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IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE: VIJAYAWADA.
PRESENT:SMT. G.VIJAYALAKSHMI
III ADDL. JUNIOR CIVIL JUDGE, VIJAYAWADA.
Friday, this the 23rd day of March, 2018
O.S.NO.1322/2008
Between:
Perikala Rangamma, w/olater Purnachandra Rao, Hindu, aged about 33 years, House wife, r/o. At D. No.32-11-43A, Gummadi Prakasharao street, Mogalrajapuram, Vijayawada.
..PLAINTIFF
A N D
1.Ganta Udaya Bhaksara Rao, s/o Raja Rao, Hindu, aged about 34 years, r/o. D. No.35-10-37, Tasty Curries point, New Giripuram, Vijayawada.
2.Smt. Swarna Rukmini w/o. Ravindra, aged about 50 years, r/o. Beside RCM Church, Kasturibaipet, Vijaaywada-10.
..DEFENDANTS
This suit is coming on this day before me on 20.3.2018 in the presence of Sri D. Ravi Kiran, Advocate for the plaintiff and of Sri K. Seshagiri Rao, Advocate for the defendants; upon perusing the plaint, other connected material papers on record and the matter having stood over till this day for consideration till this day, this court delivered the following:
J U D G M E N T
1.The suit is filed by the plaintiff against the defendants u/s.XXVI,
Order VII, Rule 1 of Civil Procedure Code, 1908 for grant of permanent injunction restraining the defendants, their men, agents, henchmen, etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property and for costs of the suit.
The brief averments in the plaint are as follows:-
2.The plaintiff submitted that the plaintiff is the owner and possession of an extent of 67 sq. yards of site and thatched house therein. The father of the plaintiff during his life time purchased the said property on 17-5-1980 from one Chambodi Nagaiah and he was in peaceful possession and enjoyment of the said property till his death. During his life time, the 2 father of the plaintiff namely Chambodi Galib with a sound and disposing state of mind executed a will, dated 15-5-2005 in favour of the plaintiff bequeathing the plaint schedule property and subsequently he died on 22-6-2007, the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property with absolute rights and she has been paying property tax to the Vijayawada Municipal Corporation and the demand notice and tax receipt, electricity bill and other documents are filed herewith. Except the plaintiff no other persons have any right whatsoever in the plaint schedule property.
3.The plaintiff further submitted that as the matter stood thus, the defendants, they are claiming to be the legal heirs of one Gudisa Anjaiah in whose name a vacant site situated on the northern side of the plaint schedule property came to the plaintiff and requested the palintiff to co- operate for measurement of the said vacant site. In all good faith, the plaintiff co-operated for measurement of the said vacant site and thereafter the defendants made a proposal that it is better to sell the property of the plaintiff and their property to one person and for which the plaintiff did not accept. Surprisingly, the defendants taking advantage of situation have tried to interference with the peaceful possession and enjoyment of plaint schedule property with an ulterior motive to grab the property of the plaintiff. On 30-3-2008 the defendants 1 and 2 with the support of some unknown person have tried to interfere into the property in an illegal manner and the said illegal acts were resisted by the plaintiff with the support of neighbors in the locality.
4.The plaintiff further submitted that again the defendants 1 and 2 have been seriously making efforts to interfere with the plaintiff property and thereby putting the plaintiff in tense situation and have been trying to grab the plaint schedule property by force and in that direction the 3 defendants with the support of some unknown persons entered into the plaint schedule property on 24-8-2008 at about 7.30p.m. and threatened the plaintiff that they would not allow the plaintiff to be in peaceful possession and enjoyment of the schedule property and stating that they are having support of anti-social elements and with the support of with the social elements, they will occupy the plaint schedule property by force and threaten with dire consequences of damage to life and property.
5.The plaintiff further submitted that the defendants are influenced persons having support of anti-social elements. The plaintiff under the above circumstances apprehends that the defendants with their men at any time enter into the plaint schedule property and dispossess her by force. The plaintiff has no capacity to resist the illegal and highhanded acts of the defendants. In fact, after the said incident, the plaintiff gave a report to the Machavaram police station but so far, no action has been taken by the police. The defendants have no manner of right whatsoever to interfere with the plaintiff’s peaceful possession and enjoyment of the schedule property. The plaintiff has no other alternative except to seek the relief from this court preventing the documents and their men from interfering with the peaceful possession and enjoyment of the plaint schedule property. Hence, this suit.
6.The defendant filed written statement denying the material allegations in the plaint inter alia contending that the plaintiff is the owner and possessor of an extent of 67 sq. yards of site and thatched house therein and the farther of the plaintiff during his life time purchased the said property on 17-5-1980 from one Chambodi Nagaiah, and he was in peaceful possession and enjoyment of the said property till his death and during his life time, the father of the plaintiff by name GALIB with a sound and disposing state of mind executed a Will on 15-5-2015 in favour of the 4 plaintiff bequeathing the plaint schedule property and the plaintiff has been in peaceful possession and enjoyment of the plaint schedule property with absolute rights and she has been paying property tax to the
Municipal Corporation and no other person have any right whatsoever in the plaint schedule property and the defendants came to the plaint schedule property and plaintiff to co-operate for measurement of the said vacant site and in all good faith the plaintiff co-operated for measurement of the said vacant site and thereafter the defendants made a proposal that it is better to sell the property of the plaintiff and their proper tot a one person and for which the plaintiff did not accept and the defendants taking advantage of situation have tried to interfere with the peaceful possession and enjoyment of plaint schedule property with an ulterior motive to grab the property of the plaintiff and on 30-3-2008 the defendants 1 and 2 with the support of some known person have tried to interfere into the property in an illegal manner and the said illegal acts were resisted by the plaintiff with the support of neighbors in the locality and the defendants 1 and 2 have been seriously making efforts to interfere with the plaintiff property and thereby putting the plaintiff in tense situation and have been trying to grab the plaint schedule property by force and the defendants entered into the plaint schedule property on 24-8-2008 at about 7-30 p.m. and threatened the plaintiff that they would not allow the plaintiff to be in peaceful possession and enjoyment of the schedule property and they are having support of anti-social elements and with the support of with the social elements and they will occupy the plaint schedule property by force and threaten with dire consequences of damage to life and property etc. are all false and concocted story created by the plaintiff only for the purpose of this suit. There is no iota of truth in the plaint. The plaint averments are nothing but tissue of false hood.
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7.The defendants contended that the plaint schedule property belongs to one Gudise Anjaiah and he is in possession and enjoyment of the said property during his life and he died intestate in the year 1994 and after that his sons also died and their legal heirs are in possession and enjoyment of the schedule property. The plaintiff has no manner of right, title, possession of what so ever over the plaint schedule property. Except the legal heirs of the late Gudise Anjaiah no one is having any title, possession, title over the plaint schedule property.
8.The defendants further contended that the plaint schedule property is the vacant site. The plaintiff is not the absolute owner of the plaint schedule property as alleged in the plaint.
9.The defendants further contended that the plaintiff has not executed any will as alleged in the plaint and the alleged will was forged and fabricated one. Either the father of the plaintiff or Chenbodi Nagaiah have any right over the plaint schedule property. The plaintiff managed the Municipal authorities and Electricity department got the receipts for the purpose of this suit by misleading them. Either the Galib or the plaintiff have no right over the plaint schedule property.
10.The defendants further contended that the name of the 1st defendant is also wrong like wise, he is nothing to do with the Tasty curry point the address mentioned in the plaint. The plaintiff without any truth filed this suit against these defendants who are residing else where in the
Giripuram.
11.The defendants further submitted that there is no cause of action to file the suit and the alleged cause of action mentioned in the plaint is not true and correct.
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12.The defendants further contended that the plaintiff has nothing to do with the plaint schedule property. She is not in possession and enjoyment of the plaint schedule property and it is liable to be dismissed.
13. Basing on the above pleadings, the following issues are settled for trial.
1) Whether the plaintiff has been in possession and
enjoyment over the plaint schedule property?
2) Whether the plaintiff is entitled for the relief or permanent injunction as prayed?
3) To what relief?
14.During course of trial on behalf of the plaintiff, PW1 to P.W3 were examined and got marked Ex.A1 to A11. On behalf of the defendants,
DW1 and D.W.2 were examined but documents Ex.B-1 to Ex.B-3 got marked. ExB-1 got marked in the cross-examination of D.W.1.
15.Ex.A.1 is the Will deed, dated 15-5-2005, Ex.A.2 is the property tax demand notice, dated 3-6-2008, Ex.A.3 is the property tax receipt, dated 3-6-2008, Ex.A.4 is the Electricity bill, dated 17-3-2008, Ex.A.5 is the family members certificate, dated 27-5-2008. Ex.A.6 is the true copy of town survey register. They were were got marked in the Chief examination of P.W.1. Ex.A.7 to Ex.A.9 were got tax receipts, dated 22-12-2008, 17-8-2008 and 12-6-2008 respectively. Ex.A.10 and Ex.A.11 were Electricity payment receipts, dated 12-2-2009 and 28-1-2009 respectively. They were got marked in further Chief examination of P.W.1.
