THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.368 of 2021
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful petitioner/plaintiff is directed against the order and decree, dated 18.06.2020, of learned II Additional Senior Civil Judge, Visakhapatnam, dismissing I.A.No.1028 of 2019 in OS No.1004 of 2013 filed under Order XIV Rule 5 of CPC, requesting to recast the issues.
2. Heard Sri A. Sai Naveen, learned counsel for the revision petitioner/plaintiff and Sri K. Sairam Murthy, learned counsel for the respondent No.1/defendant No.1. Respondents/ defendant Nos. 2 to 13 are shown to be not necessary parties to this revision petition.
3. The suit is filed contending briefly as follows:
(a) The property of an extent of about Ac.8.00 cents in Survey No.1/1, Chinnawaltair, M.V.P Colony, Visakhapatnam, was originally purchased by late Pinninti Appili with his self acquisitions under a registered sale deed, dated 15.10.1956, registered as document No.2576/56 and the said Pinninti Appili was in possession and enjoyment of the same. A part of the said land was acquired for formation of beach road by the State Government. Out of the above mentioned property, an extent of 600 square yards is being 2 BSB, J C.R.P No.368_2021 jointly owned, possessed and enjoyed by Pinninti Appili family. Pinninti Appili died intestate, on 15.03.1982, leaving behind his wife, P.Appayamma, son, Suribabu, the plaintiff and defendants 2 &
3. As Suribabu was mentally imbalanced, the mother of the plaintiff, Smt. P.Appayamma, acted as his guardian and used to look after the joint family affairs. The schedule property was purchased by Pinninti Appili from the joint family funds and the same is an ancestral property and the plaintiff and defendants 2 to 6 are the coparceners who succeeded to the property. There was no partition of the property. Pinninti Suribabu passed away on 15.12.1998, leaving behind him his wife Pinninti Kanthamma, Son, Pinninti Ramakrishna and daughter, Pinninti Shyamala.
(b) While things stood thus, the 1st defendant has been demanding the plaintiff to hand over physical possession of the schedule property on the ground that he got a sale deed in his favour through Court in respect of 155 square yards. It is found that the schedule mentioned therein is not correct and the boundaries do not tally with the actual boundaries on ground.
(c) However, the defendant No.1 is making hectic efforts to trespass into the joint family property highhandedly and illegally. Hence, the plaintiff filed the suit to set aside the registered sale 3 BSB, J C.R.P No.368_2021 deed, dated 05.02.2013, as null and void, as the same was obtained by playing fraud on Court.
4. The 1st defendant filed written statement denying the plaint averments and contending, in brief, as under:
The plaintiff filed the suit O.S.1049/1991 on the file of the Court of I Additional District Munsif, Visakhapatnam, against Pinninti Suribabu for specific performance of contract, dated 23.06.1988, executed by late Pinninti Suribabu, husband of the 4th defendant and father of defendants 5 & 6 and obtained a decree. In the said suit, late Pinninti Suribabu took a plea that he is only a joint owner of the suit property along with his mother and sister while admitting the execution of the agreement, dated 23.06.1988, but as he could not place any material before the Court, the suit was decreed. Suribabu did not prefer any appeal, the judgment and decree in O.S.No.1049 of 1991 have became final. On the basis of the decree, the plaintiff filed E.P.81 of 2004 under Order XXI Rules 22 & 34 CPC against the heirs of late Suribabu. In the execution petition, the wife of late Suribabu, the 2nd JDr also filed counter and her objections were negatived. The mother of late Suribabu, who is the 3rd judgment debtor, died on 24.05.2010, and therefore, the 1 st defendant filed E.A.No.218 of 2010 to bring respondents 6 to 8, the plaintiff and the defendants 2 & 3 in the suit, on record and add them as judgment debtors 6 to 8. However, the said petition was 4 BSB, J C.R.P No.368_2021 dismissed on 06.02.2012, holding that the property devolved on the 3rd judgment debtor, after the death of 1st judgment debtor, being his legal heir, the property reverts back to the wife and children of the deceased 1st judgment debtor. Thus, the trial Court executed the sale deed for the suit property on behalf of the judgment debtors on 05.02.2013. The plaintiff herein is no other than the sister whose cause was canvassed by late Suribabu as the joint owner along with his mother and himself. The suit was decreed negativing the contention of Suribabu. Therefore, the present suit is hit by the doctrine of res judicata. Late Suribabu contested the suit O.S.No.1049 of 1991 and deposed as DW1 and as such, the plea that late Suribabu was mentally imbalanced is not true and correct. The present suit is filed only with a view to cause hardship to this defendant and hence, the same is liable to be dismissed.
