The Above Second Appeal Is Filed By ... vs Naralasetti
2022 Latest Caselaw 2570 AP

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                SECOND APPEAL No.411 of 2018

JUDGMENT:

The above second appeal is filed by the plaintiff in the suit

against the judgment and decree dated 01.02.2018 in A.S.No.10

of 2011 on the file of Senior Civil Judge, Bapatla, reversing the

judgment and decree dated 28.10.2010 in O.S.No.313 of 2006

on the file of Principal Junior Civil Judge, Ponnur.

2. For the sake of convenience, the parties to this judgment

are referred to as they were arrayed in the plaint.

3. Suit O.S.No.313 of 2006 is filed for recovery of

Rs.77,740/- with future interest at the rate of 24% p.a. from the

date of suit till the date of realization.

4. In the plaint it was contended inter alia that an extent of

Ac.20.07 cents of land, wet and dry, in Mulukuduru Panchayat

originally belonged to late Tummala Narasaiah. The said

Narasaiah is having four sons, namely, Tummala

Satyanarayana, Dr.Tummala Veeraiah, Dr.Tummala

Suryanarayana and Dr.Tummala Seshagiri Rao. Tummala

Narasaiah died in the year 2000 and his son Dr.Tummala

Veeraiah died in February, 2002. By the date of death of

Narasaiah, plaintiff was cultivating Ac.13.65 cents, which

includes Ac.3.57 cents i.e. plaint schedule property as tenant

and has been paying maktha without committing any default.

5. While so, disputes arose between Tummala

Satyanarayana and his sister-in-law Dr.T.Indira Devi, W/o late

Veeraiah. Dr.T.Seshagiri Rao was sailing with T.Satyanarayana

and Dr.T.Suryanarayana was sailing with Indira Devi. In fact,

Dr.T.Suryanarayana appointed Dr.T.Indira Devi as his General

Power of Attorney Holder. A.T.C.No.3 of 2002 on the file of

Special Officer, Ponnur was filed by the plaintiff against

T.Satyanarayana, T.Indira Devi, T.Suryanarayana and

T.Seshagiri Rao to declare him as cultivating tenant of Ac.13.65

cents. O.S.No.174 of 2002 was filed by the plaintiff against

A.Venkateswara Rao and others for grant of permanent

injunction. A.T.C.No.5 of 2002 on the file of Special Officer,

Ponnur, was filed by T.Indira Devi and T.Suryanarayana,

represented by GPA Holder against the plaintiff and others

restraining them from paying 2/4th share of maktha to Tummala

Satyanarayana or anybody.

6. Pending the above three matters, compromise was affected

between the parties and a compromise decree was passed on

27.07.2002 in A.T.C.No.5 of 2002 recognizing the plaintiff as the

cultivating tenant in respect of Ac.10.76 cents, includes the suit

schedule property. As per the compromise, lease between the

plaintiff, Dr.T.Indira Devi and Dr.T.Suryanarayana is subsisting.

While the plaintiff was cultivating Ac.10.76 cents as tenant,

T.Suryanarayana sold his Ac.5.39 cents and Dr.T.Indira Devi

sold Ac.1.44 cents, out of her Ac.5.37 cents. Thus, the plaintiff

is continuing as cultivating tenant of T.Indira Devi for the

remaining extent of Ac.3.93 cents.

7. According to the plaintiff, Dr.T.Indira Devi at the time of

alienating Ac.1.44 cents, offered to sell the plaint schedule

property to the plaintiff at the same cost, which she sold Ac.1.44

cents. But disputes arose between the plaintiff and his landlady

Indira Devi, resulting in plaintiff filing A.T.C.No.2 of 2003 on the

file of Special Officer, Ponnur to determine the price of schedule

land at Rs.1,25,000/- per acre; that the sale of the schedule

land has become effective on payment of first installment of

Rs.49,125/- by way of demand draft No.053831 dated

26.09.2003; that the plaintiff is entitled to pay balance of sale

price of Rs.4,42,125/- in nine installments and for grant of

permanent injunction; to declare the sale deeds executed by

landlady in favour of defendants herein are void etc., Along with

A.T.C 2 of 2003, I.A.No.1004 of 2003 was filed for grant of

injunction restraining the landlady/Indira Devi from alienating

the plaint schedule property. By order dated 26.09.2003,

learned Special Officer granted the order of status quo; that

while the order of status quo is in force, landlady Dr.T.Indira

Devi sold away Ac.3.57 cents, out of Ac.3.93 cents to the 1st

defendant, G.Srinivasa Rao under a registered sale deed No.139,

dated 03.02.2006 and Ac.0.36 cents to U.Ramarao, under a

registered sale deed No.140, dated 03.02.2006; that by the time

of sale, plaintiff cut the crop and stored the same in two heaps

in S.No.56/2, Ac.3.47 cents which is item No.1 of the schedule

property.

