Heard Sri V.Siva Prasad Reddy vs Unknown
2021 Latest Caselaw 3364 AP

         HON'BLE SRI JUSTICE M. VENKATA RAMANA

               SECOND APPEAL No.56 OF 2017

JUDGMENT:

Heard Sri V.Siva Prasad Reddy, learned counsel for the

appellant and Sri V.Roopesh Kumar Reddy, learned counsel for

the respondents.

2. Having regard to the nature of this matter, since it is not

falling within the scope of Section 100 C.P.C., it is being

disposed of at the stage of admission.

3. The appellant, as the plaintiff, instituted O.S.No.1115 of

2009 on the file of the Court of learned I Additional Junior Civil

Judge, Nellore against the respondents, who were the

defendants therein. The relief in the suit is one for perpetual

injunction restraining the respondents from interfering with the

plaintiff's (appellant) peaceful possession and enjoyment of the

plaint schedule property.

4. This property is an extent of 55 ankanams of site with

surrounding compound wall situated in Pedacherukuru Village

of Nellore District located within the specified boundaries given

in the plaint schedule. Apparently, the identity of the site is not

in issue, among these parties.

5. The case of the appellant is based on an agreement for

sale dated 27.1.1991 executed by Sri Vayugundla Hazarath

Masthan Babu Rao (P.W.2). It is further contention of the

appellant that this agreement for sale was validated by the

proceedings of the Revenue Divisional Officer, Nellore dated

19.12.2007 and that he continued to be in possession and

enjoyment of the same on the date of the suit. Thus, the

appellant's claim is based on the alleged possessory agreement

for sale. His grievance is that the respondents were trying to

meddle with his possession of the site and therefore, he was

constrained to lay the suit.

6. The respondents denied the claim of the appellant

including his possession and enjoyment of this site. They

specifically contended that this site originally belonged to one

Smt.Raja Sujatha, who in fact got constructed the compound

wall around it in or about the year 1990, that was purchased by

Sri Vayugundla Hazarath Masthan Babu Rao (P.W.2) under a

sale deed and he was enjoying it. Their further claim is that

P.W.2 sold this site to Sri Kapuganti Venkata Chalamaiah. The

respondents also contended that one Sri Menta Satyanarayana

purchased this site from Sri K.V. Chalamaiah under the sale

agreement dated 19.12.2007, who was in possession and

enjoyment of the same and from whom the 2nd respondent

purchased this site under a regular sale deed dated 11.2.2008.

Thus, they claim that the 2nd respondent continued to be in

possession and enjoyment of this site.

7. Learned trial Judge settled the following issued for trial:

1) Whether the plaintiff is in possession of the suit schedule property as on the date of filing of the suit?

2) If so, it is juridical one?

3) Whether the plaintiff is entitled for permanent injunction as prayed for?

4) To what relief?

8. The parties went to trial. The appellant examined himself

as P.W.1 and his vendor under Ex.A.1 Agreement for sale as

P.W.2, and relied on Exs.A.1 to A.6. The 2nd respondent

examined herself as D.W.1 and her vendor as D.W.2, who relied

on Exs.B.1 to B.5.

9. Learned trial Judge, on the material and evidence on

record, did not accept the contention of the appellant, leading to

dismissal of the suit. Appeal preferred against the decree and

judgment of the trial Court was also dismissed by the learned

appellate Judge concurring with the findings recorded by the

learned trial Judge. It is against these concurrent findings

recorded by both the Courts below, by the respective decrees

and judgments, this Second Appeal is presented by the

appellant.

10. Sri V.Siva Prasad Reddy, learned counsel for the appellant

and Sri V.Roopesh Kumar Reddy, learned counsel for the

respondents addressed arguments at this stage.

11. In the above backdrop, it has to be seen whether the

substantial questions of law sought to be raised by the appellant

in the Memorandum of Appeal require consideration and

determination.

