Sailada Kasi Viswanadham vs Mantripragada Satyanarayana ...
2021 Latest Caselaw 3468 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                    SECOND APPEAL No.57 of 2015

JUDGMENT:

The plaintiff in O.S.No.474 of 2009 on the file of the Court

of the learned Principal Junior Civil Judge, Vizianagaram is the

appellant. The respondent was the defendant in the suit.

2. The appellant laid the suit for perpetual injunction to

restrain the respondent from interfering with his peaceful possession

and enjoyment of the plaint schedule property.

3. An extent of Ac.6-65 cents in S.No.96/5 of Kanapaka-

Ayyannapet village, part of Vizianagaram town, is the property

described in the plaint schedule. It shall be referred to hereinafter as

'the suit land' for convenience.

4. The case of the appellant is that he has been in possession

and enjoyment of the suit land for which a pattadar passbook and

title deed passbook were issued to him. His further case is that

revenue records recorded him as the owner and possessor of the suit

land.

5. Further case of the appellant is that his paternal grandfather

Sri Marayya inherited Malivaram rights from his forefathers in respect

of the lands which he was cultivating that included the suit land. After

death of Sri Marayya, it is the case of the appellant that Sri Marayya's

sons- Sri Appanna, Sri Polipalli and Sri Ramulu enjoyed the said

property and that in a family arrangement among sons of

Sri Marayya, the suit land was allotted to the share of Sri Appanna.

The appellant claimed that in a family arrangement this land was

allotted to him.

6. While referring to the fact that the suit land and other lands

in Kanapaka village belonged to Sri Mantripragada family and that it

was initially recorded in revenue records in the name of Sri

Mantripragada Suryanarayana Rao, whose name was deleted on his

application to mutate revenue records in his favour, the appellant

claimed that he has been in effective and legal possession of this

land. He also alleged that on an application of the respondent, upon

calling for his explanation, then Tahsildar recommended for

cancellation of the pattadar passbook and title deed that was

confirmed by RDO, Vizianagaram as well as Joint Collector,

Vizianagaram.

7. Questioning these proceedings he filed W.P.No.8118 of 2011

on the file of this Court. Referring to the interim order granted by this

Court not to dispossess him from this property, alleging that there

was threat of dispossession from the respondent, the appellant laid

the suit.

8. Resisting this claim of the appellant, the respondent

asserted that the suit land was a part of the estate of Mantripragada

family that was registered in the name of Sri Mantripragada Rama

Murthy in revenue records and that, this land was never leased out to

anyone nor the appellant for cultivation. He further asserted that

corpus rights in respect of this land and other lands in the village

remained with their family intact. Referring to the proceedings before

the Revenue authorities adverted to by the appellant, the respondent

contended that the suit land remained uncultivated for more than 40

years, since there was no regular source of irrigation, which was

treated as the Government poramboke. He also asserted that the

Government corrected entries in the revenue records, finding that it

being a Zeroyathi land belonging to their family. Thus, the respondent

questioned the claim of the appellant stating that he has approached

the court with unclean hands.

9. Upon the pleadings, the trial Court framed the following

issues for trial:

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

2. Whether this Court has no jurisdiction to entertain the suit?

3. To what relief?"

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

as P.W.1 and two other witnesses as P.W.2 and P.W.3 in support of

his claim, while relying on Ex.A1 to Ex.A13. The respondent examined

himself as D.W.1 and relied on Ex.B1 to Ex.B4. Revenue records,

namely, Ex.X1 to Ex.X5 were produced at the trial through P.W.3,

who was then Deputy Tahsildar, Vizianagaram.

11. On the material, the learned trial Judge accepted the

contention of the appellant and decreed the suit as prayed.

12. In appeal in A.S.No.38 of 2012 on the file of the Court of

the learned Principal Distinct Judge, Vizianagaram, the decree and

judgment of the trial Court were reversed leading to dismissal of the

suit.

13. In these circumstances, the present second appeal was

presented.

