Vurlagadda Narayana vs W.Rama Raju
2022 Latest Caselaw 9569 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

            CIVIL REVISION PETITION No.414 of 2022

   Between:

   Vurlagadda Narayana (died) and five others.
                                                        ... Petitioners.
                 Versus

   W.Ramaraju, S/o Venkata Raju, aged about
   70 years, Occ: Cultivation, R/o Kothapeta,
   Punganur Town, Chittoor District and four
   others.
                                           ... Respondents.

Counsel for the petitioner                   : Sri S.V.Muni Reddy
Counsel for respondent                       : ---

                                 ORDER

Appellants in the appeal filed the above revision against

the order dated 08.02.2022 in I.A.No.117 of 2021 in

A.S.No.31 of 2017 on the file of Senior Civil Judge, Punganur.

2. Appellants are plaintiffs and respondents are

defendants in the suit.

3. Suit O.S.No.280 of 2007 on the file of Principal Junior

Civil Judge, Punganur by the plaintiff seeking perpetual

injunction.

4. In the plaint, it was contended interalia that deceased

1st plaintiff by virtue of his purchase from the original owners

has been in possession of the plaint schedule properties; that

in recognition of long standing possession, name of deceased

1st plaintiff was mutated in village revenue records; that

pattadar pass book and title deed were also issued; that

deceased 1st plaintiff mortgaged the suit schedule properties

in Bheemaganipalle PACS on 02.02.1998 and the same is

subsisting; that defendants are kith and kin belonged to the

same family, being strangers without any semblance of right

and title over the schedule properties, are falsely claiming the

schedule properties; that standing crop of „byroddlu‟ is in

existence in an extent of Ac.0.25 cents on the extreme

western side of suit properties; that defendants tried to

trespass into the schedule properties and hence, filed the suit

seeking perpetual injunction.

5. Pending the suit, sole plaintiff died and plaintiffs 2 to 6

were added as per order dated 28.01.2008 in I.A.No.1588 of

2007.

6. 5th Defendant filed written statement and contended

interalia that boundaries mentioned in suit schedule are not

correct; that deceased 1st plaintiff did not disclose from whom

he purchased the property; that in pattadar pass book and

title deed filed plaintiff, it was shown as "Pithrarjitham" and

the same as corrected as "Konugolu", that itself shows that

deceased 1st plaintiff tampered the revenue records; neither

the deceased 1st plaintiff nor other plaintiffs are in possession

of properties; that as per the revenue records, patta for the

suit survey number stands in the name of Matam

Virupakshaiah, S/o Siddappa; that one Virupanaiah is

brother of said Virupakshaiah; that said Virupakshaiah is no

more; that said Virupanaiah has a daughter by name

Chennamma and they are rightful owners of suit schedule

survey numbers; that Virupanaiah, his son Nanjundappa and

Chennamma and her son Sivakumar jointly sold an extent of

Ac.0.55 cents in suit survey number to the elder brother of

5th defendant by name Adinarayana Raju for proper

consideration under a registered sale deed dated 29.04.1993

and delivered possession and he was in possession and

enjoyment of the same; that during his lifetime, Adinarayana

Raju hypothecated property to State Bank of Mysore and

availed loan; that revenue records clearly show the right and

possession of Adinarayana Raju; that said Adinarayana Raju

died without marriage; that 1st defendant, father of said

Adinarayana Raju succeeded to the properties; that 1st

defendant gifted the property to 5th defendant under a

registered gift settlement deed dated 23.03.2007 and

delivered possession; that deceased 1st plaintiff suppressed

the facts and filed the suit for perpetual injunction; that suit

for mere injunction is not maintainable without pleading

right and eventually, prayed the Court to dismiss the suit.

7. During the trial, 3rd plaintiff examined himself as P.W.1

and got examined P.Ws.2 to 4. Exs.A-1 to A-16 were marked.

5th Defendant examined himself as D.W.1 and got examined

D.Ws.2 and 3. Exs.B-1 to B-7 were marked.

8. Trial Court by judgment and decree dated 20.11.2017

dismissed the suit. Trial Court came to conclusion that suit

for injunction against the co-owner is not maintainable.

