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IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: CHITTOOR
Present: Y.V.S.B.G.PARDHA SARADHI,
Principal District Judge,
Chittoor. Tuesday, the 12th day of April, 2022.
AS.No.41/2016
Between:- N.Chengalrayudu @ Mangalampenta Chengalrayudu. …Appellant/Plaintif. And:-
1.P.Subramanyam.
2.N.Subramanyam.
3.N.Doraswamy. …Respondents/Defendants.
On appeal from the Judgment and Decree of II Additional Junior Civil Judge, Chittoor, dated 05.08.2015 made in -
OS.No.1156/2000
Between:- N.Chengalrayudu @ Mangalampenta Chengalrayudu. …Plaintif. And:-
1.P.Subramanyam.
2.N.Subramanyam.
3.N.Doraswamy. …Defendants.
This appeal-suit is coming on 01.04.2022 for fnal hearing before me in the presence of Sri.C.K.Raghu – advocate for appellant and of Sri.K.P.Kumaraswamy – 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 delivered the following:-
JUDGMENT
1.This is an appeal fled by the plaintif in the suit in OS.No.1156/2000 on the fle of II Additional Junior Civil Judgess Court, Chittoor, against the decree and judgment dated 05.08.2015.
2.Plaintif fled the suit for declaration of his right and title over plaint “A” and “B” schedule properties and to direct the defendants to remove the foundation laid in “B” schedule property by way of mandatory-injunction and for grant of permanent injunction, restraining the defendants and their men from interfering with his possession and enjoyment of plaint schedule properties and for costs.
3.Brief facts of the case as per pleadings of both parties are as follows: - A) Case of the plaintif: -
(i)Contentions of the plaintif are that “MNOP” portion of the plaint plan is the plaint schedule property with the following boundaries:– North – Houses of -2-
Pakala Peddabba and others; South – Remaining land of Lakshmaiah, now,
Rajagopal Naidu; East – Land of Narasimhulu Naidu; West – Cart-track leads
Morampalle; out of the said property, “MNOQRS” is “A” schedule property and “PQRS” is “B” schedule property as per the plaint rough-sketch; he is the absolute owner of plaint “A” and “B” schedule properties and he has been in continuous possession and enjoyment of the same with specifc boundaries since the date of his purchase; he purchased the plaint schedule properties from one Lakshmaiah @
Lachigadu, under a registered sale deed dated 08.09.1971, which is in Sy.No.62/1, to an extent of Ac.0.07 cents; in the plaint schedule properties, there is existence of house of the plaintif and hayrick-pendal and open sheep shed, four big and one small coconut trees, one tamarind tree and two Neem trees and also other trees and the remaining is vacant site, which is using for tethering cattle and sheeps and storing hayrick; vendor of the plaintif by name Lakshmaiah acquired the title over the said property under a registered sale deed dated 27.06.1947, for a valid consideration of Rs.100/- from one Abburu Chinna Venkatarayudu, to an extent of
Ac.0.50 cents in Sy.No.62/1; out of said Ac.0.50 cents, Lakshmaiah sold Ac.0.07 cents of property to plaintif, which is the plaint schedule properties “A” and “B” under the registered sale deed; the 1st defendant/P.Subramanyam is the grandson of Lakshmaiah; Lakshmaiah had three daughters and out of three, Papulamma is the elder-daughter and the 1st defendant is son of elder-daughter of Lakshmaiah;
Lakshmaiah executed a registered Will dated 07.06.1974 in favour of 1st defendant and others and in the said Will, he bequeathed only Ac.0.43 cents in Sy.No.62/1 in favour of 1st defendant; 1st defendant sold away the properties, which he derived under the Will to one K.Pandaiah @ Chengama Naidu under a registered sale deed
dated 16.09.1982 for a valid consideration of Rs.4,500/-, to an extent of Ac.0.45
cents though he has right in only Ac.0.43 cents; defendants are not having right, title and interest over plaint schedule property; in the month of July, 1999, in the absence of plaintif, when he was far-away from the village, the defendants 2 and 3, with the help of their relatives and followers, highhandedly laid foundation in the vacant site of plaintif i.e., in the South-West corner of the plaint schedule property to an extent of 54 square-yards, which is shown as plaint “B” schedule property; plaintif made several mediations through “Dalitha Sanshema Seva Sangam”, Irala, -3- and as the matter was pending consideration before said Sangam and taking advantage of the inaction against defendants and taking helplessness of the plaintif, the defendants tried to encroach the plaint “A” schedule property, which is situated on Northern side of the site, where foundation was laid by the defendants and in that emergent circumstances, he fled a suit for permanent injunction as
OS.No.14/2000 on the fle of II Additional Junior Civil Judgess Court, Chittoor, for
protection of his possession over “A” schedule property; he not pressed the said suit; on 12.11.2000, at the instance of 1st defendant, the defendants 2 and 3 tried to raise construction of permanent structure in “B” schedule, in which they have no right; with great difculty and with the help of village-elders, he stopped the construction work and that the defendants left that place with a threat that at any cost, they would construct structures in plaint “B” schedule property; all the defendants are having ill-feelings with the plaintif and they are having muscle and money power and he is not in a position to resist the highhanded-acts of defendants and there-by, he fled the present suit for the above reliefs.