16.Ex.B-1 is the photograph of the plaint schedule property got marked in the cross-examination of D.W.1. Ex.B-2 is the Certified copy of sale deed executed by Chembodi Babu Rao in favour of Chukkala Lovaraju vide
Doc. No.789/ 2002 of SRO, Patamata, Vijayawada. Ex.B-3 is the certified copy of sale deed executed by the father of the plaintiff namely Chembodi 7
Galeeb in favour of Nimmagadda Surya Prakasha Rao vide
Doc.No.1901/2006 of SRO., Patamata, Vijayawada, dated 22-4-2006.
17.The learned counsel for plaintiff argued that plaint schedule property is an extent of 67 sq. yards which is unregistered will, dated 15-5-2005. After the death of the father, the plaintiff got the property.
Norther side of schedule property belongs to Gudise Anjaiah. The interference of plaintiff was not mentioned in the written statement. The defendant did not say in written in the written statement that the said
Gudise Anjaiah is being legal heir. Plaintiff got marked Ex.A.1 to Ex.A.11.
P.W.1 to P.W.3 were examined. P.W.3 is being neighbor. P.W.2 is being attestor of the Will. Plaintiff relied upon Ex.A.2 which is is property tax demand notice, dated 3-6-2008,issued by the Municipal corporation.
Ex.A.4 and Ex.A.5 is the Electricity Bills pertaining to plaint schedule property and Family member certificate shows that the plaintiff is in possession as on the date of filing of the suit. D.W.1 and D.W.2 were admitted in the cross-examination that P.W.1 is in possession of plaint schedule property. They further admitted that they do not have the documents relating to show that D.W.1 and D.W.2 are legal heirs of Gudise
Anjaiah. The defendants are also not file any documents to show that they are legal heirs of Gudise Anjaiah. The defendant did not file any single document to show that he has title over the plaint schedule property and prays to decreed the suit.
18.The learned counsel of defendants argued that plaintiff is the owner of 67 sq. yards of schedule property and the father of the plaintiff died on 22-5-2007. Plaintiff gained the plaint schedule property through “WILL”.
Defendant requested to sell away the property of plaintiff. The defendant was purchased the said property from one Gudise Anjaiah. Plaintiff was in possession and enjoyment of plaint schedule property as on the date of 8 filing of the suit. 1st defendant was examined as D.W.1. The legal heir of
Gudise Anjaiah was examined as D.W.2. The plaintiff herself admitted during cross-examination that the defendants are the legal heirs of Gudise
Anjaiah and the suit is liable to be dismissed without costs.
Issue Nos.1 and 2:-
19.P.W.1 who is the plaintiff in the suit reiterated all the averments of the plaint in her Chief examination and got marked Ex.A.1 to Ex.A.11.
20. During the cross-examination, she deposed that she has only one property in Moghalrajapuram locality. P.W.1 admitted that the defendants are the legal heirs of Gudise Anjaiah, apart from other legal heirs and further admitted that the door number wil be allotted at the time of assessment i.e. at the time of raising thatched hut. There is no other registered document to show that the plaint schedule property belongs to her father which is an extent of 67 sq. yards. 5 or 6 months prior to date of filing of the suit there are disputes with regard to the plaint schedule property. Her father sold another property to Nimmagadda Suryaprakasa
Rao s/o. Babu Rao i.e. the building which is an extent of 152 sq. yards.
21.P.W.1 further admitted that the building without plastering to the wall shown in the photograph was the building sold by her father and there is vacant site towards western side of the said building i.e. Ex.B-1.
Her father Chembodhi Galeeb executed sale deed in favour of
Nimmagadda Surya Prakasa Rao vide Doc. No.1901/2006 pertaining to the property to an extent of 152 sq. yards for D. No.32-10-10/2, dated 22-4- 2016. There is no registered document for the boundaries mentioned by her. The said documents are of the year 2008 and so on. She do not know basing on which she has mentioned the boundaries of the plaint schedule property.
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22.P.W.2 who is the 1st attestor of the Will vide Ex.A.1 reiterated all the averments of the plaint in his Chief examination.
20. During the cross-examination, he deposed that in the year 2006
Chembodi Galib sold an extent of 152 sq. yards to Suryaprakasa Rao.
Chembodi Galib got typed Ex.A.1 will,dated 15-05-2005. He knows one
Chembodi Babu Ro and he is his brother. On 1-3-2002, he sold thatched house in vacant site in an extent of 67 sq. yards in D. No.32-11-42 to Lova
Raju w/o. Chukkala Davudu and further admitted that towards northern side of the said property the property of Gudise Anjaiah is situated. The father of the palintiff sold the property shown in Ex. B-1 towards western side of the said property the vacant site of Gudise Anjaiah is situated. He further deposed that apart from the property of Gudise Anjaiah, the property of Chembody Nagaiah also situated. There is document to show that a property of Chembody Nagaiah also situated towards western side of the property shown in Ex.B-1. He further admitted no point of time the plaintiff is in peaceful possession and enjoyment of the plaint schedule property and so also as on the date of filing of the suit.
21.P.W.3 who is retired employee as Chainman/attender in Revenue
Department reiterated all the averments of the plaint in his Chief examination.
22. During the cross-examination of P.W.3, he deposed that know the facts of the case and the said suit filed by the plaintiff claiming that the plaint schedule property belongs to her and further deposed that the plaintiff is his sister by courtesy. The defendants are not legal heirs of one
Gudise Anjaiah. He further admitted that the legal heirs of Gudise Anjaiah said that the plaint schedule property belongs to the said Gudise Anjaiah.
The plaint schedule property situated at about 15 houses away from his residence.
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23.D.W.1 who is the 1st defendant deposed that he is well acquainted with the facts of the case. He filed this evidence affidafvit on behalf of him and on behalf of the 2nd defendant who authorized him to file the same on behalf of her also. The contention of Chief affidavit of D.W.1 is the same as mentioned in the written statement filed by the defendants. D.W.1 got marked Ex.B-2 and Ex.B-3 in his Chief examination.
24.During cross-examination of D.W.1 who is working as employee in
APSRTC residing at Giripuram, Vijayawada deposed that the distance between the Giripuram and plaint schedule property is about 1 k.m. and denied that he has not filed any documentary proof to show that Gudise
Anjaiah is his Grand father.
25.D.W.1 further denied that though he has not mentioned in his written statement and he has mentioned in Chief affidavit about the relationship between him, Defendant No.1 and Gudise Anjaiah.
26.He admitted that no patta was in existence about the ownership of
G. Anjaiah was in plaint schedule property. He has not filed any documentary proof relating to plaint schedule property is in possession of legal heirs of Gudise Anjaiah after the year 1994. D.W.1 further denied that either Gudise Anjaiah or legal heirs are no way concern to plaint schedule property and said that he has no rights over the plaint schedule property. It is a fact that the family certificate under Ex.A.5 was issued on 27-5-2008 and it was issued prior to filing of the present suit. He further said that Ex.A.6 i.e. true copy of town survey register is created. He lodged complaint about Ex.A.6 orally. As per Revenue records, the plaint schedule property belongs to Ch. Nagaiah and thereafter the property devolved upon the plaintiff. The court granted temporary injunction in favour of the plaintiff on merits. He never preferred revision. He denied that Ex.B-1 to Ex.B-3 were created for the prupose of filing of the present 11 suit and he is deposing falsehood and further deposed that the plaintiff is the absolute owner of the plaint schedule property and he is no way concern to the plaint schedule property.
27.D.W.2 who is third party to the suit proceedings deposed that he knows the parties herein and he is wll acquainted with the facts of the case. The contention of Chief affidavit of D.W.2 is reiterated as well as contents mentioned in the written statement filed by the defendants.
28. During cross-examination, D.W.2 deposed that there are no documentary proof either registered documents or patta issued by the
Government in the name of Gudise Anjaiah relating to the plaint schedule proeprty. He has not filed any documentary proof to show that the plaint schedule property belongs to his grand father by name of Gudise Anjaiah and he had in possession and enjoyment of the said property during his life time and after his demise.
29.D.W.2 further denied that though his mother is well aware with the fact that the plaint schedule property belongs to Gudise Anjaiah, as such he created the documents for the purpose of said legal notice and issued the same to the plaintiff in the year 2009. One Kolluru Kasturi is elder sister of his mother. He admitted that the said Kolluru Kasturi filed the petition to implead her in the present suit as one of the defendant. Except this suit no other suits/cases were filed against the plaintiff pertaining to the plaint schedule property by the legal heirs of Gudise Anjaiah. The said
Gudise Anjaiah is resided in the northern side of the plaint schedule property as per the plaint schedule. The plaintiff refused to sell the plaintiff’s property to them for that in order to harass her, they created troubles by interfering the peaceful enjoyment of the plaint schedule property.
