HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.1149 of 2011
JUDGMENT :
This Second Appeal is arising out of the judgment and decree in A.S.No.8 of 2008, dated 31.01.2011 on the file of II Additional District Judge, Nalgonda at Suryapet, which is arising out of O.S.No.10 of 2001 on the file of Junior Civil Judge, Suryapet.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned Counsel for the appellants as well as the learned counsel for the respondents and perused the record.
4. The appellants are plaintiffs in the suit. The suit was filed by the plaintiffs for perpetual injunction restraining the defendants, their men, agents, workmen or servants from causing interference with the possession and enjoyment of plaintiffs over the suit schedule lands to an extent of Ac.3-00 gts. in Sy.No.184 and Ac.1- 34 gts. in Sy.No.742 of plaintiff No.1 and another Ac.3-00 gts. in 2 GAC, J S.A.No.1149 of 2011 Sy.No.184 and Ac.1-34 gts. in Sy.No.742 of plaintiff No.2, situated at Pillalamarry village of Suryapet Mandal.
5. The brief averments of the plaint are that plaintiff No.2 is the son of plaintiff No.1 and both are members of Hindu Undivided Joint Family and they are the owners of the suit schedule property in joint possession, management and enjoyment of the suit land and had common interest over the suit land. Further, the names of the plaintiffs were entered in all revenue records as owners and possessors of the suit land and got issued pattadar passbooks and title deeds in their favour after due enquiry by the revenue authorities. It is the further contention of plaintiffs that they used to cultivate the suit lands by raising various crops and due to non-availability of suitable farm servant, sometimes the lands were kept vacant for giving to others, for the purpose of grazing cattle and when there was no cultivation, japan babul trees have grown up and later plaintiffs started cleaning the suit land by incurring heavy expenditure. Around the suit land, some lands are divided into plots by various persons for housing activities and some of the defendants, who are real estate businessmen, approached the 3 GAC, J S.A.No.1149 of 2011 plaintiffs with a request to sell the suit lands to them, for which, the plaintiffs have not agreed. But the defendants have made illegal attempts to occupy the suit land without there being any right, when the plaintiffs are trying to clean the land for fixing of boundary stones and for fencing the suit land. Due to the unnecessary intervention of the defendants and their threatenings, the plaintiffs are constrained to file the suit for perpetual injunction.
6. On the other hand, defendant Nos.1 and 2 have filed a detailed written statement denying all the allegations made by the plaintiffs and it is contended that the suit schedule lands do not belong to the plaintiffs and that plaintiffs were never in possession of those lands and never cultivated the lands nor raised any crop. The defendants admitted that around the suit land, some land has been made into housing plots and there was a housing society and it is the reason for the plaintiffs to fabricate the documents for filing the suit with false claim in order to grab the land of the defendants. It is the further case of defendants that they are the owners and possessors of the suit land and they never approached 4 GAC, J S.A.No.1149 of 2011 the plaintiffs for sale of the suit land and it is a story invented by the plaintiffs.
7. It is the specific contention of the defendants that the suit lands are part and parcel of Ac.14-15 gts., belonging to late Singirikonda Kausalyamma, who purchased the same from Smt.Anasuyamma and the said Anasuyamma sold the lands after obtaining permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 from the Tahsildar, dated 31.10.1961. The said Kausalyamma purchased the land with her own funds, became the absolute owner and out of the said survey numbers, sold Ac.1-09 gts. to one Konda Badramma. Later, she suffered a decree in O.S.No.24 of 1974, dated 22.02.1974 on the file of Junior Civil Judge, Suryapet in her favour for Ac.1-09 gts. In the year 1983, Smt. Kausalyamma sold land to an extent of Ac.3-2½ gts. out of the purchased land under five registered sale deeds in favour of Kakkireni Venkanna, Kakkireni Pitchaiah, Kakkireni Janaiah, Kakkireni Saidulu and Kakkireni Chandraiah. Thus, out of the purchased area of Ac.14-15 gts., the total area of Ac.4-11½ gts. was sold and the remaining land was Ac.10-3½ gts., 5 GAC, J S.A.No.1149 of 2011 which was sold subsequently to the defendants under registered documents in the year 1986. It is the further contention of the defendants that the plaintiffs are silent with regard to Ac.4-11½ gts. of land, which was sold by Kausalyamma, which itself falsifies the claim of the plaintiffs and all the above sale deeds are attested by the father of plaintiff No.1 Sathyanarayana and his brother Prasad Rao. It is further averred that Plaintiff No.1 filed a declaration under the Ceiling Act in C.C.No.2835 of 1975 before the RDO and orders were passed on 28.10.1976 with a finding that the said lands are the exclusive properties of Smt. Kausalyamma and were not counted as joint family properties. The orders of the RDO, Suryapet became final as neither the plaintiffs nor any family member challenged the said orders. It is the further contention of the defendants that in the year 1979, both the plaintiffs interfered with the enjoyment of the lands of Kausalyamma, for which, she filed a suit in O.S.No.12 of 1979 on the file of Junior Civil Judge, Suryapet, in which, she averred that she purchased the land out of her own funds and the plaintiffs have no manner of right over the suit schedule property. Plaintiff No.1 filed O.S.No.670 of 1983 on 6 GAC, J S.A.No.1149 of 2011 the file of Junior Civil Judge's Court, Suryapet against his parents S.Kousalyamma, Sathyanarayana and his brother Prasad Rao seeking injunction to restrain them from alienating the lands, which was filed as a counter-blast to the suit in O.S.No.12 of 1979.
