Andhra Pradesh High Court - Amravati

The vs Vadlapudi Narayana And Others2. ... on 31 December, 2021

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No.1327 of 2011

JUDGMENT:

The plaintiffs in O.S.No.303 of 1994 on the file of the Court of the

learned Principal Junior Civil Judge, Anakapalli are the appellants.

2. The respondent who was the defendant in the suit died during

pendency of this second appeal. The respondents 2 to 4 are her legal

representatives that were brought on record.

3. The suit was filed for declaration of right and title of the

appellants to the plaint schedule land, for consequential relief of

permanent injunction and alternatively for possession after evicting the

deceased respondent therefrom and for profits.

4. The plaint schedule describes the land in dispute as follows:

"Wet land of an extent of Ac.3.01/1.204, out of Ac.6-02 cents bearing patta No.39, S.No.99 of an extent of Ac.2-78 cents, S.No.137 Ac.2-55 cents, S.No.101 of an extent of Ac.0-69 cents (total Ac.6-02) situated in Pisinikada village, Anakapalle taluk now Kasimkota Mandal, Visakhapatnam District bounded by:

East: Land of Abburapu Josulu, Korukonda Kondayya South: Malla Venkateshu land West: Land of Malla Venkateshu North: Railway Track"

5. It shall be referred to hereinafter as 'the suit land', for

convenience.

6. Sri Padala Kannaiah is the husband of Smt. Venkayamma.

Admittedly, they are the predecessors-in-interest of the suit land of the

appellants and the vendors of the deceased respondent. Smt. Padala MVRJ, S.A.No.1327 of 2011

Venkayamma purchased Ac.6-02 cents from the rightful owners under two

different sale deeds dated 08.03.1923 and 14.03.1923. This couple had

two sons Sri Appalaswamy and Sri Satyanarayana. While Smt.

Venkayamma died on 21.01.1950, her son Sri Satyanarayana also died.

Smt. Ammaji is the wife of Sri Satyanarayana.

7. It is the case of the appellants that a family arrangement was

entered into on 23.02.1961 evidenced by an agreement by Sri Appala

Swamy, Sri Ammaji and sons of Sri Appalaswamy, namely Sri

Satyanarayana, Sri Thammayya, Sri Venkataramana and Sri Nookaraju. It

is the further case of the appellants that the suit land was allotted to the

share of Sri Padala Appalaswamy and Smt. Ammaji in that family

arrangement, who were in exclusive possession and enjoyment of these

lands. Further case of the appellants is that Sri Appalaswamy gifted his

half share in the suit land under a registered gift settlement deed dated

30.06.1982 and whereas Smt.Amnmaji executed a registered Will dated

16.09.1981 bequeathing her half share in the suit land in favour of both

the appellants. Smt.Ammaji died two years later. Thus, the appellants

claimed that they became entitled to the suit land and that the 1st

appellant was cultivating this land during the lifetime of her predecessors-

in-title Sri Appala Swamy and Smt. Ammaji.

8. The 1st appellant is the wife of Sri Nookaraju and daughter-in-

law of Sri Appalaswamy. While the 2nd appellant is the daughter of the 1st

appellant.

9. Alleging that sons of Sri Appalaswamy and the respondent were

trying to interfere with their possession and enjoyment of the suit land the MVRJ, S.A.No.1327 of 2011

1st appellant and Smt.Ammaji filed O.S.No.432 of 1982 on the file of the

Court of the Principal District Munsif, Anakapalli, which was later

transferred to the Court of Additional District Munsif, Yellamanchili, where

it was re-numbered as O.S.No.440 of 1988, for relief of permanent

injunction to restrain them from interfering with the possession and

enjoyment of the suit land by Smt.Ammaji and the 1st appellant. It was

decreed against the defendants therein except the respondent herein. It is

alleged by the appellants that taking advantage of the judgment in

O.S.No.440 of 1988 the respondent tried to interfere with their possession

and enjoyment of the suit lands and therefore, she laid the suit for such

reliefs.

