HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.601 of 2014
JUDGMENT :
This Second Appeal is arising out of the judgment and decree in A.S.No.15 of 2010, dated 16.04.2012 on the file of V Additional District Judge, Karimnagar against the judgment and decree dated 22.12.2009 passed in O.S.No.10 of 2008 on the file of Senior Civil Judge, Siricilla.
2. For the sake of convenience, the parties herein are referred to as arrayed in the suit. The appellants are the defendants.
3. Initially, a suit is filed for recovery of possession from the defendants and also for future mesne profits.
4. The brief facts of the case are that the father of the plaintiff by name Nagini Mallaiah was the original owner of the suit schedule property and he was in possession of the property till his death. The plaintiff being his daughter and the only class-1 legal heir, succeeded the schedule property and her name was also 2 mutated in the revenue records in the year 1985-86. In the year 1990, when the defendants 1 and 2 tried to interfere with the peaceful possession of the plaintiff, the plaintiff has filed a suit vide O.S.No.61 of 1990 against the defendants for permanent injunction and it was decreed on 10.07.1991. It is the further case of the plaintiff that as she got job in Anganwadi, she shifted her residence to Sircilla in the year 2002 and taking advantage of her absence, the defendants trespassed and occupied her property and got their names entered in the revenue records. When the plaintiff demanded the defendants to vacate the suit schedule land, they did not vacate, therefore, she was constrained to file a suit for recovery of possession and for future mesne profits.
5. On the other hand, the defendants filed a joint written statement denying all the material allegations of the plaint.
6. It is the case of the defendants that the father of the defendants by name Bijuga Nagaiah was the owner and possessor of the suit land and that about 45 years back he died, leaving behind his three daughters by name Thalari Yellavva, who is the 3 mother of the plaintiff, the 1st defendant and one Pothula Sarojana as his legal heirs and thereafter, they have inherited the property by way of succession. As there is no male assistance in the family of late Nagaiah, father of the plaintiff and husband of the elder sister of the 1st defendant used to manage the suit land. Later, a well was dug in the suit land and an electric motor pump was also installed by obtaining electric service connection. Further, the defendants have constructed a "pakka house" in the suit schedule property in the year 1989 and accordingly, door No.7-62 was also allotted by the Grampanchayat to the said house in the year 1990 and that the defendants are residing in the said house. The recitals of written statement further disclose that summons were not served to the defendants in the suit i.e, O.S.No.61 of 1990 which was filed by the plaintiff against the defendants 1 and 2, and that the plaintiff got the decree, as if the summons were served. The plaintiff suppressed the fact of existing house in the suit land, filed a suit showing the suit land as purely agricultural land. It is further contended that the plaintiff was never in possession of the suit land 4 and that she has no right, title or possession over the suit schedule property and therefore, prayed to dismiss the suit.
7. Basing on the pleadings, the trial Court has framed the following issues:
"1. Whether the plaintiff is entitled for recovery of possession of the plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for future mesne profits as prayed for?
3. To what relief?"
8. During the course of the trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-32 were marked and on behalf of the defendants DWs.1 and 2 were examined and Exs.B-1 to B-33 were marked.
9. The trial Court after considering the oral and documentary evidence gave a finding that the plaintiff was able to establish her title over the suit schedule property and she established that the defendants have illegally trespassed into the suit schedule property and are continuing in unauthorized 5 possession of the same. Hence, she is entitled for recovery of suit schedule property from the defendants. Further, the defendants have failed to establish their title and lawful possession over the suit schedule property and as such, they are liable to be evicted from the suit schedule property. It is the further finding of the trial Court that the plaintiff is entitled for future mesne profits, since the defendants are in unauthorized possession of the suit property and decreed the suit with costs. The trial Court further directed the defendants to handover the vacant possession of the suit schedule property to the plaintiff, within two months from the date of decree and judgment and also directed to file a separate application to fix the quantum for mesne profits .
