Arnipalli Sivvunaidu vs Sri Garbhapu Dasu
2021 Latest Caselaw 2245 AP

            HON'BLE SRI JUSTICE M.VENKATA RAMANA

                   SECOND APPEAL No.194 of 2014

JUDGMENT:

Having regard to the nature of this matter, since question of

application of Section 100 CPC did not arise in this second appeal, it is

now being disposed of, upon hearing Sri M.R.K.Chakravarthy, learned

counsel for the appellant.

2. The appellant as the plaintiff instituted O.S.No.92 of 1994 on the

file of the court of the learned Principal Junior Civil Judge, Bobbili for

declaration of his right, title and interest to the plaint schedule property

and for consequential permanent injunction against the respondents. The

main contention of the appellant was that he is the absolute owner of the

plaint schedule property, which is an agricultural land of Ac.1-00 at Kagam

Village, Therlam Mandal, Vizianagaram District in S.No.277/18, bearing

Patta No.1083, within the boundaries mentioned in the plaint schedule

and that it was his ancestral property. Alleging that he has been in

continuous possession and enjoyment of this land and that it was tried to

be disturbed highhandedly by the respondents 1 to 4, initially, he sought

the relief of permanent injunction in this suit against them to restrain

therefrom. Later on, he got amended the plaint requesting relief of

declaration of right, title and interest to it. He also got impleaded

respondent No.5 as a party to the suit.

3. The respondents 1 to 4 as well as the 5th respondent State

raised a common defence to the effect that this land is a part of Ac.4-05

cents in S.No.277/18 in Patta No.1083 and that it was assigned to the 1st

respondent, 3rd respondent and one Sri Yendava Ramayya, who is the MVR,J S.A.No.194 of 2014

brother of the 4th respondent, under D-Form patta where with the funds

made available by the Government, they got sunk a well, which they have

been in possession and enjoyment since then. They denied that this

property ever belonged to the appellant nor it was a private patta land.

4. Their defence was that the appellant highhandedly encroached

upon this land without any manner of right regarding which the Tahsildar,

Therlam Mandal initiated action for his eviction, following due process of

law.

5. Upon settlement of appropriate issues on the pleadings, the

parties went to trial. The appellant examined himself as P.W.1 while

relying on the evidence of P.W.2 to P.W.4 apart from Ex.A1 to Ex.A11.

The 1st respondent examined himself as D.W.1 and the then Tahsildar,

Therlam Mandal was examined as D.W.2 on behalf of the respondents.

Further, they relied on Ex.B1 to Ex.B11 in support of their contention.

6. Upon consideration of the material and evidence, the learned

trial Judge held that the claim of the appellant is based on fabricated

documents like Ex.A1 and Ex.A2 and having regard to the admission of

the appellant as P.W.1 at the trial in consonance with the evidence let in

on behalf of the respondent, the learned trial Judge held that the

appellant failed to prove his case of declaration as to right, title and

interest to the plaint schedule land and consequently denied the relief of

permanent injunction against the respondents. Thus holding, the suit was

dismissed by the decree and judgment dated 19.07.2000.

7. A.S.No.31 of 2000 presented by the appellant there against on

the file of the Court of the learned Senior Civil Judge, Bobbili, was also MVR,J S.A.No.194 of 2014

dismissed on re-appraisal of the material, concurring with the findings

recorded by the learned trial Judge by the decree and judgment dated

29.12.2006.

8. In these circumstances, the appellant presented this second

appeal.

9. Sri M.R.K.Chakravarthy, learned counsel for the appellant,

drawing attention of this Court to the oral and documentary evidence

adduced on behalf of the parties, particularly having regard to the

statement of D.W.2-then Tahsildar, strenuously contended that there is

material on record to prove that the appellant has been in possession and

enjoyment of the plaint schedule property for a considerable length of

time and in these circumstances, the observations of both the Courts

below, rejecting his version of right, title and interest basing on Ex.A1 and

Ex.A2, is not proper. Further elaborating that there are substantial

questions of law to consider in this case, referring to those pointed out in

ground No.11 in the memorandum of appeal, the learned counsel for the

appellant requested to admit this appeal. Further contentions are

advanced that the material on record clearly holds that the case of the

appellant is proper, who is entitled for the relief as prayed and that both

the courts below unjustly upon improper appreciation of the material on

record, rejected the relief.

