Andhra Pradesh High Court - Amravati

Sri R.V. Krishna Rao Died vs Smt. Attili Hymavathi Devi on 31 January, 2022

Bench: M.Venkata Ramana

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                    SECOND APPEAL No. 252 of 2021

JUDGMENT :

This second appeal is directed against the decree and judgment in

A.S.No.142 of 2011 of the Court of the learned IV Additional District

Judge, Visakhapatnam dated 16.02.2021.

2. The defendants are the appellants. The 1st appellant is no more.

He died during pendency of the suit. The appellants 3 to 6 are the legal

representatives of the appellants 1 and 2.

3. Smt. Attili Hymavathi Devi-the respondent laid the suit in

O.S.No.206 of 1982 on the file of the Court of the learned I Additional

Senior Civil Judge, Visakhapatnam to declare her title to the plaint

schedule property and for consequential injunction restraining the

appellants 1 and 2 from interfering with her possession and enjoyment of

the same. Alternatively, relief of possession was also sought at a later

stage during the course of trial in the suit, evicting the appellants 1 and 2

from the plaint schedule property.

4. The property described in the plaint schedule is as follows:

" Vacant site measuring 785.33 sq.yards or 656.364 Sq.mtrs. covered by plot No.14 of the approved lay out in s.No.62/2 in block No.6 of Waltair ward of Visakhapanam Town and bounded as follows:

             East        :    Site covered by plot No.15 of the layout
             South :         30 feet road
             West    :       Site covered by Plot No.12 purchased by Sri Prasada
                             Rao and plot No.13
             North :         Site belonging to the Andhra University
      Measurements:              East : 108' or 32.92 mtrs.
                                 South : 65' or 19.81 mtrs.
                                 West : 109' or 32.00 mtrs
                                 North: 65' or 19.81 mtrs."
                                                                              MVRJ,
                                                                  S.A.No.252 of 2021

It shall be referred to hereinafter as 'the suit site', for convenience.

5. This suit was dismissed by the trial Court by the decree and

judgment dated 05.08.2011. A.S.No.142 of 2011 was preferred

thereupon, by the respondent, the decree and judgment of the trial Court

were reversed.

6. Hence, this second appeal by the Legal Representatives of the

original defendants.

7. Smt. Rani Chandramathi Devi and her son Sri Andra Hari Hara

Gara Pratapraju, residents of Andra Village, erstwhile Taluq of Salur,

Srikakulam District (presently, Vizianagaram District) known as Zamindars

of Andra (not Andhra) owned Ac.4-15 cents in S.No.62/2, Block No.6 of

Waltair ward of Visakhapatnam. A layout was made out dividing this entire

extent into twenty (20) plots. This layout was approved in T.P.No.57 of

1965 and T.P.No.15 of 1969 by the Director of Town Planning,

Hyderabad.

8. It was the contention of the respondent at the trial that she

purchased the suit site from these original owners, which is in plot No.14

for valuable consideration under a registered sale deed dated 16.08.1969.

Her further contention at the trial was that the appellants 1 and 2

attempted to interfere with their possession and enjoyment of the suit site

claiming it, to raise a compound wall. She further contended that on

account of her long possession and enjoyment of the suit site she also

perfected her title to it by adverse possession. Therefore, according to the

respondent, she was constrained to lay the suit for the reliefs stated

above.

MVRJ, S.A.No.252 of 2021

9. The appellants 1 and 2 resisted the claim of the respondent

contending that the sale deed in favour of the respondent dated

16.08.1969 is a collusive document obtained to defeat their rights in

respect of the property purchased by them under an agreement for sale

dated 13.08.1965 from Sri Andra Hari Hara Gara Pratapraju, Zamindar of

Andra covering 1000 Sq.yards and that on the default of the vendor to

execute a sale deed, she was constrained to lay a suit in O.S.No.431 of

1969 for specific performance. Their further contention was that the

above suit was decreed on 29.07.1978 pursuant to which a sale deed was

executed in her favour by the Court on 08.03.1982 and that possession of

the property covered by this sale deed was delivered through the process

of the Court by the Court Amin on 16.07.1982.

10. Further contention of the appellants 1 and 2 at the trial was

that plot No.14 claimed by the respondent was not within the boundaries

mentioned in the plaint schedule and that the respondent and her

husband manipulated the documents to defraud them and other

purchasers of these plots. Referring to sale deed of the plot No.6 in favour

of husband of the respondent dated 24.07.1969 and also of the sale deed

of the respondent dated 16.08.1969 it was also the contention of the

appellants 1 and 2 at the trial that they reflected that approved plan for

this layout is different from the plan enclosed to the sale deed dated

16.08.1969 and that this sale deed is hit by Section 52 of the Transfer of

Property Act. They asserted possession of this land, stating that they

started construction digging foundations, to raise a compound wall at

which time the husband of the respondent along with others caused

obstruction threatening them. Thus, the appellants 1 and 2 contended MVRJ, S.A.No.252 of 2021

that plot No.13 out of the approved layout was delivered to the 2nd

appellant through the process of the Court, to which they have right, title

and interest.