12. A careful consideration of these substantial questions of

law, as described on behalf of the appellant, relate to effective

nature of Ex.A.1 Agreement for sale, its validation under Ex.A.2

Proceedings of the Revenue Divisional Officer, Nellore, and claim

of possession and enjoyment of the suit site by the appellant.

13. In a suit for injunction simplicitor, the burden is on the

plaintiff i.e., the appellant herein undoubtedly to establish his

claim making out his legal right to remain in possession of the

property. He cannot rely on weaknesses or laches in defence set

up by the defendants i.e., the respondents herein.

14. Ex.A.1 is said to be possessory agreement for sale

executed by P.W.2-Sri Vayugundla Hazarath Masthan Babu Rao

in favour of the appellant. When the appellant is relying on

Ex.A.1, it is for him to establish that he has been in rightful

possession and enjoyment of the site in question since then.

Added requirement is that by the date of the agreement for sale,

his vendor was in possession and enjoyment of this site. As

seen from the material on record, no evidence was adduced

except oral testimony of P.W.2 in relation to the claim of the

appellant or rightful possession and enjoyment of this site by

the date of Ex.A.1. It is however the contention of the appellant

that P.W.2 being one of the predecessors of both the parties,

who held this site, the respondents cannot question his interest

and possession of the same.

15. When both the appellant and his vendor (P.W.2) could

enter into Ex.A.1 and when it was also validated through the

Revenue Divisional Officer, Nellore, as seen from Ex.A.2, as

rightly considered by both the Courts below, the fact that

remained unexplained is failure of the appellant to obtain a

regular sale deed and to have it registered. There is no

explanation obviously in this regard from the appellant.

Validation upon payment of stamp duty on this so called

agreement cannot clothe it, with the status of a sale deed in

terms of Section 54 of the Transfer of Property Act and to

effectively pass-on or transfer title to the vendee.

16. It is to be noted that the 2nd respondent is tracing her

right and interest to this site from P.W.2 himself and testimony

of herself as D.W.1 and her vendor-Sri Menta Satyanarayana

(D.W.2) is to the effect that the sale deed executed by D.W.2 in

favour of the 2nd respondent under Ex.B.1 was on 11.2.2008. It

is further to be noted that P.W.2 did not dispute institution of

O.S.No.640 of 1999 against him though claimed that it was

dismissed for default, as was informed.

17. Possession sought to be made out by the appellant

producing Exs.A.3 to A.6 was not accepted by both the Courts

below and obviously they did not match being the material to

accept the contention of the appellant.

18. In the backdrop of such material that too when Ex.A.2

Agreement was only a white paper document, as rightly

observed by the learned trial Judge, a lurking doubt arises if it

is an attempt on the part of the appellant to get-over the effect of

the decree in O.S.No.640 of 1999 and counter the claim of the

2nd respondent basing on Ex.B.1 Registered sale deed.

19. Concurrent findings recorded by both the Courts below,

since being acceptable and on right lines, it is rather hard to

find that there are substantial questions of law to consider now,

which are set out in the Grounds of Appeal by the appellant. If

at all the appellant has any claim to the site in dispute, it is for

him to seek appropriate relief, not only against his vendor but

also against the respondents and D.W.2, of comprehensive

nature.

20. Another factor to consider in this context is the effect of

Ex.A.1 against P.W.2 and the respondents as well as D.W.2, and

if it can be put to use against them, for, the nature of relief

sought in this suit only for bare injunction, without seeking

comprehensive relief, particularly bearing in mind the bar under

Section 41(h) of the Specific Relief Act.

21. Therefore, finding no justification to entertain this Second

Appeal nor it meets requirements under Section 100 of C.P.C.,

nor there are any questions much less of substantial nature,

this Second Appeal has to be dismissed at the stage of

admission.

22. In the result, this Second Appeal is dismissed, at the stage

of admission. Consequently, the decrees and judgments of the

Courts below stand confirmed. No costs. All pending petitions

stand closed.

___________________________ M. VENKATA RAMANA, J September 06, 2021 vasu