(b) The 1st defendant also filed additional written statement contending as follows:
The suit is not maintainable either in law or on facts. The plaintiff got amended the plaint by getting the relief 'to set aside the decree and judgment in O.S.1049/1991, dated 03.03.1997, passed by the Court of I Additional Junior Civil Judge, Visakhapatnam, as the same is obtained by 'playing fraud'. The decree passed therein was not on merits. It is clearly mentioned in exhibit A1, sale deed, dated 05.02.2013, that by virtue of the agreement, dated 5 BSB, J C.R.P No.368_2021 23.06.1988, executed in favour of this defendant, possession of the suit property was delivered to this defendant. In the plaint schedule property, this defendant got constructed a three storied building after obtaining permission from the Municipal Corporation in the year 2012-2013 and this defendant is in peaceful possession and enjoyment of the property. The judgment debtors did not come forward and cooperate to register the sale deed and hence, the Court ordered execution of the registered sale deed in favour of this defendant on 05.02.2013. Hence, the plaintiff cannot raise the plea that this defendant played fraud against her in obtaining the decree. The defence of Suribabu in O.S.1049 of 1991, E.P.No.81 of 2004 and in O.S.No.1004 of 2013 is one and the same and as such, the plaintiff is stopped, as per law, from taking a similar plea. The present suit is also barred by time. The suit is liable to be dismissed as the plaintiff neither valued the suit on the additional relief nor did she pay the required court fee. Further, she failed to prove the fraud alleged against this defendant. Hence, the suit is liable to be dismissed with exemplary costs.
5. The plaintiff filed rejoinder to the additional written statement filed by the 1st defendant contending that late Pinninti Suribabu never executed any sale agreement in favour of the 1st defendant much less the alleged agreement, dated 23.06.1988. The 1 st defendant made unauthorised constructions pending the suit and as 6 BSB, J C.R.P No.368_2021 such, they are liable for demolition. The schedule property mentioned in the sale agreement, sale deed, dated 05.02.2013, and decree in O.S.No.1049 of 1991 is not existent on ground, as no survey number was mentioned therein. The conduct of the 1st defendant in obtaining decree & judgment by misleading the trial Court in respect of property which is not in existence amounts to fraud and as such, the decree & judgment in O.S.No.1049 of 1991, dated 03.03.1997, are not valid under law and are liable to be set aside. In E.P.No.81 of 2004 in O.S.No.1049 of 1991, legal representatives of Pinninti Appayamma (plaintiff's mother) are not brought on record and the estate of the deceased Appayamma was not represented in the execution proceedings, which is fatal to the case of the 1st defendant.
6. The issues initially framed by the trial Court on 21.01.2016, read as under:
1. Whether the plaintiff is entitled for setting aside of the registered sale deed of 633/13, dt.05.02.13 executed by I AJCJ, Visakahapatnam in favour of D1 as prayed for?
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?3. To what relief?
(ii) On 19.08.2019, the trial Court framed the following additional issues:
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BSB, J C.R.P No.368_2021 Additional Issues:
1. Whether decree and judgment in OS 1049/91, dt.3.3.1997 on the file of I ADJ, Visakhapatnam, obtained by playing fraud?
2. Whether subject matter in OS 1049/91 on the file of IAJCJ, VSP is in existence on the ground or not?
3. Whether sale agreement dt.23.6.1985 is bad on account of non adding of other joint family members of Pinninti Appili?
4. Whether D1 is in possession and enjoyment of schedule property since 23.6.1988?
5. Whether plaintiff is entitled to set aside the decree and judgment in OS 1049/91 dt.3.3.1997 as prayed for?
6. To what relief?
(iii) Further, the trial Court framed the following additional issues, vide orders, dated 18.06.2020, passed in I.A.No.1208 of 2019:
1. Whether the amended relief to set aside the decree and judgment in O.S.No.1049/1991, dated 03.03.1997" is barred by limitation?
2. Whether the suit is bad on account of non payment of separate court fee on such amended relief?'
7. When the suit is coming up for trial, the plaintiff had filed the aforementioned interlocutory application requesting the trial Court to recast the issues and consider the points (proposed issues) as 8 BSB, J C.R.P No.368_2021 additional issues. The said application was resisted by the 1st defendant. On merits, the trial Court dismissed the application.
8. The plaintiff sought the relief of recasting the issues as under:
1. Whether the sale agreement dated 23-6-1988 alleged to have been executed by late Pinninti Suribabu in favour of 1st defendant is true and valid under law?