11. On the pleadings, the trial Court settled the following issues

and additional issues:

"1. Whether the plaintiff got title and possession over the plaint schedule property?

2. Whether the plaint schedule is correct?

3. Whether the sale deed dated 16.08.1969 is hit by Section 52 of the Transfer of Property Act in view of the suit in O.S.No.431 of 1969 on the file of the District Munsif Court, Visakhapatnam?

4. Whether the plaintiff has got any cause of action against the defendants?

5. Whether the suit against the 2nd defendant is not maintainable?

6. To what relief?

Additional issues settled on 30.07.1985:

1. Whether the plaintiff is entitled to the alternative relief of possession?

2. Whether the Court fee is not correct?

Additional issue settled on 01.07.2010:

1. Whether the plaintiff perfected her title to the plaint schedule property by adverse possession?"

12. At the trial, husband of the respondent was examined as

P.W.1, scribe of sale deed dated 16.08.1969 (Ex.A1) as P.W.2 and P.W.3

as well as P.W.4 in support of her contention, while relying on Ex.A1 to

Ex.A8. The 2nd appellant examined herself as D.W.1, D.W.2 being the

Court Amin, who allegedly delivered possession of the plot claimed by her,

D.W.3 being a draftsman of Visakhapatnam Urban Development Authority

and D.W.4 being the surveyor then attached to Visakhapatnam Municipal MVRJ, S.A.No.252 of 2021

Corporation in support of her contention while relying on Ex.B1 to Ex.B10.

Ex.X1 to Ex.X5 were also relied on at the trial by the appellants.

13. On the material and evidence, the trial Court dismissed the suit

mainly holding that the respondent failed to establish her title to the suit

site on account of the disputed identity and that though she was in

possession of the suit site, the relief of permanent injunction being

consequential to the main relief of declaration, cannot be granted.

14. In the appeal carried by the respondent, the observations of

the trial Court relating to title were reversed holding in favour of the

respondent and the claim of possession was also accepted. Thus, the

decree for declaration of right and title to the suit site and consequential

permanent injunction restraining the appellants from interfering with the

alleged possession and enjoyment of the suit site by the respondent were

granted.

15. This second appeal was admitted on the following substantial

questions of law:

"1. Whether the Court below is justified in giving a finding that the appellant therein has proved her possession over the suit schedule property, having held that the executing Court in O.S.No.431 of 1969 has delivered the physical possession of Plot No.13 to the 2nd respondent?

2. Whether the Court below is justified in upsetting the findings of the trial court with regard to the title of the appellant therein over the suit schedule property, since it was found that the boundaries shown in Ex.A1-sale deed do not match with the boundaries of plot No.14 as shown in Ex.A2 approved layout?

3. Whether the Court below is justified in ignoring the legal effect of the decree and judgment in O.S.No.431 of 1969 and the delivery of possession of the subject plot to the 2nd respondent in E.P.proceedings in E.P.No.510 of 1979 vide Ex.X1 to X3?

4. Whether the court below is justified in failing to see that there are no issues relating to the title and possession of the 2nd respondent, framed by the trial Court, and hence the findings MVRJ, S.A.No.252 of 2021

given on those aspects are unsustainable and cannot upset the title and possession obtained by her by virtue of the decree and judgment in O.S.No.431 of 1969?"

16. Sri Vedula Srinivas, learned senior counsel for Ms. G.Poorna

Sri, learned counsel for the appellants and Sri C.V.Mohan Reddy, learned

senior counsel for Ms. Moguluru Iswarya, learned counsel for the

respondent, addressed arguments.

17. The suit was decreed earlier, against which A.S.No.1220 of

1998 was preferred on the file of this Court when was at Hyderabad.

A.S.No.1220 of 1998 was allowed setting aside the decree and judgment

of the trial Court on 20.08.2008 remanding the case, permitting the

parties to adduce further evidence, amending the pleadings and directing

the trial Court to reconsider the matter afresh.

18. The trial Court followed these directions and permitted the

parties to lead further evidence and amend the pleadings. The trial Court

decided the matter on all the issues afresh.

19. The substantial questions of law to consider now relate the

right, title and interest claimed by the respondent to the suit site and if

burden of proof in respect thereof was discharged by the respondent

properly and effectively. They also require to consider the approach of the

trial Court as well as the appellate Court to consider the defence set up by

the appellants basing on the prior agreement for sale whereupon

O.S.No.431 of 1969 was filed by the 2nd appellant against the common

vendor of these parties. In that process, it is further required to consider

effect of the decree executed by the deceased appellants 1 and 2 MVRJ, S.A.No.252 of 2021

obtaining sale deed for plot No.13 and obtaining possession of the same

through the process of the Court.