10. Being aggrieved by the same, the defendants have preferred 1st appeal before the V Additional District Judge, Karimnagar vide A.S.No.15 of 2010.
11. After hearing the arguments of both sides, the 1st appellate Court has framed the following point for determination: 6
"Whether the judgment and decree of the lower Court can be set aside?"
12. Considering the material on record, the 1st appellate Court has dismissed the appeal but restrained the plaintiff from interfering with the possession of the house of the defendants located in the suit land.
13. Being aggrieved by the said judgment and decree of the 1st appellate Court, the defendants herein filed the present Second Appeal with the following substantial questions of law:-
"a. Because the mutation entries in Revenue Records in favour of respondent do not decide title and in the absence of clear evidence of acquiring title in the suit property by the respondent to the exclusion of the share of 1st appellant, the findings of the Courts below granting decree for possession of suit property in favour of respondent assuming title of respondent is perverse and is substantial question of law.
b. Because, the appellate Court has not framed properly the point for determination of appeal and failure to consider oral evidence under Rule 31 or Order 41 is substantial question of law.7
c. Because, the appellate Court having observed that the 1st appellant has established the fact of construction of house by her in part of suit property, ought to have dismissed the suit holding that claim for recovery of possession is barred by limitation instead of restraining the respondent from interfering in the possession of appellants in respect of the house.
d. Because, the findings of the Court below are based on wrong test, assumptions, and conjectures as tainted with perversity and it involves substantial question of law.
e. Because the judgment of Courts below is perverse in not framing proper issues basing on the pleadings and whether the judgment is legally tenable.
f. Because, non consideration material evidence Exs.B-31; B-32 and B-33 which are proving share of father of 1st appellant involves substantial question of law and the judgment is unsustainable.
g. Because, when is established by evidence and documents that the property belongs to the members of one family having share in the property, and whether suit for recovery of possession is maintainable and would lie by the person in whose name the property is recorded 8 against another co-owner in the absence of proving exclusive ownership rights by cogent evidence."
14. Admittedly, cross objections are filed by the plaintiff with respect to suit schedule house as the 1st appellate Court has restrained the plaintiff from interfering with the same.
15. On the other hand, the plaintiffs raised the following substantial questions of law in the cross objections filed by them:-
"A. Whether the injunction granted by the Lower Appellate Court in favour of the Respondents/Appellants and against the Cross Objector is sustainable in the absence of any counter claim to the said effect by the Respondents/Appellants?
B. Whether the Lower Appellate Court is justified in
granting injunction against the Cross-
Objector/Respondent, who is the true owner of the suit schedule property?
C. Whether the Respondents/Appellants are entitled for any relief much less injunction as granted by the Lower Appellate Court in the absence of any pleading and prayer to the said effect?
D. Whether relief of inunction can be granted in favour of the Respondents/Appellants in a suit filed by the Cross-Objector/Respondent? E. Whether the grant of injunction in favour of the Respondents/Appellants and against the Cross Objector/Respondent stand for the test of judicial 9 scrutiny in view of the settled principle of law laid down by the Hon'ble Courts in contra?
F. Whether the Lower Appellate Court is right in
granting injunction against the Cross
Objector/Respondent without there being any existence of extraordinary circumstances in favour of the Respondents/Appellants?"
16. Heard the learned counsel for the appellants and for the respondent.
17. On perusal of the substantial questions of law raised by the appellants, it is evident that they all relate to the facts but not of law. It is raised in substantial questions of law that the appellant Court has not framed properly the point for determination of appeal and failed to consider oral evidence under Rule 31 of Order 41 of CPC.
18. Order 41 of Rule 31 of CPC envisages that the judgment of the appellate Court shall be in writing and shall state:-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision;
(d) where the decree is appealed from is reversed or
varied, the relief to which the appellant is entitled. 10
19. On perusal of the judgment of the 1st appellate Court, it is evident that the 1st appellate Court has framed the points for determination, gave decision thereon, stated the reasons for the decision and decree was also passed to that effect. Therefore, it cannot be a substantial question of law as urged by the learned counsel for the appellant.