10. In this backdrop, this case requires consideration if attracting

Section 100 CPC and if the appellant made out substantial questions of

law which require determination in this second appeal.

MVR,J S.A.No.194 of 2014

11. The case of the appellant is based on Ex.A1 and Ex.A2-

unregistered sale deeds dated 09.03.1971 and 03.04.1971 respectively,

alleged to have had been executed by the alleged original owners in

favour of the father of the appellant. Apart from the evidence of P.W.1

viz., the appellant, he relied on the testimony of P.W.2-Sri Arnipalli

Pakeerunaidu, P.W.3-Sri Bankapalli Appalaswamy and P.W.4-Sri Arnipalli

Venkataswamynaidu, who claimed being the attestors to these sale deeds.

12. The learned trial Judge basing on the material held that both

these unregistered sale deeds are fabricated and also took into

consideration the fact that there is no reference to these sale deeds in the

plaint, which fatally affected the claim of the appellant. The learned

appellate Judge upon reconsideration of the material, though not in

specific terms held that both the unregistered sale deeds are fabricated,

did consider the effect of omission to refer the same in the plaint

averments. Thus, both the Courts below consistently held that want of

pleadings in this context is a fatal circumstance.

13. The plaint schedule land undisputedly is a part of S.No.277/18

of Kagam Village, which is an extent of Ac.4-05 cents covered by Patta

No.1083. There is consistent evidence in this respect, from the

respondents, particularly when the testimony of D.W.2-then Tahsildar,

Terlam Mandal is taken into consideration. It is supported by Ex.B2 to

Ex.B6 as well as Ex.A3. Though Ex.A3 adangal for faslie 1403 reflected the

name of the appellant as the person in possession of certain extent out of

this entire land, it did reflect pattadars being the 1st respondent, 3rd

respondent and brother of the 4th respondent Sri Yendava Ramayya. Upon

death of Sri Yendava Ramayya, as per the version of D.W.2, his daughter MVR,J S.A.No.194 of 2014

Smt. Garbhapu Mariyamma, Wife of Sri Pydaiah became entitled to it and

who continued to be in possession and enjoyment of share of her father in

this land. Possession of this land, was admitted by the appellant in cross-

examination, which fact is recorded by the learned trial Judge.

14. When the revenue records coupled with the testimony of a

responsible revenue officer viz., D.W.2 are considered, having regard to

the admission of the appellant at the trial in this context as to possession

and enjoyment of this extent, it cannot be stated that there is requirement

that this Court should enter upon reconsideration of this matter in

entirety. The fact situation was appropriately appreciated and considered

by the learned trial Judge, followed by its confirmation by the learned

Appellate Judge. When there are these concurrent findings, against the

appellant basing on fact and in the backdrop of the material that

presented only a fact situation to consider, it is difficult to hold that this

matter requires consideration in terms of Section 100 CPC. Nor substantial

questions of law as pointed out on behalf of the appellant stand for

consideration. Even these substantial questions of law as projected in the

grounds of appeal are purely based on fact.

15. Further, a claim based on unregistered sale deeds, by the

appellant for declaration of right, title and interest cannot stand in terms

of Section 34 of the Specific Relief Act. Particularly when it is established

on the material that this land is a part of Government Poramboke

described as 'Gayalu' in the revenue records that was assigned in favour

of the respondents 1,3 and brother of the 4th respondent, who were

cultivating and enjoying this extent, the nature of relief sought by the MVR,J S.A.No.194 of 2014

appellant could not have been granted. The approach of both the Courts

below is appropriate and needs no consideration in this second appeal.

16. Therefore, this Court is satisfied that there are no substantial

questions of law that arise for consideration and determination in this

second appeal. Hence, this second appeal has to be dismissed at the

stage of admission.

17. In the result, the second appeal is dismissed at the stage of

admission confirming the decrees and judgments of the Courts below.

No costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 02.07.2021 RR MVR,J S.A.No.194 of 2014

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.194 of 2014

Dt: 02.07.2021

RR