20. The specific case of the respondent at the trial was that the

suit site was purchased by her from Sri Andra Hari Hara Gara Pratapraju

under Ex.A1 dated 16.08.1969 for valuable consideration and that she

was put in possession of the suit site by virtue of this sale by the vendor.

21. Ex.A1 sale deed (Ex.A7 and Ex.B7 are its registration extracts)

in favour of the respondent specifically referred that the suit site was sold

to the respondent by the owner bearing plot No.14 and which was part of

layout approved by Director of Country and Town Planning, Hyderabad.

Specific measurements are also set out in Ex.A1 of this plot apart from the

boundaries. Therefore, according to the respondent, the site sold under

Ex.A1 of such description was put in her possession by the erstwhile

owner. Ex.A2 is the plan appended to Ex.A1 sale deed that furnishes the

location of plot No.14 as if it is part of approved layout referred to above.

22. It is not in dispute that the husband of the respondent, namely

P.W.1 purchased plot No.6 in the same layout under the original of Ex.B1

dated 24.07.1969. Ex.B1 is a photostat copy of the sale deed which P.W.1

admitted in cross-examination on behalf of the appellants. (Ex.B6 is

another photo copy of Ex.B1 sale deed). The property sold under the

original of Ex.B1 is also covered by the same layout referred to in Ex.A1. A

plan is annexed to this sale deed, which is also part of Ex.B1. This plan

depicts a different situation of these plots. Particularly plot No.12 is shown

therein as an undivided extent followed by other plots contiguously

extending from west to east by plots 13 to 18. Whereas the plan annexed MVRJ, S.A.No.252 of 2021

to Ex.A1, which the respondent claimed as a copy of the approved layout

plan shows that the plot No.12 shown in the plan annexed to Ex.B1 is

divided into two, that were allotted separate plot Nos.12 and 13, followed

by other plots in the same alignment from west to east.

23. Ex.A6 is copy of another sale deed dated 20.03.1970 of a third

party executed by the same vendor. The plan annexed to it referring to

the very same layout stated in Ex.A1 and Ex.B1, indicated location of the

plots as is found in the plan annexed to Ex.A1. Thus, it shows Plot Nos.12

and 13 being two halves constituting plot No.12 in the plan annexed to

Ex.B1, followed contiguously by plot Nos.14 to 18.

24. Sri Vedula Srinivas, learned counsel for the appellants,

contended that the burden is on the respondent in the suit of this nature

where relief of declaration is sought to establish her claim and case in

tune with the pleadings set up in the plaint followed by evidence at the

trial without relying on the weakness if any in the case set up by the

appellants.

25. In support of this contention, Sri Vedula Srinivas, learned

senior counsel, relied on Union of India (UOI) and others vs. Vasavi

Co-op. Housing Society Limited and others1. In paras 14 and 15 of

this ruling, referring to the earlier decisions of Hon'ble Supreme Court, it is

stated:

14. ......... This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira [AIR 1959 SC 31] observed that "in a suit for declaration if the plaintiffs are to succeed they must do so on the strength of their own title." In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426] this Court held as under:

. AIR 2014 SC 937 = (2014)2 SCC 269 MVRJ, S.A.No.252 of 2021

"The onus to prove title to the property in question was on the plaintiff-respondent. ... In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."

15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."

26. One of the decisions relied on for the respondent echoes

similar proposition in Poona Ram vs. Moti Ram (Dead) through

Legal Representatives and others2. In para-19 of this decision, it is

stated:

"19. The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant...."

27. It being the settled proposition of law, the specific case set by

the respondent at the trial should be established by her by means of

positive proof without relying on the material and case set up by the

appellants, who are the defendants in the suit. The respondent should

either stand or fall basing on the pleadings as well as evidence thus.

28. It is the contention of Sri C.V.Mohan Reddy, learned senior

counsel for the respondent that sale of the site under Ex.A1 is not a

disputed fact and therefore, there has been transfer of title to a site, the

description of which is found in Ex.A1. Learned senior counsel further

contended that having regard to the specific boundaries within which this

site is located, variance in plot numbers has no bearing.

. (2019) 11 Supreme Court Cases 309 MVRJ, S.A.No.252 of 2021

29. Sri C.V.Mohan Reddy, learned senior counsel for the

respondent further contended that both the Courts below considered the

site in dispute being in plot No.14 covering 785¼ sq.yards and in case of

any mistake in plotting, when there is no law prohibiting sale of such

plots, there cannot be any contention against the claim of the respondent,

who had transfer of title in her favour. Even if the division of plot No.12

that existed earlier into two is considered, it did not disentitle the

respondent to claim ownership of the suit site nor will it annul Ex.A1 sale

deed. It is also contended that the Court cannot arrive at any inference

that such sale under Ex.A1 is void on the ground that it is not with

reference to a plot being a part of the layout approved by Director of

Town & Country Planning.