B) Case of the defendants: -
(i)3rd defendant fled the written-statement and the defendants 1 and 2 fled a memo by adopting the defence taken by 3rd defendant in his written-statement. In his statement, 3rd defendant denied all the allegations made in the plaint generally and specifcally stated that originally, Lakshmaiah @ Lachigadu was the owner of the property to an extent of Ac.0.50 cents in Sy.No.62/1; subsequent to purchase of the said Ac.0.50 cents of property, said Lakshmaiah occupied the Government
Poramboku land adjacent to the property purchased by him; Lakshmaiah constructed thatched-hut in the property, which is more-fully described in the written-statement schedule; after the death of Lakshmaiah, his grandson i.e., the 1st defendant herein got the property under the Will dated 07.06.1974; 1st defendant on 16.09.1987 sold the property in Sy.No.62/1 excluding the property detailed in the schedule hereinafter and at the time of execution of registered sale deed in favour of K.Pandaiah @ Chengama Naidu, the entire property is in possession of 1st defendant, excluding the written statement schedule property; subsequently, the same was sold to this defendant and the 2nd defendant purchased the same under a valid consideration by obtaining sale receipt dated -4- 21.11.1997 and since-then, the defendants 2 and 3 are in exclusive possession and enjoyment of said property as of their own property by exercising all rights; as the thatched-hut became dilapidated, defendants 2 and 3 have removed the same and raised the level of the land for a considerable height from that of the cart-track situated to the West of their property by fling it up with mud and laid a foundation for construction of a pucca building by spending huge amounts; the defendants 2 and 3 secured all the construction material by spending huge amount and stored them in the plaint schedule property to the knowledge of plaintif; at-that-time, the plaintif fled a suit in OS.No.14/2000 for bare injunction claiming that property situate to the North of “SROP” in the present sketch, is his property and he admitted in the earlier suit that defendants 2 and 3 herein are the owners of the property shown as “SROP” in the present suit sketch; he further admitted that the defendants 2 and 3 in the suit are in possession and enjoyment of the property at where, foundation was raised; in that suit, advocate-commissioner was appointed and submitted his report; while-things-stood-thus, the present plaintif, who is a plaintif in the suit in OS.No.14/2000 by fling a memo, not pressed the said suit and while withdrawing the said suit, the plaintif herein has not taken permission of
Court to fle a fresh suit on the same subject matter as per provisions of Order 23
Rule 1 CPC and therefore, the plaintif has no right to fle another suit for same subject matter and this suit is barred under the provisions of Order 23 Rule 1 CPC and there-by, the decree and judgment in OS.No.14/2000 became fnal and binding on parties; it operates as resjudicata; the present suit is also barred under Order 2
Rule 2 CPC; once the plaintif admitted the possession and enjoyment of “B” schedule property and raised foundation, he is not entitled to claim relief in this suit; valuation of the suit is incorrect and there is no cause of action to fle the present suit; he purchased the plaint schedule property from his vendor under a registered document and ultimately, requested the Court to dismiss the suit with exemplary costs.
4.Basing on the above pleadings, originally, trial-Court framed the following two issues for trial: –
1.Whether the plaintif is entitled for the relief of permanent injunction as prayed for?
2.To what relief?
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5.To prove the case of the plaintif, he examined himself as PW1 and marked
Exs.A1 to A5. In support of the case of plaintif, he examined two independent witnesses as PWs.2 and 3. on behalf of the defendants, 3rd defendant examined himself as DW1 and marked Exs.B1 to B6. 2nd defendant examined himself as DW2.
1st defendant examined himself as DW3. Defendants examined independent witnesses as DWs.4 and 5.
6.While preparing the judgment, trial-Court by making an observation that her predecessor, due to oversight might have framed the issues in relation to permanent injunction only and therefore, she framed the following issues for trial: -
1.Whether the plaintif is entitled to seek declaration of right and title over the schedule property?
2.Whether the relief sought by the plaintif is hit by Order 2 Rule 2 CPC in view of OS.No.14/2000?
3.Whether the plaintif is entitled to seek mandatory injunction?