8. Further, plaintiff No.1 claimed in the said suit that Kausalyamma purchased Ac.12-15 gts. in Sy.Nos.184, 185 and 742, though she purchased Ac.14-15 gts., but not Ac.12-15 gts., and plaintiff No.1 was silent with regard to the other two acres as he had no answer.
9. It is the further contention of defendants that in the year 1984, the said Kausalyamma colluded with the plaintiffs and got absented herself and the suit was decreed ex parte on 11.04.1989. According to the defendants, even before filing the suit by plaintiff No.1, the said Kausalyamma entered into agreement of sale, dated 17.07.1983 with the defendants and some others, who are not made as parties in the suit, to sell away Ac.10-00 gts. of land in suit survey numbers. Plaintiff No.1 obtained ex parte interim injunction in the month of August, 1983. In view of the ex parte 7 GAC, J S.A.No.1149 of 2011 injunction, the regular registered sale deed could not be executed. In fact, the possession of the sold land of Ac.10-00 gts. was handed over to Racharla Rama Rao i.e. defendant No.9 on 17.07.1983 itself in terms of the agreement of sale. While so, the suit in O.S.No.670 of 1983 was dismissed for default on 20.06.1986 and ultimately, the injunction orders stood vacated. Smt.Kausalyamma executed sale deeds for the said land of Ac.10-00 gts. in favour of defendant Nos.1, 10 to 15 and late Racharla Laxmi Kantha Rao and Yekkala Prasad vide document Nos.1630 of 1986 and 1631 of 1986. In the said sale deeds, it is clearly mentioned that the agreement of sale of land was entered on 17.07.1983 itself and possession was handed over to Racharla Rama Rao/defendant No.9, and thus, they were in possession of the property and the plaintiffs and all their family members have personal knowledge about the registration of the lands and also about O.S.No.670 of 1983, which was restored by plaintiff No.1 on 22.03.1987. Likewise, the written statement also disclosed about the proceedings in O.S.Nos.12 of 1979, 144 of 1983, 35 of 1988 and 8 GAC, J S.A.No.1149 of 2011 670 of 1983, which are suits filed inter se between the parties and prayed to dismiss the suit with costs.
10. Defendant Nos.3 to 15 filed an adoption Memo adopting the written statement of defendant Nos.1 and 2.
11. Defendant No.16 filed a separate written statement alleging that plaintiff Nos.1 and 2 colluded with each other and got filed false suits in order to grab the property of defendant No.16. It is contended that plaintiff No.2 is not the owner and possessor of the suit schedule property, but defendant No.16 is the absolute owner and possessor of Ac.4-13½ gts. i.e. Ac.3-19 gts. in Sy.No.184 and Ac.0-34 gts. in Sy.No.742. It is contended that plaintiff No.2 played fraud with the revenue authorities and obtained false pattadar passbooks and title deeds, which will not create any right over the property and that he is taking steps for getting them cancelled. It is stated that the suit property is under Municipal limits, therefore, the revenue authorities cannot issue pattadar pass books and title deeds in favour of plaintiff No.2. He admitted that plaintiff No.1 cultivated his land for some time, but plaintiff No.2 9 GAC, J S.A.No.1149 of 2011 never cultivated his land. He never approached the plaintiffs with a request to sell the suit land, as the plaintiffs have no right to sell the suit land and that the plaintiffs colluded with some of the defendants and filed false suit to grab the property of defendant No.16, which are their ancestral joint family properties. Accordingly, he prayed to dismiss the suit.
12. Plaintiffs filed rejoinder denying the pleas taken by the defendants in their written statements. It is the specific contention of plaintiffs that they are the owners and possessors of the suit schedule land, which is still in their possession and enjoyment and that the averments made by the defendants are all false. The rejoinder specifically discloses that Kausalyamma has not purchased the suit land and other land and she has no source of income to purchase the suit schedule property and the entire property was purchased with the funds of the joint family of plaintiff No.1, their father and brother Prasad Rao, but the property was kept in the name of Smt. Kausalyamma nominally, which was the finding in O.S.No.12 of 1979. It is the specific contention in the rejoinder that the lands fallen to the share of the brother of 10 GAC, J S.A.No.1149 of 2011 plaintiffs by name Prasad Rao, which were attested by Late Sathyanarayana and Prasad Rao and the same belongs to Prasad Rao and the judgment and decree passed in O.S.No.12 of 1979 is binding on the defendants and they are claiming properties through Kausalyamma.
