Goddi Nagaraju vs Guntla Laxmi Devi Laxmi Sudha
2021 Latest Caselaw 2118 AP

          HON'BLE SRI JUSTICE M. VENKATA RAMANA

                 SECOND APPEAL No.265 OF 2021

ORDER:

Heard Ms.Nimmagadda Revathi, learned counsel for the

appellant.

2. Having regard to the nature of the dispute involved in

this matter, upon perusal of the judgments of both the Courts

below, it is necessary to dispose of this matter at this stage

itself.

3. O.S.No.1075 of 2009 was instituted by the respondents

against the appellant on the file of the Court of learned First

Additional Junior Civil Judge, Visakhapatnam. O.S.No.1304

of 2009 was instituted by the appellant against the

respondents on the file of the Court of learned First

Additional Junior Civil Judge, Visakhapatnam. Both these

suits are for relief of permanent injunction restraining the

defendant(s) therein from interfering with the alleged peaceful

possession and enjoyment of the property in dispute by the

respective plaintiff(s). The property in dispute is a house of

80 (eighty) Sq.yards bearing D.No.3-186/1 situated at S.C.

Colony, Bajee Junction, Gopalapatnam within the limits of

Greater Visakha Municipal Corporation.

4. The respondents are the daughters of Sri Chellayya and

G.Leela Aruna Kumari. The appellant is stated to be another

husband of G.Leela Aruna Kumari. Two portions were raised

in the property in dispute. Apparently, the dispute rose

among the parties upon the death of G.Leela Aruna Kumari

on 24.7.2009. Thereupon there was scramble among these

parties to get hold of this property, leading to institution of

both these suits.

5. The trial Court considered both the suits together where

basing on the pleadings, appropriate issues were settled and

whereupon the parties were let in evidence both oral and

documentary. On consideration of such material, learned

trial Judge did not favour the grant of the relief in both the

suits while observing that the parties should seek the

composite relief of declaration of right, title and interest in the

property by instituting a comprehensive suit. Thus observing,

learned trial Judge dismissed both the suits.

6. Aggrieved, the respondents herein preferred A.S.No.7 of

2013 whereas the appellant preferred A.S.No.86 of 2013,

which were considered by the learned VII Additional District

Judge, Visakhapatna. Upon reappraisal of the material,

learned appellate Judge by a common judgment dated

06.11.2019 confirmed the decrees and judgment of the trial

Court, dismissing both these appeals. These are the

circumstances that apparently prevailed.

7. Ms.Nimmagadda Revathi, learned Counsel for the

appellant strenuously contended that though both the Courts

below accepted the version of the appellant that he being in

possession and enjoyment of the property in dispute, despite

there being no material erred in dismissing his case on a

ground that there is a need to adjudicate the question of title.

Thus the learned counsel contends that the whole process of

the appreciation of evidence and drawing conclusions

thereon, apparently stands to the perversity and therefore the

appellant is constrained to approach this Court raising the

appropriate substantial questions of law. The questions of

law stated in the grounds of appeal are:

(i) Whether in facts and circumstances of the case, the Courts fell in error in not granting injunction in spite of upholding the appellant's possession which was the prime requirement for granting the said relief?

(ii) Whether in the facts and circumstances of the case, the findings of the Courts below that the suit filed by appellant was not maintainable in view of the cloud over his title raised by respondents without there being any cogent evidence sufficient to raise any cloud are legally sustainable?

(iii) Whether in the facts and circumstances of the case, the approach of the Courts below in ignoring the admissions of the respondents and their witnesses in their evidence, without giving any valid reasons is legally sustainable since those admissions support the case of the appellant/plaintiff?

(iv) Whether the lower appellate Court misread, misinterpreted and ignored the evidence on record?

8. A bare perusal of these questions indicates that they are

purely based on fact situation. No question of law as such is

involved, which requires consideration of this Court in terms

of Section 100 C.P.C. Nonetheless since the contentions are

advanced on behalf of the appellant inasmuch as this matter

is considered to be disposed of at this stage itself now, these

questions are being considered to specify whether the Courts

below are justified in drawing the conclusions.

9. On the material, learned trial Judge observed that the

appellant was in possession of the disputed property and it

was the situation on the date of filing of the suit. Mere

production of certain records like property tax receipts,

electricity bills etc., need to draw an inference that the nature

of possession of the appellant of this property is lawful. When

such question was considered and right conclusions were

drawn by the learned trial Judge, which are in the realm of

facts, learned appellate Judge had no choice but to concur

with these findings upon reappraisal of the material.

10. Though strenuous contentions are advanced that the

Courts below failed to appreciate the question of title for

incidental purpose, having regard to the nature of the suit

one being for permanent injunction, in case of necessity and

if the occasion arises law permits consideration of such

question incidentally. However, having regard to the fact of

the nature of association of both these parties with the

original owner of this property, the question of title assumes

any amount of significance and importance. In a suit for bare

declaration as rightly observed by the Courts below,

particularly having regard to the background of the

circumstances in which both the parties are placed in, it is

not necessary that the question of title be gone into.

Incidentally it has to be taken note of the fact that the

material discloses that the appellant gained access to the

property in dispute taking advantage of the death of the

mother of the respondents. In these circumstances, both the

Courts below observed that it is more a case of assertion of

title and consequent declaration of the same than considering

grant of a preventive relief in terms of Section 38 of the

Specific Relief Act. Mere admitted possession of the appellant

of this property by itself is not a conclusive fact to accept his

version. Had an appropriate suit for declaration of title is

filed, possibly a party can set up right to remain in property

in terms of Section 110 of the Evidence Act, if such

possession is proved and established being of a settled

nature. Such are not the circumstances seen in this case.

11. Therefore, within the parameters permitted by Section

100 C.P.C., when nature of this matter is considered, there is

no reason to hold that it stands attracted. The findings of

fact recorded by the first appellate Court are findings of this

Court while sitting in the second appeal. Therefore, finding

no justification to entertain this second appeal, it has to be

dismissed confirming the findings recorded by both the

Courts below as well as decrees so passed.

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

stage of admission. Both the parties are at liberty to seek

declaration of right, title and interest in the property in

dispute if they are so advised by instituting a comprehensive

suit. Any observations whatsoever recorded by the Courts

below in judgments did not influence adjudication of such

dispute in future. No costs. As a sequel, the miscellaneous

applications pending, if any, shall stand closed.

__________________________ M. VENKATA RAMANA, J June 24, 2021.

YS