10. The deceased respondent as the defendant resisting this claim

of the appellants filed a written statement mainly contending that there

was division of property between Sri Appalaswamy and Smt.Ammaji and

that both of them were enjoying their respective shares. During her

lifetime Smt. Venkayamma-mother of Sri Appalaswamy, had executed a

registered Will dated 09.10.1937 conferring life estate to Sri Appalaswamy

and Smt.Ammaji and after their lifetime to her grant children, namely Sri

Satyanarayana, Sri Thammaiah, Sri Venkataramana and Sri Nukaraju with

absolute rights. It is the further case of the deceased respondent in the

written statement that the share of Smt.Ammaji would go to her foster

sons Sri Satyanrayana and Sri Venkataramana and that she being unable

to manage these lands, executed a relinquishment deed on 27.03.1981 in

their favour. Further case of the deceased respondent in the written

statement is that she had purchased Ac.1-50 cents from Sri

Satyanarayana and Sri Venkataramana under two separate sale deeds MVRJ, S.A.No.1327 of 2011

dated 20.05.1982 for valid consideration and was delivered possession of

the suit land to her. It is stated to be part of the suit land and thus the

deceased respondent claimed being absolute owner of this extent of

Ac.1-50 cents. She further stated in the written statement that in

O.S.No.440 of 1988 by the decree and judgment dated 29.04.1991, her

possession of this extent was confirmed and the findings so recorded

became final.

11. The deceased respondent also contended that the suit is

barred by principles of res judicata and that it is barred by time, since she

and her predecessors-in-interest perfected title to it by efflux of time.

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

"1. Whether the plaintiff is entitled for declaration of title to the schedule property?

2. Whether the plaintiff is entitled to injunction as prayed for?

3. Whether the suit is barred by res judicata in view of the judgment in O.S.No.440 of 1988 on the file of Additional Munsif Court, Yellamanchili?

4. Whether the suit is in time?

5. To what relief?"

13. The 1st appellant examined herself as P.W.1 apart from four

witnesses in support of her claim while relying on Ex.A1 to Ex.A8. The 2nd

respondent herein was examined as D.W.1 and they placed reliance on

Ex.B1 to Ex.B18 to support their contention.

14. On the material and evidence, the trial Court did not agree

with the contentions of the appellants and questioning the very manner of

filing the suit against the deceased respondent who even according to the MVRJ, S.A.No.1327 of 2011

claim of the appellants had Ac.1-50 cents of land away from the suit land,

observing that their title has not been established, dismissed the suit.

15. The appellants preferred A.S.No.213 of 2004 on the file of the

Court of the learned X Additional District Judge (FTC), Visakhapatnam at

Anakapalli. In the appeal, the appellants were not successful since it was

dismissed by decree and judgment dated 19.10.2010 confirming the

decree and judgment of the trial Court.

16. In these circumstances, the appellants filed this second appeal.

17. Sri M.Radhakrishna, learned counsel for the appellants and Sri

S.Rajan, learned counsel for the 4th respondent, addressed arguments in

this second appeal at the stage of admission.

18. The substantial questions of law raised by the appellants in the

memorandum of appeal, relate to nature of the judgment of the appellate

Court if meeting requirements under Order-41, Rule-31 CPC. Another

question is in relation to application of principles of res judicata having

regard to the judgment in O.S.No.440 of 1988 to which the 1st appellant

and the respondent were parties as well as application of Order-7, Rule-7

CPC in view different reliefs claimed by the appellants. Appreciation of

nature of evidence on record, particularly of D.W.1 is also questioned

apart from failure to examine the deceased respondent as witness in this

case requiring to draw an adverse inference.

MVRJ, S.A.No.1327 of 2011

Re.APPLICATION OF ORDER-41, RULE-31 CPC

19. Sri M.Radhakrishna, learned counsel for the appellants,

strenuously contended that the appellate Court did not frame appropriate

points for determination in accordance with Order-41, rule-31 CPC and the

manner of considering the material on record, in relation to possession of

the suit land in the first instance and later considering the question of title

with such reasons, which are on the verge of perversity, require

interference of this court and that it is but appropriate that the matter be

remanded to the trial Court.

20. Sri S.Rajan, learned counsel for the 4th respondent, supporting

the judgments of both the Courts below, with reference to the judgment

of the appellate Court contended that entire material was properly

considered and when the case of the appellants was not accepted by the

learned appellate Judge recording reasons, it is not necessary in the

second appeal to interfere including remanding the matter.

