G.Ramanadham Naidu vs P.Bahnumathi
2021 Latest Caselaw 5470 AP

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No.1667 of 2011

JUDGMENT:

The defendants 1,2 and 4 are the appellants. The respondents 1 to

3 were the plaintiffs and whereas the defendant No.3 is the 4th

respondent.

2. Sri Gali Poli Naidu was the original plaintiff No.1. He along with

the respondents 1 to 3, who are the plaintiffs 2 to 4, laid the suit against

the appellants and the 4th respondent for the relief of permanent

injunction restraining them from interfering with their peaceful possession

and enjoyment of the plaint schedule lands, in all an extent of Ac.4-93

cents. The lands in dispute are described in the plaint schedule as under:

"Chittoor District, Srikalahasti Sub District, Yerpedu Mandal,

Kobaka village, wetlands and all are full extents-

              S.No.               Extent

      1.      129/B              Ac.0-58 cents
      2.      134/2              Ac.1-48 cents
      3.      134/3              Ac.0-29 cents
      4.      147/1              Ac.1-47 cents
      5.      196/7A             Ac.0-25 cents
      6.      196/13A            Ac.0-20 cents
      7.      196/23A            Ac.0-66 cents
                                 -----------------
                           Total Ac.4-93 cents
                                 -----------------

They shall be called hereinafter as 'the suit lands.

3. The 1st and second appellants died during pendency of this

second appeal. The 3rd appellant and 4th respondent being their L.Rs. are

already on record. They have a daughter and she is not a party to this

second appeal.

MVRJ, S.A.No.1667 of 2011

4. Sri Gali Poli Naidu died during pendency of the suit and his Legal

Representatives being the respondents 1 to 3 continued it.

5. Sri Gali Chengama Naidu is the father of the 1st appellant and Sri

Gali Poli Naidu. They are residents of Kobaka village, Yerpedu mandal,

Chittoor District.

6. It was the case of the respondents at the trial that Sri Gali Poli

Naidu and the 1st appellant are brothers, who constituted a joint Hindu

family that owned certain properties, which they got divided about 25

years prior to the institution of the suit and that thereafter they were

enjoying their respective extents peacefully. It was the further case of the

respondents that Sri Gali Poli Naidu was completely dependant on the 1st

appellant, who is his elder brother and the properties of the joint family

were under the management of the 1st appellant, whose family was

responsible for the rift between Sri Gali Poli Naidu and the 3rd respondent,

making her to desert him.

7. Their further case at the trial was that the suit lands were

allotted to Sri Gali Poli Naidu in their family partition and he was also

issued pattadar passbook and title deed in respect thereof, who was

exclusively enjoying them during his lifetime. They further claimed that

the appellants and the 4th respondent threatened to interfere with their

peaceful possession and enjoyment of the suit lands intending to carry

away the standing crop therein that made them to institute the suit for

such relief. They also referred to proceedings in W.P.No.24142 of 2001 of

this Court and stating that under the guise of an order therein they were

trying to interfere with the possession of the suit lands.

MVRJ, S.A.No.1667 of 2011

8. The appellants and the 4th respondent resisted the claim of the

respondents 1 to 3 at the trial. They admitted that Sri Gali Poli Naidu was

in possession and enjoyment of item No.1 of the suit lands. They further

contended that Sri Chengama Naidu had no properties worth the name

and whatever small extent he had, was sold away by him to third parties.

Thus, they denied that their joint family had extensive properties. They

further contended that the revenue records filed by the respondent 1 to 3

at the trial were also concocted with the help of VAO-Sri

V.Subrahmanyam, who is a sworn enemy of the 1st appellant and that the

1st appellant filed W.P.No.24142 of 2001 on the file of this Court against

the Revenue authorities as well as Sri G.Poli Naidu where it was directed

that the revenue authorities shall consider the representation of the 1st

appellant dated 13.06.2001 in respect of his objection in issuing pattadar

passbook and title deed. Contending that items 2 to 7 of the suit lands

absolutely belonged to the 1st appellant which he has been in possession

and enjoyment in his own right and asserting that he had purchased items

5 and 6 of the suit lands under the registered sale deed 15.01.1961, they

denied the version of the respondents 1 to 3.

9. On the pleadings, the trial Court settled the following issues:

"1. Whether the plaintiffs are entitled to permanent injunction as sought for?

2. To what relief?"

10. At the trial, the 1st respondent examined herself as P.W.1,

then VAO as P.W.2 and a neighbouring land owner of the suit lands as

P.W.3 while relying on Ex.A1 to Ex.A10 in support of their contention. The MVRJ, S.A.No.1667 of 2011

1st appellant examined himself as D.W.1 and relied on Ex.B1 to Ex.B23 in

support of his contention.

