Kadiyapu Thatharao vs Kolla Suryarao
2021 Latest Caselaw 1556 AP

      HON'BLE SRI JUSTICE B. KRISHNA MOHAN

               SECOND APPEAL No.33 of 2015

ORDER: -

      This appeal arises against the judgment and decree in

A.S.No.135 of 2012 on the file of I Additional Senior Civil

Judge, Kakinada dated 14.11.2014 reversing the judgment and

decree in O.S.No.73 of 2007 on the file of Principal Junior Civil

Judge, Kakinada dated 12.08.2011.


2.    Heard the counsels on both sides.


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

and the defendant in the suit. The respondent herein is the

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

4. The plaintiff initiated an action in O.S.No.73 of 2007 on

the file of Principal Junior Civil Jude, Kakinada for recovery of

possession of the suit schedule property from the defendant and

costs. is the case of the plaintiff that the suit schedule property is

his ancestral property and he was in possession of the said

property upto the year 1983 the defendant and his brother

Nookaraju filed a suit in O.S.No.734 of 1983 on the file of I

Additional District Munsif, Kakinada and obtained a decree

against him on 29.12.1989, then he preferred an appeal in

A.S.No.23 of 1990 on the file of II Additional Subordinate

Judge, Kakinada and the said appeal was allowed on

28.12.1994 holding that the defendant and his brother have no

manner of right in the property and their suit in O.S.No.734 of

1983 was dismissed, assailing the same the defendant herein

and his brother preferred second appeal in S.A.No.429 of 1995

on the file of the Hon'ble High Court and the same was

dismissed on 22.12.2002 confirming the lower appellate court

judgment therein, thus, the judgment and decree in A.S.No.23

of 1990 has become final, but the defendant high handedly

trespassed into the suit schedule property by virtue of the decree

of the trial court in O.S.No.734 of 1983 which was later

dismissed as stated above, as he was wrongly dispossessed,

he is entitled to recover the possession of the suit schedule

property as it was held that the said property is his absolute

property in the earlier round of litigation and as the defendant

refused to vacate the suit schedule property, he is constrained to

file the present suit for recovery of possession.

5. On the other hand, the defendant has filed a written

statement denying the allegations contending that the suit in the

present form without seeking declaration of title is not

maintainable and there is no cause of action for the plaintiff to

initiate the present suit. The suit is barred by limitation and it is

bad for non-joinder of necessary parties and as such the suit is

to be dismissed with costs.

6. On consideration of the rival averments and contentions,

the trial court framed the following issues:

1. Whether the plaintiff is entitled for taking possession of suit schedule property as prayed for?

2. Whether the suit for possession without seeking the relief of declaration of title is not maintainable?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for non-joinder of necessary parties?

And

5. To what relief?

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

as PW1 and PW2 was also examined for the plaintiff. Exs.A1

to A3 were marked. On the other hand the defendant was

examined himself as DW1 and DW2 was also examined and

Ex.B1 was also marked.

8. On consideration of the evidence on record, the trial court

observed that the plaintiff did not file any document to show

that the suit schedule property belongs to him and he did not

approach the police nor lodged any complaint against the

defendant and his brother for forcibly evicting him from the suit

schedule property under the guise of injunction orders in

O.S.No.734 of 1983 passed in the earlier round of litigation but

the plaintiff denied the suggestion that the defendant and his

brother are in possession of the suit schedule property that as

per PW2, the plaintiff was in possession and enjoyment of the

suit schedule property up to the year 1983, by taking advantage

of the decree as stated above the defendant occupied the suit

schedule property in the year 1989, he also denied the

suggestion that the suit schedule property is in possession of the

defendant and that the plaintiff is not in possession of the suit

schedule property, that the permanent injunction was granted in

O.S.No.734 of 1983 on the file of I Additional District Munsif,

Kakinada in the judgment and decree dated 29.12.1989 which

was subsequently set aside in A.S.No.23 of 1990 on the file of II

Additional Senior Civil Judge, Kakinada on 28.12.1994 which

was in turn confirmed by the High Court in the Second Appeal

viz., S.A.No.429 of 1995, since the defendant has not delivered

the possession of the property of the plaintiff after the suit was

dismissed, the plaintiff was constrained to file the present suit

for recovery of possession, thus the property belongs to him,

DW2 who is the vendor of DW1 has stated that the suit

schedule property is the ancestral property of himself and his

mother subsequently his mother, himself, and his son sold the

said property to the defendant and his brother under a registered

sale deed dated 19.02.1982, since then the defendant has been

in possession and enjoyment of the same as absolute owner, the

plaintiff has no manner of right and title over the suit schedule

property, he further stated that the plaintiff is his father's

brother, the property was partitioned between his father and the

plaintiff, he is not aware of the previous suit in O.S.No.734 of

1983, he does not know that it is held in O.S.No.734 of 1983

that the property belongs to plaintiff, but he knows that the

court held that the sale deed executed by them is not valid, they

left the village about 28 years back, the plaintiff has got house

adjoining the schedule property, but he denied the suggestion

that he created the sale deed dated 19.02.1982 and that they

have no right in the suit schedule property.