30. P.W.1-the husband of the respondent admitted that the site

purchased by him under the original of Ex.B1 is the part of the same

approved layout. This sale was on 24.07.1969, about 22 days prior to the

sale of the plot claimed by the respondent under Ex.A1. The difference in

the plans depicting the layout annexed to these two sale deeds is distinct

and discernible. The description of the plots in the plans annexed to these

sale deeds as rightly pointed out by Sri Vedula Srinivas, learned senior

counsel for the appellants, indicated that there has been marked

difference, in depicting location of these plots in this layout.

31. Since the plan annexed to Ex.B1 is admitted being a part of the

approved layout, if there was any variation in location of these plots later

and if approved by the concerned Government agency like Director of

Town and country planning, necessary evidence should have been lead at

the trial by the respondent. No evidence to that effect from the MVRJ, S.A.No.252 of 2021

respondent is on record. Thus, the location of the plots in the layout

depicted in the plan annexed to Ex.A1, is established being an unapproved

layout. There is no evidence on record as to when plot No.12 depicted in

the plan of Ex.B1 stood divided into plots 12 and 13, as shown in the plan

annexed to Ex.A1.

32. Plot No.13 hitherto appeared in the plan annexed to Ex.B1 is

thus shown as plot No.14 in the plan annexed to Ex.A1. Thus, Identity of

the property is in serious dispute and it should necessarily be considered

as rightly observed by the trial Court.

33. It has to be noted that the boundaries on the north and south

of these plots are common with a road on the south and the compound

wall of Andhra University College of Engineering on the north. The

difference is with reference to the boundaries on the east and west.

34. The respondent should have examined her vendor or his

representatives like legal heirs to explain this discrepancy at the trial.

Neither any of them nor the attestors to Ex.A1 were examined at the trial.

P.W.2-the scribe of Ex.A1 examined, did not clarify this intriguing situation

with reference to location of the plots in the plans annexed to Ex.A1 as

well as Ex.B1. Both P.W.1 and P.W.2 tried to gloss over, stating that they

did not find difference in location of these plots in these plans.

35. P.W.2 deposed that he had scribed about 16 sale deeds, for

the plots sold in this layout. In these circumstances, the best possible

evidence is from the vendor of these plots and failure to examine him, is a

serious fatal omission in the proof offered by the respondent.

MVRJ, S.A.No.252 of 2021

36. Mere proof of execution of Ex.A1 in favour of the respondent to

convey site thereunder is not sufficient when its identity is not proved.

This requirement is more pronounced when the plan attached to Ex.A1

sale deed is not the approved plan by the Government authorities.

37. There is evidence from the appellants upon examining D.W.3-

architectural drafts man in Visakhapatnam Urban Development Authority.

The 2nd appellant had addressed a letter to Visakhapatnam Urban

Development Authority requiring clarification as to authenticity of the plan

annexed to Ex.A1. The copy of this plan forwarded by her is Ex.B9 along

with the letter. Visakhapatnam Urban Development Authority informed her

that Ex.B9 is not the correct plan relating to this layout which was later

given T.P.No.13 of 1977, relatable to T.P.No.15 of 1969.

38. Despite searching cross-examination of D.W.3 on behalf of the

respondent, no material was elicited to discredit his testimony. D.W.3

deposed that Ex.B10 which is the authenticated plan of this layout shows

that plot No.19 was divided into 18-A and 18-B and that plot Nos.12,13

and 14 were not changed. Thus, the contiguous nature of plots 12 to 14

and thereafter as shown in the plan annexed to Ex.B1 stood established.

Later division of plot No.19 as stated above according to D.W.3 was

authorised and authenticated. When it was a situation pointing out

approval of the plan at a later stage, a circumstance is made out for the

respondent to explain in respect of division of the plot as a part of

approved layout at later stage, namely plot No.12 as plot Nos.12 and 13,

replacing plot no.13 appearing in the plan annexed to Ex.B1, as Plot No.14

in the plan annexed to Ex.A1. She failed to establish this fact.

MVRJ, S.A.No.252 of 2021

39. Significant to note that there is no pleading in the plaint to

explain this discrepancy of location of the plots in this layout. P.W.1 at the

trial asserted that they are concerned to plot No.14 alone and that his

wife, namely the respondent has nothing to do with plot No.13. As seen

from the judgment of the trial Court, it was in the written arguments of

the respondent, nature of layout mentioned in the plan Ex.A2, of Ex.A1

sale deed was referred to. No amount of contentions can be accepted,

when foundation is not laid in pleadings or in evidence.

