A.S.No. 63/2015
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IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE :: CHITTOOR
Present: Junaid Ahmed Moulana,
Principal District Judge, Chittoor.
Monday, the Twenty Fourth (24th) day of December, 2018.
A.S.No. 63 of 2015
Between:
M.Jayarama Reddy… Appellant/plaintiff
And:
1.E.Ramalinga Reddy.
2.K.Pattabhi Reddy.… Respondents/defendants
On appeal from the judgment and decree of II Additional Junior Civil
Judge, Chittoor, dated 18.03.2015, made in -
O.S.No. 800 of 2005
Between:
M.Jayarama Reddy… plaintiff
And:
1.E.Ramalinga Reddy.
2.K.Pattabhi Reddy.… defendants
This appeal suit coming on 12.12.2018 for final hearing before me, in the presence of Sri V.Ramanarayana Reddy - advocate for appellant, and of Sri M.Subramanyam Reddy – advocate for respondents, and upon perusing the material papers available on record, and upon hearing arguments of both sides, and the matter having stood over for consideration till this day, the court made the following:-
J U D G M E N T
This appeal is filed by the appellant, under Order 41, Rule 1 of Code of Civil Procedure (hereinafter referred as “CPC”), assailing the decree and judgment, dated 18.03.2015, made in O.S.No.800 of 2005, on the file of
II Additional Junior Civil Judge, Chittoor, (hereinafter referred as “Court
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2 below”), in dismissing the suit, filed for grant of decree of permanent injunction, to restrain the respondents from interfering suit property.
2.The appellant herein is the plaintiff, and the respondents herein are the defendants, before court below, and hereinafter they will be referred as per their positions in the suit, for the sake of convenience.
3.The facts and circumstances, that lead to filing of this appeal are, the plaintiff filed suit in OS.No.800 of 2005, before court below, contending, that he purchased suit property from one Iragama Reddy, S/o Nadipi Reddy, of
Maredupalle Village, Chittoor, under registered sale deed, dated 17.10.1984, and since then, is in possession and enjoyment of the same, and is raising paddy, sugarcane, groundnut etc., crops, and recognizing his right, Mandal
Revenue Officer, G.D.Nellore, issued pattadar pass book, and title deed in his favour, and on 01.10.2005, at about 12.30 pm, when the plaintiff was making preparations to raise paddy crop, the defendants along with their men, objected him from ploughing the suit land, and the plaintiff resisted their highhanded acts, and as the defendants will dispossess the plaintiff, at any time, apprehending threat, filed suit for the relief of permanent injunction.
4. The 1st defendant resisted the suit, by filing written statement, wherein, he refuted all the material allegations, made in the plaint, and inter- alia, contended, Iragama Reddy, vendor of plaintiff, filed suit in OS.No.264 of 1984, in III Additional District Munsif, Chittoor, for declaration and permanent injunction, against one Bakki Reddy, his son Ramachandra Reddy, and 1st defendant, alleging he purchased suit property from Bakki Reddy, under registered sale deed, dated 08.12.1983, and the said suit was disposed-off, in which, it was held, Iragama Reddy, has to file separate suit for partition, in respect of share of Bakki Reddy, and is not entitled for injunction, and the
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3 plaintiff’s vendor Iragama Reddy, had no exclusive possession and right to sell the suit property, and that the plaintiff herein purchased suit property during pendency of above suit in OS.No.264 of 1984, thus, the sale transaction in favour of plaintiff was hit by resjudicata, and as against the judgment made in OS.No.264 of 1984, vendor of plaintiff, Iragama Reddy filed appeal in
AS.No.40 of 1996, before VIII Addl. District Court, Chittoor, and the same
was dismissed by judgment dated 25.08.2005, and the suit is barred by principle of resjudicata, and neither the plaintiff, as-well-as, his vendor
Iragama Reddy, enjoyed suit property, therefore, prayed for dismissal of the suit.
5. The 2nd defendant resisted the suit, by filing separate written statement, wherein, he refuted all the material allegations, made in the plaint, and inter-alia, contended, he purchased item No.1, of suit property from 1st defendant, under registered sale deed, dated 29.10.2005, and since then, he is been in possession and enjoyment of the same, raised dry crops, and prayed for dismissal of the suit.