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30.This court preferred the following citations for consideration and concluded to give a finality for permanent injunction.
31. J. Seetharam Gupta Vs. P. Selvaraj and Others
LegalCrystal Citation : legalcrystal.com/1185814
Court : Chennai
Decided On : Feb-06-2017
Judge : T. Ravindran
Appeal No. : S.A.No. 544 of 2011 & M.P.No. 1 of 2011
Appellant : J. Seetharam Gupta
Respondent : P. Selvaraj and Others
Judgement :
(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 24.08.2010 passed in A.S.No.87 of 2010 on the file of the learned Subordinate Judge, Tambaram, by confirming the judgment and decree dated 28.03.2008 made in
O.S.No.110 of 2005 on the file of the Learned District Munsif, Tambaram.)
32. Challenge in this second appeal is made by the defendant against the judgment and decree dated 24.08.2010 passed in A.S.No.87 of 2010 on the file of the Sub Court, Tambaram, confirming the judgment and decree dated 28.03.2008 made in O.S.No.110 of 2005 on the file of the
District Munsif Court, Tambaram.
33. The suit has been laid by the plaintiffs for permanent injunction.
34. The plaintiffs claim title to the suit property under the sale deed
dated 06.02.1998 marked as Ex.A2, which had been executed in favour of
their father Palanivel by Bangaru Rajamani. The plaintiffs have also produced the parent title deed marked as Ex.A1, from which, it is found that Bangaru Rajamani had purchased the suit propertyfrom
Ranganathan. Claiming title to the suit property under Exs.A2 and A1 and 13 asserting that they are in possession and enjoyment of the suit property and further, pleading that in asmuch as the defendant had unlawfully interfered with their possession and enjoyment of the suit property, they had been necessitated to lay the suit for permanent injunction.
35. The defendant has taken a plea that the suit property is in his possession andenjoyment and it is also pleaded that the defendant had purchased the adjacent lands under the sale deeds and therefore, it is contended that the plaintiffs have no cause of action and the suit is liable to be dismissed.
36. As seen from the evidence adduced in the matter by the respective parties, the defendant's property is situated on the eastern side of the suit property. It is also found from Exs.B1 and 3, the defendant has also purchased certain extents from Ranganathan in the suit survey number and accordingly, enjoying the said properties.Under Ex.A1, the plaintiffs' vendor had purchased a particular extent i.e. the suit property in the suit survey number from Ranganathan. It is found that the entire extent in the suit survey number originally belonged to Chokkammal.
37. As regards the possession and enjoyment of the suit property, the plaintiffs have produced the patta in the name of the Palanivel and also,
Kist receipt and further, during the first appeal proceedings, the plaintiffs have also marked Exs.A11 to 15 and from Exs.A14 and 15, it could be seen that the land tax receipt and Chitta in respect of the suit property stand only in the name of Palanivel. Therefore, it could be seen that acceptable and reliable documents have been produced on the part of the plaintiffs to show that they have legal title and also legal possession over the suit property and therefore, it could be seen that as rightly found by the Courts below, their possession should be protected.
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38. Now, according to the defendant, he is the owner of the suit property and he claims to have purchased the suit property from
Sundaramoorthy under Ex.B4 on 17.07.1996. Sundaramoorthy is stated to be the son of Ranganathan. Therefore, it could be seen that the plaintiffs title deeds are anterior to the defendant's title deed marked as Ex.B4.
That apart, as rightly found by the courts below, the defendant in his written statement has not clearly spelt out as to how he is claiming title to the suit property, particularly, there is no reference about Ex.B4 sale deed in the written statement. As adverted to earlier, the defendant had purchased certain extents in the suit survey number from Ranganathan under Exs.B1 and 3. In such view of the matter, as rightly found by the courts below, when the plaintiffs' vendor haspurchased a particular extent in the suit survey number from Ranganathan and when the defendant had also purchased certain extents from Ranganathan in the suit survey number under Exs.B1 and 3, the contention of the defendant that the plaintiffs' vendor is not entitled to purchase the suit property under Ex.A1 as such cannot be countenanced. Equally, the contention of the defendant that his sale deed obtained from Sundaramoorthy, son of Ranganathan should be given preference over the sale deed marked as Exs.A1 and A2 as such cannot straightaway be accepted. Therefore, it could be seen that the defendant's claim of the purchase of the suit property from
Sundaramoorthy as such after Exs.A1 and 2 cannot be readily accepted.
39. Be that as it may, the suit being laid for the relief of permanent injunction, it has to be found whether the plaintiffs have established their possession and enjoyment of the suit property. As adverted to earlier, the plaintiffs have produced Patta, Chitta and other documents to establish their case. Per contra, no acceptable and reliable material has been placed by the defendant to establish that he is in possession and 15 enjoyment of the suit property. The documents marked on the side of the defendant such as Patta, Kist receipts etc., are not shown to be pointing to the suit property particularly when it is found that the defendant has purchased other extent in the suit survey number under Exs.B1 and 3 from Ranganathan. Therefore, it could be seen that the courts below have rightly not agreed to place reliance on the documents of the defendant to accept his claim of the possession and enjoyment of the suit property.
40. During the course of the second appeal, it is also contended by the defendant's counsel that recently, he has laid the suit against the plaintiffs in respect of the suit property seeking the relief of declaration and other incidental reliefs. Therefore, it could be seen that the defendant, if at all, has any legal right over the suit property, it is open to him,to workout his remedy as available under law.
41. In the light of the above discussions, it is found that the courts below have correctly appreciated the evidence on record and based upon proper reasonings and conclusions accepted the plaintiff's case and granted the relief sought for. No infirmity is ascribed or found in the judgment and decree of the courts below for upholding the plaintiffs' claim and rejecting the defendant's version.
42. The following decisions are relied upon by the defendant's counsel in support of his contention reported in (2012) 7 MLJ 459 (Appadurai and
Another Vs. Selvan) and (2010) 3 MLJ 85 (Jothi Ramalingam Vs.
M.N.Sivagnana Prakasam and others). The counsel for the plaintiffs, in support of his contention, placed reliance on the authorities reported in (2003) 1 M.L.J. 21 (Lakshmana Gounder Vs. The Special Deputy Collector (LA), Salem Steel Plant, Salem and others) and (2008) 4 Supreme Court
Cases 594 (Anathula Sudhakar Vs. P.Buchi Reddy (Dead) By LRS. And 16 others). The Principles of Law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the present case.
43.In conclusion, no substantial question of law is found to be involved in this second appeal. Accordingly, the second appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
44. M. Shivanna Vs. Kondali Parasappa and Others
LegalCrystal Citation : legalcrystal.com/1192619
Court : Karnataka
Decided On : Apr-05-2017
Judge : K.N. Phaneendra
Appeal No. : R.S.A. No. 129 of 2017 (INJ)
Appellant : M. Shivanna
Respondent : Kondali Parasappa and Others
Judgement :
(Prayer: This RSA is filed U/S 100 of CPC against the Judgment and Decree
Dtd. 31.1.12 passed in R.A.No.22/2011 on the file of Senior Civil Judge,
Harapanahalli, allowing the appeal and setting aside the Judgment and
Decree Dtd. 19.4.2011 passed in OS.No.56/2003 on the file of Civil Judge,
Harapanahalli, Davanagere District.)
45. After hearing the learned counsel for the appellant, the appeal was admitted on 20.10.2014 and the following substantial questions of law are framed by this court:
(1) Whether the lower appellate court was justified in reversing the judgment of the trial Court?
(2) Whether the findings of the lower appellate court is perverse for not considering 17 the evidence pertaining to the property in a proper perspective?
46. In order to answer the above substantial questions of law, it is just and necessary for this court to got through the case of the plaintiff and the defendants as well as the issues framed by the trial Court and the findings given, as well as the points raised for consideration by the first appellate court and the findings given therein. Admittedly, there are divergent findings recorded by the trial Court and the first appellate court.
In such an eventuality, this court must be very careful in looking into the materials on record in order to ascertain whether there is any prejudice caused to any of the parties to the proceedings.