40. The contention of the appellants is that plot No.13 of this

layout was delivered through process of Court in E.P.No.510 of 1979 in

O.S.No.431 of 1969 on 16.07.1982 to the 2nd appellant. O.S.No.431 of

1969 was filed for the relief of specific performance against Sri Andra Hari

Hara Gara Pratapraju by the 2nd appellant. Relief sought in the suit was

for executing a sale deed relating to plot Nos.15 and 16 with reference to

1000 sq.yards she had purchased under an agreement for sale from the

erstwhile owner. This suit was decreed on 29.07.1978 (Ex.A5 is the

decree copy) directing execution of the sale deed in favour of the 2nd

appellant for plot No.16 out of this layout.

41. However, in E.P.No.510 of 1979 in execution of the said

decree, Ex.B2 sale deed was executed for plot No.13 of this layout.

Pursuant to this sale deed, as per orders of the learned IV Additional

District Munsif, Visakhapatnam, as seen from Ex.X1-delivery warrant, this

plot No.13 was delivered to the 2nd appellant. The return of D.W.2, who

was then Amin in the District Court, Visakhapatnam in this respect, is

based on Ex.B2 sale deed. This return of the Amin did not reflect the total

extent of the land of 1000 Sq.yards was delivered to the 2nd appellant.

MVRJ, S.A.No.252 of 2021

D.W.4, who was the Town Surveyor then attached to Visakhapatnam

Urban Development Authority was associated with this process of delivery

of the plot No.13, and who had located basing on the boundary stones

and survey points. He also attested Ex.X2-delivery receipt issued by the

2nd appellant therefor.

42. Contentions are advanced on behalf of the respondent

questioning the manner of laying the suit in O.S.No.431 of 1969 by the 2nd

appellant against the original owner initially without furnishing any

boundaries of its subject matter in the plaint, leading to its rejection and

effort by the 2nd appellant later to get this suit restored furnishing

schedule to the plaint upon filing I.A.No.712 of 1969. Reference is also

made to decree in O.S.No.431 of 1969, certified copy of which is Ex.A5,

where relief was granted with reference to plot No.16.

43. Ex.A8-a copy of the approved layout depicted location of these

plots in the same layout as in the plan annexed to Ex.B1. Referring to

this anomalous situation, Sri C.V.Mohan Reddy, learned senior counsel for

the appellants, strenuously contended that the relief sought in this suit

was different, while the decree therein confined to a specific plot, namely

plot No.16 and reference to plot No.13 in Ex.B2 sale deed (original of

which is Ex.X5) are offering such circumstances raising any amount of

suspicion about their nature. Learned senior counsel further contended

that delivery as sought to be established of this plot No.13 through Ex.X1

to Ex.X3 cannot be believed or accepted.

44. Contending that the Executing Court has no power to go

beyond the decree, which is explicit from the manner by which the alleged MVRJ, S.A.No.252 of 2021

delivery of the property was recorded in favour of the 2nd appellant in

E.P.No.510 of 1979 in O.S.No.431 of 1969 and that they are void and

non-est in the eye of law, Sri C.V.Mohan Reddy, learned senior counsel,

placed reliance on Rameshwar Dass Gupta v. State of U.P. and

another3. In para-4 of this ruling it is stated:

"It is a well-settled legal position that an executing court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC......."

45. Another decision relied on in the same context is S.Bhaskaran

v. Sebastian (Dead) by Legal Representatives and others4. In this

ruling, in a dispute between Decree Holder and Judgment Debtor when a

question came up for consideration in terms of Section 47 CPC, in the

given facts and circumstances it was observed that the question of fact

which was considered at the trial cannot be permitted to be reopened in

the execution petition, when the decree in question attained finality.

46. Sri Vedula Srinivas, learned senior counsel for the appellants,

contended with equal vehemence that the claim of the appellants is based

on the proceedings in a properly constituted civil suit and when there is

proof that plot No.13 in this layout was delivered to the 2nd appellant, the

evidence on record cannot be brushed aside easily.

47. It is also contended by Sri Vedula Srinivas, learned senior

counsel, that in a suit of this nature when the burden of proof is squarely

on the respondent, the evidence let-in on behalf of the appellants cannot

. (1996) 5 Supreme Court Cases 728

. (2019)9 SCC 161 MVRJ, S.A.No.252 of 2021

be the subject matter of any comment when there is no challenge to the

proceedings at appropriate stage, particularly when the decree in

O.S.No.431 of 1969 became final. Sri Vedula Srinivas, learned senior

counsel, further contended that the sale deed covered by Ex.B2 executed

through the process of Court is not questioned nor sought to be set aside

and therefore it is not open for the respondent to raise such criticism in

respect thereof.

