Kotipalli Subramanyam vs Penumatcha Rajan Babu Another
2021 Latest Caselaw 1468 AP

              HON'BLE SRI JUSTICE B.KRISHNA MOHAN


                 SECOND APPEAL No.1177 OF 2017


JUDGMENT:

This second appeal arises against the Judgment and decree in

A.S.No.65 of 2012 on the file of the Court of X Additional District

Judge, Narsapur dated 02.06.2017 confirming the Judgment and

decree in O.S.No.9 of 2000 on the file of the Court of Junior Civil

Judge, Palakol dated 30.04.2008.

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

counsel for the respondents.

3. The appellants herein are the appellants in the first appeal and

the plaintiffs 1, 2, 5, 7, 8 and 9. The respondents herein are the

respondents in the first appeal and the defendants 1 and 2, plaintiffs

3, 4 and 6.

4. The plaintiffs initiated an action in O.S.No.9 of 2000 on the file

of the Court of Junior Civil Judge, Palakol against the defendants

seeking permanent injunction in respect of the suit schedule

property. It is the case of the plaintiffs that the deceased - plaintiff

purchased the suit schedule property from Smt. Guttula Lakshmi

Narayanamma under a registered sale deed dated 18.08.1991 for a

valuable consideration of Rs.5,500/- and ever since he has been in

possession and enjoyment of the same. With respect to the tracing of

the title is concerned, it is submitted that the suit schedule property ~2 ~

belongs to Bandi Narayana, the father of Guttula Lakshmi

Narayanamma, that he executed a registered will dated 18.06.1986

bequeathing his properties to his wife by name Bandi Musalamma,

that Narayana died on 29.09.1989 in the house of Guttula Lakshmi

Narayanamma, that his wife Bandi Musalamma became the absolute

owner of the suit schedule property in pursuance of the said will, that

subsequently she executed a Will on 04.10.1989 bequeathing all her

properties to her daughter Guttula Lakshmi Narayanamma, that on

10.10.1989 Bandi Musalamma died in the house of Guttula Lakshmi

Narayanamma and thus, Guttula Lakshmi Narayanamma became the

absolute owner of the property as the Will dated 04.10.1989 is the

last Will of Bandi Musalamma, that both the defendants are the

grandsons of Bandi Musalamma and nephews of Guttula Lakshmi

Narayanamma, that as both the defendants raised a dispute regarding

the suit schedule property, the plaintiff's vendor gave B-Schedule

property as security to the sale transaction, that the plaintiff is a

bonafide purchaser of the suit schedule property, that both the

defendants have no manner of right or title over the suit schedule

property, that both the defendants on 18.01.2000 highhandedly tried

to raise a thatched house in the suit schedule property, then the

plaintiff placed the matter before the elders, on that even after

mediation the defendants are proclaiming that they would grab the

suit schedule property and hence he filed the suit for permanent

injunction.

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5. The defendants resisted the suit. The 1st defendant filed the

written statement and the 2nd defendant adopted the same. As per

the written statement the suit schedule property belongs to Bandi

Mutyalu, S/o. Ramayya, after partition of the properties between

Mutyalu and his father, Mr. Mutyalu constructed a house in the

schedule site, that Mutyalu has three sons viz., Narayana, Suranna

and Naganna, after the death of Mutyalu, his three sons partitioned

the house among themselves and as a result, the suit schedule

property fell to the share of Mr. Narayana, the grandfather of the

defendants, as such it is an ancestral property and Mr. Narayana has

no right to execute a Will, Mr. Bandi Narayana died on 29.09.1989 and

the defendants conducted obsequies of late Bandi Narayana by raising

a thatched shed in the suit schedule property on 11.10.1989,

Musalamma suddenly fell sick and she executed a Will on 07.10.1989

bequeathing the suit schedule property with the defendants and she

died on 10.10.1989 and the defendants have been in possession and

enjoyment of the suit schedule property, that one Guttula Lakshmi

Narayanamma, filed a suit in O.S.No.169 of 1990 on the file of the

Court of Junior Civil Judge, Palakol against the defendants No.1 and 2

herein for permanent injunction in respect of the suit schedule

property and they filed their separate written statement and

subsequently it was dismissed for default on 09.07.1998, that Guttula

Lakshmi Narayanamma has no right to sell the property and that Bandi

Musalamma never executed a Will in favour of Guttula Lakshmi

Narayanamma and as such either the plaintiffs or Guttula Lakshmi ~4 ~

Narayanamma has no right over the property and hence the suit is

liable to be dismissed with costs.

6. Basing upon the above said rival averments and contentions, the

trail Court framed the following issues :-

(1) Whether the plaintiff is in possession and enjoyment of properties mentioned in the plaint schedule ?

(2) Whether the plaintiff is entitled for permanent injunction ?

(3) To what relief ?

