Andhra Pradesh High Court - Amravati
Engurumilli Venkatesu, vs Ghanta Anusha Devi, on 12 July, 2021
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.114 OF 2013
ORDER:
Heard Sri K.Chidambaram, learned counsel for the
appellants and Sri K.J.V.N.Pundareekakshudu, learned counsel
for the respondents.
2. The defendants have presented the Second Appeal against
the concurrent findings recorded by the trial Court as well as
the appellate Court in a dispute, where the respondents have
sought relief of permanent injunction restraining the appellants
from interfering with their peaceful possession and enjoyment of
the plaint schedule property.
3. The property in dispute is an extent of Ac.4.72 cents of dry
land in R.S.No.197/3A2 of Kothapalli Village, Dwaraka Tirumala
Mandal, West Godavari District.
4. The respondents have set out the claim that the said
property originally belonged to Smt.Ganta Hymavathi, the
paternal grandmother of their father, who executed a Will on
04.02.1997 bequeathing the same in their favour. Their further
contention is that they have been in continuous possession and
enjoyment of the said land and that, without any manner of
right the appellants tried to interfere with the same.
5. The appellants opposed the claim of the respondents
mainly contending that the 1st appellant is in possession of
Ac.2.00 cents and that the 2nd appellant is in possession of
Ac.1.00 cents out of the plaint schedule extent. Their further
contention is that originally the land belonged to Sri Gajula
Lakshmayya, which was his ancestral property, from whom the
appellants contend that they purchased the same under
separate agreements for sale. They have also set out different
boundaries for their respective extents that were purchased
from Sri Gajula Lakshmaiah asserting that they have been in its
continuous possession and enjoyment and that the respondents
did not have any right or interest including title to the land
belonged to Smt.Ganta Hymavathi. They have also questioned
the claim of respondents about the Will attributed to Smt.Ganta
Hymavathi in their favour.
6. The trial Court basing on the pleadings settled two issues
on which the parties went to trial. The father of the respondents
was examined as P.W.1, P.Ws 2, 3 and 5 being attestord and
scribe of the Will executed by Smt.Ganta Hymavathi respectively
and relied on the testimony of P.W.4, the then Mandal Revenue
Officer in support of their claim. They further relied on Exs.A.1
to A.8 as well as Exs.X.1 to X.3. The appellants examined
themselves as D.Ws 1 and 2 respectively, while also relying on
the testimony of D.Ws 3 to 5 in support of their claim.
They further relied on Exs.B.1 to B.6.
7. Learned trial Court judge accepted the contention of
respondents and decreed the suit as prayed, granting
permanent injunction against the appellants.
8. A.S.No.13 of 2012 presented by the appellants to the
1st appellate Court was dismissed confirming the decree and
judgment of the trial Court on reappraisal of material and
evidence.
9. In these circumstances, the appellants presented the
Second Appeal, questioning the decree and judgment of the 1st
appellate Court.
10. Sri K.Chidambaram, learned counsel for the appellants
contended that the respondents have miserably failed to
substantiate their claim to make out their right and interest in
respect of the plaint schedule property.
11. Learned counsel for the appellants further contended that
there is no material to substantiate their claim that Smt.Ganta
Hymavathi was the owner of the property nor they explained the
source of title in her favour by which she executed Ex.A.1 Will
bequeathing the plaint schedule property. Contending that the
trial Court as well as learned appellate judge considered the
revenue records which did not make out the case of the
respondents of right and interest to the suit property and in the
light of the testimony of P.W.4, the then Mandal Revenue
Officer, the Courts below could not have accepted the claim of
the respondents.
12. Thus, the alleged improper appreciation of evidence
according to the learned counsel for the appellants is giving rise
to an occasion for this Court to consider this matter under
Section 100 CPC and that, it is the substantial question of law.
On such basis, learned counsel for the appellants contended
that interference of this Court is warranted in the interests of
justice.
13. Sri K.J.V.N.Pundareekakshudu, learned counsel for the
respondents with equal vehemence contended that the material
on record is substantiated the claim of the respondents and that
the revenue records established that they were in possession
and enjoyment of the plaint schedule property on the date of
institution of the suit.
14. In the absence of any acceptable proof for the appellants
in substantiating their case of holding possession of this
property by means of Exs.B.1 and B.2 agreements learned
counsel for the respondent contended that there is no reason to
accept their contention.
15. Learned counsel for the respondents further contended
that no material is placed to prove that the plaint schedule
property belonged to Gajula family nor anyone including their
vendor was examined at the trial nor any document in terms
thereof was produced referring to Exs.B.1 to 6.
16. It is the contention of the learned counsel for the
respondents that Exs.B.4 to B.6 did not bind them in as much
as they were not parties to the suit covered by them. Referring
to the nature of evidence let in by the respondents in proof of
Ex.A.1 through P.Ws 1 to 3 and 5 and also the revenue records
as well as the testimony of P.W.4, it is the contention of learned
counsel for the respondents that when both the Courts accepted
their claim of possession and enjoyment of the plaint schedule
land, in Second Appeal, it is unnecessary for this Court to
consider and interfere.