48. The respondent is not a party to the execution proceedings

relied on by the appellants. She has no right to question the proceedings

therein now in this matter collaterally. Particularly in the absence of any

challenge by her to Ex.B2 sale deed executed by the Executing Court in

favour of the 2nd appellant, she cannot lay a claim or agitate this question

relating to nature of execution proceedings or question their legality.

Great weight has to be attached to the proceedings of a court. Unless

there is material upon specific challenge by a party directly affected,

within the frame work provided by Code of Civil Procedure in terms of

Order-21, nature of the proceedings in an execution petition are not open

for consideration. Regularity of these proceedings is presumed, unless

effectively rebutted. As rightly pointed out by Sri Vedula Srinivas, learned

senior counsel for the appellants, the trial Court unnecessarily strained

itself in this context and when it is not open to investigate this question.

When the suit is for title and consequent relief, these questions could not

have been adverted to in ignorance of requirement of burden of proof,

being on the respondent (the plaintiff) drawing such inferences or

conclusions by the trial Court, as is seen in this case. Therefore, the

contentions on behalf of the respondent in this context should fail.

MVRJ, S.A.No.252 of 2021

49. Referring to the finding recorded by both the Courts below in

this respect, it is also contended by Sri Vedula Srinivas, learned senior

counsel, that both the Courts grossly erred in doing so. Absence of issues

in respect thereof is pointed out by Sri Vedula Srinivas, learned senior

counsel, while commenting upon the findings recorded by the learned

trial Judge thereon and also learned appellate Judge similarly.

50. When the identity of the plot covered by Ex.A1 is not

ambiguous, Sri C.V.Mohan Reddy, learned senior counsel, contended that

basing on the decree as well as execution proceedings relied on by the

appellants, it is not known or clear as to what was delivered, either plot

No.13 or 14. Thus, learned senior counsel contended that in the

circumstances it is not correct to state that the respondent relied on the

weakness in the defence than offering positive proof to support her claim.

51. The trial Court elaborately discussed the claim of the

respondent referring to the ambiguous nature of proof in locating the site

which she claimed that she purchased under Ex.A1 and held that the

identity of the suit site as such, was not established. Enormous exercise

was undertake by the trial Court in this context referring to the sale deeds

relied on by the parties as well as different plans, which are discussed

supra.

52. As seen from the judgment of the appellate Court, the findings

relating to purchase of the suit site under Ex.A1 basing on the factors that

presented discrepancy in the identity of the site purchased thereunder are

not properly discussed. The appellate Court held that the evidence of

P.W.1 to P.W.4 proved that the respondent was put in possession of the MVRJ, S.A.No.252 of 2021

property stating that it was plot No.14. The strain of the appellate Court

was more with reference to possession of the suit site claimed by the

respondent.

53. As rightly contended by Sri Vedula Srinivas, learned senior

counsel for the appellants, the appellate Court being last Court of fact did

not bestow required attention, with reference to right, title and interest

claimed by the respondent by virtue of Ex.A1 sale deed and if there is

proof of transfer of title pursuant thereto. Nor is there any discussion or

reasons assigned establishing the identity of the suit site specifically being

in plot No.14 of the approved layout. Except a bare reference that from

the pleadings and evidence, it is clear that both the plaintiffs and the 2nd

defendant claimed the same property i.e. the plaint schedule property

irrespective of the numbers of the plots (para 11.4 of the appellate court

judgment), there is no discussion worth the name in this judgment of the

appellate Court.

54. In respect of possession of the suit site claimed by the

respondent, the trial Court considered the recitals in Ex.A1 as the prime

source to establish that the suit site was delivered to the respondent

under Ex.A1. When the findings of the trial Court are with reference to

disputed identity of the property covered by Ex.A1 sale deed, it is rather

beyond comprehension as to how delivery of possession of this site could

be construed in favour of the respondent. More so, when the respondent

sought for relief of possession of this site, as an alternative remedy.

55. The evidence on record though P.W.1 and his son P.W.3 is that

a compound wall was raised by the respondent in or about May, 1970.

MVRJ, S.A.No.252 of 2021

Reliance is also sought to be placed on the testimony of P.W.4- a

neighbour to this property in this respect to support them. However, the

version so presented is not supported by pleadings in the plaint. On the

other hand, the averments in the plaint make out that the site in dispute

was a piece of vacant land and where the 1st appellant had tried to raise a

foundation for erecting a compound wall by carting necessary material. It

was the source to give raise to cause of action for the respondent to file

this suit as per the plaint pleadings.

56. Evidence on record is that this site has been let-out to Varun

Motors, an automobile dealer at Visakhapatnam for running its garage to

store auto rickshaws, upon constructing a compound wall and a shed. It is

also in the evidence on record from the respondent that watchman or

care taker was arranged for this property.