20 Learned counsel for the appellants has also urged that the Courts below ought to have dismissed the suit holding that the claim for recovery of possession is barred by limitation. On perusal of the material on record, there is no pleading either before the trial Court or before the 1st appellate Court that the suit is barred by limitation. In the absence of any pleadings, none can expect an issue on the point of limitation and therefore, it cannot be treated as a substantial question of law in the Second Appeal. The written statement of the defendants is silent, as to when the defendants have come into possession of the property, except contending that the father of defendant No.1 have purchased the 11 suit land. On perusal of the documents, it is evident that no sale deed was filed before the Court below to prove that the father of the defendants had purchased the property. Ex.B-24 disclose that an injunction was granted by the competent Court in favour of the plaintiff in O.S.No.163 of 1995. Both the Courts below have given concurrent findings, that the plaintiff is entitled for recovery of vacant land.
21. On the other hand, learned counsel for the respondent contended that initially the land was an Inam land and the father of the plaintiff is Inamdar and O.S.No.61 of 1990 was decreed on 10.07.1991 vide Ex.A-21, which has become final. O.S.No.165 of 1994 on the file of Junior Civil Judge, Sircilla was decreed on 22.04.1997 against which an appeal was filed which is Ex.A-24 i.e., A.S.No.33 of 1999 on the file of Senior Civil Judge, Sircilla and the said appeal was dismissed.
22. It is the contention of the learned counsel for the respondent that the trial Court has granted injunction and directed to deliver the possession of the suit schedule house, which is the 12 finding of the Court that the appellants have trespassed into the suit land and made constructions. Therefore, prayed to allow the cross-objections. In support of his contentions, he relied on M. Ramulamma vs. Revenue Divisional Officer1, wherein their lordships have held that the petitioners were not in possession of the subject lands on the appointed day i.e., 01.11.1976 and so they were not entitled for grant of Occupancy Rights Certificate. He also relied on Vatticherukuru Village Panchayat vs. Nori Venkatarama Deekshithulu2, wherein their lordships have held as under:
"Earlier the Grampanchayat had also filed a suit (out of which C.A.No.931 of 1977 arose) against the descendants of 'NLS' for possession. The descendants therein inter alia pleaded that the Gram Panchayat unlawfully took possession of the tank on July, 7 1965, that they acquire title by grant of ryotwari patta under Section 3 of the A.P.
Inams (Abolition and Conversion into Ryotwari) Act and that the Gram Panchayat had no right to interfere with their possession and enjoyment. The trial Court found that the land was endowed to NLS for the maintenance of the tank 1 2019 LAWsuit (TS) 67 2 1991 Supp (2) SCC 228 13 and the descendants obtained ryotwari patta under the Inams Act and were entitled to remain in possession and enjoyment as owners subject to maintaining the tank. Accordingly, the suit was dismissed. On the appeal the High Court confirmed the decree on further finding that by operation of Section 14 of the Inam Act, the civil suit was barred."
23. On the other hand, learned counsel for the respondent relied on the common judgment of this Court in "CRP.Nos.1101 of 2018 and batch" dated 08.06.2018 wherein their lordship held that in the light of the statutory scheme, Section 29 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short 'the Act') which is sought to be pressed into service by the 1st defendant may be examined. Section 29 of the Act reads as under:
"29 Savings:- Save as otherwise provided in this Act, no order passed by the Collector or by the Special Tribunal under this Act shall be liable to be cancelled or modified except by the High Court as aforesaid or be question in any Court of law."