6.Basing on the above pleadings, following issues were settled for trial, by court below:- 1. Whether the present suit is hit by resjudicata?
2. Whether the plaintiff is in possession and enjoyment of suit schedule property as on the date of filing of this suit?
3. Whether the plaintiff is entitled for grant of permanent injunction in his favour?
4. To what relief ?
7.The plaintiff, in support of his case, examined himself as PW1, and filed
Exs.A1 to A5, and examined PWs.2 and 3.
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(i) And, the 2nd defendant, in support of his case, examined himself as
DW1, and filed Exs.B1 to B9, and examined Dws.3 to 6, and marked Exs.X1 to X7, through DW3, and the evidence of DW2, was eschewed.
8.The court below, on hearing the plaintiff, and the defendants, and upon considering the material available on record, including the oral and documentary evidence, came to conclusion, the decree and judgment made in OS.No.264 of 1984, does not operate as resjudicata, since, as against the same, second appeal is pending before Hon’ble High Court, and however, held, the plaintiff failed to prove his possession over suit property, as-well-as, his vendor Iragama Reddy, therefore, dismissed the suit.
9.The plaintiff, feeling aggrieved by the dismissal of his suit, has come up with this appeal, assailing its impugned decree and judgment of court below, on the following and among other grounds set out hereunder :-
1.The judgment and decree of court below are against law, weight of evidence and probabilities of the case.
2.The court below, ought to have disbelieved the evidence of Dws.1 to 6, and Exs.B1 to B9, and Exs.X1 to X7.
3.The court below, came to wrong conclusions, and decided issues No.2 to 4 against the plaintiff.
4.The court below, ought to have seen, the plaintiff is not a party to the suit in OS.No.264 of 1984, and as such, issue No.1, does not arise.
5.The court below, ought to have seen, on the date of filing of the suit, whether the plaintiff is in continuous possession and enjoyment of suit property, and not prior to the suit.
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6.The court below, ought to have seen, the 1st defendant has not come forward and give evidence to prove his pleadings, and there is no explanation for his non- examination, and it ought to have drawn adverse inference against him.
7.The court below, ought to have seen, defendants are not claiming item No.2 of suit property, and the court below, without verifying the pleadings, evidence and documents, came to wrong conclusion, and dismissed the suit with regard to item No.2 of suit property.
8.The court below, ought to have seen, on eastern side of item No.1 of suit property, there is property of wife of plaintiff is situated and his family is, in continuous possession and enjoyment of item No.1 of suit property.
9.The court below, ought to have seen, Exs.B1 and B2 clearly shows the vendor of plaintiff has got right over the suit property, and there is no finding that 1st defendant has got title over suit property.
10. The court below, ought to have seen, defendants 1 and 2, have colluded together and created Ex.B8, with an intention to create second round of litigation.
11. The court below, ought to have seen, Exs.B3 to B7 and B9, and Exs.X2 to X7, are created on the basis of Ex.B8 without any boundaries.
12. The court below, ought to have seen, the 1st defendant has not filed any title deed with regard to suit property, and the 2nd defendant did not file any link document to prove title of his vendor to suit property.
13. The court below, ought to have seen, the 2nd defendant is not a bonafide purchaser, and whereas, the plaintiff is bonafide purchaser of suit property under Ex.A1 and the suit property was put in his possession on 17.10.1984.
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14. The court below, ought to have seen, DW1 himself admitted in his cross examination, the survey numbers, boundaries shown in suit property are true and correct, and is aware that plaintiff purchased suit property in 1984.
15. The court below, ought to have seen the evidence of PWs.1 to 3, clearly establish plaintiff is in continuous possession and enjoyment of suit property, since the date of Ex.A1.
16. The court below, considered the created revenue documents in Exs.B3 to B9 and Exs.X2 to X7, and came to wrong conclusion, and decided issue No.2, against the plaintiff, without properly scrutinizing the records.
17. The court below, ought to have seen, defendants are strangers to the suit property, and they have no right and title to suit property.