13. Likewise, the plaintiffs also denied the averments made in the written statement of defendant No.16 and contended that the suit schedule property was the ancestral and joint family property of Sathyanarayana, and accordingly, the revenue authorities, after due enquiry, issued pattadar passbooks in favour of the plaintiffs.
14. Basing on the above pleadings, the trial Court has framed the following issues:
"1. Whether the suit is barred by res judicata ?
2. Whether the plaintiffs are in possession and enjoyment of suit property as on the date of the suit ?
3. Whether the plaintiffs are entitled for perpetual injunction as prayed for ?
4. To what relief ?11
GAC, J S.A.No.1149 of 2011
15. On behalf of plaintiffs, PWs.1 to 5 were examined and Exs.A-1 to A-29 got marked. On behalf of defendants, DWs.1 to 5 were examined and Exs.B-1 to B-16 got marked.
16. On considering the entire oral and documentary evidence on record, the trial Court has dismissed the suit and further gave a finding that the defendants are entitled to seek recovery of possession of the suit schedule property.
17. Being aggrieved by the judgment and decree in O.S.No.10 of 2001, the plaintiffs preferred appeal vide A.S.No.8 of 2008 on the file of II Additional District Judge, Nalgonda at Suryapet. The first appellate Court, after hearing the rival contentions of the appellants and respondents, framed the following point for consideration:
"Whether the appellants herein are entitled for the relief of perpetual injunction in respect of the suit schedule property against the respondents herein as prayed by them ? Whether the judgment and decree passed by the learned Junior Civil Judge, Suryapet in O.S.No.10/2001 are based on evidence or not and whether the same is liable to be set aside as prayed by the appellants ?"
18. After considering the arguments and the material available on record, the first appellate Court dismissed the appeal of the 12 GAC, J S.A.No.1149 of 2011 appellants with costs by confirming the judgment and decree of the learned Junior Civil Judge in O.S.No.10 of 2001, dated 26.12.2007.
19. Being aggrieved by the same, the unsuccessful plaintiffs i.e. the appellants herein have filed this Second Appeal raising the following substantial questions of law:
"1. Whether in the facts and circumstances of the case the Courts below were justified in not holding that the claim of possession and title by the respondents is hit by res judicata in view of the findings in O.S.No.12 of 1979 ?
2. Whether the decrees and judgments of the courts below are vitiated by perversity ?
3. Whether in the facts and circumstances of the case the Courts below were justified in brushing aside the Record of rights Ex.A1 and A2 and the adangals Exs.A11 to A23 overlooking that they are documents relevant in the context of determining title and possession.
4. Whether in the facts and circumstances of the case the Courts below were justified in giving primacy to Ex.B1 and B2 overlooking that they are hit by the doctrine of lis pendens by reason of institution of O.S.No.12 of 1979 ?"
As the substantial questions of law are interlinked with each other, the further substantial questions of law are framed as under, for deciding the second appeal :
13
GAC, J S.A.No.1149 of 2011 "1. Whether Kausalyamma can be held to be a nominal owner of the suit property on the ground that the sale consideration has moved from joint family funds in 1961 when she purchased the property under registered sale deed ?
2. Whether the suit dismissed for default bars the plaintiff in filing a fresh suit and whether the subsequent suit is barred by res judicata ?"
20. It is pertinent to note that the property in dispute is of different extents of land, in different survey numbers, totalling to an extent of Ac.9-28 gts., which is not at all in dispute.
21. For better appreciation, the survey numbers and the details of the land are given hereunder:
Party Sy.No. Area
Singirikonda Sy.No.184 Ac.3-00 gts.
Surender
Sy.No.742 Ac.1-34 gts.
(Plaintiff No.1)
Singirikonda Sy.No.184 Ac.3-00 gts.
Ravinder
Sy.No.742 Ac.1-34 gts.
(Plaintiff No.2)
Total Ac.9-28 gts.
22. It is important to note that plaintiff No.1 is the son of Kausalyamma and plaintiff No.2 is the son of plaintiff No.1 and respondent Nos.1 to 20 are alleged to be the successors in interest of Smt.Kausalyamma.