17. It is against this back-drop, it is to be seen whether there
is any reason to satisfy that there are substantial questions of
law as pointed out by the appellants to consider and determine
this matter in terms of Section 100 CPC?
POINT:-
18. The suit was instituted by the respondents for bare
injunction to restrain the appellants from interfering with their
possession and enjoyment of the plaint schedule property.
Therefore, the burden is on the respondents to establish their
claim in this respect. As rightly contended by the learned
counsel for the appellants, the respondents cannot rely on the
weakness in the case set up by the appellants and that there is
no requirement to make out that the respondents were not in
possession and enjoyment of the plaint schedule property on the
date of the institution of the suit. In the event of respondents
succeeded in establishing such claim, the burden shifts to the
appellants to rebut by preponderance of probability that the
claim of respondents is not proper and that they are not entitled
for the relief of permanent injunction.
19. When the case is predominantly based on possession in a
matter of this nature, the question of title recedes to the
background.
20. Both the Courts below considered the revenue records to
favour the claim of the respondents. Learned 1st appellate judge
considered the effect of Ex.A.3 extract of Adangal and Ex.A.4
extract of 10(1) Account apart from Exs.X.1 and X.2 which are
Adangal extract and extract of 1-B Account respectively in this
respect. Thus, the revenue records, referred Smt.Ganta
Hymavathi as the owner of the plaint schedule property and
Ex.A.3 confirmed that Smt.Gantha Hymavathi and P.W.1 as the
possessors of the plaint schedule property.
21. Learned appellate judge also considered the effect of
testimony of P.W.4, the then Mandal Revenue Officer, Dwaraka
Tirumala Mandal, who supported the version of the
respondents.
22. Though the contentions are advanced on behalf of the
respondents that Pattadar pass books were also issued, as seen
from Exs.A.7 and A.8, the evidence on record in this respect
appears hazy. In the sense, they were issued after institution of
the suit. The evidence of P.W.4, the then Mandal Revenue
Officer is clear in confirming their subsistence and being
effective.
23. The appellants' contention is based on agreements for
sale, covering a part of the plaint schedule property in all
Ac.3.00 cents. Exs.B.1 to B.3 cannot have any effect in as much
as sale agreements relied on by them cannot in any manner
bind the respondents and as rightly pointed out for the
respondents, none connected to Gajula family which according
to them is the perceived owner of the property was examined at
the trial.
24. Even otherwise, no record is available to establish their
possession and enjoyment of the plaint schedule property,
pursuant to these agreements for sale. Though this insufficient
nature of material produced by the appellants is not a reason for
concern, in relation to the defence they have set up, yet, when
the entire matter is considered in preponderance, the balance
lies more in favour of the respondents.
25. It is true that there is no material on record establishing
title of Smt.Ganta Hymavathi to the plaint schedule property,
Ex.A.1 Will did not reflect upon it, as observed by the Courts
below. Yet, the possession of the land is established by the
revenue records to favour the respondents. In such
circumstances, in the absence of any material having regard to
the presumption under Section 110 of the Indian Evidence Act
to favour the respondents of lawful holding of the land, any
deficiency, in establishing the title of Smt.Ganta Hymavathi to
this land, cannot hold the sway. The respondents are proved to
be in rightful possession of the plaint schedule property. Any
person in possession of the property rightfully or juridically, is
entitled for the relief of permanent injunction in terms of
Section 38 of Specific Relief Act, when there is an attempted
invasion to right to hold his land.
26. Therefore, when the material on record is considered it is
manifest that there is only a question of fact to determine.
In as much as appreciation of material on record by the
1st appellate Court in this context is not requiring
reconsideration, it is not necessary that the Second Appeal be
admitted. Both the Courts below based on the material on
record are justified in drawing such conclusions and inferences
in accepting the claim of the respondents.
27. In the presence of such concurrence of findings on facts,
this Court is satisfied that there are no substantial questions of
law requiring determination in this Second Appeal nor the
substantial questions of law pointed out in Memorandum of
Appeal get attracted. Therefore, the Second Appeal has to be
dismissed at the admission stage. Learned counsel for the
appellants, requested at this stage, to permit them to pursue
their remedies in respect of the plaint schedule property, as are
open to them.
28. In the result, the Second Appeal is dismissed, at the stage
of admission. Consequently, the decrees and judgments of both
the Courts below stand confirmed. However, it is left open for
the appellants to pursue their remedies, if they are advised,
basing on the agreements for sale. It shall be without prejudice
to any of the parties interested in such lis. There shall be no
order as to costs.
All pending miscellaneous applications shall stand closed.
_________________________________
JUSTICE M. VENKATA RAMANA
Date: 12-07-2021
IS
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No.114 OF 2013
Date: 12-07-2021
IS
