Balireddy Appa Rao vs Jampana Sudheev Varma
2021 Latest Caselaw 2712 AP

          HON'BLE SRI JUSTICE M. VENKATA RAMANA

               SECOND APPEAL No.142 OF 2011

JUDGMENT:

Heard Sri Kodanda Rama Murthy, learned Counsel for Sri

M.V.J.K. Kumar, learned counsel for the appellants and Sri

Hemadri V.S.S.R.R. Chandra Kanth, learned counsel for the

respondents.

2. Since both the learned counsel addressed arguments, this

appeal is required to be disposed of, at this stage.

3. The respondents are the plaintiffs in O.S.No.161 of 2006

on the file of the Court of learned II Additional Senior Civil

Judge, Visakhapatnam. They instituted the suit for perpetual

injunction to restrain the appellants herein from interfering with

their possession and enjoyment of the plaint schedule land.

4. This land in dispute is consisting of several plots in a total

extent of 3,200 Sq.yards in survey No.8/P of Mamidilova Village,

Anandhapuram, Pendurthi Mandal, Visakhapatnam District.

This entire extent is in specified boundaries as set out in the

plaint schedule.

5. The claim of the respondents is based on purchase of

different extents of house plots, constituting the plaint schedule

property from Sri Lakshmi Priya Estates Private Limited,

Visakhapatnam. This locality is known to be Siva Priya

Township and an unapproved lay-out formed by this Real Estate

dealer.

6. Contending that they have been in effective possession

and enjoyment of their respective sites and that the appellants

began to interfere with their possession and enjoyment of the

same without any manner of right, the respondents laid the suit

for the relief stated above.

7. The appellants, as the defendants, resisted this claim

filing written statement. Their main contention, in the written

statement, was that an extent of Acs.9.90½ cents in survey

No.8/P is part and parcel of their ancestral property and that

there was an oral partition in which it was divided into six equal

shares. Their further contention was that the first appellant

was in possession and enjoyment of his share in this property

while his brothers have been in possession and enjoyment of

their respective shares. However, it was specifically contended

that without knowledge and consent of the first appellant, his

four brothers and children of his deceased brother-Balireddy

Sannibalu intended to sell Acs.4.15½ cents out of this entire

extent to Sri Pothureddy Ramesh Babu, who obtained Power of

Attorney in his favour and that was registered on 29.3.1996, as

if entire extent of Acs.9.90½ cents was sold. The first appellant

seriously disputed this transaction relating to execution of

Power of Attorney.

8. Another contention in the written statement was that

under two different sale deeds dated 24.6.1998 and 30.6.2003,

the children of Balireddy Sannibalu purchased part of the

property as if it was a resale, out of this extent. However, this

fact did not have much bearing in this matter.

9. The appellants also contended that they have been in

effective possession and enjoyment of the land in dispute over

which the respondents did not have any claim or interest. The

defence appears that a suit for permanent injunction against the

co-owner in respect of this land in dispute could not have

instituted.

10. The learned trial Judge settled the following issues for

trial:

1. Whether the plaintiffs are entitled for permanent injunction as prayed for?

2. To what relief?

11. The parties went to trial where the G.P.A. of the

respondents Sri K.Ranga Raju was examined as P.W.1 apart

from P.W.2. They relied on Ex.A1 to A35. The first appellant

examined himself as D.W.1 and two other witnesses in support

of their claim were examined, while relying on Exs.B1 to B6.

12. On the material and evidence, rejecting the version of the

appellants, the learned trial Judge by the decree and judgment

dated 24.6.2009, accepted the claim of the respondents being in

possession and enjoyment of their respective plots in the plaint

schedule under the different sale deeds marked Exs.A3 to A18.

13. Aggrieved, the appellants presented A.S.No.200 of 2009 on

the file of the Court of learned II Additional District Judge,

Visakhapatnam. Learned appellate Judge, upon reappraisal of

the material and evidence, agreed with the findings recorded by

the learned trial Judge and dismissed the appeal confirming the

decree and judgment of the trial Court.

14. In these circumstances, the appellants have chosen to

present this Second Appeal.

15. This Second Appeal is at the stage of admission. The

appellants have set out substantial questions of law in the

Memorandum of Appeal.

16. The predominant contention on behalf of the appellants

now is that they are not disputing possession and enjoyment of

the respective plots by the respondents and Sri Kodanda Rama

Murthy, learned counsel for the appellants fairly stated that he

has advised his clients not to interfere or meddle with the

possession and enjoyment of respective plots, by the

respondents. However, learned counsel for the appellants

pointed out that there is certain difficulty with the observations

recorded by the learned appellate Judge foreclosing options to

challenge any transaction in relation to the entire extent in

survey No.8/P and that these observations of learned appellate

Judge are coming in way of the appellants from pursuing other

proceedings. Thus, learned counsel for the appellants pointed

out that these observations of learned appellate Judge are

required to be removed.

