Sri Makaraju Veerabhadra Raju vs Tirumalareddy Chandra Pratapa ...
2021 Latest Caselaw 1432 AP

       HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                SECOND APPEAL No.19 of 2015

ORDER:

This second appeal arises against the judgment and decree in

A.S.No.119 of 2010 on the file of II Additional District Judge,

West Godavari, Eluru dated 25.10.2014 confirming the judgment

and decree in O.S.No.17 of 2009 on the file of the Junior Civil

Judge, Chintalapudi dated 28.04.2010.

2. Heard the learned counsel for the appellant and the learned

counsel for the respondents.

3. The appellant herein is the appellant in the first appeal and

the second defendant in the suit. The first respondent herein is the

first respondent in the first appeal and the plaintiff in the suit.

The 2nd respondent herein is the 2nd respondent in the first appeal

and the 1st defendant in the suit.

4. The plaintiff initiated an action in O.S.No.17 of 2009 on the

file of the Junior Civil Judge, Chintalapudi seeking permanent

injunction against the defendants with respect to the suit schedule

property and costs. It is the case of the plaintiff that he purchased

the suit schedule property on 27.03.2006 in a court auction held in

E.P.No.268 of 2005 in O.S.No.134 of 2004 on the file of

Additional Senior Civil Judge, Eluru. The sale was confirmed and

sale certificate was also issued in his favour on 13.06.2006 and the

suit schedule property was also delivered on 06.09.2006 and the

same was recorded by the said executing court on 12.09.2006.

Subsequently, in the revenue records also his name was mutated

with respect to the suit schedule property and he has been paying

the land revenue to the Government. Thus, he has been in

possession and enjoyment of the suit schedule property and he has

been paying the land revenue to the Government ever since he was

inducted into possession by virtue of the execution proceedings of

the court as stated above. While so, the defendants were

threatening to interfere with his peaceful possession and

enjoyment and as such he filed the said suit. The same was

opposed by the 2nd defendant by filing his written statement

denying the averments and contention of the plaintiff whereas the

1st defendant remained ex parte. It is contended by the

2nd defendant that the said delivery of the suit schedule property to

the plaintiff is only a paper delivery and in fact he is in possession

and enjoyment of the suit schedule property and he settled Ac.0-50

cents out of it in favour of his daughter dated 13.02.2004 and to

that extent, she has been in possession of the property and as such

he sought for the dismissal of the suit.

5. In view of the rival averments and contentions the trial court

framed the following issues:

1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

2. To what relief?

6. During the course of trial, PWs.1 and 2 were examined and

Exs.A1 to A8 were marked for the plaintiff and DWs.1 to 7 were

examined and Exs.B1 to B10 were marked for the defendants.

Ex.A1 dated 13.06.2006 is a certified copy of sale certificate;

Ex.A2 dated 12.09.2006 is a certified copy of delivery warrant;

Ex.A3 is the certified copy of the pattadar passbook; Ex.A4 is the

certified copy of the title deed; Ex.A5 dated 01.07.2007 is the land

revenue receipt; Ex.A6 is the certified copy of attachment petition

and docket order therein; Ex.A7 is the certified copy of deposition

of D2 in O.S.No.134 of 2004; and Ex.A8 is the Xerox copy of

permit slip for supply of seeds. Ex.B1 dated 13.02.2004 is the

settlement deed; Ex.B2 dated 10.04.1995 is the pattadar passbook;

Ex.B3 dated 12.01.2006 is the electricity consumption charges for

S.C.No.360; Ex.B4 dated 26.04.2008 is the electricity consumption

charges for S.C.No.360; Ex.B5 dated 23.12.2008 is the electricity

consumption charges for S.C.No.360; Ex.B6 dated 24.03.2009 is

the photograph; Ex.B7 dated 19.10.2000 is the No.3 Account for

the Fasalies 1414 and 1415; Ex.B8 dated 19.10.2000 is the No.3

account for the Fasalies 1416 and 1417; Ex.B9 dated 30.09.2009 is

the possession certificate issued by the Tahsildar, Lingapalem

Mandal; and Ex.B10 dated 29.03.2003 is the receipt issued by

photographer.

7. On appreciation of the evidence on record, the trial court

observed that the 2nd defendant did not challenge the delivery

proceedings effected under the cover of Ex.A2 against him in any

manner, the plaintiff also obtained record of rights pursuant to the

proceedings of Exs.A1 and A2 and the 2nd defendant did not

challenge Exs.A2 and A3 before any appropriate authority and it

is not the case of the 2nd defendant that the said Exs.A1 and A2

were forged and are fabricated documents. It is further observed

that Exs.A1 and A2 became final and Exs.A3 and A4 were issued

pursuant to the earlier exhibits and the 2nd defendant did not take

any steps to raise the attachment before judgment even with

respect to Ac.0-50 cents of the land, which is claimed to be a

settlement in favour of his daughter. Thus, by considering the

whole documentary and oral evidence the trial court came to an

irresistible conclusion that the plaintiff is in possession and

enjoyment of the suit schedule property and as such he is entitled

for grant of permanent injunction and accordingly the suit is

decreed on 28.04.2010.