57. These are all the improvements that went-on with reference to

this property in dispute after the case was remanded to the trial Court by

this Court in A.S.No.1220 of 1998 by the judgment dated 20.08.2008.

P.W.3 admitted this fact. Evidence of D.W.2, namely the 2nd defendant is

also to this effect.

58. When such improvements are of the period during pendency of

the suit, they cannot have any bearing, to support the claim of the

respondent. What is required to establish, as rightly contended by Sri

Vedula Srinivas, learned senior counsel for the appellants, is the status of

the property on the date of filing the suit. This suit was filed in the year

1982 and there is no evidence on record to establish that the respondent

was in effective possession and enjoyment of this plot in dispute by then.

MVRJ, S.A.No.252 of 2021

59. Referring to nature of possession of this site in dispute as settled

possession in law supporting the findings of both the Courts below reliance is

placed Poona Ram v. Moti Ram referred to above and Smt. Askari Begum

and others v. Md. Ayaz Khan and others5, a judgment of High Court of A.P.

and well known judgment of Hon'ble Supreme Court in Rame Gowda (Dead)

by L.Rs. v. M.Varadappa Naidu (dead) by L.Rs. and another6.

60. Reasons are assigned supra rejecting this claim of possession

of the respondent of the disputed site and also the finding recorded by

both the Courts below. Law explained in these rulings is beyond

controversy. But they did not offer assistance to the respondent, in the

present facts and circumstances of this case.

61. The findings of both the Courts are in support of the

possession of this plot claimed by the respondent, which Sri C.V.Mohan

Reddy, learned senior counsel, pointed out as concurrent findings on

facts, with which this Court cannot interfere in the second appeal. In view

of nature of consideration and determination of this question relating to

possession basing on the material which apparently is not relevant, it is

manifest that both the Courts below grossly went wrong in appreciation of

evidence in this context. They are vitiated. When the requirement of law

in this regard, is overlooked or ignored by the Courts below, this Court in

terms of Section 100 CPC cannot remain an idle onlooker or bystander.

Necessarily this Court has to interfere with such findings, being ordained

and duty bound, to correct appropriately.

. 2011 SCC OnLine AP 552

.(2004) 1 SCC 769 MVRJ, S.A.No.252 of 2021

62. In view of the nature of the judgment of the appellate Court,

Sri Vedula Srinivas, learned senior counsel for the appellants, contended

that the matter be remanded to the appellate Court to reconsider the

matter and in this process pointed out the nature of points for

determination settled by the appellate Court. It is also contended by Sri

Vedula Srinivas, learned senior counsel for the appellants, that the

manner of consideration by the appellate Court is not in consonance with

either Order-41, Rule-31 CPC or Section 96 CPC. Reference is made to

C.Venkata Swamy vs. H.N.Shivanna (D) by L.R.and others7. In

para 11 of this ruling, it is stated as under:

"11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate court while hearing the first appeal is very wide like that of the trial court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference."

63. Referring to Santosh Hazari v. Purushottam Tiwari

(deceased) by L.Rs.8, Madhukar and others v. Sangram and

others9, H.K.N.Swami v. Irshad Basith10, Jagannath v. Arulappa

and another11, B.V.Nagesh and another v. H.V.Sreenivasa

Murthy12, State Bank of India and another v. Emmsons

International Limited and another13, observations are recorded in this

ruling in this context.

. AIR 2017 SC 5604 = (2018) 1 SCC 604

. (2001) 3 SCC 179

. (2001) 4 SCC 756

. (2005) 10 SCC 243

. (2005) 12 SCC 303

. (2010) 13 SCC 530

. (2011) 12 SCC 174 MVRJ, S.A.No.252 of 2021

64. Sri Vedula Srinivas further referred to S.Nazeer Ahmed vs.

State of Mysore and others14, where the effect of Order-41, Rules 22

and 23 CPC is discussed. The appellants have opportunity to challenge the

findings recorded against them by the trial Court regarding possession of

the disputed plot in the second appeal. The reason is that the questions

relating to this dispute either relating to title or possession are open for

consideration, since the appellate Court reversed the findings of the trial

Court in relation to title. As seen from the judgment of the appellate Court

there is no indication, that finding relating to possession recorded by the

trial Court was questioned then in terms of Order-41, Rule-22 CPC by the

appellants. Yet, the appellants did have an opportunity now in this second

appeal to canvass against such findings more particularly in view of highly

improper way of considering such question by both the Courts below.

65. Sri C.V.Mohan Reddy, learned senior counsel for the

respondent, fairly brought to the notice of this Court, the plight of the

parties to this second appeal stating that the appellants have been

fighting out this litigation for more than five decades and that the

respondent has been in the same fray for almost four decades. Thus, the

learned senior counsel contended that the remand of this matter is not

appropriate. In this process, learned senior counsel brought to the notice

of this Court the effect of Section 103 CPC whereby this Court is entitled

to consider all the questions relevant for the adjudication including on

facts, when material is available on record.

