THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL No.1394 OF 2003
JUDGMENT:
1. The present appeal assails the judgment and decree dated 22.05.2003 in A.S.No.55 of 1998 on the file of the Court of the IV Additional District Judge (Fast Track Court), Karimnagar (for short, lower appellate Court), whereunder the appeal was allowed reversing the judgment and decree dated 30.11.1998 in O.S.No.1087 of 1990 passed by the Court of the Principal Junior Civil Judge at Karimnagar (for short, trial Court), whereby the trial Court rejected the relief prayed by the plaintiff for grant of declaration and perpetual injunction in respect of the suit schedule property.
2. The appellants herein are the defendants and the respondent herein is the plaintiff in the above suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
3. The case of the plaintiff is that she is the absolute owner and possessor of land admeasuring Ac.9-09 guntas forming part of Sy.No.70 of Kharkhanagadda Village, Karimnagar Town and District. The suit land i.e., open land admeasuring 197.77 square yards adjoining to the house of 2 ML,J SA_1394_2003 the plaintiff bearing No.6-3-239/A, Kharkhanagadda Village, is part and parcel of larger extent of land admeasuring Ac.9-09 guntas. The suit land is clearly described in the sketch within EBHG portion. Originally, late A.Komuraiah was the owner and possessor of land admeasuring Ac.9-09 guntas, and he sold the same in favour of Smt.Begum Saheba in the year 1334 Fasli under a registered sale deed. After purchase, she enjoyed the property as absolute owner and possessor and also perfected her title by adverse possession since she was in possession of the land for more than 12 years. After her death, her son Abdul Turab inherited the property and he sold out the same in favour of the plaintiff in the year 1964 under a simple sale deed. The said simple sale deed was presented before the revenue authorities for effecting mutation and the same was misplaced. From the date of purchase, the plaintiff has been in enjoyment over the larger extent of land including the suit land.
4. It is the further case of the plaintiff that she filed O.S.No.38 of 1978 on the file of the District Munsiff, Karimnagar and the same was decreed on 21.02.1978. She 3 ML,J SA_1394_2003 also filed O.S.No.155 of 1989 on the file of the Court of the Sub-Court, Karimnagar against one Roshaiah. One Sanjeeva Reddy filed O.S.No.130 of 1988 against the plaintiff. O.S.Nos.130 of 1988 and 155 of 1989 were jointly tried and the suit filed by the plaintiff was decreed granting injunction in favour of the plaintiff and the suit filed by Sanjeeva Reddy was dismissed. As per the plaintiff, in all those proceedings, it has been clearly held by the said Courts below that the plaintiff had been in possession of the said larger extent of land. When the defendants, without any right and entitlement, tried to interfere with the suit land by denying the title of the plaintiff, she filed the present suit.
5. The case of the defendants is that they are the absolute owners of land admeasuring Ac.1-10½ guntas forming part of Sy.Nos.69 and 70 of Kharkhanagadda Village, having purchased the same under a regd. sale deed dated 10.11.1965 from A.Malla Reddy. Prior to that, they purchased an extent of land admeasuring Ac.0-38 guntas forming part of Sy.Nos.69 and 70. The suit land is part and parcel of the land purchased by the defendants which is 4 ML,J SA_1394_2003 being used for their ingress and egress. Accordingly, the defendants prayed to dismiss the suit.
6. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the plaintiff is entitled to declare that the plaintiff is owner and possessor of suit schedule property, measuring about 197.77 square yards from out of Sy.No.70 of Karimnagar?
2. Whether the plaintiff is entitled for perpetual injunction against defendants restraining them from interfering with peaceful possession and enjoyment of suit schedule property as prayed for?
3. To what relief?"
7. The plaintiff, to support her case, examined P.Ws.1 and 2 and relied upon Exs.A-1 to A-26. The defendants, to support their case, examined D.W.1 and relied upon Exs.B-1 and B-11.
8. The trial Court, after appreciating the evidence on record, found that the plaintiff has not made out her title and that she failed to establish her possession over the suit land and consequently, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal i.e., A.S.No.55 of 1998, wherein the lower appellate Court, after scrutiny of the evidence, came to a different conclusion holding that the 5 ML,J SA_1394_2003 plaintiff established her title and possession over the suit land and consequently, decreed the suit. Hence, the present appeal at the instance of the defendants.
9. This Court has framed the following substantial questions of law.
"Whether the findings of the 1st Appellate Court in decreeing the suit for declaration and injunction suffers from perversity?"