18. The court below, ought to have seen, due to enmity between the plaintiff and defendants Ex.B8, is created after lapse of 9 years from the date of Ex.A1.
19. The court below, gave judgment under wrong conclusions, assumptions and presumptions.
And, for these and among other grounds, prayed to allow the appeal, and to set aside the decree and judgment dated 18.03.2015, made in
OS.No.800 of 2005, on the file of II Additional Junior Civil Judge, Chittoor,
and to grant a decree of permanent injunction against the defendants.
10.Pending appeal, plaintiff filed I.A.No. 59 of 2016, and, the defendants filed I.A.No. 401 of 2018, under Order XLI Rule 27 C.P.C., to receive the documents filed therein, as additional evidence.
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11. And, it is the contention of plaintiff, in I.A.No. 59 of 2016, 2nd defendant, has manipulated the revenue records, and misrepresented the revenue authorities and obtained Exs. B3 to B7, in collusion with them, and
S.H.O., G.D.Nellore police station, has registered a case in Crime No.
22/2015, against 2nd defendant, under sections 420, 467, 468, 471 r/w. 34
I.P.C., and he was arrested, and, plaintiff, recently obtained certified copies of
F.I.R. and remand report, and to prove, 2nd defendant, tampered with the revenue records, the said documents are necessary, and prayed to receive them, as additional evidence on his behalf.
12. The defendants, resisted the petition, by filing Counter, wherein they refuted all the material allegations made in the petition, and inter alia, contended, the case in Crime No.22/2015, is absolutely false, and the brother of plaintiff filed suit in O.S.No. 33 of 2011 and O.S.No. 38 of 2011 and they are pending before Revenue Divisional Officer, Chittoor, and in order to make the 2nd defendant to obey the commands of plaintiff, he was prosecuted in
Crime No.22 of 2015 of G.D.Nellore P.S., and the F.I.R. in Crime No.22 of 2015 and the Remand Report therein, are not relevant for the purpose of this case, and prayed for dismissal of the petition.
13. And, in I.A.No. 401 of 2018, it is the contention of defendants, the plaintiff has filed appeal in D.Dis.G/46/2010, before Revenue Divisional
Officer, Chittoor, for cancellation of pattadar pass book and title deed issued in favour of 2nd defendant, and after thorough enquiry, Revenue Divisional
Officer, Chittoor, dismissed, the appeal filed by plaintiff, vide orders dated 31.08.2018, and held, the entry, made in the pass book of plaintiff, is false, and, the entries, made in the pass book of 2nd defendant, are genuine, and, two days prior to the petition, 2nd defendant received said order copy, and it
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8 is very much essential, to prove his case, and prayed to receive the same, as
additional evidence.
14. And, the plaintiff, resisted the petition, by filing counter, wherein he contended, 2nd defendant has managed the Revenue authorities, and they sent a false report to Revenue Divisional Officer, Chittoor, and, the Revenue
Divisional Officer, Chittoor, on receipt of transfer orders, passed the orders in
D.Dis.G/46/2010, and, the plaintiff has filed a revision, before the Joint
Collector, Chittoor, and prayed for dismissal of petition.
15. Heard both sides, and, the learned counsel for plaintiff filed
Memorandum of Written Arguments, and perused the same, and they will be discussed wherever they are relevant.
1. Whether the plaintiff is entitled to adduce additional evidence and be permitted to file certified copy of F.I.R. in Crime No. 22 of 2015 of G.D.Nellore P.S., along with the Remand Report, as additional evidence ?
2. Whether the defendants are entitled to adduce additional evidence and can be permitted to file copy of Orders in D.Dis.G/46/2010 dt.31.08.2018 made by the Revenue Divisional Officer, Chittoor, as additional evidence ?
3. Whether the decree and judgment made in O.S.No. 800 of 2005 on the file of II Additional Junior Civil Judge, Chittoor, dated 18.03.2015, is binding on the plaintiff ?
4. Whether the decree and judgment made in O.S.No. 800 of 2005 on the file of II Additional Junior Civil Judge, Chittoor, dated 18.03.2015, are sustainable in law ?