47. In this background, now let me have the brief factual matrix of the plaintiff and defendants case. It is the case of the plaintiff that he is the absolute owner and in possession and enjoyment of the suit schedule house property bearing Door No.768/2352-B,1/768 situated at 12 th ward of Kelagala Upparageri, Harapanahalli measuring 42 feet East to West and 21 feet North to South, having specific boundaries such as East-road, West
House of Gonibasappa, North Rickyard of Gonibasappa and South house of Mallappa. It is the case of the plaintiff that he acquired the said property under a partition deed dated 27.3.1995. Since the date of partition, the plaintiff has been in exclusive possession and enjoyment of the same and the entire building measures 42 x 21 feet. It is stated that the plaintiff has also appended a sketch to the plaint, wherein the entire property is marked as PQRS and the house portion is marked as MNOP and the proposed construction of compound is marked as QRS. It is the plaintiff s case that he got the katha changed into his name and thereafter, he applied for licence for construction of a compound wall by leaving 3 feet space on the western side. As the defendants have made 18 hectic attempts to stop construction of the compound wall, it forced the plaintiff to file an appropriate suit before the trial Court for permanent injunction restraining the defendant from interfering with his peaceful possession of the suit schedule property.
48. The defendants in fact appeared before the court and contested the suit by fling common written statement. The defendants case is that they denied the title over the suit schedule property nominally and then they have taken the specific stand that the plaintiff intends to construct the compound wall to his existing building and he has obtained the licence.
The plaintiff has already stocked materials and it is specifically stated that the plaintiff in order to encroach upon the property of the defendants, has made hectic attempts to violate law and encroach upon the property of the defendant. It is contended that the plaintiff lawlessly tried to trespass on the property of the defendant to construct the compound wall illegally on the strength of some concocted documents which are obtained behind the back of the defendant. It is further contended that there is no pleading as to how the measurement of the suit schedule property same to the possession of the plaintiff. Therefore, the defendants have prayed for dismissal of the suit.
49. ON the basis of the above said rival contentions between the parties, the trial Court in fact has framed the following issues:
(1) Whether the plaintiff proves that he is in possession over the suit property as on the date of the suit?
(2) Whether the plaintiff further proves that defendants are obstructing for his possession?
(3) Whether the plaintiff is entitle for the reliefs as prayed for?
(4) What order or decree?
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50. The plaintiff has examined himself as PW-1 and produced seven documents as Exs.P1 to P7. The defendant examined himself as DW1 and got marked Exhibits D1 to D10. After appreciating the oral and documentary evidence on record, the trial Court has answered issue Nos.1 to 3 in the Affirmative and decreed the suit of the plaintiff and granted the relief of permanent injunction against the defendants.
51. Being aggrieved by the said judgment and decree passed by the trial Court, the defendant approached the first appellate court i.e., Civil
Judge (Sr. Dvn.) Harapanahalli in RA No.22/2011. The first appellate court
culled out the pleadings of the parties and also the grounds urged before the first appellate court and framed the points for consideration in the following manner;
52. Whether the defendants established that the findings of the trial
Court that the plaintiff has proved his possession over the entire suit schedule property without establishing his title over the same is un- sustainable, perverse, capricious, illegal and against the well established principles of law.
(2) What order or decree?
53. The appellate court has also re-approached the materials on record and taken up a different view and found that the judgment of the trial
Court is perverse and illegal. Therefore, it substituted its finding and eventually dismissed the suit of the plaintiff.
54. As could be seen from the judgment of the trial Court and the first appellate court they mainly relied upon the documents issued by the panchayath i.e., Ex.P1 Licence, Ex.P2 Resolution, Ex.P3 Tax Register of property, Ex.P4 Blue Print and Exs.P5 to P7 are the Assessment list extracts. The defendant has also produced certain documents i.e., Ex.D1 to D.10. Ex.D1 application, Ex.D2 Notice pertaining to the suit property 20 and Exs.D5 to D10 are Kandayam paid receipts with reference to the property of the defendants. As could be seen from the rough sketch appended to the plaint, there is no dispute that the defendants are the adjacent owners of the property of the plaintiff on the western side and also on the northern side. The written statement averments and the evidence of the defendant also clearly goes to show that they also never dispute the existence of the property of the plaintiff i.e., the house and also to some extent backyard of the house. But mainly, they have disputed the extent of the property with regard to 42 x 21 feet of the plaintiff s property. On that ground, perhaps they have taken up the contention that taking advantage of the municipal records, the plaintiff colluding with the municipal authorities obtained licence and also the sketch etc., in order to encroach upon the property of the defendants. The trial Court in fact considering mainly the licence and also the katha extract and the sketch, blue print and assessment register extract has come to the conclusion that the plaintiff has established the case, but it did not in detail delve upon as to how the plaintiff has acquired the said extent of the property and on what basis the said katha and other things have been entered in the panchayath records. On the other hand, the first appellate Court has in detail gone into this particular aspect. It is categorically observed by the first appellate court that the mutation entry i.e., Ex.P1 Licence and Ex.P2 Mutation entry, though in favour of the plaintiff, but he has not produced the mother document i.e., palu patti to exactly show as to what property he has acquired under the said Palu patti and only on the basis of such document, the panchayath records have been built up. The first appellate court has also considered that when there is a dispute with regard to the area and extent and the measurement of the suit schedule property, it becomes the duty of the 21 plaintiff to establish title over the property and then seek for relief.
Though I am not agreeing with the said observation made by the first appellate court, that the plaintiff has to prove his title in order to get an order of injunction from the court, as there is no dispute regarding the existence of the property of the plaintiff and the defendants are not claiming any ownership over the said property of the plaintiff. Therefore, there is no need for the plaintiff to go for proving his title, but what is required to be proved in a permanent injunction suit is that the plaintiff has been in possession of the actual extent for which he claims, when particularly the defendants have taken up the contention that on the basis of the false extent of the property, the plaintiff has been making hectic attempts to encroach upon the property of the defendants i.e., exactly, the crux of the case of the plaintiff and defendant.
55. Apart from the above, the defendant has also produced before the court Ex.D1 and D2. Ex.D1 is the complaint lodged by the defendant to the Chief Officer, Harapanahalli, Panchayath stating that the plaintiff is making hectic attempts to put up some construction in the house and the defendant has complained about the same. In spite of that he s further putting up construction. A notice has been adverted to bythe Panchayath under Ex.D2, wherein he has specifically stated that the defendant
Parasappa has given a complaint stating that the plaintiff has been encroaching upon the property of the defendant and putting up construction. It also refers to the application filed by the plaintiff annexed with the palu patti dated 27.3.1995 and the panchayath has perused the same and specifically observed in Ex.D2 that on examination of the palu patti, it does not give the correct length and breadth of the property and there are some interpolation in the said document. It is not the case of the plaintiff that he never gave any reply to the panchayath that he has not 22 produced any palu patti before the panchayath. Therefore, it creates a serious doubt whether the plaintiff has actually acquired 42 x 21 feet property under the palu patti. Very strangely enough, the plaintiff has not produced the palu patti before the court in spite of the defendant taking up that contention with reference to the extent of the property nor he has got a Commissioner appointed atleast to examine as to what is the extent of plaintiff s property and what are the extent of defendants property or whether any encroachment by the plaintiff over the property of the defendants. In the absence of all these material facts particularly non production of the mother document by the plaintiff and particularly the said document being produced beforethe panchayath as per the recitals in
Ex.D1 and D2 and no specific extent is available in the said document, it creates a serious doubt in the mind of the court as to whether actually, the plaintiff is entitled for an extent of 42 x 21 feet as claimed in the suit.
In the absence of giving any proof with regard to the extent of the suit schedule property, the court cannot grant such relief of injunction to the extent claimed in the plaint. Therefore, I do not find any strong seasons to hold that the first appellate court is not justified in reversing the judgment of the trial Court, I am of the opinionthat the finding of the lower appellate court cannot said to be perverse and it has in fact considered the documentary evidence of the plaintiff as well as the defendant with reference to the extent of the property and passed the judgment impugned in this appeal. In my opinion, there is no reason or ground to interfere with the said judgment and decree passed by the first appellate court.
56. Be that as it may, the first appellate court has also stated that the plaintiffs case has to be decided only if the plaintiff comes before the court for declaration with a comprehensive suit, then only the court can 23 decide such important aspect, but it appears, the plaintiff has not approached with a comprehensive suit for declaration, in which the court can consider the right, title, interest and possession over the property as claimed by the plaintiff.
57.Therefore, I am of the opinion, that the first appellate court has in detail considered all the relevant materials and drawn such inference which does not call for interference at the hands of this court. Accordingly, the appeal deserves to be dismissed. Hence, the following:
ORDER
The appeal is dismissed. In the peculiar facts and circumstances of the case, there is no order as to costs.
58. K.S. Javarappa Vs. B. Ramaiah Since Deceased by LRs., and Others
LegalCrystal Citation : legalcrystal.com/1192627
Court : Karnataka
Decided On : Apr-04-2017
Judge : L. Narayana Swamy
Appeal No. : R.F.A. No. 1325 of 2005 (DEC & INJ)
Appellant : K.S. Javarappa
Respondent : B. Ramaiah Since Deceased by LRs., and Others
Judgement :
(Prayer: This RFA is filed under Order 41 Rule 1 of the code of Civil
Procedure read with Section 96 of CPC against the judgment and decree dated 28.07.2005 passed in
O.S.No.5747/1997 on the file of the XXIV Additional City Civil Judge,
Bangalore (CCH- 6), decreeing the suit for declaration and permanent injunction.) 24
59. The defendant is in appeal assailing the judgment dated 28.07.2005 passed in O.S.No.5747/1997 on the file of XXIV Additional City
Civil Judge, Bengaluru city (CCHNo.6).