17. Sri Chandra Kanth, learned counsel for the respondents

while asserting that the respondents have been in possession

and enjoyment of respective plots in the plaint schedule

property that were attempted to be meddled with by the

appellants, contended that it is not open for the appellants to

raise a dispute of the nature set out in the written statement

affecting the interest of the respondents. In the circumstances,

learned counsel for the respondents contends that as both the

Courts below have consistently held in favour of the

respondents and in view of these concurrent findings, there is

no necessity to entertain this Second Appeal nor that the

substantial questions of law raised on behalf of the appellants

require consideration or determination now.

18. In this backdrop, it is now to be determined whether this

Second Appeal requires consideration and if the appellants

suffer any prejudice on account of the observations of the

learned appellate Judge particularly with reference to effect of

Ex.B.6.

19. All the respondents have purchased their respective plots

from Real Estate dealer, Sri Lakshmi Priya Estates Private

Limited. This company had purchased an extent of Acs.4.50½

cents from Sri Pothureddy Ramesh Babu, S/o.Pothureddy

Madhava Rao on 29.3.1996 and this transaction is covered by a

Power of Attorney and not by a regular sale deed, wherein the

total extent is described being Acs.9.90½ cents in survey No.8/P

of Mamidilova Village.

20. The appellants are questioning this sale transaction on

the ground that the vendors or the Principals under Ex.B.6 did

not have a right to execute such document since the first

appellant has a share in the entire extent. Further contention of

the appellants is that the first appellant did not convey his

share out of this land nor join in execution of any of the

registered deeds in respect thereto.

21. The nature of the suit one permanent injunction has to be

considered. The prime reason that propelled the respondents to

approach the Court for grant of this relief is the alleged attempt

of the appellants to interfere with their possession and

enjoyment of their respective plots, Not only by reason of the

concurrent findings recorded by the Courts below but also on

account of concession of learned counsel for the appellants, as

to possession and enjoyment of these plots by the respondents

under the sale deeds, it is not necessary further to go into the

question as to whether there was proper conveyance of Sri

Lakshmi Priya Estates Private Limited or otherwise or with

reference to later transactions between Sri Lakshmi Priya

Estates Private Limited and Sri Pothureddy Ramesh Babu on

one hand and the family members / brothers of the first

appellant covered by Exs.B1 and B2 sale deeds.

22. Learned appellate Judge while reappraising the material

on record in due deference to the findings recorded by the

learned trial Judge in paragraph No.13 of his Judgement

observed that the appellant did not question the sale of these

lands by the brothers and children of the other deceased brother

under Ex.B6 in any Court of law instituting any suit to that

effect. On that premise, learned appellate Judge observed that

the appellants cannot question the transaction covered by

Ex.B6 and that he is also bound by Ex.B6 transaction.

23. As seen from the material including the pleadings of the

appellants, the sale under Ex.B6 stood to challenge consistently

on behalf of the appellants. The respondents are not concerned

nor they get affected in the event of any challenge to Ex.B6 sale

deed in as much as the contention of the appellants is also that

in the oral partition among the first appellant and his brothers

the entire extent of Acs.9.90½ cents was divided wherein he was

allotted a share. So excluding the share of the first appellant if

this version has to be believed, there shall be other extent in the

same survey number of other sharers, who sold to Sri

Pothureddy Ramesh Babu, that in turn was conveyed to the

vendors of the respondents, which would rather support their

version with reference to right, title and interest they have under

different sale deeds.

24. Learned appellate Judge while re-evaluating the evidence

on record could have confined only to the case set up by the

respondents particularly when in a suit for permanent

injunction based on possession and lawful enjoyment, it is for

the respondents to make out their claim without depending on

laches or deficiencies in the claim set up by the defendants, who

are now the appellants. These observations could have been

avoided in the process.

25. Therefore, confirming that the respondents have been in

effective, legal and actual possession and enjoyment of the

respective plots in the plaint schedule with which the appellant

cannot in any manner interfere or meddle, the relief of

permanent injunction granted by the trial Court confirmed in

the first appeal, shall be maintained.

26. In this backdrop of the fact situation, the substantial

questions of law raised on behalf of the appellants cannot arise

since this case is predominantly based on facts for

determination.

27. Therefore, this Court is satisfied that there are no

substantial questions of law to determine in this matter nor the

material requires reconsideration in terms of Section 100 C.P.C.

by this Court. Therefore, this Second Appeal has to be

dismissed at this stage confirming the decrees and judgments of

both the Courts below.

28. In the result, this Second Appeal is dismissed at the

admission stage. No costs. Consequently the decrees and

judgments of the Courts below stand confirmed. However, it is

made clear that observations recorded by the learned appellate

Judge regarding the appellants' right to claim property in

dispute against other sharers or their right to question any such

transactions relating to the property of their erstwhile joint

family shall not have any effect nor can affect any pending

proceedings to which the appellants are parties in any other

Court or in any other forum. All pending petitions stand closed.

Interim orders, if any, stand closed.

___________________________ M. VENKATA RAMANA, J July 29, 2021 vasu