16. POINT Nos.1 & 2:-
The plaintiff has, no doubt, filed a suit for bare injunction, before court below to injunct the defendants from interfering in suit property, and in support of his case, relied upon Exs.A1 to A5, which includes, revenue records in Exs.A2 to A4, and similarly, the 2nd defendant, in support of his
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9 case, he purchased item No.1 of suit property from 1st defendant, relied upon
Exs.B1 to B9, and Exs.X1 to X7, and among them, Exs.B3 to B7 and Exs.X2 to X7, are revenue records, and the court below, considering the oral and documentary evidence adduced by the plaintiff and the defendants, held, the plaintiff failed to prove his possession over suit property, and also, the earlier suit filed by the vendor, of plaintiff, namely P.Iragam Reddy, in O.S.No.
264 of 1985, will not operate as res judicata.
17. And, the plaintiff, has questioned, the decision of the court below, in this appeal, on several and among other grounds, and pending appeal, has come up with I.A.No. 59 of 2016, to receive copy of F.I.R.No. 22 of 2015 of
G.D.Nellore P.S., and remand report of 2nd defendant, to show, he tampered revenue records, in Exs.B3 to B7.
18. And, no doubt, under Order XLI Rule 27 C.P.C., parties can be permitted to adduce additional evidence, in an appeal of this nature, provided, the parties shall establish, the proposed additional evidence, was rejected by the court below, or, inspite of exercising due diligence, such evidence, was not within their knowledge and could not be filed, before court below.
19. And, here, in I.A.No. 59 of 2016, it is the contention of plaintiff, case in Crime No.22/2015 was registered against 2nd defendant, in G.D.Nellore police station, with allegation, he tampered revenue records in collusion with
Revenue authorities, and no doubt, as per certified copy of F.I.R. in Crime
No.22/2015, it was registered against 2nd defendant under sections 420, 467, 468, 471 r/w. 34 I.P.C., with accusations that he created and forged documents for the lands situated in survey No.78-7 in an extent of Ac.0-34 cents and survey No. 74 in an extent of Ac.1-54 cents, of one M.Doraswamy
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Reddy and he was shown to have been apprehended in the case and was remanded to judicial custody, as per the remand report, filed.
20. And, on reading of the contents in F.I.R. in Cr.No. 22/2015, they are in the nature of accusations levelled , the accusations, in nature, levelled against 2nd defendant, and, whether 2nd defendant, manipulated documents as alleged therein, is a matter needs to be decided in a full fledged trial therein, and document like F.I.R. is not a substantive piece of evidence to take into consideration, and to hold, revenue records relied upon by the defendants in Exs.B3 to B7, are manipulated one, and though F.I.R. in Crime
No. 22/2015, and so also, remand report, have come into existence, subsequent to filing of suit by the plaintiff, and before passing of impugned judgment by the court below, and however, they are of no consequence, to decide the controversy between the plaintiff and defendants, with regard to suit property, therefore, the request of plaintiff to receive copy of F.I.R. and remand report in Crime No. 22/2015 of G.D.Nellore police station, as
additional evidence, needs no consideration, hence the same is rejected.
21.And, it is the contention of defendants, that, the plaintiff herein has filed appeal before Revenue Divisional Officer, Chittoor in
D.Dis.G/46/2010 for cancellation of Exs.B6 and B7, issued in favour of 2nd defendant, and after full fledged enquiry, said appeal was rejected, by observing, Exs.B6 and B7, issued in favour of 2nd defendant, are genuine, and whereas, the entry made in Ex.A2, relating to suit property, is false one.
22. And, no doubt, as per the copy of Order in D.Dis.G/46/2010, made by Revenue Divisional Officer, Chittoor, it is shown to have been passed on 31.08.2018, subsequent to passing of impugned judgment and during pendency of the appeal, and from the counter of plaintiff as well as copy of
Revision petition enclosed to the Counter, it appears, the plaintiff has
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11 questioned the orders passed in D.Dis.G/46/2010 dated 31.08.2018 of
Revenue Divisional Officer, Chittoor, before Joint Collector, Chittoor, and it is pending adjudication, therefore, the Order passed in D.Dis.G/46/2010 dated 31.08.2018 of Revenue Divisional Officer, Chittoor, has not attained finality, as such, no reliance can be placed upon it, to decide authenticity of Ex.A2, and
Exs.B6 and B7, therefore, the request of defendants, to receive the orders of
Revenue Divisional Officer, Chittoor in D.Dis.G/46/2010 dated 31.08.2018, as
additional evidence, is not relevant, therefore, petition in I.A.No. 401 of
2018, is liable to be dismissed, and accordingly, both the points are answered.