60. The respondents herein are the plaintiffs. Initially, the original plaintiff, B. Ramaiah, filed the suit for the relief of permanent injunction restraining the defendant appellant herein and his agents from interfering with his peaceful possession and enjoyment of site No.3 measuring 54 feet East to West and 30 feet North to South formed in Sy.No.69/6 of
Jalahalli village, Yeshwanthapura hobli, Bengaluru North Taluk.
Subsequently, the plaintiff filed an application for amendment of plaint to include the relief of declaration, which was allowed on 21.08.2000. The original plaintiff pleaded that the land in Sy.No.69/6 measuring 25 guntas was his ancestral property and it was allotted to the share of his father, Sri
Byanna, under the registered partition deed dated 20.04.1927 and the same had fallen to his share under the registered partition deed dated 06.02.1952. He formed sites in the said land and sold some of the sites to third parties while retaining site Nos.2, 3 and 6. He was the owner in possession of site No.3, which is the subject matter of the suit. According to the plaintiff, the defendant- appellant, without any manner of right, title or interest over site No.3, has been making regular efforts to interfere with the peaceful possession and enjoyment of the plaintiff and accordingly, he filed the suit for permanent injunction and declaration.
During the pendency of the suit, the original plaintiff died and his legal representatives, who are the respondents herein, were brought on record.
61. The defendant appellant filed the written statement admitting the fact that the original plaintiff s father, Byanna, had got the property in
Sy.No.69/6 measuring 25 guntas under the registered partition deed dated 20.04.1927 and the same had fallento the share of the original plaintiff in 25 a family partition. However, it is contended that the original plaintiff sold the said property in favour of Byrappa under registered sale deed dated 01.10.1958, who in turn has sold the same to Smt. Munithayamma, the mother of the original plaintiff. According to the defendant, Smt.
Munithayamma has formed sites in the said land sold and she has sold site No.3, which is the suit schedule site, in favour of Gopinath Pai under registered sale deed dated 24.06.1964 (wrongly mentioned as 26.06.1964 in the written statement) to which the original plaintiff has also affixed his signature as a consenting witness. The defendant has purchased the site from Gopinath Pai and in that regard, he has executed anagreement of sale, general power of attorney and has sworn to an affidavit for having received the consideration amount on 03.02.1986. Since the defendant is the absolute owner in possession of the suit schedule site, plaintiffs are not entitled to any relief and accordingly, sought for dismissal of the suit.
62. The trial Court after considering the pleadings of the parties, framed four issues and an additional issue. In support of his case, the original plaintiff got examined himself as PW.1 and relied upon the documents, namely, certified copy of the partition deed dated 20.04.1927, certified copy of partition dated 06.02.1952, rough sketch of layout plan and photocopy of police complaint as per Exs.P1, P2, P3 and P4 respectively.
Plaintiff No.2 got examined herself as PW.2 and got marked RTC extract for the year 2004 and Encumbrance certificate for the period from 01.04.1989 to 20.01.2004 as per Exs.P5 and P6 respectively.
63. The defendant appellant herein examined himself as DW.1 and relied upon the documents viz., photocopy of general power of attorney executed by Gopinath Pai in favour of the defendant dated 03.02.1986, photocopy of the affidavit of Sri Gopinath Pai dated 12.02.1986, photocopy of sale deed dated 24.06.1964 executed by Smt.
26
Munithayamma in favour of Gopinath Pai, photocopy of encumbrance certificate for the period from 24.04.1964 to 24.04.1997 in respect of the suit schedule site, photocopy of the sale deed dated 08.01.1965 executed by Smt. Munithayamma in favour of the original plaintiff, photocopy of the layout plan of the suit schedule property and photographs, which were got marked as per Exs.D1 to D7 respectively.
64. The trial Court considering the respective case of the respective parties, by judgment dated 28.07.2005, decreed the suit of the plaintiffs.
Being aggrieved by the same, the defendant has preferred this first appeal.
65. The learned counsel for the appellant herein, defendant in the
Court below, submitted that the original plaintiff-Sri B. Ramaiah had sold 25 guntas of land in Sy.No.69/6, which had fallen to his share by virtue of registered partition deed dated 06.02.1952, in favour of his father,
Byanna, under the registered sale deed dated 10.10.1953. Thereafter, late
Byranna had sold the said land in favour of one Byrappa under the registered sale deed dated 12.11.1953. Subsequently, Byrappa has sold the said land in faovur of Smt. Munithayamma, wife of Byanna, under the registered sale deed dated 01.10.1958. Smt. Munithayamma after purchasing the said land, formed sixteen sites and has sold site Nos.1, 3, 4, 5, 7, 8, 10, 12 and 15 in favour of third parties while retaining site
Nos.2, 6, 9, 11, 13, 14 and 16. So far as site No.3, which is the suit schedule property is concerned, Smt. Munithayamma has sold the same to Gopinath Pai under the registered sale deed dated 24.06.1964. Smt.
Munithayamma has sold site Nos.2, 6, 9, 11, 13, 14 and 16 in favour of the original plaintiff, B. Ramaiah under the registered sale deed dated 08.01.1965. Gopinath Pai, in turn, has executed an agreement of sale on 30.08.1985 in favour of the appellant defendantagreeing to sell site No.3, 27 which is the suit schedule site, for consideration of Rs.2,000/-, out of which Rs.1,500/- was paid on the said day and the remaining amount of
Rs.500/- was agreed to be paid within six months from the date of the agreement. Subsequently, Gopinath Pai has executed a general power of attorney in favour of the defendant appellant on 03.02.1986 and has also sworn to an affidavit for having received sale consideration on 03.02.1986 and on the said day, defendant appellant was put in possession of the suit schedule site. The learned counsel for the appellant submitted that the appellant could not produce the original documents before the Court below and only photocopy of general power of attorney dated 03.02.1986 and sale deed dated 24.06.1964 were produced before the Court below.
Therefore, he has filed I.A.No.1/2005 seeking permission to produce certified copy of sale deeds dated 10.10.1953, 12.11.1953, 01.10.1958 and 08.01.1965 and originals of sale deed dated 24.06.1964 (wrongly mentioned as 26.06.1964 in I.A.No.1/2005), agreement dated 30.08.1985, general power of attorney dated 03.02.1986 and affidavit dated 03.02.1986.
66. The learned counsel for the appellant further submitted that the plaintiffs have failed to prove that they are in possession of the suit schedule site and as per the pleadings at para Nos.3, 4 and 5 of the plaint, the original plaintiff himself had stated that he continued to be in possession of the suit property since 1952 and by virtue of the same, he has acquired title to the same. Though the original plaintiff B. Ramaiah had knowledge of execution of the sale deed dated 24.06.1964 by Smt.
Munithayamma in favour of Gopinath Pai conveying the suit schedule site and had affixed his signature to the said deed as a witness, he had suppressed the said material fact in the plaint. In view of the same, the question of plaintiffs claiming injunction against the defendant does not 28 arise and plaintiffs plea for the relief of declaration is not based on any material fact. Though the plaintiffs have not proved their case for relief of possession and declaration, the Court below has committed an error in decreeing the suit. Hence, the learned counsel sought for setting aside of the impugned judgment of the Court below.
67. Learned counsel for the respondent No.1(b)-plaintiff No.1(b) submitted that the defendant appellant has not produced the original sale deed dated 24.06.1964 executed by Smt. Munithayamma in favour of
Gopinath Pai and has only produced photocopy of the same before the
Court below Furthermore, he did not produce the original sale deed dated 10.10.1953 executed by the original plaintiff- Sri B. Ramaiah in favour of late Byanna and the sale deed dated 12.11.1953 executed by Byanna in favour of Byrappa as also the sale deed dated 01.10.1958 executed by
Byrappa in favour of Smt. Munithayamma before the Court below. It is not the case of the defendant appellant that the said documents were not in his possession. The learned counsel has disputed the general power of attorney executed by Gopinath Pai in favour of the appellant. Therefore, learned counsel submitted that if I.A.No.1/2005 for production of
additional documents is allowed, the matter is to be remanded for fresh
consideration by the Court below.
