35.12sq.mtrs., in the total extent of 925sq.yds. Certain material is agreed to be supplied by the owner for the builder like steel and cement.
(ii) Ex.A2 is the legal notice got issued by the plaintiff to 1st defendant and his wife referring to registered document dated 26.03.1993 under agreement dated 10.04.1993 (viz., Ex.A1) for construction of property etc., mentioning that the plaintiff purchased flat B2 in the first floor and the 1st defendant. Owner of 32.50sq.yds., of undivided share in the ground floor and that the possession of B2 flat was given to plaintiff and thereafter, the 1st defendant approached the plaintiff for desiring to have B2 flat agreeing to give A1 flat and also to py difference amount and that the 1st defendant was permitted to occupy the flat B2 and it is learnt by the plaintiff that 1st 23
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP defendant is representing as if owner of flat B2, hence, the plaintiff is not interested for exchange of flat. Accordingly, the 1st defendant shall vacate the premises.
(iii) Ex.A2 legal notice service is evidenced by Exs.A3 and A4 documents.
(iv) Exs.A6 and A7 are decree and judgment in O.S.1886/1995 a suit filed for injunction etc., by the Happy Home Builders against the 1st defendant.
(v) The construction agreement is Ex.A8 in favour of 1st defendant.
The undivided share under Ex.A1 is 42sq.yds., whereas in Ex.A8 it is 35.50sq.yds.
(vi) Ex.A9 is the sale deed in favour of the plaintiff in respect of 42sq.yds., undivided share.
(vii) Ex.A10 is power of attorney document.
22.The learned trial judge has considered that the right of plaintiff over
B2 flat and possession of defendants over the said property are clear and the possession is pursuant to the understanding between the parties.
Therefore, the plaintiff is entitled for return of the property but there is no such issue relating to understand between parties.
23.The objections of the defendants viz., the appellants are that :
i) The trial court went into wrong track. When there is violation of terms of the contract, the plaintiff should have filed the suit for specific performance. When the exchange is denied there can be no rule for any relief in the absence of exchange and the suit ought to have been dismissed.
24
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP ii) The trial court erred in coming to conclusion that the 1st defendant is in permissive possession.
iii) The appreciation of document Ex.A6 is incorrect.
iv) The trial court ought to have seen that under Ex.A5 2nd defendant purchased 42sq.yds., and as per Ex.A5 the 2nd defendant owns 42sq.yds., equivalent to that of holding of plaintiff. Here itself, this court finds it proper that Ex.A5 document is executed by 1st defendant the vendor and the 2nd defendant is the vendee.
24.The recitals in Ex.A5 whether having any source for the title of the vendor viz., the 1st defendant? is a question.
25.The 2nd defendant has come up with applications I.A.872/2019, 873/2019 and 874/2019. under I.A.872/2019 the 2nd defendant prays for permitting him to file additional documents and under I.A.873/2019 he filed the documents. The documents filed by him are :
(i) The sale deed dated 29.12.1995 between defendants 1 and 2.
(ii) Sale deed, dated 23.11.1992 in favour of 1st defendant for an extent of 35.50sq.yds.
(iii) Document No.3 is the sale deed, dated 21.06.1993 in favour of the 1st defendant for an extent of 7.35sq.yds., undivided land in total extent of 925sq.yds.
(iv) Document No.4 is municipal assessment passbook along with mutation proceedings from the name of 1st defendant to 2nd defendant.
(a)By referring to these documents, the 2nd defendant claims that there is necessity of those documents and additional issues also shall be framed.
25
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP For framing additional issues an application I.A. 874/2019 is filed. Under
I.A.874/2019 the 2nd defendant asked for framing of additional issues as following :
(a)Whether the valuation is proper?
(b)Whether PW1 is having power to present the plaint and depose on behalf of his father pursuant to Ex.A10?
(c)Whether the suit is hit by Order 3 Rule 2 CPC?
(d)Whether the plaint is barred by law?
(e)Whether there is any valid transaction between plaintiff and 1st defendant relating to schedule property?
(b)These applications are considered along with the main appeal. The applications are opposed by the plaintiff stating that the issues already framed are sufficient and introduction of new documents at this stage are not warranted.