21. Sri M.Radhakrishna, learned counsel for the appellants, in

support of his contention relied on a decision of Hon'ble Supreme Court in

H.Siddiqui (dead) by L.Rs. v. A.Ramalingam1. In para-18 of this

ruling effect or Order-41, Rule-31 CPC is considered. It is also relevant to

extract Para-19 of this ruling for benefit hereunder:

"18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the

.AIR 2011 SUPREME COURT 1492 MVRJ, S.A.No.1327 of 2011

material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh [AIR 1963 SC 146] , Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] , G. Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224] , Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] and Gannmani Anasuya v. Parvatini Amarendra Chowdhary [(2007) 10 SCC 296 : AIR 2007 SC 2380] .)

19. In B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808 : JT (2010) 10 SC 551] , while dealing with the issue, this Court held as under: (SCC p. 531, para 4)

"4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)"

22. Another ruling relied on by Sri M.Rdhakrishna, learned counsel

for the appellants, in this respect is Iruvanti gopinatha Rao (died)

and others vs. Vadlapudi Narayana and others2. One of the learned

Judges of this Court had an occasion to consider the effect of Order-41,

rule-31 CPC and in para-18 of this ruling observed as under:

.1997(2)ALT 785 MVRJ, S.A.No.1327 of 2011

"18. The point formulated carries no legal meaning. The learned Appellate Judge simply stated whether the judgment and decree of the Lower Court is liable to be set aside? If such point is to be formulated, then the same wording can be used by the Appellate Courts in deciding any/all the First Appeals. Whatever may be the subject or issue involved in the litigation, such type of formulation of point for determination is not contemplated under Order 41, Rule 31 C.P.C. This Court has no hesitation in holding that the learned Judge totally ignored the provisions contained in Order 41, Rule 31 C.P.C."

23. The requirement of law in terms of Order-41, Rule-31 CPC is

reappraisal of all contentious issues basing on the material and evidence,

with reference the findings of the trial Court by the appellate Court and in

consideration thereof recording reasons. If the approach of the appellate

Court is to that effect drawing conclusions and inferences basing on the

evidence on record, it meets the requirements or Order-41, rule-31 CPC.

24. The appellate Court in this matter had chosen to settle only

one point for determination, with reference to the nature of the judgment

of the trial Court and if it warrants interference at the appellate stage.

However, the appellate Court had chosen to consider the material on

record and recorded findings on all the contentious issues ,which the trial

court had adverted to. Despite the fact that specific points for

determination were not framed, the learned appellate Judge had

considered the pleadings and evidence on record presenting an overall

picture of the case and also in concurring with the findings of the trial

Court.

25. Sri M.Radhakrishna, learned counsel for the appellants, also

contended that where a power is given to do a particular act in a certain MVRJ, S.A.No.1327 of 2011

way, it must be done likewise. In support of such contention, the learned

counsel relied on Y.Kesavulu v. T.Kalavathi3.

26. The nature of the claim set-forth by the appellants was

considered first by the appellate Court, relating to possession. When the

appellate Court considered the claim set-forth by the appellants in the

plaint in consideration of frame of suit and the title to the suit land it

cannot as such be found fault with. There is justification in the approach

of the appellate Court in this respect.

27. Thereafter the appellate Court had chosen to consider the

effect of the evidence in relation to right, title and interest claimed by the

appellants to the suit land.

28. In the light of these circumstances, it is rather difficult to

accept the contention of Sri M.Radhakrishna, learned counsel for the

appellants, that there is infraction of the mandatory provisions under

Order-41, rule-31 CPC.

Re:RES JUDICATA

29. Admittedly, the 1st appellant and the deceased respondent

were parties to O.S.No.440 of 1988 (Old O.S.No.432 of 1982 on the file of

the Court of learned Principal District Munsif) on the file of the Court of

the learned Additional District Munsif, Yellamanchali. Apart from them,

Smt. Ammaji and Sri Appalaswamy as well as his sons were parties to that

suit. The judgment therein marked Ex.A4 at the trial along with decree in

Ex.A3 became final. None of the parties carried it in appeal. Admittedly,

. 2016(5) ALT 363 MVRJ, S.A.No.1327 of 2011

the suit lands herein were subject matter of the above suit. The Court of

Additional District Musnif, Yellamanchali clearly recorded a finding in

favour of the respondent in respect of Ac.1-50 cents claimed by her being

not a part of the suit land. There is a specific reference in Ex.A3-certified

copy of the decree therein to that effect while dismissing that suit. This

direction in the decree reads that the said suit against the respondent

herein stood dismissed as she is in possession of an extent of Ac.1-50

cents in S.No.137 covered by the boundaries, in the sale deeds in her

favour that were marked Ex.B1 and Ex.B2 therein (Ex.B2 and Ex.B3 in the

present matter).