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23. The learned Senior Counsel for appellants Sri P.Sree Raghu Ram urged that the plaintiffs/appellants are the members of the Hindu Undivided Family (HUF) and are in joint ownership, possession and enjoyment of the subject property to a total extent of Ac.9-28 gts., in Pillalamarry village of Suryapet Revenue Mandal and accordingly, their names are also recorded in the revenue records and got issued pattadar passbooks. The pahanis i.e. Exs.A-11 to A-23 also disclose that Plaintiff Nos.1 and 2 are the owners and possessors of the land and further Exs.A-1 and A-2 disclose that the revenue authorities issued pattadar passbooks in favour of the appellants and that the trial Court has not properly appreciated the said fact and dismissed the suit. It is the further contention of the learned Senior Counsel for appellants that the suit schedule property is part of larger extent of property owned by one Smt.Singirikonda Kausalyamma, who is none other than the mother of plaintiff No.1, who purchased the same from Smt.Anasuyamma after obtaining permission under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 from the Tahsildar, Suryapet and the said suit schedule property was 15 GAC, J S.A.No.1149 of 2011 purchased out of the funds of the joint family and the plaintiffs, being the members of the Hindu Undivided Family, have joint interest. As the respondents are trying to interfere with the peaceful possession of suit schedule property, the suit was filed for perpetual injunction against the defendants.
24. In support of his contentions, the learned counsel for appellants has relied on the judgment of Hon'ble Supreme Court in State of Uttar Pradesh & another v. Jagdish Sharan Agrawal & others1, wherein, it is held by their Lordships at para 14 as under:
"In the present case, the suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the suit where the state was a party and amendments were made, the same was dismissed for non- prosecution. But the same was not dismissed under Order IX Rule 8. Order IX Rule 8 and Order IX Rule 9 of CPC read as follows:
Rule 8. Procedure where defendant only appears:-
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has 1 (2009) 1 SCC 689 16 GAC, J S.A.No.1149 of 2011 been admitted, shall dismiss the suit so far as it relates to the remainder.
Rule 9. Decree against plaintiff by default bars fresh suit:-
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
25. The learned Senior Counsel has also relied on the judgment of Hon'ble Supreme Court in Raj Kumar v. Sardari Lal & others2, wherein, their Lordships have held in paras 8 to 10 as under:
8. A lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 of the CPC which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. It is interesting to note that a provision like Section 146 of the CPC was not be found in the preceding Code and was for the first time incorporated in the CPC of 1908. In Order 21 Rule 16 also an explanation was inserted through amendment made by Act No. 104 of 1976 2 (2004) 2 SCC 601 17 GAC, J S.A.No.1149 of 2011 w.e.f. 1.2.1977 where by the operation of Section 146 of CPC was allowed to prevail independent of Order 21 Rule 16 CPC.
9. A decree passed against the defendant is available for execution against the transferee or assignee of the defendant-judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.
10. The law laid down by a four-Judge Bench of this Court in Smt. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and Anr., [1958] SCR 1287. is apt for resolving the issue arising for decision herein. A tansferee of property from defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 of the CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Older 22 Rule 10. In an appeal preferred by such transferee this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 of the CIV. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further the expression "'claiming under' is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to section 146 of the CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound 18 GAC, J S.A.No.1149 of 2011 by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights."
26. The learned Senior Counsel has further relied on the judgment of Hon'ble Supreme Court in Bajranglal Shivchandrai Ruia v. Shashikant N.Rula & others3, wherein, their Lordships have held at paras 41 and 42 as under:
"41. It is not possible to accept that the principle of res-
judicata will apply to bar the appeal. Section 11 of the CPC would bar the Court from trying any suit or issue in which the matter "directly and substantially in issue" between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, has been "heard and finally decided by such Court". In the present case, Bajaranglal and Shyamsunder were defendants in the Original Suit No. 118 of 1973. The suit was dismissed and the plaintiff Satyavati carried an appeal to the Division Bench. In the appeal, both Bajranglal and Shyamsunder were respondents. The Division Bench, reversed the Single Judge's judgment and decreed the suit by its judgment. As the respondents in the appeal before the Division Bench both Bajranglal and Shyamsunder were aggrieved by the decree against them. The present appellant Bajranglal filed SLP No. 8425/93 on 27.5.1993. while Shyamsundar filed his appeal No. SLP 18492/93 on 17.12.1993.
42. Leave was granted in Bajranglal's appeal on 4.10.1993 while leave was granted in Shyamsundar's case on 17.12.1993. Subsequently, Bajranglal's appeal was numbered as Civil Appeal No.5293 while Shyamsundar's appeal was numbered as Civil Appeal 3 (2004) 5 SCC 272 19 GAC, J S.A.No.1149 of 2011 No.7490/93. Shyamsundar's appeal was dismissed for default for non-removal of office objections on 15.1.2000. Thus, it is obvious that both in the matter of filing the SLP and granting of leave, Bajranglal's appeal was earlier and Shamsundar's was later in time. In these circumstances, we are unable to accept the contention that an order dismissing a subsequent appeal for default can operate as res-judicata in respect of an earlier appeal. Neither Section 11 of the CPC, nor any principle derivable therefrom, would bar the appeal as contended by the respondents. The contention is misconceived and we see no merit in the contention. In our judgment, the appeal is perfectly maintainable."