24. As per the above proposition, no order passed by the Collector or by the Special Tribunal under the Act shall be liable to 14 be cancelled or modified except by the High Court either in exercise of appellate jurisdiction under Section 27 or revisionary jurisdiction under Section 28 of the Act. In the present case, no orders of Inam lands are challenged before the Civil Court. But a suit is filed for recovery of possession and for future mesne profits. Further, there are no proceedings of the Collector or Special Tribunal which were challenged before the Civil Court. Therefore, the jurisdiction of the Civil Court cannot be ousted. No plea was taken by the defendants about the subject land as Inam land. Therefore, it can be safely concluded that the Civil Court has jurisdiction and suit is not barred under Section 29 of the Act and the contentions of the appellants cannot be accepted.
25. The above said propositions squarely relate to the proceedings issued by the revenue authorities, therefore, they are not relevant to the present facts and circumstances of the case.
26. It is pertinent to note that the 1st appellate Court has discussed about the exhibits relied by both the parties and basing on the documentary evidence considering the relationship between 15 the parties as admitted by the plaintiff, gave a finding that the pattadar of the suit land prior to 1954-1955 was father of the defendants. Ex.A-31, Khasra pahani at Column No.9, it is written as "Inam Nowkari" by some revenue official and at the column of the name of pattadar or Inamdar "Malluga" was written and in possession column, three names were mentioned as "Nagini Malluga", "Bijiga Baluga" and "Bijiga Rajuga". For Nagini Malluga in Column No.15, it is mentioned as "Inamdar" and two others as successors. But the recitals of written statement of the defendants disclose that Bijuga Nagaiah died about 45 years back. Further, written statement was filed on 21.07.2008. When computed, the period of 45 years, it comes to 1967. As the change of the name was found in the year 1954-55 in the Ex.A-31, thereafter, Bijiga Nagaiah was alive for 10 more years. It is the finding of the trial Court that when the said change had come during his life time, he would have got it rectified in Khasra Pahani and other revenue records.
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27. As per the evidence of PW-1, Nagini Mallaih died during 1975-76 and by that time the plaintiff was aged about 15-16 years. It is admitted by both the parties that the name of the father of the plaintiff was also Talari Karre Mallaiah i.e. he was a village servant. Further, PW-1 testified that Bijuga Nagaiah was doing Talari work. The name of the father of the plaintiff appeared all of a sudden, after the name of the father of the 1st defendant in the revenue records. But the father of 1st defendant has not rectified the revenue records. It is an admitted fact that the 1st defendant in O.S.No.165 of 1994 is the plaintiff in the suit, which was filed for perpetual injunction restraining the plaintiff and her husband from interfering with the suit schedule land but the said suit was dismissed as not pressed. The 1st defendant, Sarojana filed a suit for partition and a decree was passed. Ex.A-24 discloses that A.S.No.33 of 1999 on the file of Senior Civil Judge, Sircilla was disposed of on 22.07.2004 and the said appeal was filed against O.S.No.163 of 1995 on the file of Junior Civil Judge, Sircilla, which was filed for partition, claiming her 1/3rd share. It is an admitted fact that the 1st defendant, the mother of the plaintiff and 17 Sarojana are the sisters, who are the daughters of Bijuga Nagaiah and B.Nagaiah had no male issues, these three daughters succeeded the entire property.
28. It is the case of the plaintiff before the trial court that her father was Inamdar who was in possession and enjoyment of the land, till his death (died in the year 1975-76) and thereafter, the name of the plaintiff was mutated in the revenue records as owner and pattadar of the suit land. The plaintiff has filed O.S.No.61 of 1990 against defendants 1 to 3 and others for perpetual injunction and the same was decreed against defendants 1 and 2 herein and the other defendants were set ex-parte. Ex.A-4 to A-17 clearly reveal that the plaintiff was pattadar and possessor of the suit schedule land upto 2001-2002 and on 21.03.1995, the plaintiff was issued with pattadar passbook, which is marked as Ex.A-23. Ex.A-18 is the pahani for the year 2002-2003 which shows the name of the 1st defendant in possession column of the suit land. Therefore, there is no error or irregularity in the findings of the trial Court in granting a decree for recovery of possession and for future 18 mesne profits. The 1st appellate Court have also confirmed the finding that the plaintiff has successfully established succession from her father from the year 1954-55 till filing of the suit and in the year, 2001, the defendants forcibly occupied the suit land. After occupation of the suit land, the defendants have constructed a house in the suit land and door number was issued by the Grampanchayat and basing on it defendants tried to prove that the suit land belong to them. It is also admitted by PW-1 in her cross- examination that at about 3 years back, the defendants have constructed a house in the suit land but the 1st appellate Court have come to a finding that the defendants have occupied the suit land in the year, 2001 but the documents establish that even prior to construction of house in the suit land, the defendants were in possession and enjoyment of the same and gave a finding that the plaintiff cannot interfere with the possession and enjoyment of the house constructed in the suit land.