2. Whether the decree and judgment in O.S.1049/1991 passed by the I Additional Junior Civil Judge, Visakhapatnam in respect of a property which is not in existence is valid under law?
3. Whether the decree and judgment in O.S.1049/1991 dated 03-3-1997 passed by the I Additional Junior Civil Judge, Visakhapatnam are liable to be set aside?
4. Whether the alleged sale agreement dated 23-6-1988 is bad under law as the properties of Pinninti Appili are Joint Family Properties?
5. Whether no Survey Number was mentioned in the alleged sale agreement, O.S.1049/1991 Decree and registered sale deed dated 05-02-2013?
6. Whether the Eastern and western boundaries mentioned in the sale agreement, O.S.1049/1991 decree and registered sale deed dated 05-02-2013 are not in existence on ground?9
BSB, J C.R.P No.368_2021
7. Whether the schedule property mentioned in the alleged sale agreement, O.S.1049/1991 decree and registered sale deed dated 05-02-2013 was delivered to the 1st defendant?
8. Whether non joinder of Pinninti Appayamma (plaintiff's mother) legal representatives E.P.81/2004 in O.S.1049/ 1991 is bad under law?'
9. The findings of the trial Court on the proposed additional issues/recasting of the issues are excerpted hereunder:
The proposed additional issue/recast issue No.1, i.e., 'Whether the sale agreement, dated 23.06.1988 alleged to have been executed by Pinninti Suribabu in favour of 1st defendant is true and valid under law' was already covered in additional issue No.3;
The proposed additional issue/recast issue No.2, was already covered in the additional issue Nos.2 & 5 settled on 19.08.2019;
Even the proposed additional issues/recast issue Nos.3 to 7 were already covered in the additional issues framed on 19.08.2019;
As regards the additional issue/recast issue No.8, it was observed by the trial Court that such an issue is much beyond the purview of the present suit and that moreover, the said issue was already covered in additional issues 3 & 5, in another way.10
BSB, J C.R.P No.368_2021
10. Though the plaintiff prayed to consider recasting of the issues proposed in the petition, the trial Court did not agree with the contention of the plaintiff holding that the crux of all such proposed issues was already covered in the issues and additional issues already settled by the trial Court, and thereby, proceeded to dismiss the petition.
11. Aggrieved thereby, the plaintiff had preferred the present revision petition.
12. Learned counsel for the revision petitioner/plaintiff, while reiterating the pleaded case of the plaintiff, would further contend that the trial Court failed to understand that the additional issues are very much essential to establish the fraudulent transaction and that the trial Court ought to have allowed the petition. The impugned order of the trial Court is contrary to law as it erred in concluding that the proposed additional issues were already settled.
13. Learned counsel, in support of his contentions, had placed reliance on the following decisions:
In Syed Mahmood v. Manik Chandra1, it was held as follows:
".....Order 14(1) CPC, an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other party. Every such material 1 1995 Law Suit (AP) 792 11 BSB, J C.R.P No.368_2021 proposition should form a subject of distinct issue. The object of framing issue plays a very important and distinctive role in a suit. The whole object is to direct the attention of the parties to the principle questions on which they are at variance. Issues are required to be framed for the purpose of having the material points in controversy rightly decided and to bring a finality in the litigation and as such it is the duty of the Court to frame proper issues on the basis of the materials as referred to in Order 14 Rule 3 CPC and while framing issues Court must bear in mind that it is an absolute necessity that determination in a case should be founded upon a case to be found on pleadings or involved in or consistent with the case as made. ........"
In Smt. Kaniz Fatima (deceased) and another v. Shah Naim Ashra2, it was held at paragraph No.11, as follows:
"11. The foremost question which crops up for consideration is as to what is the object of the framing of the issues and on whom the responsibility rests for framing accurate issues in the suit. A reference may be made to Order 14, Rule 1(5) of the Code which provides:
At the first hearing of the suit the Court shall, alter reading the plaint "and the written statements if any and after examination under Rule 2, Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the decision of the case appears to depend.2
AIR 1983 ALLAHABAD 450 12 BSB, J C.R.P No.368_2021 The aforesaid provision would indicate that the object of framing of issues is to direct the attention of the parties to the main questions of fact or law to be decided and the duty of framing and recording the proper issues has been placed on the Court by the Code of Civil Procedure. It is expected that in framing the issues the Courts of law should exert themselves so as to make them sufficiently expressive of the matters which they desire to consider under such issues. The provision contained in Rule 5 of Order 14 of the Code further indicates that in case any, relevant issue has been left out to be framed, the Court may, at any time before passing the decree, amend the issues or frame additional issues on such terms as it thinks fit and all such amendments or additional issues, as may be necessary for determining the matter in controversy between the parties, shall be made or framed, It is thus evident that for proper determination of the matters in controversy between the parties, a duty is cast on court to frame proper issues before embarking upon to record a decision on the point. The court would not be justified, in the absence of a definite issue, in going into the question and recording a finding on a point, although the same may appear to be very material for recording proper decision in the case."