8. The trial court in its judgment at paragraph 11 further

observed that a perusal of Ex.A1 certified copy of decree in

O.S.No.734 of 1983 discloses that the defendant herein and his

brother filed a suit for permanent injunction against the plaintiff

on 05.11.1983 and the suit was decreed in favour of the

defendant herein and against the plaintiff herein holding that

the defendant therein be and is hereby restrained by way of

permanent injunction in interfering with the peaceful possession

of the plaintiff therein over the suit schedule property of his

share of the property except under due process of law.

A perusal of Ex.A2 certified copy of decree in A.S.No.23 of

1990 discloses that the plaintiff herein preferred an appeal on

the file of II Additional Senior Civil Judge, Kakinada and the

said appeal was allowed holding that the judgment and decree

in O.S.No.734 of 1983 dated 29.12.1989 was set aside by

dismissing the suit. A perusal of Ex.A3 certified copy of decree

in S.A.No.429 of 1995 discloses that the defendant herein and

his brother preferred second appeal against the judgment and

decree in A.S.No.23 of 1990 of the lower appellate court therein

and the same was dismissed holding that no substantial

question of law arises to be decided in the second appeal

warranting interference by the High Court under Section 100 or

103 CPC. On the other hand, a perusal of Ex.B1 certified copy

of sale deed, dated 19.02.1993, discloses that the defendant and

his brother Nookaraju purchased the plaint schedule property

on 19.02.1992 from Janakamma, Venkataramana and others.

The plaintiff did not file any documents to show that the

schedule property is his property and he is not having any

document or title deed to show that the schedule property

belongs to him. Since his childhood he was in possession of the

schedule property. If the schedule property is the ancestral

property of the plaintiff, he would have obtained either title

deed, pass book, or pattadar passbook and adangals to show his

ownership over the schedule property and filed the same before

this court. The plaintiff has filed this suit by taking advantage of

the stray sentence in Ex.A1 certified copy of the decree that the

defendant in O.S.No.734 of 1983 who is the plaintiff herein, is

restrained by way of permanent injunction not to interfere with

the plaintiff's possession over the plaint schedule property until

he gets them evicted of his share of property under due process

of law by setting aside the judgment and decree in O.S.No.730

of 1983 and dismissal of second appeal.

9. Ultimately, the trial court gave a finding that though the

plaintiff has filed the suit within the period of limitation for

recovery of possession, the suit is not barred by limitation, the

suit is not bad for non joinder of necessary parties, the plaintiff

has not established his title over the plaint schedule property

and the suit for possession without seeking the relief of

declaration of title is maintainable.

10. It is further observed by the trial court that a perusal of

the plaint discloses that the plaintiff filed the suit on 01.05.2006.

A perusal of Ex.A3 certified copy of decree in S.A.No.429 of

1995 discloses that it was disposed of on 27.12.2002. It clearly

discloses that the plaintiff filed the suit within the period of

limitation that is within 12 years from the date of disposal of the

second appeal and as such the suit is not barred by limitation.

With regard to non joinder of necessary parties, the defendant

has not stated who are the other necessary parties to the suit.

There is absolutely no evidence on record to show that the

plaintiff is the owner of the plaint schedule property and the

plaintiff has not filed the judgment copy of A.S.No.23 of 1990

on which ground the suit in O.S.No.734 of 1983 was dismissed.

Therefore, in view of the evidence of PWs.1 and 2, DWs.1 and

2 coupled with Exs.A1 to A3, the decision reported in AIR

2004 AP 390 relied upon by the counsel for the plaintiff is no

way helpful to the plaintiff to establish his case that he is

- 10 -

entitled for taking possession over the suit schedule property.

Accordingly, the trial court gave a finding that the plaintiff

failed to establish his case that he is not entitled to take

possession of the suit schedule property as prayed for.

Accordingly, the trial court dismissed the suit vide its judgment,

dated 12.08.2011.