14. This second appeal was admitted on the following

substantial questions of law:

"1. Whether the judgment and decree of the Courts below are vitiated by non consideration of relevant pleadings, valid evidence and by perverse reasoning?

2. Whether the lower appellate Court is correct in not following the cardinal principles of suit for permanent injunction simpliciter that the material for consideration in deciding said suit is the aspect of possession of plaintiff on the date of suit rather than issue of title?

3. Whether the lower appellate Court is justified in ignoring the evidence in favour of appellant with regard to his possession over suit schedule property and the clear admission of the respondent/ defendant that the appellant was in possession of suit schedule property?

4. Whether the lower appellate Court justified in reserving the well considered judgment of the trial Court ignoring that the matter is sub judice before High Court and it granted stay of dispossession of appellant in W.P.No. 8118 of 2011 to which the respondent herein is a party and the same is not vacated?

5. Whether the lower appellate Court is correct in dismissing the suit for permanent injunction ignoring the law that even as per the ROR Act the pattadar pass book and title deeds should not be cancelled after long lapse of time at the instance of a party and the same can be done only after getting a declaration of title by a competent civil Court?"

15. All these substantial questions are considered together

having regard to the nature of the dispute involved.

SUBSTANTIAL QUESTIONS OF LAW: DETERMINATION

16. In a suit for permanent injunction, it is the settled

proposition of law that, the plaintiff has to prove his case and he

cannot rely on any laches, lapses or deficiencies in the case set up by

the defendant. Question of title, if necessary, can be incidentally gone

into to know whether the claim of the plaintiff is based on lawful

possession and enjoyment of the property in dispute. The learned

appellate Judge considered these facets, which are fundamental, to

consider a claim of this nature.

17. Sri Mantripragada Venkata Rama Murthy owned vast

immovable properties at Kanapaka Ayyannapet village, which he had

inherited from his ancestors. Sri Sanyasi Raju and Sri Suryanarayana

Rao were his sons. O.S.No.6 of 1962 for partition of the family

properties was filed by Sri Sanyasiraju on the file of the Court of the

learned Senior Civil Judge, Vizianagaram. In I.A.No.9 of 1964 filed for

passing final decree in the above suit, there was a compromise

among the parties.

18. After death of Sri Sanyasiraju, his son Sri Mantripragada

Venkata Rama Murthy and grandsons, namely, the respondent and Sri

Mallikharjuna Rao sold the land covered by S.No.89/2, 96/2 to 96/4 of

the same village under a registered sale deed dated 18.02.1986 to the

appellant. The suit land is not a part and parcel of this sale

transaction. However, it is located adjoining the aforestated lands.

19. In respect of his lawful possession and enjoyment of the

land, as rightly observed by the learned appellate Judge, the version

of the appellant presented conflicting accounts. One is the enjoyment

rights through Malivaram from his ancestors and lease from the

erstwhile owner of the appellant, namely Mantripuragada family.

Another is by means of sale of this land in favour of his father by Sri

Mantripragada Suryanarayana Rao for valuable consideration.

20. However, in respect of both the claims, it is an admitted

situation that there is no documentary proof adduced by the

appellant. Therefore, the claim of possession, as a matter of right

bearing legal character in relation to the suit land, was not established

at the trial by the appellant.

21. When the evidence departed from the pleadings, it cannot

be taken into consideration. It is the fundamental principle law when

a new case is set up during the trial and in the course of evidence,

without basis in the pleadings, it cannot be looked into, being also the

fundamental principle of law. The learned trial Judge did not consider

such question with necessary attention, which however was corrected

by the learned appellate Judge.

22. Possession of this land claimed by the appellant is by

means of Ex.A2-pattadar passbook and Ex.A3-title deed that are

sought to be reinforced by Ex.A4-C.C. of fair adangal, Ex.A5-Adangal

for fasli 1404 and land revenue receipts-Ex.A6 to Ex.A12. Admittedly,

these revenue entries are no more on record in view of the steps

taken by then Tahsildar, Vizianagaram reflected in Ex.x1 dated

01.06.2007, upto the order of Joint Collector, Vizianagaram in Ex.X4

dated 29.04.2008. The appellant had chosen to file W.P.No.8118 of

2011 on the file of this Court, where in W.P.M.P.No.10077 of 2011 by

an order dated 28.03.2011, interim stay of all further proceedings in

relation to this revenue enquiry including dispossession of the

appellant from the suit land was directed. This writ petition is said to

be pending even now.