68. The learned counsel further pointed out that there is inconsistency in the evidence of defendant DW.1 as in his cross-examination, he has admitted the fact that he has not encroached on site No.3 and that
Gopinath Pai has not given him the original sale deed. Even though DW.1 has deposed in his cross-examination that he would summon Gopinath Pai and examine him, no steps have been taken to examine him before the
Court below. Under the Circumstances, learned counsel for the respondent
No.1(b) sought for dismissal of this appeal.11. Heard both the learned 29 counsels and perused the material on record. The points that arise for consideration in this appeal are as under:
1. Whether the Court below has committed an error in decreeing the suit?
2. Whether the appellant-defendant has proved factum of his possession in respect of the suit schedule property since 1986 till today?
I answer the above points in the negative against the appellant for the following: REASONS
69. The appellant is aggrieved by the judgment of the Court below decreeing the suit filed by the plaintiffs. The suit was filed by the original plaintiff for the relief of permanent injunction. Subsequently, he filed an application for amendment of plaint in order to include the relief of declaration and the same was allowed. During pendency of the suit, the original plaintiff died and his legal representatives were brought on record. The Court below has considered the case of the parties in respect of declaratory relief and also injunction. Though the appellant defendant contends that he is the owner in possession of the suit property by virtue of the agreement of sale dated 30.08.1985, wherein Gopinath Pai has agreed to sell the suit schedule site in his favour, general power of attorney dated 03.02.1986 executed by Gopinath Pai in his favour and affidavit sworn to by Gopinath Pai on 03.02.1986 with regard to receipt of sale consideration, he has not produced the said documents before the
Court below. Under the circumstances, a legal presumption is to be drawn against the appellant-defendant that he is in no way concerned with site
No.3 as he has not produced any document to prove his title. When such is the legal inference to be drawn, the question of remanding the matter does not arise. A relief-oriented approach has to be adopted and relief 30 cannot be denied on the basis of the technicalities. If it is the case of the appellant-defendant that Gopinath Pai entered into an agreement of sale with him and has put him in possession of the suit property on 03.02.1986, nothing prevented him from summoning and examining
Gopinath Pai before the Court below in support of his case. Since the defendant appellant has not chosen to examine Gopinath Pai, who is said to have executed the agreement of sale in his favour and is said to be in possession of the relevant documents, the question of remanding this matter does not arise.
70. The defendant appellant in support of his case has filed
I.A.No.1/2005 seeking permission for production of additional documents by way of evidence before this Court. He has produced certified copy of the sale deed dated 10.10.1953 executed by the original plaintiff B.
Ramaiah in favour of his father, Byanna, in respect of Sy.No.69/6 measuring 25 guntas and certified copy of the sale deed dated 12.11.1953 executed by Byanna in favour of Byrappa. It is his further case that Byrappa, who purchased the property on 12.11.1953, in turn, sold the same to Smt. Munithayamma on 01.10.1958. The certified copy of the said sale deed has been produced before this Court. It is stated that she has formed sites in Sy.No.69/6 and sold some of the sites including site
No.3, which is the suit schedule property, to third parties and retained certain sites. This fact has been highlighted by the learned counsel for the appellant and he submitted that since site No.3 carved out of Sy.No.69/6 has been sold by Smt. Munithayamma in favour of Gopinath Pai under the registered sale deed dated 24.06.1964, the question of plaintiffs seeking injunction and declaratory relief against the appellant defendant does not arise. This point has been lost sight of by the Court below. In order to appreciate the said submission, the basic requirement to be met by the 31 appellant defendant is that he has to prove the agreement of sale and general power of attorney executed by Gopinath Pai. Though he has deposed in his cross- examination that Gopinath Pai would be summoned and he would be examined, no steps have been taken in that regard.
Except producing photographs as per Ex.D7 to prove his possession since 30.08.1985, the appellant defendant had not relied upon on any original and relevant documents. This goes to show that the defendant appellant has no case on merit.
71. The learned counsel for the appellant has relied upon the judgment of the Hon ble Supreme Court in the matter of NORTH EASTERN RAILWAY
ADMINISTRATION, GORAKHPUR vs. BHAGWAN DAS (DEAD) BY LRS., reported in (2008) 8 SCC 511, more particularly the observations made in para Nos.13, 15 and 20 of the said judgment, which read as under:
72. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 C.P.C. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub rule (1)], or (ii) the party seeking to produce
additional evidence, establishes that notwithstanding the exercise of due
diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the 32 decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. [clause (b) of sub-rule (1)].xxx
73. Again in K. Venkataramiah v. A. Seetharama Reddy (AIR 1963 SC 1526: (1964) 2 SCR 35) a Constitution Bench of this Court while reiterating the aforenoted observations in Parsontim case (AIR 1931 SC
143) pointed out that the appellate court has the power to allow
additional evidence not only if it requires such evidence to enable it to
pronounce judgment but also for any other substantial cause . There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment , it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.
xxx 20. In any event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed.
Nonetheless, it was bound to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in the light of the legal position, briefly set out hereinabove. In view of the aforenoted 33 factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained.
74.The Apex Court has held that additional evidence can be admitted by the Appellate Court only when the conditions prescribed under Order 41 Rule 27 of the Code of Civil Procedure, 1908, are satisfied. In order to permit the appellant to produce thedocuments stated in I.A. No.1/2005, the appellant has to satisfy the ingredients of sub clauses (i) and (ii) of
Order 41 Rule 27 of the CPC. He has to satisfy clause (i), namely, that he should establish that the Court below whose decree is the subject matter in the appeal had refused to admit evidence, which ought to have been admitted and secondly, he should establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or that inspite of exercise of due diligence, the said documents could not be produced by him at the time when the decree appealed against was passed. Though in the affidavit, the appellant has stated the reasons for non-production of the documents before the Court below, the same does not constitute satisfactory explanation for allowing of the application. It is clear from the proceedings before the Court below that though abundant opportunity was afforded to the appellant to produce the documents now sought to be produced, he has not produced the same
before the Court below. Even assuming that the said documents are
beneficial to the appellant to prove his case, the matter does not warrant remand to the Court below as the appellant has slept over the matter and had not produced the said documents for more than two decades.
75. Hence, I.A.No.1/2005 for production of additional documents filed by the appellant is rejected. Consequently, while answering the points against the appellant, the Appeal is dismissed. In view of disposal of this 34 appeal, I.A.No.2/2005 for stay does not survive for consideration and the same stands disposed of.
K. Rajeshwar Reddy and ors. Vs. N. Laxmikantam and ors.
LegalCrystal Citation : legalcrystal.com/435139
Court : Andhra Pradesh
Decided On : Mar-08-2002
Reported in : 2002(3)ALD731; 2002(4)ALT632
Judge : L. Narasimha Reddy, J.
Acts : Andhra Pradesh Agricultural Lands (Ceiling on Holdings)
Act; Madhya Pradesh
Land Reforms Code - Sections 50
Appeal No. : A.S. No. 638 of 1991
Appellant : K. Rajeshwar Reddy and ors.
Respondent : N. Laxmikantam and ors.
Advocate for Def. : P.V. Narayana Rao and ;P. Padma, Advs.
Advocate for Pet/Ap. : B. Prakash Rao, Adv.
Disposition : Appeal dismissed
Judgement:
ORDER
L. Narasimha Reddy, J.
76. In this appeal the defendant in O.S.No.125 of 1981 on the file of the
Subordinate Judge at Karimnagar assails the judgment and decree therein.
The parties are referred to as arrayed in the suit.
77. The plaintiffs filed the suit for the relief of declaration of title and perpetual injunction in respect of the suit schedule property. All the plaintiffs claim to have purchased different extents of plots in S.No.277/2 of Choppadandi village through sale deed dated 11-11-1976, 22-11-1976 and 14-2-1977 in Ex. A.2 to A.4. According to them the 1st defendant was 35 the original owner of the said land admeasuring Ac. 1.01 gunta. In the year 1956 the 1st defendant exchanged the same with one Mr. Bujidi
Muttam Bhadraiah for the land in S.No.22 and Bhadraiah in turn sold the same to one Mr. Chintala Yellaiah under an unregistered sale deed dated 16-5-1957 (Ex.A.5). Ever since the date of purchase under Ex.A.5, Chintala
Yellaiah was in possession and enjoyment of the same. Yellaiah and his son Mallaiah have sold the two plots in favour of the plaintiffs as well as the defendant No.3 in the year 1976 and 77. The defendants 1 and 4 to 7 have been trying to interfere with the possession of the plaintiffs over the plots purchased by them. Hence they approached the court seekingrelief of declaration of title on the basis of the document in Ex. A.5 as well as the adverse possession enjoyed by the predecessor in title.
78. The defendants filed written statement disputing the very factum of exchange and the subsequent sale. According to them the land in
S.No.277/2 was always held, enjoyed and possessed by the 1st defendant.
Thereafter he sold plots therein in favour of other defendants and neither the plaintiffs nor their predecessor have the title or possession over the same. On the basis of the pleadings the trial court framed the following issues.