23. POINT Nos. 3 & 4:-
Both points are taken up for common discussion as they are inter- related to each other and also to avoid repetition of evidence and facts in the case.
24. In this appeal, there is no dispute, that originally suit property belongs to one Bakki Reddy and his son M.Ramachandra Reddy, and said Bakki
Reddy, sold suit property in favour of Iragam Reddy under sale deed dated 08.12.1983, and subsequently, said Iragam Reddy filed suit in O.S.No. 264 of 1984 before III Additional District Munsif, Chittoor, against Bakki Reddy, his son M.Ramachandra Reddy and 1st defendant, herein namely Ramalinga
Reddy, for declaration of title and for permanent injunction, and thereafter, plaintiff herein is said to have purchased suit property from Iragam Reddy under Ex.A1, and it is the case of plaintiff that, under Ex.A1 he was put in possession of suit property, and on 01.10.2005 at about 12.30 P.M. the defendants made attempt to trespass into the suit property, and with that view, filed suit to injunct the defendants from interfering in the suit property.
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25.And, the defendants resisted the suit of plaintiff by contending, suit filed by plaintiff is not maintainable, and, in the suit filed by Iragam Reddy in
O.S.No. 264 of 1984, he was directed to file a separate suit for partition,
therefore, the decree and judgment made therein, are binding upon the plaintiff, being subsequent purchaser of suit property, and the 2nd defendant, pending suit, purchased suit property from 1st defendant under Sale deed dt.29.10.2005/Ex.B.8 and is in possession and enjoyment of the same.
26. And no doubt, the suit property is agricultural land, and the suit filed by plaintiff is for bare injunction to restrain the defendants from interfering in his possession over suit property, and according to the plaintiff, he is in possession and enjoyment of suit property in pursuance of Ex.A1, and recognizing his title, Ex.A2, was issued, and his name was mutated in the
Revenue records, and basing on Exs.A3 and A4, he tried to contend he is in possession and enjoyment of suit property, as on the date of filing of the suit, and no doubt, as per Ex.A3, it is shown to have issued in the name of plaintiff, recognizing him as pattadar of suit property, and in Exs.A3 and A4, it is certified, plaintiff is in possession of suit property.
27. The plaintiff and the defendants, before court below, apart from documentary evidence filed in the form of revenue records in Exs.A2 to A4, and Exs.B3 to B7, relied upon the oral evidence of PWs 2 and 3, and DWs 3 to 6, and, it is the evidence of of plaintiff he is in possession and enjoyment of suit property in pursuance of Ex.A1, and this case of plaintiff was supported by PWs 2 and 3, and whereas, it is the case of 2nd defendant he is in possession and enjoyment of item No.1, of suit property under Ex.B8 and his right was recognized under Exs.B6 and B7, and this case set out by 2nd defendant, was supported by DWs 5 and 6, and in this appeal, there is no dispute originally suit property belongs to Bakki Reddy, and his son
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Ramachandra Reddy, and they constitute hindu joint family, and the vendor of plaintiff, Iragam Reddy, is shown to have purchased suit property, from
Bakki Reddy under sale deed dated 08.12.1983, and he filed suit in O.S.No.
264 of 1984 on the file of III Additional District Munsif, Chittoor against Bakki
Reddy, his son Ramachandra Reddy and 1st defendant, and after a full dressed trial, the suit was disposed, vide judgment filed in Ex.B1, and on a reading of the findings in Ex.B1, it is clear the sale deed dated 08.02.1983, executed by Bakki Reddy was accepted, and however, it was held the suit property is the joint family property of Bakki Reddy, and his son Ramachandra
Reddy.