4.Whether the plaintif is entitled to seek permanent injunction against the defendants in respect of plaint schedule properties?
5.To what relief the plaintif is entitled?
7.After hearing both sides, trial-Court dismissed the suit with costs.
8.As against the said decree and judgment, plaintif fled the present appeal.
9.Heard both sides.
10.Now, the points pending consideration before this Court are: -
1. Whether the plaintif is having title over the suit
schedule property, if so, the plaintif is entitled for
declaration of his title over the suit schedule
properties, as prayed for?
2. Whether a Court is having power to frame issues,
or, additional-issues while preparing the
judgment?
3. Whether the suit of the plaintif is hit by Order 2 Rule 2 CPC?
4. Whether the plaintif is estopped from claiming
the relief of mandatory injunction for the removal
of the foundation laid in plaint “B” schedule
property?
5. Whether the suit of plaintif is maintainable
without seeking the relief of recovery of
possession of plaint “B” schedule property?
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6. Whether there are grounds to interfere with the findings of the trial-Court?
7. To what relief?
11.For convenient purpose, this Court referring the parties in this judgment as arrayed before trial-Court.
12.POINT No.1: -
(i) According to plaintif, originally, one Lakshmaiah was the absolute owner of property to an extent of Ac.0.50 cents in Sy.No.62/1 and he purchased the same under a registered sale deed dated 27.06.1947 and out of Ac.0.50 cents of property, Lakshmaiah sold Ac.0.07 cents of property to plaintif under a registered sale deed dated 08.09.1971 and from then, he has been in possession and enjoyment of the suit schedule property. 3rd defendant in his cross-examination as
DW1 admitted that he knew that the plaintif purchased property from one
Lakshmaiah in the year 1971 to an extent of Ac.0.07 cents. To prove his case, plaintif examined himself as PW1 and marked Exs.A1 to A5. Ex.A2 is the registration extract of the sale deed dated 27.06.1947 executed by one Chinna
Venkatrayulu and others in favour of Lakshmaiah to an extent of Ac.0.50 cents.
Ex.A1 is the registration extract of the sale deed dated 08.09.1971 executed by
Lakshmaiah in favour of the plaintif. Ex.A4 is plaint rough sketch. It is not a document of title. Ex.A5 is the certifed copy of the registered Will dated 07.06.1974 executed by Lakshmaiah by bequeathing all his properties to 1st defendant including the remaining Ac.0.43 cents of property purchased under
Ex.A2 sale deed. Ex.A3 is the registered sale deed dated 16.09.1982 executed by 1st defendant in favour of one Pandaiah @ Chengama Naidu. Exs.A3 to A5 are not the relevant documents to decide the title of plaintif. Exs.A1 and A2 are relevant documents. In support of the case of plaintif, he examined Pws.2 and 3, who are independent-witnesses. PW2 is the leader of Dalitha Sanshema Seva Sangam.
Purpose of examination of this witness by plaintif is to prove that he made several mediations through the said Sangam for amicable settlement of the matter. In his evidence, PW2 deposed that they made several attempts to settle the matter in an amicable manner. To decide the issue involved in this case, evidence of PW2 is not useful. To prove his case, plaintif examined one K.Murugaiah, who is the grandson -7- of the vendor under Ex.A2, as PW3. In his chief-examination, he deposed that his grandfather Lakshmaiah sold Ac.0.07 cents of property to plaintif and they retained Ac.0.43 cents of property and the plaintif was in possession and enjoyment of the property and subsequently, in “B” schedule property, the defendants laid the foundation without having any right. Defendants also not denying the fact of sale of Ac.0.07 cents of property to plaintif by Lakshmaiah under the registered sale deed.
(ii) After considering Ex.A2 sale deed, it is apparent that Lakshmaiah was the absolute owner of property to an extent of Ac.0.50 cents, out of which the present plaint schedule properties are part. The said Lakshmaiah executed a registered sale deed in favour of the 1st defendant. Therefore, the Court can safely conclude that the plaintif could able to establish his title over suit schedule properties. Therefore, the plaintif is entitled for the relief of declaration of his title over suit schedule property as prayed for. Therefore, this point is answered in favour of plaintif and against the defendants.
13.Point No.2: -
(i) At the time of settlement of the issues by the trial-Court, initially, the learned trial-Judge framed only two issues. The frst issue is “Whether the plaintif is entitled for the relief of permanent injunction as prayed for?” and the second issue is “To what relief?”. Plaintif fled the suit for declaration of his right over suit schedule properties and also for relief of mandatory injunction to remove the foundation laid in plaint “B” schedule property. Unfortunately, the trial-Court not framed the proper issues and framed the issues in a mechanical-way. Therefore, at the time of pronouncing the judgment, the learned II Additional Junior Civil Judge,
Chittoor, framed fve issues and decided the matter.