. AIR 2007 SC 989= (2007)11 SCC 75 MVRJ, S.A.No.252 of 2021

66. Section 103 CPC reads as follows:

"103. Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."

67. Sri C.V.Mohan Reddy, learned senior counsel, in support of his

contention in this regard relied on Narayan Sitaramji Badwaik (Dead)

through L.Rs. v. Bisaram and others15. Explaining the scope of

Section 103 CPC in this ruling in para-11, it is stated:

"11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. This Court, in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, (2010) 13 SCC 216, held as follows:

"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual

. 2021 SCC OnLine SC 319 MVRJ, S.A.No.252 of 2021

manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)

28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483]"

68. Further reliance is placed in the same context on Bhagwan

Sharma v. Bani Ghosh (Smt)16, D.R.Rathna Murthy v. Ramappa17,

Leela Soni and others v. Rajesh Goyal and others18 and

K.N.Nagarajappa and others vs. H.Narasimha Reddy19.

69. Reference is also made on behalf of the respondent to

Thangamuthu and others v. Sridevi Venkidasamy and others20,

Kishori Mohan Sinha v. Kumaresh Saha and others21 and Sushila

v. Ram Singh22 as to scope and ambit of Section 103 CPC.

70. In D.R.Rathna Murthy vs. Ramappa, in relation to powers

of High Court under Section 100 CPC, observing that the High Court can

.1993 Supp (3) SCC 497

. (2011) 1 SCC 158

. (2001) 7 SCC 494

. 2021 SCC OnLine Sc 694

. 2015-5-L.W.37

. 2019 SCC OnLine Cal 2016

. 2010 SCC OnLine Del 2856 MVRJ, S.A.No.252 of 2021

interfere with the findings on fact even in second appeal, in para-9 it is

thus stated:

"9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the reappreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120 : AIR 2000 SC 2108] , Hafazat Hussain v. Abdul Majeed [(2001) 7 SCC 189] and Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] .)"

71. Therefore, when material in on record is sufficient, this Court in

second appeal in exercise of powers under Section 103 CPC, determine an

issue necessary for its disposal that has not been properly determined by

the lower appellate Court including the trial Court. Thus, the law laid

down, by the Apex Court explaining the import of Section 103 CPC, when

applied to the facts and circumstances of this case, as rightly contended

by Sri C.V.Mohan Reddy, learned senior counsel, enables this Court to

reconsider all the issues in controversy including on facts. The nature of

judgment in the appeal devoid of discussion relating to title claimed by the

respondent and highly irregular and improper appreciation of evidence on

record relating to possession by both the Courts below, which are on the

verge of perversity are impelling this Court to consider the fact situation

once again, in exercise of its power under Section 103 CPC.

72. Sri Vedula Srinivas, learned senior counsel for the appellants,

referring to Bhagwan Sharma vs. Bani Ghosh and K.N.Nagarajappa

and others vs. H.Narasimha Reddy contended in this context that

further elaboration by him is necessary basing on the material on record

and if this Court intends to invoke section 103 CPC.

MVRJ, S.A.No.252 of 2021

73. There is sufficient material to determine all the issues

concerned to this matter. Sri Vedula Srinivas, learned senior counsel for

the appellants and Sri C.V.Mohan Reddy, learned senior counsel for the

respondent, made their submissions with sufficient elaboration, basing on

fact situation as well as law. When all these parameters required to

consider in terms of Section 103 CPC are seen and available, this Court

cannot remain idle and cannot afford to take solace remanding the matter

to the appellate Court for fresh consideration. Particularly remanding this

matter to the appellate Court in my considered opinion is rather doing

injustice to the parties who have been under the stress of this litigation

for decades together.

74. It is apposite to consider the observations of Hon'ble Supreme

Court in this regard speaking through Sri M.Jagannadha Rao, J, in

Ashwinkumar K. Patel v. Upendra J.Patel and others23. These

observations in para-8 are:

"8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other....."

75. The trial Court held that Section 52 of the Transfer of Property

Act is not applicable to the transaction covered by Ex.A1 with reference to

the claim of the 2nd appellant in O.S.No.431 of 1969 and also held the

question of adverse possession set up by the respondent when she

instituted the suit based on title allegedly acquired from the original

. (1999) 3 SCC 161 MVRJ, S.A.No.252 of 2021

owner. These questions are not canvassed in this second appeal by the

parties.

76. Offshoot of the discussion in this second appeal now is that the

findings recorded by the appellate Court in respect of title claimed by the

respondent to the suit site and findings recorded by both the Courts below

relating to its possession require interference. Consequently, this second