8. The defendants/purchasers, pursuant to the conspiracy,

thrashed both paddy heaps on the intervening night of

05/06.02.2006 and committed theft of paddy, 110 bags, and

also damaged the standing black gram crop in about Ac.0.25

cents. However, the plaintiff enjoyed second crop of black gram,

he did not claim anything towards the said crop. Immediately,

on 12.02.2006, plaintiff gave complaint to the Sub Inspector of

Police, Ponnur Rural Police Station and the same was registered

as Crime No.22 of 2006 for the offences punishable under

Sections 448, 426, 379 of IPC. Police referred the case as Civil

in nature, however, plaintiff filed private complaint and filed the

suit for recovery of value of 110 bags of paddy.

9. 2nd defendant filed written statement and the same was

adopted by 1st defendant. In the written statement, it was

contended that 1st defendant purchased Ac.3.57 cents under a

registered sale deed dated 03.02.2006 and 2nd defendant

purchased Ac.0.36 cents under registered sale deed dated

03.02.2006. In the said sale deeds, it was clearly mentioned

that vendor Indira Devi has been in possession and enjoyment

of the schedule properties, and they are bonafide purchasers. It

was further contended that the landlady cultivated the land

during 2005-2006 and raised crop and offered to sell the land

and defendants 1 and 2 purchased the land by paying

substantial amounts. Landlady delivered the land along with

paddy heaps and after thrashing, they took the paddy and

police also after investigation, referred the case as false. It was

contended that the plaintiff was not declared as cultivating

tenant and no documentary proof was filed that the plaintiff

cultivated the plaint schedule property for the year 2005-2006

and eventually prayed the Court to dismiss the suit.

10. Basing on the pleadings of respective parties, the trial

Court framed the following issues:

(1) Whether the defendants removed theft property and stored in their house is true?

(2) Whether the contest taken by the defendant is true? (3) Whether the plaintiff is entitled for recovery of valued/costs of 110 bags of paddy from the defendants?

(4) To what relief?

11. During the trial, plaintiff examined himself as P.W.1 and

got marked Exs.A-1 to A-12. On behalf of defendants, 1st

defendant examined himself as D.W.1 and no documents were

marked.

12. The trial Court decreed the suit with costs for an amount

of Rs.77,740/- with interest @ 6% p.a. from the date of decree

till the date of realization. Against the said judgment and decree,

defendants filed A.S.No.10 of 2011 on the file of Senior Civil

Judge, Bapatla. Plaintiff also filed cross objections in not

granting interest from the date of filing of the suit till the date of

decree. Pending appeal, interlocutory applications were filed to

receive certified copy of order in A.T.C.No.2 of 2003 and also

certified copy of judgment in C.C.No.456 of 2011 and common

order in C.R.P.Nos.3591 of 2011 and 816 of 2011. Lower

Appellate Court by judgment and decree dated 01.12.2018

allowed the appeal by setting aside the judgment and decree

dated 28.10.2010 in O.S.No.313 of 2006. Lower Appellate Court

also dismissed the petition filed to receive additional documents.

Cross objections filed by the plaintiff were also dismissed.

Aggrieved by the said judgment and decree of Lower Appellate

Court and dismissing cross objections, appellant/plaintiff filed

the present second appeal.

13. On 03.04.2019 this Court heard the appellant/party-in-

person and learned counsel for respondents. On 04.06.2019,

the second appeal was admitted, and this Court framed the

following substantial question of law:

(1) Whether the findings of the 1st appellate Court are perverse and are contrary to the evidence on record?

(2) Whether the 1st appellate Court misconstrued and misinterpreted the contents of the exhibits marked, particularly, Ex.A.1, sale deed Ex.A.3, Exs.A.5 and A.12?