30. Pertinent to state that S.No.137 to an extent of Ac.2-55 cents

is a part of the suit land at Pisinikada village, Anakapalli taluq. However,

this extent claimed by the deceased respondent undisputedly a part and

parcel of Ac.6-02 cents, that originally belonged to Smt.Venkayamma.

31. On account of the findings recorded in that suit, the learned

trial Judge observed that the principles of res judicata did not apply since

the findings recorded were only in the suit for bare injunction, upon

incidental consideration of right and interest claimed by the parties.

32. However, the learned appellate Judge considered this factor, to

attract principles of res judicata.

33. Apparently, the learned appellate Judge had lost sight of the

fact that such plea was set up in the written statement by the deceased

respondent. The findings recorded by the learned trial Judge thus are

against the deceased respondent. She did not file any cross-objections in

the first appeal. The judgment of the appellate Court did not reflect that MVRJ, S.A.No.1327 of 2011

the deceased respondent had chosen to canvass in that appeal in terms of

Order-41, Rule-22 CPC, while supporting the decree questioning such

findings which stood against her. In the absence of such an effort by the

deceased respondent at that stage, it was indeed not open for the learned

appellate Judge to consider such question and record a finding thereon. It

is an improper approach by the learned appellate Judge. Therefore, any

finding recorded by the learned trial Judge relating to res judicata or

application of its principles cannot have any bearing.

34. Sri M.Radhakrishna, learned counsel for the appellants,

referring to application of principles of res judicata relied on Gram

Panchayat of Village Naulakha v. Ujagar Singh and others4. In

para-10 of this ruling, referring to nature of the claim for an injunction

simplicitor and not one on title, relying on Sajjadanashin Sayed v.

Musa Dadabhai Ummer 5 observed:

"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer [(2000) 3 SCC 350] where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."

35. In Sajjadanashin Sayed referred to above, the test to

determine applicability of Section 11 CPC and principles of res judicata in

. AIR 2000 SUPREME COURT 3272

. (2000)3 SCC 350 MVRJ, S.A.No.1327 of 2011

the context of a matter directly and substantially in issue is stated in para-

12 as under:

"12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue."

36. In the given facts and circumstances of this case, this question

of res judicata did not remain for consideration.

37. The case of the appellants is resting on a family arrangement

evidenced by Ex.A5 dated 23.02.1961 whereby Sri Appala Swamy and

Smt.Ammaji, had half share each in the suit lands. The deceased

respondent did not admit this family arrangement. However, the factum of

enjoyment of the suit lands, by them from the common owner Smt.

Venkayamma is admitted. The claim of the respondent is based on

settling the entire extent of Ac.6-02 cents purchased by Smt.Venkayamma

under Ex.B4-Registered Will dated 09.10.1937 conferring limited rights to

Appalaswamy and Smt.Ammaji. Therefore, by the date of Ex.A5 family

arrangement, the effect of the recitals in Ex.B4 Will was in operation that

the direct beneficiaries thereunder, namely Sri Appalaswamy and

Smt.Ammaji held limited rights in relation to subject matter of this Will.

38. After the lifetime of Sri Appalaswamy and Smt.Ammaji the

properties so settled in their favour under the original of Ex.B4 were to

devolve upon sons of Sri Appalaswamy, namely Sri Satyanarayana, Sri

Thammaiah, Sri Venkataramana and Sri Nukaraju. Specific case of the MVRJ, S.A.No.1327 of 2011

deceased respondent at the trial was that on account of old age and

infirm nature, Smt. Ammaji executed Ex.B15 relinquishment deed dated

27.03.1981 in favour of her foster sons Sri Satyanarayana and Sri Venkata

Ramana from whom the deceased respondent claimed that she purchased

Ac.1-50 cents in S.No.137.

39. Thus, this scenario presented, by operation of Ex.B4 Will is that

Sri Appalaswamy and Smt. Ammaji had only limited rights to the subject

matter of this Will and had no right to alienate or encumber. Yet, Ex.B15

was entered into and it became the source of title for the respondent.