(c)The 2nd appellant viz., 2nd defendant relied on the observations of the
Honourable High Court of Andhra Pradesh made in a case between
Venkataiah and others Vs. Lakshmi Devamma and others reported in 2018 (1) ALT Page 459 as to on the proposition of law with regard to framing of additional issues at later stage of suit and it is observed in the judgment that the issues shall be framed relating to what is asserted and denied. By referring to this the learned counsel for 2nd appellant/2nd defendant claims that the objection as to power of attorney and the validity of the same are questioned but no issue is framed by the trial court. With regard to receiving of additional evidence, he has relied on observations of
Honourable Apex Court made in a case between Uttaradi Mutt Vs.
26
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP Raghavendra Swamy Mutt reported in 2018 (5) ALT Page 79 (SC) whereunder it is observed that first appellate court may permit producing of
additional evidence within its jurisdiction for full, complete and effectual
adjudication of proceedings. Relevant observations are made in paragraphs 8 to 11. As sequel of the same, necessity of remand is also considered by
Honourable Apex Court in paras 12 to 14 which read as follows :
12. The further grievance of the appellant, however, is that the High
Court, in any case, ought not to have relegated the parties before the trial Court with a direction to the trial Court to re-decide the suit. The respondent, however, would rely on the provisions of the amended Rule 23 of the CPC “as applicable to the State of Karnataka”. The same reads thus:
“23. Remand of case by Appellate Court:- “Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; the evidence, if any, recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand.” (emphasis supplied)
13. Indeed, the provision as applicable to the State of Karnataka is not limited to the decree disposing of the suit on a preliminary point but also where the Appellate Court in reversing or setting aside the decree under appeal, considers it necessary, in the interest of justice, to remand the case. Notably, the Karnataka amendment has been introduced vide the Karnataka Gazette entry dated 5th November, 1959. The effect of that provision is reinforced by Central Amendment Act 104 of 1976 which introduced Rule 23-A. The said Rule 23-A reads thus:
“23-A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is 27
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.”
14. We say so because under Rule 23 of CPC, the Appellate Court could remand the case before it where the Court from whose decree an appeal was preferred, had disposed of the suit upon a preliminary point and that decree was reversed in appeal. Rule 23-A deals with other (residuary) category of cases to be remanded by the Appellate Court in an appeal against a decree which has been disposed of otherwise than on a preliminary point. While exercising such discretion, the Appellate Court is duty bound to keep in mind Rules 25 and 26 of Order XLI of the CPC, which read thus:
“25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].” “26. findings and evidence to be put on record – Objections to finding- (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
(2) Determination of appeal.- After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.”
(d)Further the learned counsel for 2nd defendant/2nd appellant relied on the observations Honourable High Court of Andhra Pradesh made in a case reported in 2015(3) ALT 722 between Maruthi Industries, represented
by its Proprietor Sri K.Damodar Reddy Vs. Gajanand Traders
represented by its Proprietor Sri Kishore Kumar Sharma wehrein the procedure as to dealing with the application under Order 41 Rule 27 of CPC and necessity of disposal of the said application and dismissing the appeal 28
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP without discarding such application is found as wrong vide para 6 and 7 of the judgment which read as follows :
“Order XLI of C.P.C. deals with appeals from original decrees. This order is a self-contained code in itself, which governs the appeals from the stage of their filing till their disposal. Under Rule 27 of
Order XLI, the parties, subject to the conditions stipulated in sub- clauses (a), (aa) and (b) of clause (1) thereof, are entitled to produce additional evidence. Undisputedly, the appellant has filed
I.A.No.345 of 2012 under the said provision for receiving additional evidence. As noted above, one of the grievances of the appellant is that without disposing of the said application, the lower appellate
Court has dismissed the appeal. In my opinion, the lower appellate
Court has committed a serious error in disposing of the appeal without passing appropriate order on I.A.No.345 of 2012.
Rule 30 of Order XLI deals with pronouncement of judgment. Rule 31 prescribes contents, date and signature of the judgment. Clause
(a) thereof envisages that the judgment of the appellate Court shall state the points for determination. From a perusal of the judgment of the lower appellate Court, it is evident that it has not framed the points for determination. It has only observed that having thoroughly gone to (sic through) the pleadings and the evidence on record, the following observations are made. In my opinion, the provisions of Rule 31 are couched in mandatory form. Therefore, any judgment, which is not in conformity with the said Rule, cannot be sustained.”
(e) Learned counsel for 2nd appellant/2nd defendant further relied on observations of Honourable Apex Court made in a case of Smt.Bachahan
Devi and another Vs. Nagar Nigam, Gorakhpur and another reported in AIR 2008 SC Page 1282 = 2008 (12) ACJ Page 372 as to the scope of
Order 41 Rule 25 CPC and right of parties to argue in all the aspects in first appeal. Relevant observations are made in para 10 of the judgment which read as follows :
29
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP “10. A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court.