(ii) During the course of arguments, learned counsel for plaintif argued that the trial-Court, after framing the issues, not given opportunity to submit their arguments and also not given opportunity to adduce evidence, which leads to miscarriage of justice and trial-Court ought to have given opportunity to adduce evidence on those issues, as-well-as, to hear their arguments, but that was not done. During the course of arguments, learned counsel for defendants also agreed with the arguments of learned counsel for plaintif and he argued that the trial- -8-
Court while passing the judgment, basing on the pleadings and evidence on record, framed the issues and decided the matter, but, unfortunately, trial-Court not made such observation in the judgment that as she framed the issues basing on the pleadings and evidence on record, no need to re-open the matter, but, trial-Court answered all the aspects by giving opportunity to both parties to adduce evidence and therefore, no miscarriage of justice was occurred and on that ground, plaintif is not entitled to get any relief.
(iii) This Court carefully gone through the pleadings of both the parties and the oral and documentary evidence adduced by both the parties. As seen from the issues framed by the predecessor-in-ofce of the II Additional Junior Civil Judge,
Chittoor, who pronounced the judgment, ought to have framed the issues basing on the pleadings in an efective manner. That was not done. The issues framed by the learned trial-Judge is not refecting the actual dispute involved in this case. In the written-statement, the 3rd defendant specifcally pleaded that the suit of the plaintif is hit by Order 2 Rule 2 CPC by reason of the dismissal of the suit in
OS.No.14/2000 as not pressed, upon the memo fled by the plaintif in that suit. The
other issues i.e., 1, 3 and 4 are the issues relating to the relief claimed by plaintif in the suit. In such a case, after framing the issues by the trial-Court, while passing judgment, there is no need to give fresh opportunity to both parties to adduce evidence, as-well-as, to submit arguments. Only the dispute is in relation to issue
No.2. Trial-Court framed the 2nd issue with regard to the application of Orde 2 Rule 2 of CPC to the suit in view of the dismissal of the suit in OS.No.14/2000 fled by plaintif, as withdrawn. To that extent, there is specifc pleadings from the side of defendants. 3rd defendant adduced evidence on this aspect and marked the documents. Plaintif is having knowledge about the real issues involved in this case.
Plaintif is conscious about those issues involved in the case. Unfortunately, both side advocates not taken steps to recast the issues by the trial-Court. At-least, they have not voluntarily taken the said fact to the knowledge of trial-Court. Trial-Court basing on the pleadings and available evidence on record, framed the 2nd issue.
Order 14 Rule 3 CPC deals “from which material the Court may frame the issues”.
Under this rule, it is clear that the Court may frame the issues from all, or, any of the following materials: - (a) allegations made on oath by the parties, or, by any -9- persons present on their behalf, or made by the pleaders of such parties. It means that basing on oral evidence. (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit. (c) the contents of documents produced by either party. Under these sub-rules, Court can frame the issues basing on the documentary evidence placed by the parties. Under Order 14 Rule 5 CPC, “the
Court, may at any time, before passing a decree, amend the issues, or, frame
additional-issues on such terms as it thinks ft, and all such amendments or
additional-issues as may be necessary for determining the matters in controversy
between the parties shall be so made, or, framed”. As seen from Order 14 Rule 5
CPC, it is clear that at anytime, before judgment, the Court can frame additional issues, or, recast the issues. It is true, in the present case on hand, the learned trial-Judge not mentioned the fact that she is recasting the issues, or, framing the
additional-issues, but, she framed the issues. Further, the earlier issues framed by
learned II Additional Junior Civil Judge, Chittoor, who is the predecessor-in-ofce of the trial-Judge, who decided the matter, not framed the proper issues. In such a case, basing on the pleadings and the available evidence on record, the Court is at liberty to frame issues to decide the matter. The purpose of framing issues is to have a clear-cut idea by the parties to adduce evidence before Court, on particular aspect. It is only a procedural aspect. It is true, generally, if additional-issues are framed, that-too, at-the-time-of-passing-judgment, generally, opportunity must be given to the party either to adduce evidence, or, to argue the matter. In the present case on hand, already, pleadings are there in relation to the 2nd issue framed by the trial-Court, which is the main issue involved in this case and there is evidence on record. Defendants produced the documentary proof i.e., the pleadings and the other material in the suit in OS.No.14/2000. As the 2nd issue is framed basing on the pleadings and the evidence on record by the learned trial-Judge, there is no need to give opportunity to parties afresh to adduce evidence on that issue, as-well-as, to argue the matter, at-length, afresh. While deciding the 2nd issue, at para 7 of the judgment, trial-Court made an observation that “the learned counsel for plaintif tried to explain that in urgent circumstances, the plaintif fled earlier suit to protect vacant site situated to the northern side of foundation”. This fact shows that at the time of the arguments also, counsel for plaintif had knowledge about the -10- involvement of the dispute in relation to Order 2 Rule 2 CPC. In such a case, again the Court need not hear the arguments from both sides after framing the appropriate issues, because the said issue is framed basing on the pleadings, evidence and the arguments of both parties. Trial-Court given opportunity to both parties for arguing the matter with regard to the bar under Order 2 Rule 2 CPC, even though there was no issue and allowed to adduce evidence by defendants even though there was no issue. After considering the over all facts, it is clear that though the trial-Court framed the issues while passing judgment, both the parties had an opportunity to submit their respective contentions on the aspect of the application of Order 2 Rule 2 CPC and therefore, there is no question of miscarriage of justice. Therefore, this Court is of considered opinion that in framing the issues and answering the issues, trial Court not committed any mistake and therefore, there is no need to interfere with the fndings of trial-Court on the ground of miscarriage of justice. Accordingly, this point is answered in favour of defendants and against the plaintif.