(3) Whether the 1st appellate Court committed an error in not drawing the presumption under Section 114 of the Indian Evidence Act about the subsistence of the tenancy as alleged and whether the finding of surrender of tenancy is perverse and not based on record?

(4) Whether the 1st appellate Court which is a Civil Court has any jurisdiction in a case under CPC to decide

about the tenancy rights of the plaintiff which has to be decided by the Tenancy Tribunal only?

(5) Whether the findings of the 1st appellate Court that Smt.Indira Devi is a necessary and proper party is incorrect and opposed to law, particularly as there is no plea in the written statement and as the suit is filed for recovery of an amount of Rs.77,740/- said to be the value of 110 bags of paddy which are allegedly stolen by the defendants?

(6) Whether the rejection of the cross objection filed by the present appellant is correct?

14. I.A.No.1 of 2021 was filed by respondents under Order 41

Rule 27 read with 151 of CPC to receive judgment in C.C.No.456

of 2011 dated 16.12.2014, judgment in Crl.A.No.33 of 2011

dated 22.09.2015 and common order dated 12.06.2015 in

C.R.P.Nos.3591 of 2011 and 816 of 2011. Appellant filed

counter in I.A.No.1 of 2021 and opposed the petition.

15. I.A.No.2 of 2021 was filed by the appellant under Order 41

Rule 27 read with 151 of CPC to receive certified copy of order in

S.L.P (C) Nos.28696-28697 of 2015 dated 27.10.2021.

16. Heard Sri Musunuri Satyanarayana, Appellant/Party-in-

person and Sri Sistla Satyanarayana Murthy, learned counsel

for the respondents.

17. Appellant/Party-in-person contended that pending

A.T.C.No.2 of 2003, by violating the order of status quo granted

on 26.09.2003 in I.A.No.1004 of 2003, the landlady sold the

plaint schedule property to the respondents/defendants under

two registered sale deeds on 03.02.2006. He would contend that

appellant has been cultivating the plaint schedule property

since long time and in fact, when disputes arose among the land

owners, the appellant filed A.T.C.No.3 of 2002 and O.S.No.174

of 2002 and the landlady T.Indira Devi and T.Suryanarayana,

represented by GPA Holder filed A.T.C.No.5 of 2002. Thereafter

compromise was arrived at and the same was recorded in

A.T.C.No.5 of 2002 and accordingly, a compromise decree was

passed on 27.07.2002. The same was marked as Ex.A-1.

According to the appellant, by virtue of compromise, he was

declared as cultivating tenant of Ac.10.76 cents including the

plaint schedule property and lease between the plaintiff,

T.Indira Devi and T.Suryanarayana is subsisting. He also would

contend that defendants neither were in possession of the land

nor was possession delivered to the defendants pursuant to sale

deeds. He also would contend that A.T.C.No.2 of 2003 filed by

him was ordered. Though the said order was reversed in appeal

and confirmed in revisions filed by him, by virtue of order in

S.L.P (C) Nos.28696-28697 of 2015 dated 27.10.2021, the

Hon‟ble Apex Court recorded finding that he has been

cultivating tenant of the schedule land. He also would contend

that the Lower Appellate Court failed to consider the cross

objections and thus, prayed to allow the second appeal.

18. Learned counsel for the respondents would contend that

respondents being purchasers of land, took paddy legitimately

and the said act cannot be construed as theft and hence the

suit for recovery of amount is not maintainable. He also would

contend that merely because the Hon‟ble Apex Court allowed the

SLP and confirmed the order in ATC and declared the sale deeds

as null and void it does not mean that the purchasers

committed theft of paddy being the bonafide purchasers.

Plaintiff could not establish the element of theft. He also would

contend that the order of status quo granted by the learned

Tenancy Tribunal is no order in the eye of law and it will not

inure to the benefit of the appellant. He also would contend

that the order of the Hon‟ble Apex Court in S.L.P (C) Nos.28696-

28697 of 2015 dated 27.10.2021 operates prospectively and the

findings recorded by the Hon‟ble Apex Court will not inure to the

benefit of the appellant. He also would contend that the

judgments in Criminal cases bind Civil cases and hence the

appellant/plaintiff could not maintain the suit for recovery of

money. Thus, prayed the Court to dismiss the second appeal.