8. Aggrieved by the same, the 2nd defendant preferred first

appeal in A.S.No.119 of 2010 on the file of II Additional District

Judge, West Godavari, Eluru. While considering the matter on

merits, the lower appellate court framed the following points.

1. Whether the plaintiff was in possession and enjoyment of the plaint schedule property as on the date of suit?

2. Whether the plaintiff is entitled for permanent injunction restraining defendants from interfering with his possession and enjoyment in respect of plaint schedule property?

3. Whether the impugned decree and judgment, dated 28.04.2010 in O.S.No.17 of 2009 by the Junior Civil Judge, Chintalapudi are sustainable in law and on facts or whether any interference is necessary? If so, on what grounds and to what extent?

4. What is the result of appeal?

9. The lower appellate court in paragraph 15 of its judgment

observed as follows:

"15. To show that the property was delivered to the plaintiff, he is relying on Ex.A2 delivery warrant and report of the Amin thereunder. Further the plaintiff is relying on the subsequent conduct of obtaining pattadar pass book and title deed in respect of the suit schedule property covered by Exs.A3 and A4. It is pertinent to note that in Exs.A3 and A4 there is reference as to E.P.No.268 of 2005 on the file of Additional Senior Civil Judge, Eluru and the sale certificate dt.13.6.2006 (Ex.A1). Ex.A5 land revenue receipt is another document relied on by the plaintiff to show his possession. The recitals in Ex.A1 and A5 are clinchingly showing delivery of possession of suit schedule property to the plaintiff. However, it is necessary to consider the evidence placed by the 2nd defendant also. The 2nd defendant as DW1 reiterated his stand in his written statement. The 2nd defendant as DW1 has stated in his cross- examination as follows:

"Previously I gave evidence in Eluru court in a pronote case. I do not know whether the plaintiff filed the suit against me in Eluru court on the foot of pronote. I do not know whether he filed suit after issuing telegram notice on 9.5.2004. I do not remember whether I put my mark when the Amin came to attach my property in the year 2004 ................................................... I got the petition schedule property during partition among our brothers. ......................................"

10. Similarly, at paragraph 21, the lower appellate court

observed as follows:

"21. The delivery warrant Ex.A2 is dated 29.08.2006. The documents of 2nd defendant Exs.B1 to B3 and Ex.B7, B8 and B10 are reflecting the situation prior to 30.06.2006 (Ex.A2). They are not of much use. Exs.B4 and B5 are electricity consumption charges receipts of the year 2008. Mere possession of stray receipts for two months whether sufficient to believe the possession of the 2nd defendant is a serious question. A reference to Order XXI Rules 95 and 96 CPC is found helpful to answer these questions. Order XXI Rules 95 and 96 read as follows:

95. Delivery of property in occupancy of judgment-debtor: Where the immovable property sold is in the occupancy of the judgment- debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and, if need be, by removing any person who refuses to vacate the same.

96. Delivery of property in occupancy of tenant: Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, or delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

Resistance to delivery of possession to decree-holder or purchaser."

11. It is observed by the lower appellate court that a conjoint

reading of Order XXI Rules 91 to 95 CPC discloses that there is no

chance or concept of delivering symbolic or paper possession with

respect to the suit schedule property to the auction purchaser.

Similarly, at paragraph 23 of the said judgment, it was observed as

follows:

"23. Since the 2nd defendant is a party to the proceedings covered by Ex.A2 no further proof is necessary to prove the contents of Ex.A2. if at all the 2nd defendants wants to dispute the contents, the burden lies on him to prove the particular situation by examining any of the mediators or other persons concerned with the said proceedings covered by Ex.A2. But, he did not take any steps or adduce any convincing contra evidence. Therefore, this court unhesitatntly believes that the plaintiff is able to prove his possession as on the date of the suit. Point No.1 is accordingly decided in favour of the plaintiff/1st defendant and against the 2nd defendant/appellant.

12. After discussing as mentioned in the above paragraphs of its

judgment, the lower appellate court came to an irresistible

conclusion that the plaintiff is in possession and enjoyment of the

entire suit schedule property and he is entitled for grant of

injunction. Accordingly, the appeal was dismissed confirming the

judgment and decree of the trial court vide its judgment and decree

dated 25.10.2014.

13. Assailing the same, the 2nd defendant came into this second

appeal under Section 100 CPC before this court raising certain

grounds as follows:

"1. The courts below failed to see that the fact of physical possession of the property is legal principle only to be considered in injunction suit.

2. The courts below ought to seen that Ex.B9 dated 30.09.2009 is the possession certificate issued to the appellant by the competent authority and the question of granting

permanent injunction in favour of the 1st respondent is in toto illegal and principles of law of Injunction."

14. Upon perusal of the judgments and decrees of the courts

below and the material available on record, this court is satisfied

with the appreciation and findings of the courts below which does

not warrant any interference. The exhibits marked under B-series

are eclipsed with the exhibits marked under A-series and as such

the title and possession of the suit schedule property is held in

favour of the plaintiff. That apart the appellant herein could not

establish any substantial question of law in this second appeal.

Accordingly, the Second Appeal is dismissed. There shall be

no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

________________________________ JUSTICE B. KRISHNA MOHAN March 8, 2021 LMV