14.Points No.3 and 4: -
(i) In the written-statement, 3rd defendant had taken a specifc plea that the plaintif in the suit, fled a suit in OS.No.14/2000 on the fle of II Additional Junior
Civil Judgess Court, Chittoor, for permanent injunction and in that suit, the plaintif
had shown the foundation in plaint “B” schedule property as the boundary of the property claimed in the said suit and more specifcally mentioned that it is the foundation laid by defendants and in that suit, the present plaintif and the present defendants are the parties to the suit and even-then, the plaintif not taken steps to get mandatory injunction to remove the foundation and also for taking possession of the present plaint “B” schedule property by removing the encroachments and therefore, the suit of the plaintif is not maintainable, because the present suit is hit by Order 2 Rule 2 CPC. In the written-statement, the defendants had taken a specifc plea that the suit in OS.No.14/2000 operates as resjudicata to this suit and on that ground also, suit is not maintainable. It is true, the defences under Order 2
Rule 2 CPC and Section 11 CPC are mixed question of fact and law. In such a case, pleadings are necessary and also the evidence. In the written-statement, the defendants specifcally pleaded the defences under Order 2 Rule 2 CPC and Section -11- 11 CPC. Plaintif is having knowledge about the defence taken by defendants in their statement. Therefore, in the present suit, the defendants are entitled to defend their case under the shelter of Order 2 Rule 2 CPC and Section 11 CPC.
(ii) For convenient purpose, this Court would refer the relevant provisions
Order 2 Rule 2 CPC. Order 2 Rule 2 CPC reads as follows: -
ORDER- II- Frame of Suit:-
Rule 2 - Suit to include the whole claim :-
(1) Every suit shall include the whole of the claim which the plaintif is entitled to make in respect of the cause of action; but a plaintif may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim:- Where a plaintif omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs:-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
(iii) As seen from Order 2 Rule 2 sub-clause (1) CPC, it is clear that every suit shall include the whole of the claim which the plaintif is entitled to make in respect of the cause of action; but, a plaintif may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Order 2 Rule 2 sub-clause (3) CPC says about the efect of omission. As per this rule, a person entitled to more than one relief in respect of same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
(iv) To decide this issue, the relevant evidence is the pleadings of the parties in this suit and also the pleadings of the parties in the other suit i.e., in
OS.No.14/2000. In this suit, the 3rd defendant in his evidence, marked Exs.B1 to B6.
Out of these 6 documents, the relevant documents are Ex.B4 original plaint in
OS.No.14/2000 and the rough-sketches marked under Exs.B1 and B2. Ex.B4 is the
original plaint in OS.No.14/2000. The defendants summoned the original record in
OS.No.14/2000 and marked the original plaint as Ex.B4. Summoning of the original
record from another suit is not unknown to law. If necessary, one Court can summon the original record from another Court in the circumstances so warranted.
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In the present case on hand, no doubt, the defendants can produce the certifed copies by obtaining from the suit in OS.No.14/2000 and mark them in this suit as exhibits instead of summoning the original record. By reason of the summoning of original record, there will not be any hardship to plaintif. It is the headache of the
Court. Therefore, basing on this trivial procedural aspect, this Court need not give any fnding on this aspect.