19. Heard. Perused the entire record.

20. Undisputed facts from the pleadings and evidence are that

A.T.C.No.2 of 2003 filed by the Appellant/plaintiff against

Dr.T.Indira Devi under Sections 16 and 15 of the Andhra

Pradesh (Andhra Area) Tenancy Act, 1956 (for short "Tenancy

Act") was allowed on 30.11.2009. A.T.A.Nos.2 of 2010 and 3 of

2010 filed by respondents were allowed on 20.12.2020.

C.R.P.Nos.3591 of 2011 and 816 of 2011 filed by appellant

herein were dismissed by a common order dated 12.06.2015.

S.L.P (C) Nos.28696-28697 of 2015 filed by appellant herein

against the said orders, were allowed by the Hon‟ble Apex Court

on 27.10.2021. The findings, of the Hon‟ble Apex Court, are

extracted herein for better appreciation of case:

"...the findings of the District Judge and the High Court, regarding surrender (either in part or fully) of the tenancy, are wholly untenable."

"... ... the findings recorded by the High Court and the District Court, as regards lack of evidence in subsisting tenancy in favour of the appellant are contrary to the record. The order passed in the compromise petition, clearly recorded, in more than one place, that the lease between the appellant on the one hand, and Indira Devi, on the other, was subsisting and continuing. Being an admitted document, recording an incontrovertible fact, the burden was upon the respondents to prove that the appellant‟s tenancy has been terminated, or surrendered in a manner known to law. They plainly failed to do so. As a result, the finding regarding surrender of tenancy is erroneous."

"... ... In the absence of a similar notice setting out with particulars of the rent payable as well as the period, the District Judge and the High Court could not have upset the order of the tribunal as regard the appellant‟s exercise of right to purchase the property, under Section 15."

"For the above reasons, the impugned order of the High Court, as well as the judgment of the District Court, are hereby set aside. The order of the Tribunal is hereby restored."

21. Whether additional evidence can be received in Second

Appeal?

22. I.A.No.1 of 2021 is filed by respondents to receive the

certified copy of judgment dated 16.12.2014 in C.C.No.456 of

2011; judgment dated 22.09.2015 in Crl.A.No.33 of 2015 and

common order dated 12.06.2015 in C.R.P.Nos.3591 of 2011 and

816 of 2011. In the affidavit filed in support of the petition, it

was stated that the appellant in the second appeal was pursuing

civil and criminal remedies same cause; that the appellant filed

private complaint in C.C.No.144 of 2006 on the file of I

Additional Judicial Magistrate of First Class, Ponnur and the

same was transferred to II Additional Judicial Magistrate of First

Class, Tenali and renumbered as C.C.No.456 of 2011; that case

was ended in acquittal after elaborate trial on 16.12.2014; that

the appellant in the second appeal filed Crl.A.No.33 of 2015 on

the file of XI Additional District and Sessions Judge, Tenali

against the calendar and judgment in C.C.No.456 of 2011 and

the same was dismissed on 22.09.2015; that the advocate

appeared in the Lower Appellate Court by oversight failed to

produce the same before Court and they are necessary

documents. With the same pleadings, respondents further

prayed to receive common order in C.R.P.Nos.3591 of 2011 and

816 of 2011.

23. Counter was filed by appellant herein opposing to receive

those documents. In the counter it was stated that certified copy

of judgment in C.C.No.456 of 2011 and common order in

C.R.P.Nos.3591 of 2011 and 816 of 2011 along with order in

A.T.C.No.2 of 2003 were filed as additional evidence before the

Lower Appellate Court in A.S.No.10 of 2011 and the Lower

Appellate Court dealt with the same in Para No.26 of its

judgment and dismissed the application and he thus, prayed to

dismiss I.A.No.1 of 2021.

24. I.A.No.2 of 2021 filed by appellant to receive the order

dated 27.10.2021 in S.L.P (C) Nos.28696-28697 of 2015.

Parties to the S.L.P., are, Appellant herein on one side,

respondents herein and their vendor on the other side.

Appellant filed S.L.P. against common order in C.R.P.Nos.3591

of 2011 and 816 of 2011 dated 12.06.2015. No counter was

filed by the respondents to this petition.

