HON'BLE SMT.JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL NOs.232 & 233 of 2013
COMMON JUDGMENT:
Both these Second Appeals are arising out of judgment and
decree in A.S.No.143 of 2009 and A.S.No.145 of 2009 dated
25.08.2012
, on the file of II Additional District Judge at Warangal respectively confirming the judgment and decree dated 19.01.2009 in O.S.No.603 of 2002 on the file of II Additional Junior Civil Judge, Warangal.
2. For the sake of convenience, the parties shall be arrayed as in the suit.The plaintiff is the appellant in both the appeals.
3. S.A.No.232 of 2013 is arising out of the appeal No.145 of 2009 on the file of II Additional District Judge which was filed against the judgment and decree in O.S.No.528 of 1990 passed by the II Additional Junior Civil Judge, Warangal 10.11.1995. Originally, the suit is filed by the plaintiff for cancellation of decree in 2 GAC,J SA NOs.232 & 233 OF 2013 O.S.No.523 of 1990 dated 10.11.1995, on the file of II Additional Junior Civil Judge, Warangal and for grant of perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. A.S.No.143 of 2009 was filed by the plaintiff against the counter claim made by the 1st defendant against the plaintiff for the decree of injunction in respect of the land admeasuring Ac.0-6 gts in Sy.No.1657 of Fort Warangal.
4. It is pertinent to mention that in the suit filed by the plaintiff, counter claim has been made by the defendants. The trial Court while dimissing the suit filed by the plaintiff decreed the counter claim of the defendants. Therefore, plaintiff being agrrieved by the dismissal of the suit, as well as being aggrieved by the decreeing the counter claim of the defendant preferred the above two Appeals before the 1st appellate Court.
3
GAC,J SA NOs.232 & 233 OF 2013
5. In brief, the case of the plaintiff is that the father of the defendants and the father of the plaintiff are the parties to the suit i.e., O.S.No.523 of 1990 on the file of II Additional Junior Civil Judge, Warangal which was decreed on 10.11.1995. It is the contention of the plaintiff that it is an ex-parte decree and the father of the defendants played fraud and got ex-parte decree against the suit schedule property and further sold the property to an extent of Ac.0- 18 gts to the 1st defendant in Sy.No.1657 about 35 years ago under unregistered sale deed and that it is brought to the knowledge of the plaintiff at a very belated stage. Therefore, the plaintiff is constrained to file a suit for cancellation of decree i.e. O.S.No.528 of 1990 and for grant of perpetual injunction restraining the defendants from interfering with peaceful possession and enjoyment over the suit schedule property.
6. A detailed written statement was filed by the 1st defendant denying about the sale of land in Sy.No.1657 and further contended that the suit filed by the plaintiff is not maintainable, as the 4 GAC,J SA NOs.232 & 233 OF 2013 1st defendant filed suit for declaration of title, recovery of possession against the other defendants including the father of the plaintiff who is arrayed as defendant No.24 and the said suit was decreed. Further, EP was filed vide E.P.No.358 of 1996 and on execution, the Court delivered the possession of Ac.0.8 ½ guntas of land in Sy.No.1657 on 26.02.1998 and further partition also was effected. Therefore, the 1st defendant seeks counter claim by way of permanent injunction.
7. Basing on the pleadings, the trial Court framed the following issues:
"1. Whether the plaintiff is entitled for perpetual injunction as sought for?
2. To what relief?"
The trial Court has also framed the following additional issues:-
"3. Whether the plaintiff is entitled for
cancellation of judgment and decree
dt:10.11.1995 on the file of this court as prayed for?5
GAC,J SA NOs.232 & 233 OF 2013
4. Whether defendant No.1 is entitled for permandent injunction as prayed for in the counter claim?"
8. On behalf of the plaintiff PWs.1 and 2 were examined and Exs.A-1 to A-16 were got marked and on behalf of the defendants DW.1 was examined and Exs.B.1 to B.8 were got marked.
9. Considering the oral and documentary evidence on record, the trial Court has dismissed the suit of the plaintiff and decreed the counter claim granting injunction to the defendant.