11. Aggrieved by the same, the plaintiff preferred first appeal

in A.S.No.135 of 2012 on the file of I Additional Senior Civil

Judge, Kakinada. The lower appellate court upon hearing the

matter on merits framed the following points:

1. Whether the plaintiff is having title over the plaint schedule property?

2. Whether the suit for possession is not maintainable without seeking the relief of declaration of title?

3. Whether the plaintiff is entitled for possession of the plaint schedule property?

4. Whether the findings of the trial court requires interference?

5. To what relief?

12. On appreciation of evidence, the lower appellate court

recorded that it is an admitted fact that the defendant filed the

- 11 -

suit in O.S.No.734 of 1983 against the plaintiff for grant of

permanent injunction restraining the plaintiff from interfering

with the plaint schedule property and the said suit was decreed

by the trial court. It is also an admitted fact that the plaintiff

herein preferred an appeal in A.S.No.23 of 1990 on the file of

II Additional Senior Civil Judge's Court, Kakinada and the said

appeal was allowed. Against the said decree and judgment, the

defendant preferred second appeal before the Hon'ble High

Court of Andhra Pradesh in S.A.No.429 of 1995 and the said

appeal was dismissed by the Hon'ble High Court on

22.12.2002. Thus, the decree and judgment passed in

A.S.No.23 of 1990 became final. In paragraph 12 of its

judgment, it is recorded that no doubt the plaintiff did not file

the copy of the judgment in A.S.No.23 of 1990 but there is an

admission by DW1 that it was held by the court that the

property belongs to the plaintiff. He has also admitted that even

after dismissal of the second appeal, he has not redelivered the

property to the plaintiff. DW2 also stated that the court held

that the sale deed executed by him under Ex.B1 in favour of the

- 12 -

defendant is not valid. The said piece of evidence of DW2

probabilises the contention of the plaintiff that the plaint

schedule pretty is his ancestral property. In the said

circumstances, there is no possibility of having any title deed in

respect of the plaint schedule property.

13. In paragraph 13 of its judgment, it was further observed

that the own admission on the part of DW1 shows that there

was a finding in the previous suit that the plaintiff is the owner

of the plaint schedule property. Therefore, the defendant cannot

take advantage of the fact that the plaintiff did not file a copy of

the judgment in A.S.No.23 of 1990 and contend that there is no

such finding. The fact that the evidence of PW1 with regard to

the said finding was not contradicted by the defendant also

establishes the contention of the plaintiff that there is a finding

that he is the owner of the property. Even the defendant did not

traverse the contention of the plaintiff that there is a finding in

A.S.No.23 of 1990 that he is the owner of the property. When

there is no specific denial of a specific contention of the plaintiff

raised in the suit, it shall be deemed that the same was admitted

- 13 -

by the defendant. Thus, the lower appellate court gave a finding

that the plaintiff is having title over the suit schedule property

and that the trial court held that the suit is not barred by

limitation. Since there is no cross appeal, the said issue has

become final. The plaintiff by virtue of his title can eject the

defendant who has no manner of right over the property. The

title of the plaintiff in respect of the plaint schedule property

was determined in the previous suit and as such, there is no

necessity on the part of the plaintiff to prove his title afresh.

Therefore, the plaintiff can maintain the suit without seeking for

declaration of title.

14. Accordingly, the judgment and decree was set aside

holding that the plaintiff is entitled for recovery of possession of

the suit schedule property after ejecting the defendant

therefrom. The lower appellate court allowed the first appeal

with costs by setting aside the judgment and decree of the trial

court in O.S.No.73 of 2007 dated 12.08.2011 by directing the

defendant to vacate the suit schedule property and deliver the

same to the plaintiff within three months from the date of its

- 14 -

judgment failing which the plaintiff is entitled to recover the

same through process of law vide its judgment, dated

14.11.2014.

15. Assailing the same, the defendant filed this second appeal

raising the following grounds.

1.Whether the appellate court right in reversing the

judgment and decree of the trial court on mere assumption

and presumption when the plaintiff has not filed any

document to show that he is the owner of the suit schedule

property and decreeing the suit?

2. Whether the appellate court right in holding that suit

for recovery of possession is maintainable without seeking

declaration of title when admittedly there is no document to

show that the plaintiff is the owner of the suit schedule

property?

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

below, the material available on record, and hearing the

counsels on both sides, it is to be seen that there is no

- 15 -

discussion by the trial court with respect to the issues 1 and 2

framed by it and as such the suit was dismissed. But the lower

appellate court has gone into the same and found that the

plaintiff by virtue of the earlier round of litigation established

title over the suit schedule property and possession over the

same and consequent upon dismissal of the second appeal

earlier, the defendant herein ought to have delivered the

possession and since the same was not complied with,

the plaintiff was constrained to take a fresh action for recovery

of possession. Since all the points were held in favour of the

plaintiff/appellant, the lower appellate court allowed the

appeal on proper appreciation of evidence on record meeting

the grounds raised therein also. Hence, it does not warrant any

interference by this court in this second appeal as the appellant

herein could not establish any substantial question of law

involved in it.

17. Therefore, the Second Appeal is dismissed with no costs

directing the defendant/appellant herein to vacate the suit

schedule property within three months from today.

- 16 -

As a sequel, the miscellaneous applications pending, if

any, shall stand closed.

                           _______________________________
                            JUSTICE B. KRISHNA MOHAN
March     , 2021
LMV





                           - 17 -




      HON'BLE SRI JUSTICE B. KRISHNA MOHAN




           SECOND APPEAL No.33 of 2015


                   March , 2021

LMV