79.1. Whether Chintala Yellaiah and the alleged predecessor in tile of the plaintiffs had acquired title to the suit land by adverse possessor and whether the sale deeds set-up by the plaintiffs are true and whether the plaintiffs acquired title to the suit lands under them?
2. Whether the plaintiffs are in possession of the suit land?
3. To what relief?
36
80. On behalf of the plaintiffs P.Ws.1 to 9 were examined and Exs.A.1 to
A.42 were marked. On behalf of the defendants D.Ws.1 to 8 were examined and documents Exs.B.1 to B.20 were marked. In addition to the said documentary evidence Exs.C.1 and C.2 were also marked. On appreciation of oral and documentary evidence the trial court decreed the suit as prayed for. Hence this appeal.
81.Sri Ramesh Sagar, learned counsel for the defendants, submits that the trial court ought not to have granted the decree and declaration of title on the basis of adverse possession, when there was no valid conveyance of title in respect of the suit schedule property. It is also his contention that the plaintiffs have failed to establish the factum of their being in possession for the required period or at any rate before filing the suit. It is also his contention that even the so called possession of the plaintiffs was unlawful and the same cannot confer any title on them nor does it entitle them to seek injunction against the rightful owner.
82.Sri P.V. Narayana Rao, learned counsel for the plaintiffs on the other hand submits that the evidence on record had clearly established that ever since the year 1957, Ch. Yellaiah's, the predecessor in title of the plaintiffs, was in possession of the suit schedule property till the year 1976 and thereafter the plaintiffs were put in possession of the same and the same was sufficient to constitute adverse possession and entitle the plaintiffs to get declaration of title in their favour. It is also his contention that once the record establishes the continuance of possession and passage of long period, the relief of injunction was almost inevitable.
83. In view of the contentions of the learned counsel and the pleadings and evidence on record, the questions that arise for consideration in this appeal are 37
a) whether the plaintiffs are entitled for a decree of declaration of title and
b) whether they are entitle for the relief of permanent injunction.
84. Normally the plea of adverse possession would only enable the person taking the same to resist any attempt by any other person to evict him. It is almost in the form of defence. It was for this reason that the plea of adverse possession is treated as shield and not a sword. The doubt is as to whether an individual who continued inpossession of an immoveable property and whose possession was adverse to the lawful owner can seek a declaration of his title. However, the same is no longer res integra in view of the judgment of the Supreme Court reported in BALAKISHAN VS.
SATYAPRAKASH1. In that case the trial court decreed the suit for declaration of title on the basis of adverse possession. The appeal filed against the same was dismissed.
However, in the second appeal, the High Court reversed the judgments of the courts below by observing as under.
' In spite of the fact that the plaintiff continued in possession, in spite of the order against him in proceedings under Section 250 MP LR Code, his possession cannot be said to be sufficient in eye of. Law to confer a title upon him by adverse possession, as claimed.'
85. The judgment of the High Court was reversed by the Supreme Court with the following observation.
' From the above discussion it follows that the judgment and decree of the
High Court under challenge cannot be sustained. They are accordingly set aside and the judgment and decree of the first appellate court confirming the judgment and decree 38 of the trial court is restored. The appeal is accordingly allowed but in the circumstances of the case without costs.'
86. Therefore it emerges that adverse possession for the required length of time would not only enable the person pleading such possession to resist the plea of recovery of possession but would also enable him to get his title declared on the strength of the same.
87. Now it remains to be seen as to whether the plaintiffs have established their continuous and adverse possession in respect of the suit schedule property. They claim through their vendor Ch. Yellaiah. Therefore the possession of Ch. Yellaiah has to be tacked on to that of the plaintiffs also.
88. It is the claim of the plaintiffs that Ch. Yellaiah was inducted into the suit schedule property in the year 1957. In support of their plea they have examined number of witnesses. P.W.5 is the scribe of Ex.A.5 under which the suit schedule property was said to have been sold by one Bhadraiah.
Since it is not a registered document, it cannot validly transferred title.
However it needs to be seen whether the possession of the property was delivered to Ch. Yellaiah in the year 1957. P.W.5, apart from asserting the fact that he scribed the document Ex.A.5 and also stated as under:
“I am also the owner of S.No.272. Its extent is about 4 or 5 acres. There is a well and motor to the well. Whenever I was going to my fields I was seeing that the suit lands being cultivated by Ch. Yellaiah and Chinthala
Mallaiah. Ever since the time of purchase the Vendees i.e. Ch. Yellaiah and
Mallaiah were in possession and enjoyment of the lands.'
89. Nothing was elicited from him to discredit the said statement.
90. P.W.6 is another witness who had the lands by the side of the suit land. He stated as under.
39 'My land was on the southern side of the suit land ........ I sold my land about 15 - 16years ago. The suit land was sold by Chintala Yellaiah. He has sold away subsequent to the sale of my land. When I was owning and cultivating my land and the suit land, when it was owned by Chintala
Yellaiah, I know that he himself was cultivating it.'
91. It was suggested to this witness by the defence that it was only the defendant No.1 who was in possession of the said land.
92. P.W.7 is another witness whose land was on the East side of the suit schedule land. He has also stated; 'Chintala Yellaiah cultivated his land for the past 20 years and Yellaiah sunk awell in his land.'
93. The suggestion that was put this witness was also that Yellaiah was never inpossession of the same.
94. P.W.8 was the patwari of the village who worked as such from 1957 to 1983. His statement is to the following effect 'By the time of my assuming charge as patwari of the village, Chinthala Yellaiah was in possession and enjoyment and cultivating the lands of Sy.No.277/2.'
95. Nothing was elicited to discredit his evidence.
96. Coming to the documentary evidence, it needs to be observed that the plaintiffs have filed the pahanis from the year 1958-59 to 1978-79 being Exs.A.7 to A.24. These records evidence the possession of Chintala
Yellaiah. Ex.A.25 is a book maintained for the purpose of making entries by the Revenue Authorities. In that book, entries are marked from A.25 (A to D) and A.26 (A to I) from the years 1957 to 1976 evidencing the payment of land revenue.
97. One important aspect to be noted is that defendant No.1 who claimed to be the original owner, in his written statement stated that he inducted Yellaiah into the property in the year 1960 as a tenant. He is 40 however, silent as to when the tenancy was terminated and when he re- entered the land. Being the holder of various items of agricultural land he submitted declarations under the A.P. Agricultural Lands (Ceiling on
Holdings) Act. Ex.B.1 is declaration submitted by him. In that, the suit schedule property which is in S. No.277/2 does not figure. On the other hand, the other part viz., S. No.277/1 is declared by him. It is also relevant to note that his statement was recorded by the revenue authorities in the course of verification of the declaration. Ex. A.37 is the statement made by the defendant No.1, recorded by the Deputy Tahasildar of the Land
Reforms Tribunal. In the statement recorded in 1975 he has categorically stated that 25 years ago the land in S.No.277/2 was sold in favour of
Ch.Yellaiah and that he has been cultivating the same ever since.
98. These facts would clearly and clinchingly establish that the possession of land Ch. Yellaiah over the suit schedule property was open, continuous and adverse to the 1st defendant. The possession was continuous from 1957 and there is nothing on record to show that there was any interruption. It can be said that the plaintiffs have discharged their burden to establish that their possession was continuous for the requisite period and was adverse to the 1st defendant. The defendants did not place any evidence before the court to discredit the evidence adduced by the plaintiffs. On the other hand the suggestions were rather vague and contradictory. While in the written statement it has been categorically pleaded that Yellaiah was inducted into possession in the year 1960 as a tenant, in the oral evidence the 1st defendant as D.W.1 admitted that he continued till 1975. The suggestions that were put to some of the P.Ws. was that the Yellaiah was never in possession of the suit schedule property.
41
99. The cumulative effect of this discussion is that the plaintiffs have established that themselves and their predecessor in title have perfected their title by adverse possession and in view of the judgment of the
Supreme Court referred to above they are entitled to decree of declaration of their title.
100. Since it has been found that the plaintiffs have established their continuous possession ever since 1957, they are also entitled for permanent injunction. In a way, even if for any reason they were not entitled for the declaration of title on the basis of their continuous possession they were entitled for the decree of permanent injunction.
Therefore, no exception can be taken to the judgment and decree of the trial court.
101. In its judgment the trial court while dealing with issue No.3 held that the sale deeds executed by P.W.1 in favour of D.Ws.1 to 7 are null and void. It is clarified that if the defendant executed any sale deeds in respect of any property other than the suit schedule property, such sale deeds will not be affected by virtue of the decree of the trial court.
102. The appeal is therefore dismissed. There shall be no order as to costs.
103. In view of the above, it is evident that the defendant has contested the suit with bald allegations against the plaintiff and it is not trustworthy and it can be clearly understood that the defendant have contested the suit only to gain time and to procrastinate the matter and there is no force in the defense of the defendant.