27. On the other hand, it is contended by the learned Senior Counsel for respondents Sri Vedula Srinivas that the mother of plaintiff No.1 purchased the land to an extent of Ac.14-15 gts. in Sy.Nos.184, 185 and 742 of Pillalamarri village of Suryapet Mandal from Smt.V. Anasuyamma under a registered sale deed dated 26.10.1961 after obtaining permission from the Tahsildar, Suryapet in Proceedings No.B4/110/6250/1961, dated 31.10.1961 under Section 47 of Hyderabad Tenancy and Agricultural Lands Act, 1950 and the husband of Smt.Kausalyamma i.e. S. Satyanarayana filed a declaration under the Land Reforms Act on 10.04.1975 in C.C.No.2835/Spt/1975, declaring the family properties which included the land held by Smt. Kausalyamma, but the Land Reforms Tribunal passed orders dated 28.10.1976 treating 20 GAC, J S.A.No.1149 of 2011 the land of Kausalyamma as not belonging to the joint family. It is the specific contention of the learned Senior Counsel for respondents Sri Vedula Srinivas that pending the suit in O.S.No.12 of 1979 on the file of District Munsif, Suryapet, the said Kausalyamma sold the entire land of Ac.10-00 gts. to the defendants under two registered sale deeds bearing document Nos.1630 of 1986, dated 23.06.1986 and 1631 of 1986, dated 26.06.1986 and O.S.No.12 of 1979 was dismissed on 27.09.1988 with a specific observation that Smt.Kausalyamma had no money to purchase the suit property and it was purchased out of the joint family funds and that she is not the absolute owner of the property, but she is only the nominal owner.
28. It is further urged by the learned Senior Counsel for respondents that the 1st appellant herein filed O.S.No.144 of 1983 on the file of Senior Civil Judge, Nalgonda, which was re-numbered as O.S.No.35 of 1988 against the defendants and the same was dismissed for default on 30.04.1991 by the Sub-Court, Nalgonda and the same has become final and the present suit, which was filed by the plaintiffs is barred by res judicata, as the 21 GAC, J S.A.No.1149 of 2011 earlier suits filed by the plaintiffs with respect to the same property, were dismissed for default, and therefore, prayed to dismiss the Second Appeal as devoid of merits. It is the further contention of learned Senior Counsel for respondents that by virtue of Section 14 of Hindu Succession Act, 1956, any property acquired by a Hindu woman in any manner would be her absolute property with full rights over the same. It is contended that the observation of the trial Court in O.S.No.12 of 1979 that Smt.Kausalyamma is only nominal owner, but not full-fledged owner as the property was purchased from the joint family funds, have no legal value and that any judgment in ignorance of the statutory provision is void and has no enforceability.
29. It is further contended by the learned Senior Counsel for respondents that in a Second Appeal, the High Court cannot interfere with the findings of fact even if the appreciation of evidence is palpably erroneous and the finding of fact is incorrect and the jurisdiction of the High Court is confined to substantial questions of law. Accordingly, he prayed to dismiss the Second Appeal.
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30. In support of his contentions, the learned Senior Counsel for respondents has relied on the judgment of Hon'ble Supreme Court in Vaddeboyina Tulasamma & others v. Vaddeboyina Sesha Reddi (dead) by LRs.4, wherein, their Lordships have held at para 8 as under:
"In the circumstances, we reach the conclusion that since in the present case the properties in question were acquired by the appellant under the compromise in lieu or satisfaction of her right of maintenance, it is sub-section (1 ) and not sub-section (2) of section 14 which would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in his properties."
31. The learned counsel has also relied on the judgment of Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. & others5, wherein, their Lordships have held in paras 11 and 17 as under:
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a 4 AIR 1977 SC 1944 5 AIR 2008 SC 2033 23 GAC, J S.A.No.1149 of 2011 better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as 24 GAC, J S.A.No.1149 of 2011 without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
32. The learned Senior Counsel has further relied on the judgment of Karnataka High Court in Alisab v. Tukaram Sidharam Kathave6, wherein, it is held as under: 6
MANU/KA/1558/2020 25 GAC, J S.A.No.1149 of 2011 "Before considering the merits of the judgment and decree of the Trial Court and the First Appellate Court, I would proceed to consider the substantial questions of law Nos.1 and 2 as both the questions of law formulated go to the root of the matter and raise jurisdictional issues. If the Trial Court had no jurisdiction to consider the suit on its merits on principles of res-judicata none of the other grounds will hold water.
Defendant No.1 contends before this Court, in terms of substantial questions of law framed that, suit in O.S.No.43/2000 seeking relief of declaration of title, possession and injunction was barred by principles of res- judicata, in the light of fact that the earlier suit instituted by the plaintiff in O.S.No.208/991 for the same relief was dismissed for non-prosecution. Invoking Order IX Rule 9 of CPC 1908 defendant No.1 submits that the subsequent suit with the same cause of action is barred by res- judicata.
