HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.194 of 2014
JUDGMENT:
Having regard to the nature of this matter, since question of application of Section 100 CPC did not arise in this second appeal, it is now being disposed of, upon hearing Sri M.R.K.Chakravarthy, learned counsel for the appellant.
2. The appellant as the plaintiff instituted O.S.No.92 of 1994 on the file of the court of the learned Principal Junior Civil Judge, Bobbili for declaration of his right, title and interest to the plaint schedule property and for consequential permanent injunction against the respondents. The main contention of the appellant was that he is the absolute owner of the plaint schedule property, which is an agricultural land of Ac.1-00 at Kagam Village, Therlam Mandal, Vizianagaram District in S.No.277/18, bearing Patta No.1083, within the boundaries mentioned in the plaint schedule and that it was his ancestral property. Alleging that he has been in continuous possession and enjoyment of this land and that it was tried to be disturbed highhandedly by the respondents 1 to 4, initially, he sought the relief of permanent injunction in this suit against them to restrain therefrom. Later on, he got amended the plaint requesting relief of declaration of right, title and interest to it. He also got impleaded respondent No.5 as a party to the suit.
3. The respondents 1 to 4 as well as the 5th respondent State raised a common defence to the effect that this land is a part of Ac.4-05 cents in S.No.277/18 in Patta No.1083 and that it was assigned to the 1st respondent, 3rd respondent and one Sri Yendava Ramayya, who is the MVR,J S.A.No.194 of 2014 2 brother of the 4th respondent, under D-Form patta where with the funds made available by the Government, they got sunk a well, which they have been in possession and enjoyment since then. They denied that this property ever belonged to the appellant nor it was a private patta land.
4. Their defence was that the appellant highhandedly encroached upon this land without any manner of right regarding which the Tahsildar, Therlam Mandal initiated action for his eviction, following due process of law.
5. Upon settlement of appropriate issues on the pleadings, the parties went to trial. The appellant examined himself as P.W.1 while relying on the evidence of P.W.2 to P.W.4 apart from Ex.A1 to Ex.A11. The 1st respondent examined himself as D.W.1 and the then Tahsildar, Therlam Mandal was examined as D.W.2 on behalf of the respondents. Further, they relied on Ex.B1 to Ex.B11 in support of their contention.
6. Upon consideration of the material and evidence, the learned trial Judge held that the claim of the appellant is based on fabricated documents like Ex.A1 and Ex.A2 and having regard to the admission of the appellant as P.W.1 at the trial in consonance with the evidence let in on behalf of the respondent, the learned trial Judge held that the appellant failed to prove his case of declaration as to right, title and interest to the plaint schedule land and consequently denied the relief of permanent injunction against the respondents. Thus holding, the suit was dismissed by the decree and judgment dated 19.07.2000.
7. A.S.No.31 of 2000 presented by the appellant there against on the file of the Court of the learned Senior Civil Judge, Bobbili, was also MVR,J S.A.No.194 of 2014 3 dismissed on re-appraisal of the material, concurring with the findings recorded by the learned trial Judge by the decree and judgment dated 29.12.2006.
8. In these circumstances, the appellant presented this second appeal.
9. Sri M.R.K.Chakravarthy, learned counsel for the appellant, drawing attention of this Court to the oral and documentary evidence adduced on behalf of the parties, particularly having regard to the statement of D.W.2-then Tahsildar, strenuously contended that there is material on record to prove that the appellant has been in possession and enjoyment of the plaint schedule property for a considerable length of time and in these circumstances, the observations of both the Courts below, rejecting his version of right, title and interest basing on Ex.A1 and Ex.A2, is not proper. Further elaborating that there are substantial questions of law to consider in this case, referring to those pointed out in ground No.11 in the memorandum of appeal, the learned counsel for the appellant requested to admit this appeal. Further contentions are advanced that the material on record clearly holds that the case of the appellant is proper, who is entitled for the relief as prayed and that both the courts below unjustly upon improper appreciation of the material on record, rejected the relief.