40. However, the suit one being for declaration and consequential

relief, the settled proposition of law is that it is for the plaintiffs, namely,

the appellants to establish their claim to the suit lands. They cannot in any

manner rely on the weakness or laches in the case set up by the deceased

respondent (defendant).

41. The appellants relied on Ex.A1 gift deed dated 30.06.1982 by

which Sri Appalaswamy conferred half share in the suit lands to the 1st

appellant. By virtue of Ex.A2-registered will dated 16.09.1981, both the

appellants claimed that remaining half share was conferred by

Smt.Ammaji to them. Thus, their claim is based on Ex.A5, Ex.A1 and

Ex.A2.

42. It is for them to prove these transactions at the trial. Ex.A5,

Ex.A1, Ex.B1 and Ex.B2 were considered in the earlier suit in O.S.No.440

of 1988 (old O.S.No.432 of 1982) and findings were recorded therein in

respect thereof. The learned trial Judge considered this factor. Both the

Courts below however held that Ex.A5, Ex.A1 and Ex.A2 were not proved MVRJ, S.A.No.1327 of 2011

at the trial. Acceptance of Ex.B2 and Ex.B3 sale deeds of the deceased

respondent was considered by the trial Court and rightly. The reason is

that the vendors under Ex.B2 and Ex.B3 were parties to the earlier suit.

They did not question these two sale transactions in favour of the

deceased respondent, in that suit.

43. Similarly in respect of Ex.A1 gift deed, Sri Appalaswamy was

one of the defendants in the earlier suit. He too did not question the claim

of the 1st appellant herein in that suit. Basing on it she had set-forth her

right and interest to that land. May be that Ex.A1 is later in point of time

to Ex.B2 and Ex.B3 as well as Ex.B15.

44. Ex.A2 Will dated 16.09.1981, if it is accepted and proved, it

should come into effect only after life time of Smt. Ammaji, who according

to the appellants died two years after its execution. Therefore, she died

somewhere around 1983. By then all the above transactions had already

come into effect.

45. Particularly the finding of the Court in the earlier suit of

possession and enjoyment of Ac.1-50 cents covered by Ex.B2 and Ex.B3

and being not a part of the disputed land therein, is a definite indicator to

question the very claim of the appellants in this matter. It binds the 1st

appellant as well. Added to it, the trial Court also considered the

statement of the 1st appellant as P.W.1 in cross-examination where she

clearly admitted that this Ac.1-50 cents is not a part of the suit lands and

that it is situate to the north of the railway track. She further stated that

the suit land of Ac.3-01 cents is situated to the south of the railway track.

MVRJ, S.A.No.1327 of 2011

46. Emphasis was laid with reference to these factors and

circumstances by both the Courts below in questioning the very nature of

the relief sought by the appellants against the respondent.

47. As rightly observed by both the Courts below no evidence was

placed at the trial by the appellants to establish that they continued to be

in effective possession and enjoyment of the entire suit land under Ex.A1

gift deed and Ex.A2 Will.

48. On behalf of the appellants in the trial Court, it appears that it

was contended that the respondent had occupied a part of the suit land

during pendency of the suit. As rightly observed by both the courts below

it was never the case of the appellants in the plaint that the respondent

was in occupation of a part of the suit lands, asserting right or otherwise

and that she should be evicted therefrom. Their claim for permanent

injunction, based on possession, right and title were considered by both

the Courts below appropriately and inferences were drawn rejecting her

claim. Both the Courts below held that the Will under Ex.A2 set up by the

appellants was not established.

49. It is in the evidence of the 1st appellant as P.W.1 that the

scribe and attestors to it are no more. Effort was made during trial by

examining P.W.3, brother's son of Sri Miriyala Lakshmana Rao, who was

scribe of Ex.A2 and Ex.A5. P.W.3 identified the handwriting of Sri Miriyala

Lakshmana Rao in these two documents. Sri K.Satyanarayana is one of

the attestors to Ex.A2 Will. His son namely, P.W.5 identified signature of

his father in Ex.A2 as second attestor. Though such effort was made at

the trial in tune with Section 69 of the Indian Evidence Act, when no MVRJ, S.A.No.1327 of 2011

attesting witnesses to this Will was available by then, such evidence is not

enough or sufficient to prove the transaction under Ex.A2. It is further to

be noted that the 1st appellant is none other than the granddaughter of

Sri Appalaswamy and also wife of his son Sri Nookaraju. Sufficient

evidence was not let in to prove Ex.A2 Will except to the limited extent

stated above, which was also in consideration of the trial Court.