14. On the other hand, learned counsel for the 1 st respondent/1st defendant, relied on the decision in M.B.Chander and others v. 13
BSB, J C.R.P No.368_2021 M/s. Balakrishna Rao Charitable Trust, Hyderabad rep. by its Managing Trustee Sri M. Jayanth Tagore3 and would contend that the powers of this Court under Article 227 of the Constitution of India are very limited and when the trial Court exercised its power, this Court cannot interfere with such findings.
15. The proposed additional issues sought to be recast and the issues framed by the trial Court read as hereunder:
Sl. Proposed additional Issues/Additional Issues No. issues/recast of issues framed by the trial Court sought for by the petitioner Whether the sale agreement Whether the sale agreement, dated 23-6-1988 alleged to dt.23.6.1988 is bad on (1) have been executed by late account of non adding of Pinninti Suribabu in favour of other joint family members 1st defendant is true and valid of Pinninti Appili? under law?
Whether the decree and Whether subject matter in judgment in O.S.1049/1991 OS 1049/91 on the file of I (2) passed by the I Additional AJCJ, VSP is in existence on Junior Civil Judge, ground or not? (and) Visakhapatnam in respect of a Whether the plaintiff is property which is not in entitled to set aside the existence is valid under law? decree and judgment in OS 1049/1991 dt.3.3.1997 as prayed for?
Whether the decree and Whether the plaintiff is
judgment in O.S.1049/1991 entitled to set aside the
(3) dated 03-3-1997 passed by decree and judgment in OS
the I Additional Junior Civil 1049/1991 dt.3.3.1997 as
Judge, Visakhapatnam are prayed for?
liable to be set aside?
Whether the alleged sale This issue can be reframed as under:
Whether the property of Pinninti
agreement dated 23-6-1988
Appili are joint family properties?
(4) is bad under law as the If so, whether the agreement of
properties of Pinninti Appili sale, dated 23.06.1988, is not
are Joint Family Properties? valid?
3
2016 (6) ALT 1 (S.B)
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BSB, J
C.R.P No.368_2021
Whether no Survey Number
was mentioned in the alleged Whether subject matter in
sale agreement, O.S.1049/ OS 1049/91 on the file of I
(5) 1991 Decree and registered AJCJ, VSP is in existence on
sale deed dated 05-02-2013? ground or not?
Whether the Eastern and
western boundaries Whether subject matter in
(6) mentioned in the sale OS 1049/91 on the file of I
agreement, O.S.1049/1991 AJCJ, VSP is in existence on
decree and registered sale ground or not?
deed dated 05-02-2013 are
not in existence on ground?
Whether the schedule
property mentioned in the
alleged sale agreement, Whether D1 is in possession
(7) O.S.1049/1991 decree and and enjoyment of schedule
registered sale deed dated property since 23.6.1988?
05-02-2013 was delivered to
the 1st defendant?
Whether non joinder of Such issue is beyond the
Pinninti Appayamma purview of the present suit.
(8) (plaintiff's mother) legal
representatives E.P.81/2004
in O.S.1049/ 1991 is bad
under law?
The proposed recast issue No.1 is already covered by additional issue No.3. The recast issue No.2 is covered by additional issues 2 & 5 and recast issue No.3 is covered partly by additional issue No.5.
The recast issue Nos.5 & 6 are already covered by additional issue No.2. The recast issue No.7 is covered by additional issue No.4. As regards additional issue No.8, the trial Court rightly held that such issue is beyond the purview of the present suit.
16. It is only the proposed additional issue/recast issue No.4 which needs to be reframed as under:
15
BSB, J C.R.P No.368_2021 "Whether the property of Pinninti Appili are joint family properties? If so, whether the agreement of sale, dated 23.06.1988, is not valid?"
Except that issue, no other additional proposed issues/recasting of issues, as sought for by the petitioner, in the petition are required.
17. In the result, the Civil Revision Petition is allowed in part, reframing the proposed additional issue No.4, as indicated supra, in addition to the issues and additional issues already framed by the trial Court. The rest of the proposed additional issue Nos.1, 2, 3, 5 to 8, which are sought to be recast, are not required to be considered.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 13th October, 2022 RAR