10. As already stated supra, the plaintiff filed the above two appeals before the 1st appellate Court vide A.S.No.145 of 2009 and A.S.No.143 of 2009 and the 1st appellate Court considering the material on record framed the following points for consideration:-
"1. Whether the judgment and decree obtained in O.S.No.No.528 of 1990 on the file of II Additional Junior Civil Judge, Warangal is liable to be cancelled and whether the plaintiff is in 6 GAC,J SA NOs.232 & 233 OF 2013 possession of suit property and whether the trial court is justified in dismissing the suit of plaintiff and decreeing the counter claim?
2. To what relief?"
11. Considering the rival contentions of both the parties, the 1st appellate Court dismissed both the appeals confirming the judgment and decree of the trial Court in O.S.No.603 of 2002. Being aggrieved by the same, the present Second Appeals are filed raising the following substantial questions of law:-
A. Whether the Courts below are justified in holding that the plaintiff has right in suit Sy.No.1657, even though there is an admission of defendant No.1 stating that the plaintiff has right in Sy.No.1657?
B. Whether courts below can dismiss a suit filed by the plaintiff?
C. Whether the burden lies on the plaintiff to show that there is no property in favour of the defendant in particular Survey Number or the burden lies on the defendant No.1 to prove that 7 GAC,J SA NOs.232 & 233 OF 2013 there is a property in his favour in a particular Survey Number?
D. Whether a duty cast on the courts below to decide the main issue, whether a fraud has been committed by the defendant No.1 while obtaining an ex-parte decree in O.S.No.528 of 1990, in a suit filed for cancellation of judgment and decree in O.S.No.528 of 1990?
E. Whether the court below can grant an injunction without there being any evidence proving the possession of the suit schedule property in the facts and circumstances of the case?
F. The observations made and the findings recorded by the courts below in relation to the material brought on record amounts to perversity in decreeing the claim of injunction to the counter claimant?
G. Whether the courts below are right in law in decreeing the relief of injunction in a counter claim merely based on the pleadings in another suit, where in the plaintiff is not a party?" 8
GAC,J SA NOs.232 & 233 OF 2013
12. Order VIII Rule 6(a) to 6(g) deal with counter claim and the counter claim has to be looked into as if it is a suit filed defendants, when the court fee is paid. As the subject matter is one and the same, the defendants have made his counter claim and paid fee. Therefore, there is no error or irregularity in granting decree in favour of the defendants as per the provisions of the civil procedure code.
13. Both the courts have given concurrent findings as to the facts of the case and the substantial questions of law raised are not relating to any provision of law. Therefore, I do not find any error or irregularity in the orders passed by the 1st appellate Court in dismissing the suit or in granting decree in favour of the defendants. Admittedly, when ex-parte decree was granted in O.S.No.528 of 1990 on the file of II Additional Junior Civil Judge, Warangal, it is for the plaintiff to make an application to set aside the ex-parte decree but the same was not done for the reasons best known to the appellant. On the other hand, a suit is filed before the same Court to set aside the 9 GAC,J SA NOs.232 & 233 OF 2013 judgment and decree. Apart from that, the appellant can also prefer an appeal against the exparte decree in O.S.No.528 of 1990 instead of filing suit for cancellation of judgment and decree. The order in O.S.No.528 of 1990 have become final as it was not challenged. Moreover, the appellant cannot take the plea that he has no knowledge about the suit as the father of the plaintiff and the father of defendants are the parties to the suit. It is the specific contention of the appellant that it has come to the knowledge of the appellant in 2002 about the decree in O.S.No.528 of 1990 and by that time, the father of the defendant is no more, therefore, he could not file a petition to set aside the ex-parte decree. Though the parties die, the right to the suit survives. As the legal heir of the defendant, in O.S.No.528 of 1990, the plaintiff has every right to file a petition to set aside the exparte decree if it is within limitation of Right Section 5 petition of the Limitation Act. Instead of filing the petition to set aside the ex-parte decree, the plaintiff has preferred a suit to cancel the judgment and decree in the suit.
10
GAC,J SA NOs.232 & 233 OF 2013
14. As discussed supra, there is no error or irregularity in the judgments of the Court below so as to interfere with the same. Further, under Section 100 of CPC, this Court can interfere with the orders of the Courts below, only if any substantial question of law is involved. As there is no substantial question of law, these Second Appeals deserve to be dismissed.
15. Accordingly, these Second Appeals are dismissed as they is devoid of merits. No order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_________________________________ G.ANUPAMA CHAKRAVARTHY,J 27.09.2022 dv