Findings on substantial question of law:
10. As seen from the evidence on record, the plaintiff claimed to have purchased the suit land in Sy.No.70, which is part and parcel of larger extent of land admeasuring Ac.9-09 guntas. She filed the sale deed of her vendor under Ex.A-6. The recitals of Ex.A-6 show her vendor purchased land admeasuring Ac.9-09 guntas forming part of Sy.No.70 from A.Komuraiah. However, the plaintiff failed to produce any sale deed under which she claimed to have purchased the said property.
11. To establish the title, the plaintiff relied upon the Municipal records under Exs.A-1 to A-5, the common judgment and decree in O.S.Nos.130/1988 and 155/1989 under Exs.A-8 to A-10, the deposition of Pasha Vengaiah in 6 ML,J SA_1394_2003 O.S.No.130/1988 under Ex.A-11, land receipts under Exs.A-12 to A-19, passbook under Ex.A-20 and the decree in O.S.No.1127/1987 under Ex.A-25.
12. The trial Court, after considering the evidence of the plaintiff, found that no document establishes the title of the plaintiff not only in respect of suit land, but also larger extent of land admeasuring Ac.9-09 guntas. Hence, the trial Court dismissed the suit. The lower appellate Court, without noticing the fact that the Municipal records, permissions and land receipts do not confer any title, has laid a foundation on them for granting the relief prayed by the plaintiff, which ex facie is not in accordance with law.
13. Further, the lower appellate Court took into consideration the common judgment and decree in O.S.Nos.130/1988 and 155/1989 in granting the relief to the plaintiff, but before relying upon such documents, the lower appellate Court failed to look into the provisions of Sections 39 to 44 of the Indian Evidence Act, 1872. The defendants to the present suit are not the parties to the judgments and decrees which the plaintiff relied upon. Therefore, such judgments cannot be pressed into service 7 ML,J SA_1394_2003 under Section 39 of the Indian Evidence Act and that judgments also do not fall under Sections 40 to 42 of the said Act. The relevancy of the previous judgment as per Section 43 of the said Act can be taken into consideration to the extent when the existence of such judgments is in dispute. The defendants have not denied the truthfulness or existence of judgments and decrees which the plaintiff relied upon. Except for that purpose, that judgments and decrees are relevant. The lower appellate Court, without taking the same into account, has relied upon the said judgments and decrees to confer title on the plaintiff which ex facie is not in tune with the established law.
14. The plaintiff approached the Court for declaration and injunction and hence, she has to establish her title as well as possession over the suit land. The plaintiff's claim is that she purchased larger extent of land admeasuring Ac.9-09 guntas without filing her sale deed. Even going by the sale deed of her vendor, the boundaries are shown as follows:
"North : Land of Khadarpasha South: Road to Sultanabad East : Passage of Khaderpasha West : Land of Komuraiah i.e., the Vendor"
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15. The plaintiff failed to localize those boundaries vis-a-vis with the suit land, so that it can be held that the suit land is part and parcel of the boundaries contained under Ex.A-6. Apart from that, the sketch annexed to Ex.A-10, judgment and decree in O.S.No.155 of 1989, shows that immediately after the house structure, there is boundary of land of defendant No.1 i.e., Vengaiah. The present suit land is located after the house structure which is contrary to the boundaries previously given by the plaintiff in obtaining the injunction in O.S.No.155 of 1989.
16. A close looking at the sketch map filed along with O.S.No.155 of 1989 shows that the land of Vengaiah starts immediate to the house structure raised by the plaintiff over the land which she claimed to have purchased. The space left which is now claimed by the plaintiff is shown to be Vengaiah's land, whereas ignoring the same, the plaintiff is now claiming such a land also as her land. This part of the evidence is not correctly appreciated by the lower appellate Court in declaring the title and injunction. Therefore, the findings of the lower appellate Court are not based on 9 ML,J SA_1394_2003 evidence and such findings suffer from perversity. Accordingly, the substantial question of law is answered.
17. In the result, the Second Appeal is allowed; the judgment and decree dated 22.05.2003 in A.S.No.55 of 1998 on the file of the Court of the IV Additional District Judge (Fast Track Court), Karimnagar, is set aside; and the judgment and decree dated 30.11.1998 in O.S.No.1087 of 1990 passed by the Court of the Principal Junior Civil Judge at Karimnagar is confirmed. Miscellaneous petitions, if any, pending, shall stand closed. No costs.
________________ M.LAXMAN, J Date: 23.06.2022 TJMR