(v) As seen from Ex.B4 original plaint, it is clear that the present plaintif is the plaintif in that suit and the present defendants are the defendants. As seen from the plaint rough-sketch, it is apparent that the properties were also shown in the same manner as mentioned in the present rough-sketch of the plaint. In
OS.No.14/2000, the present plaintif had shown the foundation as the foundation of
1st defendant and in the present suit, now, the plaintif is claiming that the said foundation was laid in the property of him. As seen from para Nos.6 and 7 of Ex.B4 plaint, it appears that the present plaintif stated that the defendants with the vowed object of occupying the vacant site of plaintif abutting North of ‘ their foundation’ are making false claim over it and attempted to trespass into plaintifss vacant site on 20.01.2000 at about 3.00 pm and therefore, the plaintif obliged to fle the suit for permanent injunction, restraining the defendants there-in.
As seen from Ex.B4 plaint, no-where, the plaintif reserved his right to proceed against the defendants for removal of the foundation alleged to have raised in his property i.e., plaint “B” schedule property of this suit. More-particularly, in the sketch, the present plaintif had shown the foundation as the foundation of the 1st defendant. In the plaint, under Ex.B4, the plaintif not stated that the defendants highhandedly raised the foundation in his property without his knowledge and he reserved his right to fle a separate suit by way of fling an application under Order 2 Rule 2 CPC.
(vi) In the present plaint, at para No.11, plaintif made an attempt to explain why he did not fle the suit for mandatory-injunction to remove the foundation and also with regard to plaint “B” schedule property by stating that the defendants taking advantage of his helplessness, tried their level best and on 20.01.2000 made an attempt to occupy the vacant site in “A” schedule property i.e., the property situated on the North of the foundation laid by defendants and in that emergent -13- circumstances, he fled the suit for bare injunction in OS.No.14/2000 for protecting the property mentioned in “A” schedule and thereafter, not pressed the said suit by fling memo on 14.11.2015. Except this allegation, there is no other averment in the plaint, that why he did not include the relief of mandatory injunction for removal of the foundation in present “B” schedule property in the suit in
OS.No.14/2000. It is not a diferent cause of action as contending by the plaintif.
Already, the defendants raised the foundation in “B” schedule property and making attempts by defendants to encroach “A” schedule property. In such a case, plaintif has to include the relief of mandatory injunction for removal of the foundation in the suit in OS.No.14/2000, or, at-least, he has to obtain permission from the Court by fling an application under Order 2 Rule 2 CPC by reserving his right to fle a separate suit.
(vii) As seen from the plaint averments, as on the date of fling of the suit, plaintif has to fle a suit for mandatory injunction for removal of foundation and for recovery of possession of the property. Because, already, the defendants raised the foundation. As per Explanation - IV of Section 11 CPC, suit of the plaintif is not maintainable, because by the time the plaintif is having a cause of action to fle suit for mandatory injunction and for recovery of plaint “B” schedule property, but, not fled the suit for the above two reliefs as claimed in this suit. Explanation - IV of
Section 11 CPC reads as follows: - “Any matter which might and ought to have been made ground of defence, or, attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit”. As on the date of fling of the suit in OS.No.14/2000, already a cause of action had arisen to fle a suit for mandatory injunction and for recovery of possession “B” schedule property.
Though there is such cause of action to fle suit, the plaintif not taken steps to claim such reliefs. He ought to have fled such suit, but not fled and fled only simple suit for injunction in relation to “A” schedule property. It is not a diferent cause of action as contending by plaintif and it is a continuing cause of action.
Therefore, as per Explanation – IV of Section 11 CPC, the earlier suit in
OS.No.14/2000 operates as ‘resjudicatas to this suit and on that ground also, the
suit of the plaintif is not maintainable.
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(viii) In this suit, the plaintif claiming the rights over the property covered by plaint “B” schedule and sought for the relief of mandatory injunction for removal of foundation in the “B” schedule property. Ex.B4 is the plaint in OS.No.14/2000 fled by the present plaintif against the present defendants. In that suit, the plaintif claimed the relief of permanent injunction in relation to present “A” schedule property, by showing the present “B” schedule property as the boundary and also the property of 1st defendant. Against the said pleadings, now, the plaintif claiming his rights over “B” schedule property. Basing on this aspect, the learned counsel for defendants argued that once the plaintif admitted the rights of the defendants over “B” schedule property in the suit in OS.No.14/2000, again he is not entitled to raise a new plea that he is the owner of “B” schedule property and the defendants encroached the same and he is estopped from taking such plea. This Court would like to refer Section 115 of Evidence Act. Section 115 of Evidence Act reads as follows: - Estoppel - “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither, he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing”.