104. The evidence of P.Ws.1 to 3 coupled with documents Ex.A.1 to
Ex.A.11 and on behalf of defendants even though examined D.W.1 and
D.W.2 and got marked documents Ex.B-1 to Ex.B-3 documents are got marked to prove his contentions mentioned in the written statement but 42 they are not sufficient to prove their case. As such, the plaintiff is entitled to grant permanent injunction against the defendants. These two Issues are answered against the defendants in favour of the plaintiff.
ISSUE NO.3:
105. In view of answering to issue Nos.1 and 2, the suit of the plaintiff decreed with costs.
106. In the result, the suit of the plaintiff is decreed with costs by granting permanent injunction restraining the defendants, their men, agents, followers from ever interfering with peaceful possession and enjoyment of plaintiff in the plaint schedule property except through process of law.
Typed to my dictation directly to the steno corrected and
pronounced by me in the open Court on this the 23rd day of March, 2018.
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:
P.W.1 : PERIKALA RANGAMMA P.W.2 : CHEMBODI DEVADASU P.W.3 : VELPULA PRASAD
FOR DEFENDANTS:
D.W.1 : GANTA RAVI BHASKAR D.W.2 : GONTHUKUPUDI RAM PRASAD
DOCUMENTS MARKED ON BEHALF OF PLAINTIFF
Ex.A1:15-05-2005WILL DEED Ex.A2:03.06.2008Property Tax Demand Notice. Ex.A.303-06-2008Property Tax receipt Ex.A.417--03-2008 Electricity bill 43
Ex.A.527-05-2008 Family member certificate
Ex.A.6---True copy of Town Survey Register Ex.A.722-12-2008 Tax receipt Ex.A.817-08-2008 Tax receipt Ex.A.912-06-2008 Tax receipt Ex.A.1012-02-2009 Electricity payment receipt Ex.A.1128-01-2009 Electricity payment receipt
DOCUMENTS MARKED ON BEHALF OF DEFENDANT
ExB.1---Photograph of plaint schedule property Ex.B.201-03-2002Certified copy of sale deed executedd by Chembodi babu Rao in favour of Chukkala Lovaraju vide Doc. No.789/2002 of SRO, patamata, Vijayawada. Ex.B-322-04-2006Certified copy of Sale deed executed by the father of the plaintiff namely Chembodi Galeeb in favour of Nimmagadda Surya Praksa Raovide Doc. No.1901/2006 of SRO, Patamata, Vijayawada.
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.
44
IN THE COURT OF THE III ADDL. JUNIOR CIVIL JUDGE: VIJAYAWADA.
PRESENT:SMT. G.VIJAYALAKSHMI
III ADDL. JUNIOR CIVIL JUDGE, VIJAYAWADA.
Wednesday, this the 7th day of March, 2018
O.S.NO.1346/2016
Between:
Doppala Swapna w/o. Late Doppala Bala Raju, Christian, aged about 26..PLAINTIFF
years, House wife & Sentering works r/o. D.No.7-101, S.C. Colony, Guntupalli village, Ibrahimpatnam Mandal, Krishna District.
A N D
1.Doppala Manikyala Rao s/o late Showri, Christian, aged about 65 years, Sentering works, resident of D. No.7-101, S.C. colony, Guntupalli village, Ibrahimpatnam Mandal, Krishna District.
2.Lakshmi @ Doppala Lakshmi w/o. Doppala Manikyala Rao, Christian, aged about 50 years, Sentering works, r/o. D. No.7-101, S.C. colony, Guntupalli village, Ibrahimpartnam Mandal, Krishna District.
..DEFENDANTS
1.The suit is filed by the plaintiff against the defendants u/s.XXVI, Order VII, Rules 1 to 4 of Civil Procedure Code, 1908 for grant of permanent injunction restraining the defendants, their men, agents, followers from ever interfering with peaceful possession and enjoyment of the plaintiff in the plaint schedule property except through process of law and for costs of the suit.
2.Plaint presented on : 16-12-2016 Plaint numbered on : 16-12-2016
3.Value of the suit for the purpose of Court fee and Court jurisdiction is that of Rs.20,000/- and on which a court fee of Rs.1,386/- is herewith paid u/s.26 (c) of A. P. C. F. & S. V. Act.
4.Cause of action for the suit arose the husband of the plaintiff late Doppala Bala Raju is absolute owner of RCC building and asbestos roofed house an extent of 143 sq. yards in D. No.7-11, S.C. colony, Guntupalli village, Ibrahimpatnam Madal, Krishna District when the 1st defendant is father in law of the plaintiff and 2nd defendant is concubine of the 1st defendant and he offered to sell his property during the life time of the plaintiff’s husband, when the plaintif’s husband agreed to purchase the same for Rs.60,000/- and that when the 1st defendant and his two married daughters executed a possessory sale agreement, dated 10-7-2014 in favour of the plaintiff’s husband and that when the 1st defendant and his two married daughters delivered the above property to the plaintiff’s husband, when due to cancer the plaintiff’s husband died on 16-7-2016, that when after the death of plaintiff’s husband, the elders of the plaintiff requested her to share part of the plaintiff to the 1st defendant on monthly rent of Rs.1,000/-, when the defendants are also trying to grab the plaint schedule property, when the 1st defendant got issued a notice on 45 18-8-2016 to the plaintiff with all false and frivolous allegations and demand to hand over sale agreement to the 1st defendant, that when again on 12-12-20126 at about 4-00 p.m. the defendants along with their followers came to the plaint schedule property and trying to enter into the plaint schedule property and that the defendants openly proclaimed and threatened the plaintiff to enter into the plaint schedule premises by the end of December, 2016 and that when the plaintiff has no other alternative except to seek necessary relief from the court preventing the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property at Guntupalli village, Ibrahimpatnam Mandal, Krishna District. Where the plaint schedule property situated within the jurisdiction of this court.
This suit is coming on this day before me on 5.2.2018 in the presence of Sri B. Chandra Rao and Sri K. Vijaya Kumar, Advocates for the plaintiff and of Sri G. Prabhakara Rao and Sri C. Nagaraju, Advocates for the defendants; upon perusing the plaint, other connected material papers on record; and this court doth order and decreed as follows:
i) that the suit of the plaintiff be and the same is hereby decreed with costs; ii) that the defendants, their men, agents, followers do and are hereby restrained by granting permanent injunction in favour of the plaintiff from ever interfering with peaceful possession and enjoyment of plaintiff in the plaint schedule property except through process of law; iii) that the defendants also do pay to the plaintiff a sum of Rs.3,888/- towards costs of the suit and do bear their own costs of the suit Rs. Nil (No bill of costs filed)
Given under my hand and seal of this Court on 7th day of March, 2018.
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.
MEMO OF COSTS
Particulars Plaintiff Defendant
1.Stamp on vakalathRs. 2-00 (No bill of costs filed)
2.Stamp on plaint 1,386-00
3.Stamp on process 50-00
4.Advocate’s fees Sr. 1,700-00
5.---do---Jr.650-00
5.Writing charges 50-00
6.Typing charges 50-00 Total 3,888-00
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.
Note:-Both parties should apply as soon as possible for return of all exhibits which they may wish to preserve as the record will be able to be destroyed after three years from the date of decree or order.
46
PLAINT SCHEDULE PROPERTY IN O.S.NO.1346/2016
Asbestos roofed house consisting in an extent of 63 sq. yards in D. No.7-101 situated in S.C. colony, Guntupalli Village, Ibrahimpatnam Mandal, Krishna District within the Sub-Registry of Ibrahimpatnam Mandal, Krishna District being bounded by:-
EASTPanchayat Road SOUTHRCC building is in possession of defendants WEST Property of Rentapalli Subba Rao NORTHPanta Kaluva
Value of the property is Rs.6,00,000/-
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.
Note:-Both parties should apply as soon as possible for return of all exhibits which they may wish to preserve as the record will be able to be destroyed after three years from the date of decree or order.
47
Note:-Both parties should apply as soon as possible for return of all exhibits which they may wish to preserve as the record will be able to be destroyed after three years from the date of decree or order.
VIJAYAWADA.
48
Note:-Both parties should apply as soon as possible for return of all exhibits which they may wish to preserve as the record will be able to be destroyed after three years from the date of decree or order.
Plaint schedule filed on behalf of the plaintiff:-
In an extent of 70sq. ft. of car parking space which is allotted to plaintiff in ground floor of S.S. Towers situated in Gunturivari street, Chowaripet, Krishnalanka, Vijayawada Revenue Ward No.10, Municipal Ward No.23, Block No.10, N.T.S. No.319, Asst. No.27575B, New Asst. No.236081, D. No.41-20/1-1, being bounded by:-
East : Pillars and compound wall West : Parking place belonging Raja, owner of FF1 North : Entrance gate South : Common area of complex
III ADDL. JUNIOR CIVIL JUDGE,
VIJAYAWADA.