11. On the material and evidence, the trial Court rejecting the

defence of the appellants, accepted the case of the respondents 1 to 3

and thus a decree was passed granting permanent injunction in their

favour and against the appellants.

12. The appellants preferred appeal against the decree and

judgment of the trial Court and the appeal was also dismissed confirming

the same.

13. In these circumstances, this second appeal is presented.

14. Heard Sri V.Jagapathi, learned counsel for the appellants and

Sri A.Chandraiah Naidu, learned counsel for the respondents 1 to 3.

15. Both the learned counsel agreed to address arguments at the

stage of admission and upon hearing the learned counsel, this second

appeal is being now disposed of.

16. Substantial questions of law are raised in the memorandum of

appeal. They predominantly relate to claims of both the parties in respect

of the suit lands and effect of proceedings of the revenue authorities in

relation to these lands.

17. These questions are being now considered together for

convenience.

18. Both the Courts below consistently held in favour of the

respondents 1 to 3 accepting their contention of possession of the suit

lands with valid right and interest.

MVRJ, S.A.No.1667 of 2011

19. In the second appeal the above factor bears significant effect.

Unless the judgment and reasons assigned by the 1st appellate Court are

perverse and in any manner not in accordance with law, in terms of

Section 100 CPC, this Court cannot lightly interfere with such findings.

Even if this Court has another view and opinion than what is expressed by

the 1st appellate court on consideration of facts, having regard to the

nature of jurisdiction conferred under Section 100 CPC, it is rather difficult

for this Court to substitute its views if the findings recorded by the 1st

appellate Court are not perverse or suffer from misapplication of law or

improper appreciation of evidence, resulting in manifest injustice to the

appellants.

20. For this purpose, the law laid down by Hon'ble Supreme Court

in Hero Vinoth v. Seshammal1 is apt to consider. In para-25 of this

ruling, principles relating to Section 100 CPC are pointed out. The relevant

portion relied on by the learned counsel for the respondent is:

"25. ..........

(i) ...........

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule.

Some of the well-recognised exceptions are where (i) the courts

.(2006) 5 SCC 545 MVRJ, S.A.No.1667 of 2011

below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

21. The contentions of both the parties suggest that Sri Gali Poli

Naidu and the 1st appellant lived together for sometime. While the

contention of the 1st respondents 1 to 3 is that the partition between Sri

Gali Poli Naidu and the 1st appellant took place in the year 1966, the

contention of the appellants is that it was somewhere around the year

1967. The contention of the respondents is that both these brothers

inherited an extent of about Ac.12-00 from their father and whereas the

appellants completely denied on the premise that Sri Chengama Naidu

had only small extent of land which he had sold away to third parties

under a registered sale deed, a registration extract of which is Ex.B10

dated 09.08.1926.

22. However, the material on record is making out that Sri Gali Poli

Naidu had certain extent of land apart from what is claimed by the

respondents 1 to 3 as the suit lands. The 1st appellant by the date of filing

the suit owned about Ac.40-00, a rice mill and two tractors suggesting

that he was affluent.

23. These two brothers, going by their contention, were acquiring

properties in their individual names and the version of the respondents

1 to 3 is that whatever acquired till they got divided was for benefit of

their joint family. This factor is disputed and denied by the appellants

while the 1st appellant asserted that except item No.1 of the suit lands the

remaining lands were purchased by him. The appellants relied on Ex.B18-

MVRJ, S.A.No.1667 of 2011

registration extract of the sale deed dated 15.12.1961 under which items

5 and 6 were purchased by the 1st appellant.

24. The appellants also relied on Ex.B2 to Ex.B7-registration

extracts of sale deeds under which Sri Gali Poli Naidu either purchased or

sold away certain lands, in support of his contention. Ex.B2 is the

registration extract of the sale deed dated 27.05.1964 under the original

of which Sri Gali Poli Naidu had purchased Ac.0-53 cents of wetland in

S.No.129/8, which is item No.1. Contentions are advanced on behalf of

the appellants that item No.1 of the suit lands is described as Ac.0-58

cents whereas Ex.B2 is reflecting only Ac.0-53 cents, which is indicative of

the nature of claim of the respondents 1 to 3. Small variation in the extent

cannot have any bearing and the appellants cannot draw assistance out of

it.

25. Under the originals of Ex.B5 dated 01.08.1991 and Ex.B7 dated

19.08.1992, Sri Gali Poli Naidu had sold certain extents. However, the 1st

appellant as D.W.1 clearly admitted in cross-examination that Ex.B3 to

Ex.B7 are not related to the suit lands. But the purpose of producing them

apparently is to establish his contention that he and his brother were

given to such transactions of purchase and sale of the properties on their

own. The instances covered by Ex.B5 to Ex.B7 are subsequent to the

alleged partition in 1966 and Ex.B2 to Ex.B4 were prior to it. Similarly

Ex.B18 is also prior to it.