28. And further more, on a reading of Ex.B1, in issue No.1 therein, it was held that, Iragam Reddy, failed to establish his possession over suit property, and however, sale deed executed by Bakki Reddy dated 08.12.1983, in favour of Iragam Reddy to the extent of his share, is valid, and the plaintiff can seek for partition of properties covered under sale deed dated 08.12.1983 by filing a separate suit and was denied the relief of injunction.
29. And further more, on a reading of Ex.B1, in issue No.2 therein, it was held, pending trial, in O.S.No. 264 of 1984, Iragam Reddy in his evidence admitted he sold suit property in favour of plaintiff, and, from the judgment made in O.S.No. 264 of 1984 in Ex.B.1, it is clear possession claimed by
Iragam Reddy over suit property, was not accepted, and sale deed relied upon by him dated 08.12.1983, executed in his favour by Bakki Reddy was accepted, and suit filed for declaration and injunction was partly decreed, and relief of injunction is concerned, it was denied, and in the instant case, the plaintiff contends, he was put in possession of suit property under Ex.A1 sale deed dated 17.10.1984, and to prove his possession over the suit property, he relied upon Exs.A2 to A.4.
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30. And, no doubt, as per section 6 of A.P. Rights in Land and Pattadar Pass
Books Act, 1971, the entries in revenue records are presumed true, until contrary is proved, and, as per Ex.A2, plaintiff is shown to be pattadar of suit property, and as per Ex.A4, he is shown to be in possession of suit property, and according to plaintiff, he was put in possession of suit property on 17.10.1984 under Ex.A1, and as referred herein above, as per the judgment made in O.S.No. 264 of 1984 vide Ex.B.1, it was delivered on 26.12.1995, subsequent to Ex.A1, wherein, the possession claimed by the vendor of plaintiff, Iragam Reddy was disbelieved, and in such a case, the plaintiff coming into possession of suit property under Ex.A1, is highly improbable, and this circumstance in the case dispels the presumption attached to entries in Exs.A2 to A4.
31. And, as discussed herein above, under Ex.A1, plaintiff purchased suit property on 17.10.1984, and whereas, Iragam Reddy, prior to Ex.A.1, filed suit in O.S.No. 264 of 1984, in respect of suit property, and as per Ex.B1, suit in O.S.No. 264 of 1984, was disposed of on 26.12.1995, and in issue No.2, in O.S.No. 264 of 1984, it was held, Iragam Reddy conceded he sold suit property in favour of plaintiff, during pendency of the suit in O.S.No. 264 of 1984, and this goes to show, the plaintiff purchased suit property under
Ex.A1, during pendency of suit in O.S.No. 264 of 1984 filed by his vendor
Iragam Reddy.
32. And, as per section 52 of the Transfer of Property Act, any alienation of immovable property pending legal proceedings and its effect is provided therein, and for better appreciation of the matter, the relevant provision under section 52, of Transfer of Property Act, is extracted hereunder:- “52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established
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15 beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.”
33. And on reading of section 52 of Transfer of Property Act, it is clear, during pendency of any suit, in any court having authority, in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto, except under the authority of the court, and this goes to show, where any right to immovable property directly and specifically in question, is pending in any court having authority, such property shall not be transferred, and any transfer made in violation of section 52 of the Transfer of Property Act shall be bound by the the decree that may be passed in the suit.
34. And, in this case, no doubt, as per Ex.B1, vendor of plaintiff, Iragam
Reddy, to some extent, had succeeded in his suit, wherein his suit filed for declaration and injunction, was partly decreed, and sale deed dated 08.12.1982, executed in his favour by Bakki Reddy was accepted, and his right in suit property was declared, and however, his claim for possession in suit property, was disbelieved, and it was held, he is not entitled for injunction against Bakki Reddy and his son Ramachandra Reddy, and as the plaintiff has purchased suit property under Ex.A1, during pendency of suit in
O.S.No. 264 of 1984, therefore, the sale made in his favour under Ex.A1, is
subject to outcome of suit in O.S.No. 264 of 1984, and in which, it was held, though Iragam Reddy was able to establish his title, however he failed to establish his possession over suit property, and furthermore, it was held in
O.S.No. 264 of 1984, the suit property is joint family property of Bakki
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Reddy and his son Ramachandra Reddy, and he cannot seek injunction against Bakki Reddy or his son, and was directed to file suit for partition of joint family properties of Bakki Reddy and his son Ramachandra Reddy, in respect of properties covered under sale deed dated 08.12.1983.