(ix) As seen from Section 115 of Evidence Act, to contend that the plaintif is estopped, the following requirements are necessary: - frst-of-all, there must be a representation, or, act from the side of plaintif and basing on such representation, or, act of the plaintif, the defendants believe that the said statement, or, act is true and there-by, he must act upon it. In the present case on hand, no-doubt, the plaintif in OS.No.14/2000 stated that the foundation is belonged to the 1st defendant and in this suit, he is claiming the title over it. According to defendants, they are claiming independent right basing on document and not basing on the statement of the plaintif, or, his act that they are the owners of plaint “B” schedule property. Therefore, in this suit, basing on the fact mentioned in OS.No.14/2000 that the 1st defendant is the owner of the foundation, or, owner of plaint “B” schedule property, the plaintif cannot be estopped to claim his title. Further, the defendants contending that there was an oral exchange of properties in between plaintif and his vendor. Under law, such oral exchange is not acceptable. There -15- must be a document. Further, in this case, the plaintif could able to establish his title over suit schedule property. Such mistaken representation shall not be considered as an estoppel in the light of the other attending circumstances.
Accordingly these points are answered.
15.Point No.5: -
(i) According to the plaintif, the defendants in his absence, highhandedly raised the foundation in plaint “B” schedule property and he made several mediations for the removal of the said foundation, but the defendants not removed and therefore, he fled the present suit. During the course of arguments, learned counsel for defendants argued that as per the pleadings of the plaintif, already, the defendants encroached plaint “B” schedule property and thereby, raised the foundation and once the defendants completed the encroachment, the plaintif has to fle a suit for recovery of possession of plaint “B” schedule property in addition to the relief of mandatory injunction for removal of the foundation. According to plaintif and as per evidence on record, plaintif is the owner of the plaint “B” schedule property. It is an admitted fact that the 1st defendant raised the foundation and claiming possession over plaint “B” schedule property. Otherwise, if the plaintif is entitled to the relief of mandatory injunction, at-best, the Court can order for removal of the foundation, but, the plaintif is not entitled to take possession of the plaint schedule property from defendants. As per evidence on record, 1st defendant encroached the plaint “B” schedule property and raised the foundation even prior to the year 2000. So-far, the plaintif not taken steps to recover the possession of plaint “B” schedule property from the defendants. Nearly, 21 years period elapsed. Therefore, the title of the plaintif over plaint “B” schedule property is extinguished by reason of Section 27 of Limitation Act. Without seeking the relief of recovery of possession, mere granting of mandatory injunction in this type of cases is not useful. Plaintif must ask the recovery of possession of schedule property from the defendants. It is settled law that while deciding the matters, the
Court is entitled to consider the subsequent events and in-case of legal aspects, the
Court can safely consider the said aspects without any hesitation. In catena of decisions, Honsble Supreme Court, as-well-as, the Honsble High Court of Andhra
Pradesh, held that simple suit for mandatory injunction for removable of -16- constructions in the property of a party is not maintainable, without seeking the relief of recovery of possession of that property.
(ii) In view of the above observations, this Court is of considered opinion that the suit of plaintif without seeking the relief of recovery of possession for mandatory injunction is not maintainable. On that ground also, the suit of plaintif is liable for dismissal.
(iii) In view of the fndings on point No.1, plaintif is having title over plaint “A” and “B” schedule properties, but, in view of the provisions Under Order 2 Rule 2
CPC and Explanation - IV of Section 11 CPC, suit of the plaintif is not maintainable.
In the present suit, the plaintif claiming permanent injunction as a consequential relief to the relief of the declaration of title. In the present case on hand, defendants are not claiming right in plaint “A” schedule property and they are claiming rights in “B” schedule property only. In such a case, normally, the plaintif is entitled for the relief of declaration and consequential permanent injunction as prayed for. When the defendants are not claiming any interest in “A” schedule property and as the suit of the plaintif is not maintainable in the present-forum, this Court is of considered opinion that the plaintif is not entitled for the reliefs even in relation to “A” schedule property in this suit.
(iv) The entire case is based on the legal aspects and also the documentary evidence. In this case, the defendants examined fve-witnesses. They have marked
Exs.B1 to B6. In the earlier paragraphs, this Court considered about the documents produced by both parties. Therefore, as the entire case is based on legal aspects and documentary evidence, in this judgment, this Court not discussing the oral evidence of each witness examined by plaintif and defendants.