7. During the course of trial, the plaintiff examined himself as

PW1 and got marked Exs.A1 to A3 i.e., the Sale deed dated

18.08.1991, Registered Will executed by Bandi Musalamma dated

18.06.1996 and the unregistered Will dated 04.10.1989 said to have

been executed by Bandi Musalamma respectively. After giving

evidence as the PW1 died his legal heirs i.e., his wife, sons and

daughters were brought on record as plaintiffs No.2 to 9.

The said legal representatives examined the husband of the

vendor of the plaintiff by name Guttula Venkata Narayana, one Mr.

Balam Venkata Rao and Bokka Krishna Murthy as PWs.2 to 4

respectively.

On behalf of the defendants the mother of the defendant by

name Bandi Veeramma, the second attestor of the Will, Mr. Bandi

Venkata Narayana and the caste elder and relative of the defendant

by name Bandi Venkata Narayana were examined as DWs.1 to 3 and

got marked EXs.B1 to B6. The suit schedule property is an extent of ~5 ~

183 square yards of vacant site situated at Konapothugunta H/o.

Achanta Village.

8. After considering the evidence on record, the trial Court came

to a conclusion that the plaintiff has not proved the Will said to have

been executed in favour of his vendor by name Bandi Musalamma,

since the suit schedule property is a vacant site and though the

plaintiffs said to have been using the same, it cannot be said that he

has been in exclusive possession of the said property with an absolute

right and instead of filing the suit for declaration of title, has only

filed a suit for injunction simplicitor and the plaintiff must stand on

his own legs but not on the weaknesses of the defendants and the

plaintiffs have failed to prove their possession with absolute title and

as such they are not entitled for grant of any injunction. Accordingly

the suit was dismissed vide its Judgment and Decree dated

30.04.2008.

9. Aggrieved by the same, the plaintiffs No.2, 5, 7, 8 and 9

preferred the first appeal in A.S. 65 of 2012 on the file of X Additional

District Judge, Narsapur against the defendants 1 and 2 and plaintiffs

No.3, 4 and 6.

10. Upon hearing the matter on merits, the lower appellate Court

framed the following points for consideration :

1. Whether the plaintiffs before the trial Court have proved their possession and enjoyment in the plaint schedule property as on the date of the suit and their title incidentally ?

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2. Whether the findings given by the trail Court are sustainable and whether there are any grounds to interfere with the judgment and decree of the trial Court ?

3. To what relief ?

11. On consideration of the material available on record, the lower

appellate Courte gave a finding that the defendants have been in

possession and enjoyment of the suit schedule property as on the date

of filing of the suit and the plaintiffs failed to establish their

possession and the trial Court rightly appreciated their evidence on

record and came to a correct conclusion. Accordingly the appeal was

dismissed confirming the Judgment and Decree of the trial Court vide

its Judgment and Decree dated 02.06.2017.

12. Assailing the same, the plaintiffs No.2, 5, 7, 8 and 9 are before

this Court in Second Appeal under Section 100 C.P.C. raising the

following grounds :

a) Can injunction be denied just because the defendants question the title without any basis and set up conflicting counter claims ?

b) Can a person who purchased the property through registered sale deed for valid consideration be denied the benefits of bonafide purchaser that too when his vendor is the daughter of owner of property ?

c) Whether the Injunction suit which was dismissed for default, can be treated as having settled the issue of title of a property ?

d) Can an equitable relief of injunction be denied to a bonafide purchaser when vendor is not stranger to property that too when the defendants chose not to appear before the court in person to speak about their claims ?

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e) Whether the issue of tax over vacant site in a remote village be the basis for the settling the issue of possession ?

13. The learned counsel for the appellant contends that the trial

Court did not consider the title of the plaintiffs to the suit schedule

property and consequential possession thereof. Both the Courts

below cannot brush aside the registered sale deed dated 18.08.1991

of the plaintiffs under which the suit schedule property was

purchased. Per contra, the learned counsel for the respondents

submit that as the plaintiff could not prove the possession as on the

date of filing of the suit, both the Courts below held against the

plaintiffs.

14. On perusal of the Judgments and Decrees of the Courts below,

the material available on record and hearing the submissions of the

counsels, it can be seen that it is a case of rival claim of the parties

over the suit schedule property and the plaintiffs should have sought

for a comprehensive relief when their title to the suit schedule

property was disputed by the defendants instead of pursuing the suit

for injunction simplicitor only and that apart they have failed to

establish the possession and other requirements for grant of

injunction and as such both the Courts below dismissed the relief of

the plaintiffs for grant of injunction. As there is no substantial

question of law involved this Court cannot show any indulgence at this

stage.

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15. Accordingly the Second Appeal is dismissed with no costs. But it

is made clear that the appellants/plaintiffs are at liberty to initiate

an action for declaration of their title with respect to the suit

schedule property and the consequential reliefs if not already

instituted and in the event of the same it shall be dealt with by the

appropriate court in accordance with law.

As a sequel thereto, miscellaneous petitions, if any, pending in

the Second Appeal shall stand closed.

______________________ JUSTICE B. KRISHNA MOHAN Dt: 09-03-2021.

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