The judgment and decree passed by the High Court is liable to be set aside on the short and singular ground that in the previous suit i.e., original Suit in No.85/1996 a similar relief was prayed by Pechimuthu s/o. Arumgasamy Thevar, Minor Manimegalai D/o. Pechimuthu, Thilagavathi (Minor) D/o. Pechimuthu and Arul Pandian (Minor) D/o. Pechimuthu. Prayer was made for declaration of title and for permanent injunction on the basis of Will dated 05.12.2004 executed by Sadaiyappa Konar which became operative on his death on 20.02.1995. O.S.No.85 of 1996 was filed in which following prayer was made:-
"A. declaring the plaintiffs 2 to 4 is title to the plaint 1st schedule property.
B. granting permanent prohibitary injunction restraining the defendants from sub letting the 2nd schedule house without the written permission of the plaintiff.
C. awarding the costs of this suit to the plaintiffs."
3. It was on the basis of the Will, Civil Suit No.85/1996 was filed. It was dismissed vide order dated 16.03.2001, when the counsel for the plaintiffs was absent and the counsel for the defendants was present in the Court.
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4. Plaintiff Nos.2 3 and 4 filed the second suit i.e., Suit No.1106/2004 against the defendants. The prayer was made for permanent injunction on the basis of the Will only. After filing of the suit, Respondent No.1 purchased the property from the original plaintiffs.
In terms of the facts and the law declared by the Hon'ble Supreme Court as extracted hereinabove, defendant No.1 would contend that the second suit filed by the plaintiff on the same cause of action after dismissal of first suit in O.S.No.208/1991, is barred in terms of the relevant provision of CPC as also by res- judicata. To consider this point it is necessary to notice the prayer that were sought before the Trial Court while the plaintiff instituted a suit in O.S.No.208/1991. The prayer of the plaintiff in O.S.No.208/1991 reads as under:- "1. That the plaintiff be declared as owner and possessor of suit land described below:
2. That a decree for perpetual injunction be passed as against the defendant, his servants, agents or any other person claiming from his be restrained from interfering into the lawful possession of the plaintiff over the suit land Sy.No.189 ad- measuring 10 acres 35 guntas having R.A. of Rs.14-41 Ps situated at Belurgi, Tq: Afzalpur Dist: Gulbarga having the following boundaries: East : Land of Lokawwa West : Cart road and then land of Malappa Pujari South: Land of Channabasappa Sonne North: Sy.No.188.
3. Costs of the suit be awarded.
4. Any other relief to which the plaintiff is entitled may be granted."
This was a suit instituted by the plaintiff with aforementioned prayer against his brother Basvant in the year 1991. By then Basvant had already sold the property in favour of defendant No.1 in the year 1989 itself and mother of plaintiff had consented to the said sale deed. Thus the sale deed in respect Sy.No.188 was well within the knowledge of the plaintiff. At Para No.8, 9, 10, 11 of the plaint in O.S.No.208/1991 plead thus :-
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GAC, J S.A.No.1149 of 2011 "8. That it was rumoured in the village that the defendant has entered into an agreement for sale with one Alisab to sell his owned land Sy.No.188 alongwith 03 acres of suit land Sy.No.189 with the well. This is quite illegal as the defendant has no right or authority to sell the portion of the suit land belonging to the Plaintiff. Therefore the plaintiff issued a lawyers notice dated 03.12.1990 to the defendant and the intending purchaser. Both the defendant as well as the Alisab received the notices but never replies the same till this date. The office copy of the notice and Acknowledgement due age produced under a cover of list.
9. That the act of the defendant is nothing but denial of title and interference into the lawful possession of the plaintiff over the suit land. Therefore the defendant, his servants, agents or any other person claiming through him may be restrained by a decree of perpetual injunction otherwise the plaintiff will have to face multiplicity of proceedings and suffer irreparable loss. All the concerned revenue records are produced under a cover of list for the perusal of the Hon'ble Court.
10. That the defendant along with his associates recently entered into the suit land and intended to remove the motor pumpset, thereby stopped the irrigation and put the plaintiff to irreparable loss. This has happened in the last week of March 1991. The Plaintiff stopped the same.
11. That these above mentioned facts constitute causes of action and immediate cause of action arose in the last week of March 1991 when the defendant interfered denying the title of the plaintiff. Hence, the plaintiff is entitled to sue and defendant is liable to answer the same".
