Telangana High Court
K. Vishnumurthy vs Golla Rangamma on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.1300 of 2005
JUDGMENT:
This second appeal is filed against the Judgment and decree dated 17.01.2005 in A.S.No.12 of 1997 passed by the learned Senior Civil Judge, Wanaparthy, in which the Judgment and decree dated 18.03.1996 in O.S.No.6 of 1988 passed by the learned District Munsif, Wanaparthy, was confirmed.
2. Initially, appellants/plaintiffs have filed a suit vide O.S.No.6 of 1988, for declaration and possession of the plot measuring 10 x 39 ft. The trial Court examined P.Ws.1 to 3 on behalf of the appellants/plaintiffs and marked Exs.A1 to A36 on their behalf. D.Ws.1 and 2 were examined on behalf of the respondent/defendant and also marked Exs.B1 to B9 on her behalf. The trial Court after considering the arguments of both sides, dismissed the suit. Aggrieved by the said Judgment and decree, plaintiffs therein preferred an appeal before the first appellate Court, but the same was also dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, plaintiffs before the trial Court preferred the present appeal.
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3. The learned Counsel for the appellants/plaintiffs mainly contended that both the Courts erred in appreciating the fact that suit schedule property was originally owned by one H.Venkata Anantha Chary by virtue of partition between himself and one Srinivas Dakshina Chary. After the demise of the said H.Venkata Anantha Chary, the property was developed upon his son H.Gunda Chary. He let out the same to one Ramachandran and after his death, his son Srinivasulu continued as a tenant. The said tenant inducted the respondent/defendant and she can be termed as sub-tenant. The respondent/defendant executed a lease deed dated 29.09.1977 and agreed to pay the rent @ 7/-. The erstwhile tenant executed a sale deed dated 06.07.1978 in favour of respondent/defendant. The vendor of the respondent/defendant does not have any title to convey the interest. Both the Courts erred in relying upon the municipal records to conclude the Srinivasulu as owner. Though the suit schedule property in the present suit and in O.S.No.17/14 of 1955/Ex.A2 is different, it was not properly appreciated. Both the Courts ignored Exs.A4 and A2 and also relied upon Exs.A6 to A10. Both the Courts failed to appreciate Exs.A12 to A14- Gram panchayat records and also Exs.A23 and A24 lease deeds executed by the respondent/defendant in favour of 3 appellants/plaintiffs. Both the Courts failed to appreciate Ex.A25 and not relied upon Exs.A37 and A38. Further, lease can be mortgaged, but it was not appreciated. When both the parties laid the evidence, the best evidence is to be considered. He further contended that both the Courts failed to appreciate that prior partition of the vendors of the appellants/plaintiffs has to be taken into account, since the possession of vendors is transferred to the possession of vendees. Exs.A3 to A4 proves the title of the appellants and the evidence of P.W.2 collaborate the same, but it was not considered by both the Courts. Therefore, requested this Court to set aside the concurrent findings of both the Courts.
4. The facts of the present case are that originally, one Venkata Anantha Chary was the absolute owner of the suit property, after his death, his son Gunda Chary became the owner of the suit schedule property. The said Gunda Chary was the vendor of the appellants/plaintiffs. The suit schedule property was the subject matter of O.S.No.17/14 of 1955, but it was dismissed on 08.07.1958. One Ramachandran was the tenant of the suit plot including open place measuring 19 ft x 39 ft along with the shop bearing door No.13-47. After his death, 4 his son Srinivasulu continued as tenant. During his tenancy, he mortgaged the said premises by raising loans and also inducted the respondent/defendant and one Chandramouli as tenant over the half of the premises. Later, the said Srinivasulu discharged the loans and obtained the return of documents and handed over the same to the appellants' vendor. Appellants purchased the plot measuring 19 ft x 39 ft from Husudurgam Gunda Chary on 12.07.1977 under a registered sale deed and he also delivered the possession. The respondent herein and the said Chandramouli executed the lease deed in favour of the appellants on 29.09.1977 and thus appellants became the owners of the suit plot. When appellants were proceeding with construction of the building after obtaining permission from the local body, the respondent herein on the strength of bogus sale deed obtained stay from the District Panchayat Officer, Mahabubnagar and later construction was stopped. The sale deed dated 06.07.1973 in favour of respondent by K.Srinivasulu is a sham and bogus document and does not convey the title. As the appellants are absolute owners of the suit plot, they are entitled to obtain possession from the Court of law. 5
5. In the written statement filed by the respondent/defendant in the trial Court, she stated that suit property was not the subject matter of O.S.No.17/14 of 1955. The Judgment in O.S.No.60 of 1979 and in A.S.No.13 of 1984 operates as res-judicata. The appellants' vendor was never in possession and enjoyment of the suit property. The sale deed executed by Gunda Chary in favour of the appellants was bogus document. The Srinivasulu, who was referred in the plaint was the owner of the suit property and he inducted her in the year 1977 and subsequently sold to her on 06.07.1978 for valid consideration through registered sale deed. She raised the shed and made improvements by incurring heavy expenditure, but the appellants started claiming right over the suit schedule property illegally, as such she filed appeal before the District Panchayat, Mahabubnagar and obtained stay. The vendor of the appellants has no title and was never in possession over the suit property. Her vendor was the real owner and was in possession of the suit property for more than 30 years and the suit was barred by time.