26. Oral evidence was let in at the trial through P.W.2 and P.W.3

on behalf of the respondents 1 to 3 in respect of the alleged partition in

between these two brothers and their testimony is supporting the MVRJ, S.A.No.1667 of 2011

contention of the respondents 1 to 3 of this partition in the year 1966.

P.W.3 deposed that he was one of the elders along with others in the

village, who participated in that partition transaction. However, it is

pointed out for the appellants that P.W.1 admitted in cross-examination

that none of the elders who took part in this partition transaction is alive.

27. P.W.2 is described by the appellants as sworn enemy of the 1st

appellant. He was Village Administrative Officer of their village. He held

different positions, as Karanam to Assistant Secretary of this Village and

who had known about the situation of the lands as well as the affairs in

the village. It is at his instance, according to the appellants, all the

revenue records relied on by the respondents 1 to 3 were fabricated and

that it was revealed on account of various instances considered by the

Revenue authorities like Joint Collector in the revision petitions filed by

him.

28. The learned appellate Judge considered the manner of

acquiring the lands by these two brothers and observed that there is no

explanation from the appellants as to how the 1st appellant could

purchase such extents. On such premise relying on the evidence of P.W.2

and P.W.3, the learned appellate Judge found that there was an estate of

Ac.12-00, as joint family property for these two brothers to divide and

accepted the contention of the respondents 1 to 3 that this division was in

the year 1966.

29. Referring to these facts and circumstances and questioning the

claim of the respondents 1 to 3, Sri V.Jagapathi, learned counsel for the

appellants, in the written submissions made a copious reference to the MVRJ, S.A.No.1667 of 2011

proceedings before M.R.O.,Yerpedu Mandal and before the Joint Collector,

Chittoor, pointing out that Ex.A1 and Ex.A2-Pattadar passbook and title

deed were set aside by the Joint Collector, Chittoor in Ex.B22-Proceedings

dated 17.01.2004 and report of Mandal Revenue Officer dated 05.02.2003

under Ex.B21 was in that context. Ex.B19-Proceedings of the Joint

Collector, Chittoor dated 21.12.2002 is referred to by learned counsel for

the appellants that was set aside by the orders of this Court in

W.P.No.4722 of 2003 filed by Sri Gali Poli Naidu for want of notice to him

while requiring the Joint Collector, Chittoor to reconsider the matter

afresh.

30. Though any amount of reference is made in respect of the

proceedings before the Joint Collector, Chittoor and a series of writ

petitions filed by the 1st appellant or Sri Gali Poli Naidu or the respondents

1 to 3, a factor of reckonance in this context is that such proceedings

were initiated or disposed of after institution of the suit by Sri Gali Poli

Naidu and the respondents 1 to 3.

31. In a suit for permanent injunction, the Court is expected to

consider the situation on the date of the suit and not beyond it.

Subsequent events as such cannot hold sway. On this ground alone,

which is also expressed in the judgment of the 1st appellate Court, the

material so placed by the appellants at the trial need not be and could not

have been looked into.

32. Therefore, effect of setting aside Ex.A1-pattadar passbook and

Ex.A2-title deed which were issued in favour of Sri Gali Poli Naidu in the

year 1997 by the proceedings of the Joint Collector under Ex.B22 cannot MVRJ, S.A.No.1667 of 2011

impact the claim of the respondents 1 to 3 against the appellants and the

4th respondent.

33. Ex.A4-copies of adangal for the faslies 1407, 1408 and 1409

and Ex.A5- 10(1) account for fasli 1408 issued in the name of Sri Gali Poli

Naidu for the suit lands are relied on by both the Courts below. It is in

acceptance of possession of the suit lands by Sri Gali Poli Naidu. Ex.B21

and Ex.B22 if considered for argument sake, they refer that the 1st

appellant was the pattadar of items 2 to 7 of the suit lands and they did

not in any manner refer to the factum of possession of these lands in

favour of the 1st appellant.

34. In Ex.B19 Proceedings of the Joint Collector, Chittoor dated

21.12.2002 there is a reference basing on the report of MRO, Yerpedu

dated 16.08.2002 that except an extent of Ac.0-60 cents in S.No.196/23A

i.e. item No.7 of the suit lands, all other extents, namely items 1 to 6 of

the suit lands are in the enjoyment of Sri Gali Poli Naidu while Item No.7

was in enjoyment of the 1st appellant. Thus, it is an indication of

possession of the lands by Sri Gali Poli Naidu and the respondents 1 to 3

by then and thus supporting the assertion of the respondents 1 to 3 in

this context.

35. A reference to it in Ex.B19 cannot as such be overlooked which

supported the claim of the respondents 1 to 3 of possession of the suit

lands, except in respect of Item No.7. The possession so held and proved

through Ex.A4-Adangal copy in favour of the respondents 1 to 3 is not

established being illegal or otherwise without any manner of right.