23. Ex.B2 and Ex.B3-Pattadar passbook and title deed

respectively, were issued in favour of the respondent after due

enquiry upon the representation of the defendant vide Ex.X1 dated

01.06.2007.

24. Therefore, the premise or basis on which the appellant

tried to assert his possession, is no more existing and it is hinging on

the interim orders granted by this Court pending determination in the

writ petition.

25. The learned trial Judge considered these factors and did

not feel to venture in the presence of the order of this Court referred

to above and to hold that the possession of the suit land rested with

the appellant. The learned trial Judge also considered that the family

of the defendant remained away from Kanapaka village and

considering that the respondent is an employee in Singareni collieries

as well as a resident of Hyderabad, held that the respondent did not

dispute possession of this suit land by the appellant.

26. The appellate Judge differed with this finding of the

learned trial Judge. Basing on the revenue records referred to above

and testimony of P.W.3- then Deputy Tahsildar, Vizianagaram,

learned appellate Judge came to the conclusion that the entries in

revenue records including pattadar passbook and title deed claimed

by the appellant were outcome of manipulations. The fact that original

mutation proceedings of the year 1984 being not available in the

office of the Tahsildar was also considered by the learned appellate

Judge suspecting the genuine nature of these revenue records and

entries therein.

27. The observations of the Tahsildar in Ex.X4 (Ex.B1) letter to

the effect that there is a water tank on ground in this land was

considered by the learned appellate Judge. Nature of cultivation of

this land as claimed by the appellant, from the entries in the adangals

is also adverted to by the learned appellate Judge stating that the

version of the appellant is that he raised jute crop and whereas

adangal recorded that there was cashew plantation.

28. Ultimately, the learned appellate Judge held that both the

parties failed to produce acceptable evidence in respect of title or

possession to the suit land and in such an event, the burden being on

the appellant as the plaintiff to prove his claim against the

respondent, he should suffer the consequences. Thus, it was held that

the appellant did not make out his claim for grant of permanent

injunction.

29. In the light of the material available on record and since

there is certainty that the revenue records including pattadar

passbook and title deed relied on by the appellant have origin in

suspicious circumstances, as an outcome of manipulation, no

injunctive relief as such, could have been granted in favour of the

appellant. Being an equitable relief when the approach of the

appellant is unclean, its refusal is the principle. It was rightly applied.

The appellate Court, considered that the appellant failed to prove his

case against the respondent, who did not discharge the burden of

proof. The nature of proceedings in W.P.No.8118 of 2011 could not

come in the way of the trial Court or the appellate Court to consider

the claim of the appellant, when he laid the suit basing on a specific

cause of action. He failed in such an attempt. Consequently, the

appellate Court had to interfere, where the premise on which the trial

Court proceeded was faulty, to set right the situation.

30. The contention that the respondent utilised the services of

the local politicians in his favour in this regard sought to be adverted

to on behalf of the appellant cannot have any bearing nor significant

effect, particularly in the light of clear admissions of the appellant

himself that there are no records or documentary evidence to

establish his right, interest or possession, which he claimed through

his forefathers of the suit land.

31. In these circumstances, since this case is purely based on

facts, no substantial questions of law as such arise much less the one

pointed out on behalf of the appellant in the memorandum of appeal.

This Court is satisfied that there are no such substantial questions of

law that stand for consideration in this second appeal. Consequently,

the second appeal has to be dismissed.

32. In the result, the second appeal is dismissed confirming

the decree and judgment of the appellate Court. The appellant shall

pay costs to the respondent in the second appeal and shall bear his

own costs.

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

closed. Interim orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 13.09.2021 RR

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.57 of 2015

DATE: 13.09.2021

RR