29. Once it is established by the plaintiff that she is the owner of the property and filed a suit for recovery of possession 19 from the defendants, the 1st appellate Court erred in coming to a conclusion that though the defendants have trespassed and occupied the possession, the plaintiff cannot interfere with the possession and enjoyment of the defendants with respect to the house in the suit schedule land.
30. There are no pleadings before the Court as to the construction of the house by the defendants. If at all, the defendants have constructed the house in the suit schedule property, the plaintiff ought to sought relief for mandatory injunction for removing the illegal construction made by the defendants therein in the suit schedule property and for recovery of possession. Admittedly, there is no pleading before the trial Court or the 1st appellate Court to that effect.
31. On perusal of the documents, it is evident that an E.P. was filed before the Senior Civil Judge, Sircilla, wherein the suit schedule property is shown as agricultural dry land bearing Sy.No.713 to an extent of Ac.4-21 gts situated at Vanthadupuda Village of Ellanthakunta Mandal. There is no mention in the 20 schedule, that a house is constructed in the said property. In the absence of proper pleadings or evidence, this Court cannot give any finding as to interference of the plaintiff with respect to house which is alleged to have been constructed in the suit schedule property. Admittedly, Exs.B-2 to B-7 are the house tax receipts from the year 1994-2008 and the suit is filed in the year, 2008.
32. One has to approach the Court with clear hands. The plaintiff has suppressed the fact that a house is situated in the suit land. The trial Court has not appreciated the fact of house being in the suit land.
33. As per Exs.B-2 to B-7, it is an admitted fact that the house was constructed in the year, 1994. But the plaintiff has not made any effort to amend the prayer for demolition of illegal structures or for mandatory injunction as the recitals of the written statement disclose the same. Appeal is the continuation of the suit and the appellate Court can appreciate evidence on mixed question of law as well as the facts. However, there is no counter claim by the defendants seeking relief of perpetual injunction and at the 21 same time there is no specific prayer for mandatory injunction by the plaintiff, but the 1st appellate Court granted limited injunction in favour of the defendants as far as the house is concerned. Therefore, it can be construed that the 1st appellate Court also erred in granting injunction in favour of the defendants in the absence of any prayer seeking relief for injunction. In an appeal of the defendants, in the absence of cross-objections or cross-appeal, the 1st appellate Court cannot grant relief to the plaintiff. Therefore, the cross-objections are hereby allowed and judgment of the 1st appellate Court is hereby set aside as to the relief of granting injunction to the plaintiff with respect to the house in the suit schedule property, further the orders of the trial Court in O.S.No.10 of 2008 on the file of Senior Civil Judge, Siricilla, are hereby confirmed.
34. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this 22 Court can interfere with the orders of the Courts below. On perusal of the entire material on record, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence except in granting injunction to the plaintiff in the appeal preferred by the defendants. Therefore in the absence of substantial question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
35. As discussed supra, this Second Appeal is dismissed at the admission stage, as devoid of merits, confirming the judgment and decree in A.S.No.15 of 2010, dated 16.04.2012 on the file of V Additional District Judge, Karimnagar. Further, the cross-objections of respondents are also hereby allowed.
As a sequel, pending miscellaneous applications, if any, shall stand closed. No order as to costs.
_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 22.10.2022 dv 23