6. The trial Court held that Ex.A30 and Ex.B3 were marked subject to objection. Both are unregistered mortgage deeds. A 6 mortgage deed is a document, which has to be compulsorily registered. Hence, both the documents are inadmissible in evidence and it was also held that the evidence of D.Ws.l and 2 was silent regarding the valuation of the suit property, as such the said issue was answered in favour of the appellants/plaintiffs. It was further held that Section 11 of the C.P.C was not applicable, as the appellants are permitted to withdraw the suit with a liberty to file the suit for declaration of their title. Initially, appellants have filed the suit in O.S.No.60 of 1979 against the respondent and Chandraiah for evicting them from the area measuring 40 Sq.yrds, but it was dismissed on merits and the same was marked under Ex.B8. Appellants have also filed A.S.No.13 of 1984 against the said Judgment and decree in O.S.No.60 of 1979 and the same was also dismissed under Ex.B9 and against the said Judgment, appellants preferred an appeal in S.A.No.316 of 1987. In view of the above facts, Exs.A28, B8 and B9 need not be considered. The Hon'ble High Court permitted them to withdraw the suit with liberty to file fresh suit, as such it cannot be said that suit was barred by limitation. It was also observed that the nature of O.S.No.60 of 1979 was quite different from the present suit and the cause of action was also different. Under Ex.A28, appellants are 7 permitted to withdraw the suit with a liberty to file fresh suit to establish their title.
7. The trial Court also observed that the said Srinivasulu not only mortgaged the property to Gangi Chandraiah, but also to the respondent. The non-examination of the said Srinivasulu by the appellants was suicidal. The plaint was silent with regard to as and when the respondent came to possession of the suit property. The suit was filed on 22.12.1987. Considering the act of the Srinivasulu coupled with the admission made by the respondent, it was held that suit was barred by limitation. The trial Court further observed that appellants are claiming ownership of the suit property under Ex.A1 through H.Gunda Chary, while the respondent is claiming ownership of the property covered by Ex.B2 through K.Srinivasulu. The property covered by Exs.A1 and B2 is one and the same. To prove the title of the appellants, they relied on Exs.A1 to A21. The said suit in O.S.No.17/14 of 1955 was dismissed as no evidence was adduced. Ex.A12 is the true copy of draft revision register of house tax receipts of Grampanchayat for the year 1974-75. The appellants have sent the Ex.A27 to the expert for the opinion and it was returned along with the opinion. Though the 8 Advocate Commissioner was appointed, he returned the warrant unexecuted for non-cooperation of parties. According to the appellants, Srinivasulu (vendor of the respondent) was the tenant of Gunda Chary, but they did not examine the said Srinivasulu or Nanda Kishore Gupta. Therefore, mere filing of the document did not amount to proof. D.W.1 admitted that her vendor Srinivasulu was alive, but he was not examined by the respondent for the reasons best known to her. The respondent also failed to prove the title of her vendor as pleaded by her and the appellants failed in proving the title of their vendor and accordingly dismissed the suit with costs.
8. The first appellate Court held that appellants must prove their title in spite of the failure of establishing title by the respondent. It was also held that appellants failed to prove the title of the suit property, but regarding limitation aspect, the first appellate Court held that article 65 of the Limitation Act is to be applied. As per the Article 65, the limitation period is 12 years and accordingly held that suit was within limitation. It was pleaded that respondent claimed possession of the suit plot in pursuance of the registered sale deed dated 06.07.1978, executed in her favour by K.Srinivasulu and thus appellants are 9 the absolute owners, but in the evidence of P.W.1, it was stated that after dismissal of the suit in O.S.No.60 of 1979 filed for eviction, respondent occupied the property and thus his evidence was contrary to the plaint. With the said observation, the appeal was dismissed confirming the Order of the trial Court.
9. Though in the present second appeal, no substantial question of law was raised by the appellants, they raised the said issues which are not considered by both the Courts. Both the Courts considering the oral and documentary evidence at length, in a detailed Judgment, answered all the points with valid reasoning, and finally held that appellants/plaintiffs cannot be declared as absolute owners of the suit schedule property. Admittedly, the second appeal is preferred against the concurrent findings of both the Courts. It was clearly held by both the Courts that the vendor of the appellants has no title, as such he cannot convey the proper title to the appellants herein. The said Srinivasulu is also alive, but he was not examined before the Court for the reasons best known to them. The first appellate Court considered all the documents filed by both the parties and finally confirmed the Judgment of the trial 10 Court. Therefore, this Court finds that there are no substantial questions of law involved in the present second appeal and accordingly it is dismissed.
10. In the result, the second appeal is devoid of merits and is dismissed, confirming the concurrent findings of both the Courts. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 03.06.2024 tri