The afore extracted paragraphs of the plaint in O.S.No.208/1991 clearly indicates that the plaintiff was well aware of the sale and had approached the authorities and had also caused a legal notice. Later he filed a suit seeking a decree of declaration and permanent injunction and from the records it is seen that the Trial Court in O.S.No.208/1991 had to dismiss the suit for non-prosecution for non-appearance of the plaintiff. This fact of the dismissal of the suit for default is admitted by the plaintiff before this Court, but justifies filing of the present suit on the ground that it had nothing to do with the earlier suit in O.S.No.208/1991. But the afore extracted paragraphs and prayer would indicate to the contrary. But the fact remains that 28 GAC, J S.A.No.1149 of 2011 the plaintiff has not disputed the fact of filing of O.S.No.208/1991, its dismissal for default and suppression of the same while instituting O.S.No.43/2000." A bare reading of prayer in suit O.S.No.43/2000 instituted by the plaintiff in juxtaposition with that of the prayer in the suit O.S.No.208/1991 would in unmistakable terms indicate that they are one and the same. But in the entire body of the plaint in O.S.No.43/2000 the plaintiff does not even whisper a word about his instituting of suit in the year 1991 with the same prayer. The parties in the suit in the year 1991 and 2000 are at slight variation, but defendant No.1's name that he had purchased the property from his brother had already been indicated in the plaint in O.S.No.208/1991 and even in the legal notice that was caused upon defendant No.1 by the plaintiff.
The second suit was not maintainable before the Trial Court. Since, the suit itself is held to be not maintainable other issues need not be gone into and the order in Regular Appeal affirming the findings in the suit as a consequence will also be held to be not maintainable."
The aforesaid judgments relied on by the learned senior counsel for respondents are not applicable to the facts of the present case.
33. Admittedly, both the Courts below have given concurrent findings of fact and answered the issues against the plaintiffs with a finding that the suit is barred by res judicata and plaintiffs are not entitled for permanent injunction, but have found that the plaintiffs are in possession and enjoyment of the suit schedule property. It is important to note the following operative portion of the judgment of trial Court :
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GAC, J S.A.No.1149 of 2011 "Issue No.4: In the result, the suit is dismissed. In the circumstances of the case, the parties shall be born their own expenses. Further, the defendants are entitled to seek relief of recovery of possession of suit schedule property."
It clearly discloses that the trial Court has found that the plaintiffs are in possession of the suit schedule property as on the date of filing of the suit till the date of judgment.
34. Admittedly, the suit is filed for perpetual injunction and not for declaration of title. The legal principles and the precedents of the Apex Court are that when a suit is filed for perpetual injunction, it is for the Courts to see whether the plaintiff is in possession of the property as on the date of filing of the suit, and if so, the relief sought by the plaintiff has to be granted. But, as per the operative portion of the judgment of the trial Court, it can be safely construed that though the trial Court has observed that the plaintiffs are in possession of the property, it has given liberty to the defendants to seek relief of recovery of possession of the suit schedule property from the plaintiffs, which is an error committed by the trial Court. It is pertinent to mention that there is no counter-claim in the suit. In the absence of prayer also, the trial 30 GAC, J S.A.No.1149 of 2011 Court has observed that the defendants are entitled to seek the relief of recovery of possession of the property from the plaintiffs.
35. There are catena of judgments of the Apex Court that in a Second Appeal, there is limited scope to the High Courts to interfere only on the substantial questions of law. But, if there is any perverse finding or misreading of evidence by the Courts below, the High Court is empowered to interfere with the findings of the Courts below as per Section 103 of CPC.
36. Section 103 of CPC envisages that in any Second Appeal, the High Court may, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal:-
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Sectin 100.
Therefore, the contention of learned Senior Counsel for respondents that this Court has no power to interfere with findings of fact by the Courts below, is not tenable.
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37. It is not necessary to go into the entire oral and documentary evidence as the limited question before this Court is only with regard to grant of injunction. Whether there is any misreading of evidence or perverse findings of the Courts below will be discussed hereinafter.
38. It is not at all in dispute that the suit schedule property belongs to one Smt. Kausalyamma. Further, the relationships of the parties are also not in dispute. Plaintiff No.1 is the son of Smt. Kausalyamma and plaintiff No.2 is the son of plaintiff No.1. The plaintiffs are claiming the property as joint family property which was purchased out of the joint family funds. It is pertinent to mention that Smt. Kausalyamma has filed a suit against the plaintiffs vide O.S.No.12 of 1979 for permanent injunction and pending the said suit, she sold the property to the defendants. The trial Court i.e. the District Munsif, Suryapet, has dismissed O.S.No.12 of 1979 with a specific observation that the plaintiff/Smt.Kausalyamma has no money to purchase the suit schedule property and the property was purchased out of the joint family funds and therefore, she is not the absolute owner of the 32 GAC, J S.A.No.1149 of 2011 property but she is only a nominal owner. The said finding has become final as no appeal was preferred against the said judgment. As per the said judgment and decree, Smt. Kausalyamma is not at all the owner of the property, but sold the property pending litigation, and therefore, no better title can be passed to the purchasers as Smt. Kausalyamma is not the absolute owner of the property. Therefore, the defendants cannot claim title over the property as Smt. Kausalyamma herself had no title to sell the property. As there is no appeal against the judgment and decree in O.S.No.12 of 1979, dated 27.09.1998, it can be construed that Smt. Kausalyamma is only the nominal owner of the properties and the said properties were purchased out of the joint family funds of the Hindu Undivided Family. Moreover, the suit is filed only for perpetual injunction and not for declaration of title. Though both the Courts below have given findings as to the rights over the property, the documents which are marked by the appellants herein disclose that they are the pattadars of the land and that they are the rightful owners of the land as per the pattadar passbooks/Exs.A-1 and A-2 and they are in possession of the property since 1992 to 33 GAC, J S.A.No.1149 of 2011 2001 as per Exs.A-11 to A-23, which also includes the title deeds covered under Exs.A-26 and A-27.