50. Sri M.Radhakrishna, learned counsel contended that the

appellate Court is not correct in rejecting the version of the appellants on

the premise that no definite case was projected by the appellants either

with reference to possession of the suit land or in claiming an alternative

relief of possession. Inviting attention of this Court to Addepalli Venkata

Laxmi v. Ayinampudi Narasimha Rao and others6 relying on Para-9

therein, it is contended that it is the duty of the Court to seek a

clarification from the plaintiff in such circumstances, as to which claim he

intends to proceed with. In para-9 of this ruling, it is thus stated:

"9. The second contention is that when two reliets have been claimed in the suit, the lower Court ought to have directed the party to choose either one of it. When the suit is filed seeking two alternative reliefs, it is the duty of the Court to find out whether it has got jurisdiction. to try the suit or not and simply on the basis of the allegations, it cannot throw away the case, particularly when the alternative relief that has been claimed by the party is within the power of that Court to grant a decree. Two reliefs have been claimed in the suit, one relief can be granted by the Court and the other relief can be decided after making full-dressed trial and proof. The contention that the party can choose one of the remedies at the earliest point of time and since the party did not choose the same, the suit has to be dismissed, has no force."

51. When the pleadings and evidence on record of the appellants

are considered, in the given facts and circumstances of the case, the

. AIR 1994 AP 72 MVRJ, S.A.No.1327 of 2011

appellants did not choose to suggest their option. They remained

indeterminate in this context and pursued the matter. As observed by the

learned appellate Judge such recourse was not proper and in fact

presented a mutually destructive situation, inconsistent by itself.

Therefore, this contention of the learned counsel for the appellants,

cannot stand.

52. A fervent appeal is made by Sri M.Radhakrishna, learned

counsel for the appellants, to remand the matter for fresh determination.

In given facts, such course is not necessary to apply.

53. Sri S.Rajan, learned counsel for the respondents, thus

projected all these instances with reference to findings recorded by both

the Courts below, supporting them and rightly.

RE:LIMITATION:

54. There is also reference to application of Article-65 of the

Limitation Act in the judgments of both the Courts below. When both the

parties have set up such claim based on right, title and interest acquired

by means of registered documents asserting exclusive possession,

question of considering the bar of limitation did not arise.

55. Sri M.Radhakrishna, learned counsel for the appellants, in this

context relied on Indira v. Arumugam and another7. The law laid

down in this decision is not disputed nor can be disputed.

.AIR 1999 SUPREME COURT 1549 MVRJ, S.A.No.1327 of 2011

RE:IMPACT OF SECTION 100 CPC

56. The discussion of the material on record as above clearly

reflective of the fact situation. However, Sri M.Radhakrishna, learned

counsel for the appellants, contended that concurrent findings recorded

by both the Courts below cannot be an absolute bar for this Court to

consider this second appeal, when the judgment of the appellate Court as

well as the trial court did not appreciate the evidence on record properly

and when it is case of misreading or misapplication of the material. In

support of his contention, the learned counsel relied on State of

Rajasthan and others v. Shiv Dayal and another8. In Para-16 to

Para-22 of this ruling, it is stated thus:

"16. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.

17. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). However, this rule of law is subject to certain well-known exceptions mentioned infra.

18. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties.

19. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it.

20. If the appellate court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.

21. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the

.2019(5)ALT 99 (SC) MVRJ, S.A.No.1327 of 2011

Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)

22. In our opinion, if any one or more grounds, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."

57. The proposition of law so canvassed is apt. yet, the facts and

circumstances, are quite different where application of Section 100 CPC, is

not invited nor the substantial questions of law slated by the appellants

require consideration and determination in view of the factual position

discussed above which both the Courts considered properly. Aberrations

here and there, with reference to appreciation of evidence in proof of

certain facts cannot by themselves run through these judgments to render

them liable for interference. Therefore, this contention of the appellants is

also difficult to accept.

58. Thus, on consideration, the inference to draw in this second

appeal is that there are no such questions much less substantial questions

of law requiring interference of this Court with the judgment of the