9. Aggrieved by the said judgment and decree, plaintiffs

filed appeal A.S.No.31 of 2017 on the file of Senior Civil

Judge, Punganur. Pending the appeal, I.A.No.117 of 2021

was filed under Order VI Rule 17 of CPC to amend the suit

claiming the relief of declaration of right and title over the

schedule properties.

10. In the affidavit filed in support of the petition, it was

contended that interalia that defendants falsely claimed

property basing on revenue entries after filing of suit and

denied the right; that deceased 1st plaintiff purchased the

property in the year 1990; that defendants played fraud in

getting mutation of their names in revenue records; that

proceedings of revenue officials qua updating names of

defendants were stayed in W.P.No.25536 of 2017 and thus,

prayed the Court to permit the plaintiffs to amend the suit for

relief of declaration.

11. Respondents reported no counter.

12. By order dated 08.02.2022, the Court below dismissed

the application. Aggrieved by the said order, the present

revision is filed.

13. Heard Sri S.V.Muni Reddy, learned counsel for

petitioners and none appeared on behalf of respondents in

spite of service of notice.

14. Learned counsel for petitioners would submit that

cause of action for filing the application arose after filing of

the suit and hence, the application was filed seeking

amendment. He would also submit that defendants did not

deny the title of plaintiffs in the written statement, however

during the course of trial, suggestions were put to witnesses

denying the title. He would submit that the proposed

amendment will not cause prejudice to defendants and in fact

it avoids multiplicity of proceedings and thus prayed to set

aside order of Court below.

15. Suit O.S.No.280 of 2007 was filed by petitioners

seeking perpetual injunction on 22.10.2007. 5th defendant

filed written statement on 24.03.2008. In written statement

5th defendant specifically asserted possession over the

property by Adinarayana Raju by virtue of a registered sale

deed dated 29.04.1993; that Adinarayana Raju‟s death

without any issues and gifting of property by 1st defendant to

5th defendant under registered settlement deed dated

23.03.2007 and also delivery of possession. In Paragraph-6 of

written statement it was specifically contended that suit for

mere injunction is not maintainable without pleading for

right and title and under the guise of exparte injunction,

plaintiff tried to trespass into the schedule land of defendant

covered under the above said sale deed and gift settlement

deed.

16. The contention of 5th defendant in written statement as

extracted supra, in the opinion of this Court, 5th defendant

asserted title unto himself and also denied the title of plaintiff

in the year 2008 itself. Plaintiff notwithstanding the said

denial, failed to take steps pending the suit and evidence was

let in by the plaintiff. Trial Court dismissed the suit observing

that no injunction can be granted against the co-owner.

17. The appeal was filed in the year 2017 and the

application seeking amendment was filed in the year 2021,

nearly 4 years thereafter. In the affidavit filed in support of

the petition seeking amendment it was contended that cause

of action for filing the application arose after filing of the suit.

However, as observed supra, plaintiff‟s title was denied by

defendant by filing written statement in the year 2008 itself.

Thus the contention of appellant that cause of action arose

pending the suit falls to ground.

18. The Court below came to conclusion that under Article

58 of the Limitation Act, the time prescribed is three years

and hence, it is barred by limitation. However, since the

property involved is immovable property, even if Articles 64

and 65 of Limitation Act made applicable, the application

seeking amendment has to be filed within 12 years. As stated

supra, written statement was filed on 24.03.2008 and the

application seeking amendment, going by the affidavit was

filed on 30.11.2021. There are no reasons assigned by the

appellants, muchless valid reasons for non-filing of petition

immediately after denial of title.

19. The due diligence test as contemplated under Order VI

Rule 17 of CPC was not satisfied. The evidence was let in and

the trial Court recorded findings in the judgment. By way of

proposed amendment, plaintiffs intended to undo the

findings and in the opinion of this court, such course is

impermissible.

20. The Court below considered all these aspects and

dismissed the application. There is no illegality in the order

passed by the Court below warranting interference of this

Court under Article 227 of the Constitution of India.

21. Accordingly, the Civil Revision Petition is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

13th December, 2022

PVD