(v) While recording the evidence of defendants, trial-Court marked Exs.B5 and B6, which are unregistered sale deeds dated 21.11.1997. Trial-Court marked those documents with an endorsement that those documents were marked subject to objection raised by the learned counsel for plaintif. During course of arguments, learned counsel for defendants argued that though the documents under Exs.B5 and B6 are unregistered documents, basing on those two documents, Ex.B3 registered sale deed dated 08.03.2010 was came into existence, which is a registered one and therefore, the Court can safely rely on those two documents as -17- in another document, the property was registered. Counsel for plaintif argued that during pendency of the suit, the said document was brought into existence and therefore, it is not valid and not having any efect in this suit. It is true, the defendants are not claiming rights under Exs.B5 and B6 and they are claiming rights under Ex.B3, which is a registered document. No-doubt, the said document is brought into existence during pendency of the suit. Admittedly, the document in the name of the plaintif is frst in time. In such a case, if the suit of plaintif is otherwise maintainable, defnitely, he would have priority over Ex.B3 sale deed, which is a subsequent one. Basing on unregistered Exs.B5 and B6 sale deeds, the plaintif is not entitled to claim rights. Because, his vendor had no title by the date of execution of said document. During the course of arguments, learned counsel for defendants argued that under Ex.A2 sale deed, the plaintif purchased the property from North to South out of Ac.0.50 cents, but he is enjoying the property from East to West by virtue of an oral exchange of properties in between the plaintif and his vendor. Oral exchange in relation to immovable property is not valid. By virtue of such oral understanding, the rights of the plaintif acquired under Ex.A2 will not be extinguished/destroyed. As long as the defendants and their vendor not claiming rights by way of adverse possession, the right of the plaintif shall continue and he is entitled to recover the possession, otherwise, his rights are alive. The point is answered accordingly.
16.Point No.6: -
(i) This Court carefully gone through the grounds set-out in the grounds of appeal by the defendants. In the grounds of appeal, the defendants set-out, as- many-as, 37 grounds. Out of those grounds, some are general and there is no need to discuss about those grounds. In this judgment, this Court would consider some of the material grounds set-out in the grounds of appeal by defendants. Most of the grounds set-out in the appeal are in relation to the title of the plaintif. Already, this
Court held that the plaintif is having title over plaint “A” and “B” schedule properties. Documentary evidence is very much clear. Therefore, in this judgment, this Court not discussing those grounds in detail.
(ii) In ground No.18 appellant contends that respondent not produced any document to show that there is a Government poramboku land surrounded by -18-
Sy.No.62/1 and also there is a thatched hut of Lakshmaiah in plaint “B” schedule property etc., facts. To get the relief in this suit, the burden is on plaintif and the plaintif is not entitled to get the relief on the weakness of defendants. The plaintif could not able to establish his right, or, interest over schedule properties. In this suit, the plaintif could able to establish his title over schedule properties, but, mistakenly, or, otherwise, the plaintif could not take steps to prosecute the suit in
OS.No.14/2020 and also to fle a suit for recovery of possession and mandatory
injunction in the suit in OS.No.14/2000 and even in this suit. In the light of such technical hurdles, all the grounds raised by appellant in relation to the title of appellant in this appeal are not useful to tilt the fndings given by the trial-Court.
(iii) In the grounds of appeal, counsel for appellant stated that DW1 is very much available within the premises of the Court, but, he did not submit himself for cross-examination and therefore, adverse inference may be drawn. This Court already observed that unless the plaintif able to establish his case on merits, he is not entitled to get the relief basing on the weakness of defendants. In this case, the main hurdle is the principles of resjudicata and constructive resjudicata under
Section 11 Explanation – IV and Order 2 Rule 2 CPC. Unless, those legal hurdles are crossed, the appellant is not entitled for any relief in this appeal.
(iv) In ground No.28, counsel for appellant contend that provisions of Order 2
Rule 2 CPC is not at all attracts to present case and the fndings of lower-Court is against the provisions of Order 2 Rule 2 CPC. This Court already considered that aspect and Order 2 Rule 2 is clearly applicable to this case. Further, the plaintif without seeking the permission to fle a fresh suit basing on the same cause of action and for the same subject matter, not obtained permission from trial-Court under Order 23 Rule 1 CPC. In view of such procedural aspect, plaintif is not entitled to fle the present appeal.
(v) In grounds No.32 and 33, counsel for appellant raised objection about the report of the Commissioner. To decide the present appeal, such facts are not necessary and the entire case is based on legal-aspects and the documents, more- particularly, the judgment in OS.No.14/2000. Therefore, in this judgment, this Court not discussing all those aspects in a detailed manner.
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(vi) After considering the observations in all the points, this Court is of considered opinion that there are no grounds to interfere with the fndings of trial
Court, hence, not interfering.
17.Point No.7: - In the result, appeal is dismissed. In view of the facts and circumstances of the case, both parties are directed to bear their own costs of this appeal.
Typed to my dictation by the Personal Assistant, corrected and pronounced by me in open-Court, this the 12th day of April, 2022.
Sd/-Y.V.S.B.G.PARDHA SARADHI
Principal District Judge,
Chittoor. Appendix of Evidence -Nil-
Sd/-Y.V.S.B.G.PARDHA SARADHI
Principal District Judge,
Chittoor.