25. In Chapala Chinnabbayi and Ors. Vs. Naralasetti

Anusuyama and Ors1, the Division Bench of the composite High

Court of Andhra Pradesh, on a reference, came to conclusion

that the High Court may permit a party to adduce additional

evidence in Second Appeal under the following circumstances:-

(1) Adducing additional evidence is in the interest of justice; (2) Evidence relating to the subsequent happenings or events, which are relevant for disposal of the Second Appeal.

26. Keeping the ratio in the above judgement, so far as the

documents filed by the respondents in I.A.No.1 of 2021 are

concerned, out of three documents, two documents namely,

judgment dated 16.12.2014 in C.C.No.456 of 2011 and common

order in C.R.P.Nos.3591 of 2011 and 816 of 2011 dated

12.06.2015 were filed before the Lower Appellate Court. The

Lower Appellate Court, in fact, in Para No.26 of its judgment

held that there is no necessity to receive those documents as

additional evidence. Having filed such an application before the

2006 (1) ALD 669

Lower Appellate Court, the respondents herein, in the affidavit

filed in support of the present petition pleaded that the

respondents‟ counsel in the Lower Appellate Court by oversight

failed to produce the same before the Lower Appellate Court.

This averment/statement made on oath by 1st respondent in the

second appeal is in correct and the respondents by making such

an averment tried to prevaricate the Court. Making false

statement on oath disentitles the respondents from getting any

relief. However, in view of the arguments advanced, to meet the

ends of justice, this Court deems it fit to receive those

judgments and deal with the same for proper adjudication of the

lis between the parties.

27. The learned counsel for respondents would contend since

the competent criminal Courts acquitted the respondents for the

offence of theft, judgments of the criminal courts are binding on

the Civil Court and hence, the suit filed for recovery of amount

is liable to be dismissed. Learned counsel for respondents also

tried to impress the Court about the relevancy of common order

in C.R.P.Nos.3591 of 2011 and 816 of 2011, since the revisional

Court dismissed the revisions filed by the appellant and

negatived his claim with regard to status as cultivating tenant

and to set aside the sale deeds dated 03.02.2006. On these

grounds, the respondents prayed the Court receive the

judgements as additional evidence.

28. Though the conduct of respondents in making prevaricate

statements in affidavit i.e. I.A.No.1 of 2021 and blaming their

advocate in the Lower Appellate Court disentitles them to get the

relief, in view of reasons mentioned supra, this Court is inclined

to receive those documents in the second appeal by allowing

I.A.No.1 of 2021. Accordingly, I.A.No. 1 of 2021 is ordered.

Since I.A.No.1 of 2021 is allowed, judgment in C.C.No.456 of

2011 dated 16.12.2014 is marked as Ex.B.1; judgment in

Crl.A.No.33 of 2015 dated 22.09.2015 is marked as Ex.B.2 and

common order in C.R.P.Nos.3591 of 2011 and 816 of 2011

dated 12.06.2015 is marked as Ex.B.3.

29. The appellant in the second appeal, filed I.A.No.2 of 2021.

The Hon‟ble Apex Court set aside the common order in

C.R.P.Nos.3591 of 2011 and 816 of 2011 dated 12.06.2015 and

the order in A.T.A.No.2 of 2010 dated 20.12.2010 reversing the

order dated 30.11.2009 in A.T.C.No.2 of 2003. The observations

of the Hon‟ble Apex Court were already extracted supra and the

order of the Hon‟ble Apex Court is relevant to decide the issue in

second appeal.

30. Since the Hon‟ble Apex Court pronounced its judgment

pending the second appeal, it being a subsequent event and the

order of Hon‟ble Apex Court is having a bearing on the present

issue, this Court is inclined to allow I.A.No.2 of 2021 filed by the

appellant. Accordingly, I.A.No. 2 of 2021 is allowed. Since

I.A.No.2 of 2021 is allowed, certified copy of order dated

27.10.2021 in S.L.P (C) Nos.28696-28697 of 2015 is marked as

Ex.A.13.