35. And furthermore, as per Ex.B2, it is evidently clear, Iragam Reddy, not satisfied with decree made in O.S.No. 264 of 1984 dated 26.12.1995, has filed appeal in A.S.No. 40 of 1996 on the file of VIII Additional District Judge,
Chittoor, and as per Ex.B.2, appeal in A.S.No. 40 of 1996 was dismissed on 25.08.2005, confirming the decree and judgment made in O.S.No. 264 of 1984, and further, as per impugned judgment of court below, at para-8, in issue No.1, it was held that, as against decree and judgment made in O.S.No.
264 of 1984, second appeal was preferred and it was pending before Hon’ble
High court, and with that view, it is held, since second appeal filed questioning findings in O.S.No. 264 of 1984 is pending, therefore, the decree and judgment made in O.S.No. 264 of 1984, will not operate as resjudicata in the suit, and however, from the material available on record, neither the plaintiff nor defendants are sure about the fate of second appeal filed against decree and judgment in O.S.No. 264 of 1984, and however, in the evidence of plaintiff, he filed Ex.A5, Order of Hon’ble High Court made in S.A.M.P.No.
3072 of 2005 in Second Appeal No. 1500 of 2005, in which, a temporary injunction was granted in favour of Iragama Reddy in respect of suit properties, and this court is able to access case status of Second Appeal No.
1500 of 2005 filed before Hon’ble High Court, and the case status reveal,
Second Appeal No. 1500 of 2005 filed questioning decree and judgment made in O.S.No. 264 of 1984 was withdrawn by Iragam Reddy, and consequently, it was dismissed as withdrawn on 30.03.2015.
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36. And, in view of withdrawal of Second Appeal No. 1500 of 2005 by Iragam Reddy, decree and judgment made in O.S.No. 264 of 1984 attained finality, and in O.S.No. 264 of 1984, it was held, though Iragam
Reddy is owner of suit property, and he purchased the same under sale deed
dated 08.12.1983, and however, it was held, the suit property is joint family
property of Bakki Reddy and his son Ramachandra Reddy, and he failed to establish his possession over suit property, and not entitled for injunction, and Iragam Reddy has to institute a separate suit for partition in respect of property purchased under sale deed dated 08.12.1983 from Bakki Reddy, and he cannot seek permanent injunction against Bakki Reddy, and these findings have attained finality.
37.And in the light of these findings arrived in O.S.No. 264 of 1984, that,
Iragam Reddy, vendor of plaintiff, is not in possession of suit property, in such case, the suit property being put in possession of plaintiff under Ex.A1, by
Iragam Reddy is also highly impossible and in pursuance of judgment in
Ex.B1, the plaintiff ought to have instituted suit for partition of properties, against Bakki Reddy and his son M.Ramachandra Reddy, and without filing such suit, he straight away filed suit for bare injunction claiming possession over suit property and without there being a suit filed by plaintiff or by
Iragam Reddy seeking partition of joint family property of Bakki Reddy and his son Ramachandra Reddy, and without the suit properties being allotted to plaintiff under his share, and he was put in possession of the same, just because of Exs.A2 to A4, it cannot be said, the plaintiff is in possession of suit property, therefore, the court below was right in denying, the relief of injunction sought by the plaintiff, and hence the points are answered accordingly against the plaintiff and in favour of the defendants.
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38. In the result, appeal is dismissed with costs confirming the decree and judgment, dated 18.03.2015, made in O.S.No. 800 of 2005 on the file of
II Additional Junior Civil Judge, Chittoor.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in Open Court, this the 24th day of December, 2018.
Sd/- Junaid Ahmed Moulana
Principal District Judge,
Chittoor.
Appendix of Evidence -nil-
Sd/- Junaid Ahmed Moulana
Principal District Judge,
Chittoor.