MVRJ, S.A.No.1667 of 2011

36. Therefore, as observed by the learned appellate Judge, the

appellants should have produced documentary proof asserting possession

of these lands. Admittedly, it was not done.

37. In these circumstances, considering the nature of the relief

sought in the suit only for permanent injunction, in the presence of proof

in favour of the respondents 1 to 3 of possession and enjoyment of the

suit lands, which has been accepted by both the Courts below consistently

recording findings thereon, this Court sitting in second appeal cannot

interfere.

38. One of the circumstances pointed out on behalf of the

appellants in this context is order of status-quo granted by this Court in

W.P.No.24142 of 2001 dated 23.11.2001 and which was communicated by

Ex.B9-Legal notice to the respondents therein including Sri Gali Poli Naidu.

It is also contended that when the suit was filed on 09.12.2001, since

possession of the 1st appellant of items 2 to 7 of the suit lands is

protected by the above order, the contention of the respondents 1 to 3

that they are in possession and enjoyment of these lands, cannot stand.

39. An order of status-quo is as abstract as it could be. It cannot

lead to a conclusion that the 1st appellant was in possession of items 2 to

7 of the suit lands, particularly in the presence of positive assertion of the

respondents 1 to 3 of enjoyment of suit lands, which is supported by oral

and documentary evidence in their favour.

40. Neither P.W.2 nor P.W.3 could be treated as interested witness

in respondents 1 to 3, who were residents of the same village and who

had known the affairs of these parties. As rightly contended for the MVRJ, S.A.No.1667 of 2011

respondents 1 to 3, the motive attributed to P.W.3 as enemy of the

1st appellant and being interested in the respondents 1 to 3 needs

rejection, when considered the impact of the revenue records relied on by

the 1st appellant himself in O.S.No.318 of 1997 on the file of the Court of

the learned Junior Civil Judge, Srikalahasti, filed by him against P.W.2 and

another, vide Ex.B8 and Ex.B9.

41. An attempt is made in this second appeal filing a petition under

Order-41, Rule-27 CPC requesting to receive a photocopy of the order in

W.P.No.7679 of 2004, where Sri Gali Poli Naidu and respondents 1 to 3

challenged the proceedings of the Joint Collector, Chittoor in Ex.B22 and

which was dismissed. Since it related to the period post institution of the

suit, as such cannot have any bearing and particularly finding that the suit

instituted by Sri Gali Poli Naidu and the respondents 1 to 3 concerned to

this second appeal in O.S.No.903 of 2001 was already pending by then,

on the file of the learned Principal Junior Civil Judge, Srikalahasti. When

the parties were litigating in a regular civil action, the views or opinion

expressed by the revenue authorities as such cannot stand and they get

relegated to the backseat. Finding no necessity to receive copy of the

order in W.P.No.7669 of 2004 and reception of the same at this stage will

not assist this Court for a better appreciation of the matter, the petition in

I.A.No.2 of 2021 has to be dismissed. Accordingly I.A.No.2 of 2021 is

dismissed rejecting the request of the appellants to receive the

afore-stated document.

42. It is contended for the appellants that the appellate Court

framed additional issue in respect of which the appellants had no

opportunity to canvass. It has to be made clear that in terms of Order-14 MVRJ, S.A.No.1667 of 2011

Rule-1 CPC, basing on the pleadings the trial Court frames the issues. In

terms of Order-41, Rule-31 CPC, the appellate Court settles the points for

determination. It was such course followed by the learned appellate Judge

in framing two points for consideration and determination. Therefore, the

points so framed with reference to nature of the suit properties if they

were joint family properties of these two brothers and in respect of an

oral partition in between them, was not an issue in terms of Order-14,

Rule-1 CPC. By framing a point for determination, it was decided by the

learned appellate Judge in favour of the respondents 1 to 3. Therefore, it

cannot be a reason to make out a substantial question of law.

43. Both the Courts below considered the material on record in

right perspective and they did not suffer from any legal infirmity or

perverse. When the findings so recorded basing on facts, accepting the

case of the respondents 1 to 3 and Sri Gali Poli Naidu with reference to

possession and enjoyment of the suit lands, in the given facts and

circumstances, no such substantial questions of law, sought to be raised

on behalf of the appellants exist for consideration and determination in

this second appeal. Consequently, the second appeal has to be dismissed.

44. In the result, the second appeal is dismissed. No costs.

I.A.No.2 of 2021 is dismissed. Pending miscellaneous petitions, if

any, stand closed. Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA

Dt: 24.12.2021 RR MVRJ, S.A.No.1667 of 2011

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.1667 of 2011

Dt:24.12.2021

RR