31. Appellant filed the suit for recovery of amount, mainly

contending that he is the cultivating tenant of plaint schedule

property of Dr.T.Indira Devi; that he also filed A.T.C.No.2 of

2003 for various reliefs under Section 16 of the Tenancy Act and

filed I.A.No.1004 of 2003 for grant of injunction. He also further

pleaded that the Special Officer granted status quo on

26.09.2003; that the appellant being the plaintiff raised crop

and after harvest, he raised two heaps; that pending A.T.C,

notwithstanding the order of status quo, landlady sold the

property to the respondents and they conspired together and the

respondents/defendant with the help of tractor thrashed both

paddy heaps on the intervening night of 05/06.02.2006 and

committed theft of yield of about 110 bags. Thus, he filed the

suit for recovery of amount.

32. Written statement filed by 2nd defendant was adopted by

1st defendant. In the written statement it was stated that

landlady cultivated the land during 2005-2006 and raised crop

and offered to sell the land; that after execution of sale deeds,

landlady delivered the land along with heaps of paddy and

hence, they are entitled to said heaps of paddy and took them

away after thrashing. The specific assertions made in the

written statement by defendants with regard to their thrashing

paddy heaps and took the crop coupled with the evidence of

D.W.1 in his cross examination "It is true I utilize the paddy

heaps which are already in the plaint schedule property as on the

date of purchase i.e. on 05.02.2006. It is true thrashed paddy

was shifted to his house from the plaint schedule property and

sold out the same. I could not say the rate of paddy and the

quantity", manifestly proved that respondents thrashed paddy

heaps and took away paddy. Thus, the admission of the

respondents in this regard is categorical, clear and

unambiguous.

33. Though the respondents pleaded that they are bonafide

purchasers of the plaint schedule property, a perusal of the

evidence of D.W.1 disproves the same. D.W.1 in his cross

examination deposed that "It is true to the North of plaint

schedule property, land of my brother and his wife is situated. It

is true to the South of plaint schedule property, my mother's

property is shown. It is true my mother purchased the property in

the year 2004. It is true my brother and his wife purchased the

property in the year 2005. My family is a joint family." These

admissions made by D.W.1 in his cross examination prove that

land of defendants is on two sides of plaint schedule property

and hence they are aware of the lease in favour of the appellant

and appellant‟s cultivation of land. In view of the same,

respondents would not be allowed to plead that they are

bonafide purchasers of land.

34. It is relevant to extract Section 109 of the Indian Evidence

Act, 1872, which reads thus:

"109. Burden of Proof as to relationship in the cases of partners, landlord and tenant, principal and agent.- When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has

been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it."

35. A perusal of the above section indicates that respondents/

defendants are contending that they are bonafide purchasers

and they are not aware of the lease. No evidence was let in by

them to prove that appellant is not lessee of schedule property.

36. In Pulikandam Subba Reddy Vs. Gorantal

Veeraswamy2, it was held thus:

"On a reading of Section 109 and illustration (d) Section 114 of the Evidence Act together, the law is that the landlord relationship between the landlord and the tenant continues until it is proved to have ceased. When a person is found to be in possession as a tenant on a particular date, it must be presumed to continue unless the contrary is established by the person who contends to the contrary. Even the terms of lease like the period of lease, the rate of rent etc., should be presumed and the burden of proving contrary is on the person who affirms it."

37. It is also apt to extract explanation II to Section 3 of the

Transfer of Property Act, 1882, which reads thus:

"Explanation II. -Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."

38. In R.K.Mohammed Ubaidullah and others Vs. Hajee C.

Abdul Wahab (D) by LRs. and others3, the Hon‟ble Apex Court

held thus:

1995 (2) ALD 1000

"It may be mentioned here that an Explanation was introduced into the Transfer of Property Act by the Amending Act 21 of 1929. Even prior to this amendment, the law, as declared in decided cases, was that, when a person purchased property from the owner knowing that it is in the possession of another, he is under a duty to inquire into the nature of that possession, and, in the absence of such inquiry knowledge of title under which possession is held, should be attributed to the purchaser".

39. In Daniels Vs. Davision4, the Lord Chancellor held that:

"where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that persons is in possession ... that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession."

40. In Veeramalai Vanniar Vs. Thadikara Vanniar5, it was

held that:

"It is the duty of the subsequent purchaser to inquire from the persons in possession as to the precise character in which they were in possession at the time when the subsequent sale transaction was entered into. If there be a tenant in possession of land a purchaser is bound by all the equities which the tenant could enforce against the vendor and such equity extends not only to the interest connected with the tenancy but also to interests under the actual agreement."