In other words there is no compulsion on the part of the appellate
Court to do so. This is clear from the use of the expression 'may'.
But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the
additional evidence is required, then the lower court has to return
the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part.
30
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and
Others v. Kurimeti Ayyappa (1975(4) SCC 458), where it was inter- alia observed in para 5 as follows:
"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath
Shukul v. Sat Narain Shukul (AIR 1923 All 384)."
26.In the light of the observations made in the authorities cited, it is necessary to examine whether the proposed documents are relevant and whether the additional issues are necessary and what shall be the course open if at all additional evidence and additional issues are necessary. With regard to additional evidence covered by I.A.872/2019 and 873/2019, this court finds that I.A.872/2019 is formal in nature and the prayers are split up.
One is for receiving and another is for permitting to file documents. The prayer in the application I.A.873/2019 is redundantly covering the prayer in
I.A.872/2019. One of the objections of the plaintiff as respondents in the applications for receiving additional evidence etc., is that the 2nd appellant filed an application for transposing her and unless that application is decided, the framing of additional issues does not arise. In this context, it is relevant to note that I.A.1188/2019 filed for transposing 2nd appellant as 5th respondent was dismissed by this court under orders dated 27.01.2020 and it is not the case of either party that the said orders are questioned by way of revision etc. Hence, decision on the said aspect became final. With regard to receiving of additional evidence, the documents filed by the 2nd appellant/2nd defendant are the link documents indicating the title of the 31
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP vendor of the 2nd defendant/2nd appellant. The 1st defendant claimed that initially 35.50sq.yds., of site was purchased, subsequently 7.35sq.yds., of site was purchased, altogether it became 42.85sq.yds., necessary pleading is there. The evidence part is missing. Whether the purchase under two separate transactions by 1st defendant will indicate any better right to the 1st defendant? is one question. Whether such sale will have any effect on the right claimed by the plaintiff in view of relationship between PW1, PW2 and
PW4 require consideration and it is said that PW2 is a builder. To throw light on these vital aspects, further examination as to what is the relevance of the mutation in municipal records and why the same could not be prevented and examination of documents and conduct of the parties is necessary.
Further, the authority of PW1 to present the suit and give evidence is questioned particularly referring to Order 3 Rule 2 of CPC. This plea as to authority of the person verifying the pleadings was questioned in the suit stage itself. But, necessary issue is missing. In the absence of formal issues and evidence of parties, deciding such aspect may be a surprise and put one to certain disadvantage. Therefore, framing of issue in that regard is necessary. The prayer for framing the issue in terms of Order 7 Rule 11 A, B & D found not necessary as the bar of law contemplated therein is not found. However, with regard to whether there is any valid transaction between the plaintiff and 1st defendant relating to schedule property, there must be some issue. The plaintiff is seeking delivery of possession relying on the strength of such transaction of exchange and permissive possession.
The 1st defendant is also relying on the title and denying the transaction of exchange etc., by the plaintiff. Therefore, whether there was an exchanged transaction and if so, whether it is valid and what is the effect of the 32
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP possession of the defendants over B2 flat in the context of the construction agreement require additional issue.
27.In the light of the discussion made above, this court finds that the documents sponsored by way of I.A.872/2019 and 873/2019 are fit to be received by granting formal permission prayed for I.A.872/2019 and certain
additional issues are necessary which are as follows :
(1) Whether the plaintiff has delivered possession of flat B2 to the 1st defendant in furtherance of any legally tenable transaction? If so, what is his remedy?
(2) Whether the 1st defendant was in lawful possession and 2nd defendant is in possession of flat B2 particularly pursuant to the sale transactions pleaded by them? What is the effect of their possession if the same is in pursuance of the agreement, if any, between the plaintiff and 1st defendant?
(3) Whether the signatory to the plaint viz., PW1 has lawful authority to file the suit and whether the defect, if any, is curable and negligible?
28.For the purpose of recording the evidence relating to the documents received and for the purpose of giving findings on the additional issues framed, the matter is fit to be remanded in terms of Order 41 Rule 25 CPC.