10. In this backdrop, this case requires consideration if attracting Section 100 CPC and if the appellant made out substantial questions of law which require determination in this second appeal.
MVR,J S.A.No.194 of 2014 4
11. The case of the appellant is based on Ex.A1 and Ex.A2- unregistered sale deeds dated 09.03.1971 and 03.04.1971 respectively, alleged to have had been executed by the alleged original owners in favour of the father of the appellant. Apart from the evidence of P.W.1 viz., the appellant, he relied on the testimony of P.W.2-Sri Arnipalli Pakeerunaidu, P.W.3-Sri Bankapalli Appalaswamy and P.W.4-Sri Arnipalli Venkataswamynaidu, who claimed being the attestors to these sale deeds.
12. The learned trial Judge basing on the material held that both these unregistered sale deeds are fabricated and also took into consideration the fact that there is no reference to these sale deeds in the plaint, which fatally affected the claim of the appellant. The learned appellate Judge upon reconsideration of the material, though not in specific terms held that both the unregistered sale deeds are fabricated, did consider the effect of omission to refer the same in the plaint averments. Thus, both the Courts below consistently held that want of pleadings in this context is a fatal circumstance.
13. The plaint schedule land undisputedly is a part of S.No.277/18 of Kagam Village, which is an extent of Ac.4-05 cents covered by Patta No.1083. There is consistent evidence in this respect, from the respondents, particularly when the testimony of D.W.2-then Tahsildar, Terlam Mandal is taken into consideration. It is supported by Ex.B2 to Ex.B6 as well as Ex.A3. Though Ex.A3 adangal for faslie 1403 reflected the name of the appellant as the person in possession of certain extent out of this entire land, it did reflect pattadars being the 1st respondent, 3rd respondent and brother of the 4th respondent Sri Yendava Ramayya. Upon death of Sri Yendava Ramayya, as per the version of D.W.2, his daughter MVR,J S.A.No.194 of 2014 5 Smt. Garbhapu Mariyamma, Wife of Sri Pydaiah became entitled to it and who continued to be in possession and enjoyment of share of her father in this land. Possession of this land, was admitted by the appellant in cross- examination, which fact is recorded by the learned trial Judge.
14. When the revenue records coupled with the testimony of a responsible revenue officer viz., D.W.2 are considered, having regard to the admission of the appellant at the trial in this context as to possession and enjoyment of this extent, it cannot be stated that there is requirement that this Court should enter upon reconsideration of this matter in entirety. The fact situation was appropriately appreciated and considered by the learned trial Judge, followed by its confirmation by the learned Appellate Judge. When there are these concurrent findings, against the appellant basing on fact and in the backdrop of the material that presented only a fact situation to consider, it is difficult to hold that this matter requires consideration in terms of Section 100 CPC. Nor substantial questions of law as pointed out on behalf of the appellant stand for consideration. Even these substantial questions of law as projected in the grounds of appeal are purely based on fact.
15. Further, a claim based on unregistered sale deeds, by the appellant for declaration of right, title and interest cannot stand in terms of Section 34 of the Specific Relief Act. Particularly when it is established on the material that this land is a part of Government Poramboke described as 'Gayalu' in the revenue records that was assigned in favour of the respondents 1,3 and brother of the 4th respondent, who were cultivating and enjoying this extent, the nature of relief sought by the MVR,J S.A.No.194 of 2014 6 appellant could not have been granted. The approach of both the Courts below is appropriate and needs no consideration in this second appeal.
16. Therefore, this Court is satisfied that there are no substantial questions of law that arise for consideration and determination in this second appeal. Hence, this second appeal has to be dismissed at the stage of admission.
17. In the result, the second appeal is dismissed at the stage of admission confirming the decrees and judgments of the Courts below. No costs.
As a sequel, pending miscellaneous petitions, if any, stand closed. Interim orders, if any, stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 02.07.2021 RR MVR,J S.A.No.194 of 2014 7 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.194 of 2014 Dt: 02.07.2021 RR