41. A perusal of evidence of D.W.1 extracted supra manifests

that respondents are having land on two sides of plaint schedule

(2000) 6 SCC 402

(1809) 16 Ves Jun 249

AIR 1968 Mad 383

property and they are having knowledge about appellant‟s

cultivating the land of their vendor. D.W.1 further deposed that

there is no mention in the document (sale deed) that land was

delivered along with crop. In view of the categorical admissions

made by D.W.1 in his cross examination, this Court came to

irresistible conclusion that respondents are aware of the lease in

between the appellant herein and Dr.T.Indira Devi. Thus, they

cannot plead and they are bonafide purchasers. Apart from this,

the findings of Hon‟ble Apex Court extracted supra, with regard

to surrender of tenancy by the appellant herein and failure of

respondents to prove that tenancy has been terminated or

surrendered in the manner known to law and restoring the

order in A.T.C.No.2 of 2003, are binding on this Court. Thus,

this Court is of the opinion that findings of the Lower Appellate

Court while reversing the judgment of the trial Court that the

plaintiff failed to prove that he is tenant of Indira Devi for the

year 2005-2006 is contrary to evidence on record. Lower

Appellate Court also misconstrued and misinterpreted the

contents in Exs.A.1, A.3, A.5 and A.12. Lower appellate Court

also committed wrong in drawing presumption under Section

114 of the Indian Evidence Act, 1872 about the subsisting

tenancy. The findings recorded by the Lower Appellate Court

that vendor of respondents is also proper and necessary party is

without any pleading and evidence.

42. During the course of arguments, learned counsel for the

respondents would contend the findings recorded in Exs.B.1

and B.2 are binding on Civil Courts and hence, suit filed by the

appellant for recovery of amount is liable to be dismissed.

Whether the judgment of a criminal Court binds Civil Court is

no longer res integra.

43. In Shanti Kumar Panda Vs. Shakuntala Devi6, the

Hon‟ble Apex Court held that -

"A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence."

44. In K.G.Premshanker Vs. Inspector of Police and Ors.7,

the Hon‟ble Apex Court considered the effect of decision of a

criminal Court in civil proceedings. it was held that -

30. What emerges from the aforesaid discussion is -- (1) the previous judgment which is final can be relied upon a provided under Section 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res- judicata may apply; (3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except

(2004) 1 SCC 438

(2002) 8 SCC 87

as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.

The Hon‟ble Apex Court ultimately held that civil

proceedings as well as criminal proceedings are required to be

decided basing on the facts and evidence recorded by the

parties.

The Hon‟ble Apex Court further held that -

32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff's case (supra) (M.S.Sheriff Vs. State of Madras - AIR 1954 SC 397) would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not a relevant consideration. The law envisages "such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages."

33. Hence, the observation made by this Court in V.M. Shah's case (supra) (V.M.Shah Vs. State of Maharastra - AIR 1996 SC 339) that the finding recorded by the criminal Court stands superseded by the finding recorded by the civil Court is not correct enunciation of law. Further, the general observations made in Karam Chand's case (Karam Chand Ganga Prasad and Union of India - (1970) 3 SCC

694) are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff's case as well as Sections 40 to 43 of the Evidence Act.

34. In the present case, after remand by the High Court, civil proceedings as well as criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties.

45. In Iqbal Singh Marwah and Ors. Vs. Meenakshi Marwah

and Ors.8, the Constitution Bench of the Hon‟ble Apex Court

held that -

"There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

It was further held that -

"Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

46. In Ramdayal Jat Vs. Laxmi Prasad9, the Hon‟ble Apex

Court held that

"A judgment in a criminal case, thus, is admissible for a limited purpose. Relying only on or on the basis thereof, a civil proceeding cannot be determined, but that would not mean that it is not admissible for any purpose whatsoever."

A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court.

(2005) 4 SCC 370

(2009) 11 SCC 545

In M.S.Sheriff and Anr. Vs. State of Madras and Ors. ([1954] 1 SCR 1144), a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence.

In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment."

47. In Vishnu Dutt Sharma Vs. Daya Sapra10, the Hon‟ble

Apex Court held that -

25. It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. {See Seth Ramdayal Jat Vs. Laxmi Prasad (supra). The judgment of a criminal court in a civil proceeding will only have limited application, viz., inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings.

26. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding."

48. In Kishan Singh (Dead) Through LRs. Vs. Gurpal Singh

and Ors.11, the Hon‟ble Apex Court held that -

"19. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal

(2009) 13 SCC 729

(2010) 8 SCC 775

cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872 dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration."

49. Thus, in view of the ratio laid down by the Hon‟ble Apex

Court, the contention of the learned counsel for respondents

that Exs.B.1 and B.2, judgments of Criminal Courts are binding

on civil Court falls to ground.

50. In the instant case, suit was filed for recover of amount

and the plaintiff‟s contention is that he is the cultivating tenant

and the landlady sold the property to the respondents after he

raised heaps. After purchase, respondents thrashed the heaps

and took away the paddy. The pleading and evidence of the

parties are clear to the effect that appellant/plaintiff is tenant of

the schedule property and he raised paddy crop and after

harvesting the same, he kept the same as heaps. At the same

time, the admissions made by 2nd defendant in the written

statement coupled with the evidence of D.W.1, makes it clear

that after purchase of the property, they thrashed the heaps and

took away the paddy. When the evidence in civil suit is clear

and unambiguous, acquittal of respondents in criminal cases is

of no consequence and has no bearing. Thus, this Court is of

the opinion that the argument advanced by the respondents‟

advocate is meritless and falls to ground.

51. Learned counsel for the respondents also put forth

another contention that order of the Hon‟ble Apex Court in

S.L.P. operates prospectively. In support of the said contention,

he relied upon the decision of the Hon‟ble Apex Court in State

of Manipur and Ors. Vs. Surjakumar Okram and Ors.12. The

doctrine of prospective overruling would not apply to the case on

hand. Thus, the judgment referred to supra would not help the

respondents.

52. 5th substantial question of law framed by the Court is,

Whether the rejection of the cross objection filed by the present

appellant is correct?

53. Appellant/plaintiff filed cross objections in the appeal

since the trial Court did not grant interest pending the suit.

Section 34 of Code of Civil Procedure deals with interest, which

reads thus:

"34. Interest (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree order interest to be paid on the principal sum adjudged, from the date of the suit to the date of decree at a rate not exceeding twelve percent. per annum, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding twelve percent. per annum as the Court deems reasonable on such principal sum, from the

Civil Appeal Nos.823-827 of 2022 (Arising Out of SLP (C) Nos.2001-2005 of 2021) dated 01.02.2022 = MANU/SC/0126/2022

date of the 100 decree to the date of payment or to such earlier date as the Court deems fit:

Provided-----

Though interest is a matter of contract, Court can

decide its reasonableness on the touch-stone of settled

principles. Award of interest of discretionary and the same

is clear from the word „may‟ employed in Section 34 of the

Act.

54. The contention of appellant that he is entitled to interest

pending suit. Trial Court granted interest after the decree till

realization. Though granting of interest is discretion of the

Court, such discretion is to be exercised basing on the facts of

each case. The suit was filed for recovery of amount on the

ground that defendants/respondents took away the paddy from

the fields in possession of plaintiff as cultivating tenant. The

sale deeds of respondents were declared as null and void. This

Court concluded that respondents are not bona fide purchasers.

Pleadings and evidence of respondents are very clear about their

taking away paddy pursuant to the sale deeds. In fact D.W.1

deposed that no mention was made in the sale deeds about

existence of crop. All these instances make the things more

than discernable that taking away paddy crop from the fields is

not legal and entail the appellant/plaintiff to relief of interest

pendente lite. Courts below in view of the facts involved in this

case, ought to have granted interest pendente lite. Thus, this

Court concludes that appellant is entitled to interest pendente

lite at 9% p.a. from the date of filing of the suit till the date of

decree.

55. In view of foregoing discussion, the second appeal is

allowed, with costs throughout, setting aside the judgment and

decree dated 01.02.2018 in A.S.No.10 of 2011 on the file of

Senior Civil Judge, Bapatla. The judgment and decree dated

28.10.2010 in O.S.No.313 of 2006 on the file of Principal Junior

Civil Judge, Ponnur is hereby restored. Interest at 9% p.a. on

the principal amount, from the date filing of suit till the date of

decree is also granted.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

21st June, 2022

PVD