Decision on point Nos.1 & 2 can be effectively and sufficiently answered basing on the findings on additional issues now framed, therefore, the findings on those points will be answered after receipt of record from the trial court with the additional evidence and findings of the trial court on
additional issues. However, point No.3 as to framing of additional issues and
receiving documents is answered in favour of the 2nd appellant concluding that the documents filed by way of additional evidence are fit to be received 33
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP and framing of additional issues is necessary having a consequence of remanding the matter to trial court in terms of Order 41 Rule 25 CPC with a limited scope of collecting oral and documentary evidence in respect of the documents sponsored in I.A.873/2019 and in respect of the additional issues and resubmission of record with the findings of the trial court on the
additional issues.
29.POINT NO.4 : In view of the findings and conclusions under point and in the result, I.A.872/19 and 873/19 are allowed permitting the 2nd appellant to produce additional documents and additional documents are received, however, recording of evidence and giving findings thereon will be done by court below.
30.POINT NO.5 : I.A.874/2019 is allowed. Following additional issues are framed :
(1) Whether the plaintiff has delivered possession to the 1st defendant infurtherance of any legally tenable transaction? If so, what is his remedy?
(2) Whether the 1st defendant was in lawful possession and 2nd defendant is in possession particularly pursuant to the sale transactions pleaded by them or otherwise and what is the effect of their possession if the same is in pursuance of the agreement, if any, between the plaintiff and 1st defendant?
(3) Whether the signatory to the plaint viz., PW1 has lawful authority to file the suit and whether the defect, if any, is curable and negligible?
34
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP
31.POINT NO.6 : In view of the findings under point Nos.3 to 5, decision on point Nos.1 and 2 is deferred till receiving of findings of trial court on
additional issues and additional evidence and record from the trial court.
32.POINT NO.7 : In the result,
(i)I.A.872/2019 and I.A.873 /2019 are allowed. Following documents:
(1)registered sale deed, dt.29.12.1995 between 1st defendant and 2nd defendant, (2)registered sale deed dated 23.11.1992 in favour of 1st defendant for an extent of 35.50sq.yds., (3)registered sale deed dated 21.06.1993 in favour of the 1st defendant for an extent of 7.35sq.yds., (4)provisional receipt issued by municipal corporation in the name of 1st defendant, and (5)property tax passbook in the name of 2nd defendant with upto date payment of tax entries dt.11.10.1996, are received but for recording the evidence thereon matter is remanded to trial court; ii)I.A.874/2019 allowed. Following additional issues are framed :
(1) Whether the plaintiff has delivered possession to the 1st defendant infurtherance of any legally tenable transaction? If so, what is his remedy?
(2) Whether the 1st defendant was in lawful possession and 2nd defendant is in possession particularly pursuant to the sale transactions pleaded by them or otherwise and what is the effect of their possession if the same is in pursuance of the agreement, if any, between the plaintiff and 1st defendant?
(3) Whether the signatory to the plaint viz., PW1 has lawful authority to file the suit and whether the defect, if any, is curable and negligible?
(iii)For the purpose of recording evidence and submission of the 35
AS 1/2013, I.A.872/19,
873/19 & 874/19 PDJC/VSP findings thereon, three months time is granted to trial court from the date of receipt of record and matter is remanded in terms of Order 41 Rule 25 CPC.
(iv)Both parties are directed to co-operate with trial court.
(v)Office is directed to transmit the record duly indexed to III Additional
Senior Civil Judge’s Court, Visakhapatnam.
(vi)For the purpose of receiving instructions and proceeding with the matter, both parties are directed to appear before the III Additional Senior
Civil Judge’s Court, Visakhapatnam on 17.10.2022.
(vii)Since additional issues are framed pursuant to allowing
I.A.874/2019 and additional documents are received pursuant to allowing
I.A.872/2019 and 873/2019 for the purpose of having findings of the trial court on additional evidence and additional issues, the matter is remanded to III Additional Senior Civil Judge’s Court, Visakhapatnam in terms of Order 41 Rule 25 CPC with such limited scope.
(viii)Put up record on submission of compliance by the trial court with the findings on additional issues and additional evidence.
Dictated to Stenographer, transcribed by her, corrected and pronounced by
me in open Court, this the 26th day of September, 2022.
Sd/- A. Hari Haranadha Sarma,
Principal District Judge,
Visakhapatnam.
Appendix of Evidence
No additional oral or documentary evidence is adduced on either side.
Sd/- A. Hari Haranadha Sarma,
PDJ/VSP Copy to:
The III Addl. Senior Civil Judge, Visakhapatnam.