39. This Court is of the considered view that in a suit for possession, the Courts have to decide as to who is in possession of the property as on the date of filing of the suit and the title deeds can be looked into incidentally. But as per the documentary evidence including the findings of the trial Court as confirmed by the first appellate Court, the appellants are in possession of the suit schedule property, and therefore, they are entitled for the relief of perpetual injunction as against the defendants.
40. It is pertinent to mention that Section 2(2) of CPC defines "decree", as under:
""decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default."
As per the said definition, it is for the Court to adjudicate the matter conclusively determining the rights of the parties. But, 34 GAC, J S.A.No.1149 of 2011 when a suit is dismissed for default, the question of adjudicating the rights of the parties or conclusively determining the rights of the parties, would not arise.
41. Section 11 of CPC relates to res judicata, which reads as under:
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
42. It means that if the Court in an earlier suit between the same parties and on the same issue, have conclusively determined the rights of the parties finally, subsequently cannot entertain any suit between the same parties and same subject matter. Therefore, the suit which was dismissed for default cannot be called as res judicata, as the Court has not finally decided/determined the rights of the parties.
43. As per the judgment of Hon'ble Supreme Court in Jagdish Sharan Agrawal's case (1 supra), it can be safely concluded that the dismissal of suit for non-prosecution shall not be the decision 35 GAC, J S.A.No.1149 of 2011 on merits and consequently, the said order cannot operate as res judicata.
44. It is to be noted that there were perverse findings by the first appellate Court at para 30 of its judgment, as under:
"No doubt the earlier suit filed by the appellants herein vide O.S.No.35 of 1988 was direct and substantial issue in the subsequent suit i.e. O.S.No.12 of 1979, therefore, the respondents herein have complied the condition for applicability of Rule of res judicata."
45. In this case, O.S.12 of 1979 cannot be a subsequent suit, as the parties to O.S.No.12 of 1979 are Smt. Kausalyamma and the plaintiffs. The further perverse finding of the first appellate Court is that, "the evidence of plaintiffs is that the lands were kept fallow for 7 or 8 years and there was no cultivation, and therefore, the plaintiffs are not in possession of the land". Admittedly, the Pahanis clearly show that the plaintiffs are in possession of the suit schedule property. Therefore, the finding of the first appellate Court can be construed as perverse and it ought not have come to such a conclusion that, "as there is no cultivation, the plaintiffs are not in possession of the suit schedule land". Further, the first 36 GAC, J S.A.No.1149 of 2011 appellate Court's giving direction to the plaintiffs to amend the plaint for declaration of title and injunction is not at all proper and also the finding that suit for injunction simplicitor is not maintainable.
46. The findings of the trial Court are also perverse at para 45, which reads as under:
"Therefore, the plaintiffs are not having title appears to be maintained symbolic possession saying that they were in possession and they could not cultivated the suit lands due to scarcity of servants and japan babul trees were grown up. As they themselves admitting the suit land was not being cultivated by them since long time as they claimed the possession basing on the documents filed herein. From the evidence of PWs.1 to 5 none else elicited that on what date the defendants tried to interfere into the peaceful possession and enjoyment of the suit property they themselves admitted that since last 7/8 years from the date of filing of the suit the suit lands were kept fallow without doing any cultivation. As such, it clearly appears that on the date of filing of the suit the plaintiffs were not in possession and enjoyment of the suit schedule property."
47. The aforesaid findings of the trial Court as well as the first appellate Court that the plaintiffs are in mere symbolic possession but are not in actual possession of the suit schedule property, are not tenable and cannot be accepted. Therefore, this Court is of the 37 GAC, J S.A.No.1149 of 2011 considered view that this appeal deserves to be allowed, in view of the substantial question of law answered in favour of the appellants.
48. Accordingly, this appeal is allowed setting aside the judgment and decree of the first appellate Court in A.S.No.8 of 2008, dated 31.01.2011 as well as the judgment and decree of the trial Court in O.S.No.10 of 2001, dated 26.12.2007. Consequently, O.S.No.10 of 2001 on the file of Junior Civil Judge, Suryapet, is decreed as prayed for. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 02.01.2023 ajr