T.Venkata Ravamma vs Karnati Lakshmamma
2022 Latest Caselaw 2691 AP

  THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

               APPEAL SUIT No.406 OF 2014

JUDGMENT :

The Appeal Suit, under Section 96 of the Code of Civil

Procedure, 1908 (for short, 'CPC'), is filed by the

appellants/plaintiffs aggrieved by the judgment and decree

dated 21.02.2014 passed in Original Suit No.52 of 2010 on

the file of the XII Additional District Judge, Krishna at

Vijayawada.

2. The appellants herein are the plaintiffs, and the

respondents herein are the defendants, in the suit. For

better appreciation of facts, the parties are hereinafter

referred to, as arrayed before the trial Court.

3. The plaintiffs filed the aforesaid suit seeking

declaration of their title over the suit schedule property and

for permanent injunction restraining the defendants from

interfering with their peaceful possession and enjoyment of

the suit schedule property in any manner over the suit

schedule property. The averments in the plaint, in brief,

may be stated as follows.

1st plaintiff is the wife, 2nd plaintiff is the son, and

plaintiffs 3 and 4 are the daughters, of one Pandu Ranga

Rao, who purchased the suit schedule property from 2nd

defendant society, being member of the society, under a

registered sale deed dated 29.02.1996, and during his life

time, he enjoyed the property as the absolute owner and

died on 04.06.2001 intestate leaving the plaintiffs as his

legal representatives. From the date of his death, plaintiffs

have been in possession and enjoyment of the said

property. While things stood thus, 1st defendant filed

Original Suit No.1994 of 2007 on the file of the I Additional

Junior Civil Judge, Vijayawada against 2nd plaintiff and

others, who are strangers to the suit schedule property, for

simple injunction, and the said suit was decreed. 1st

defendant put up false claims and is claiming title by

relying on some documents. Hence, to clear the cloud over

their title, plaintiffs filed the present seeking declaration

and permanent injunction.

4. 1st defendant filed written statement denying the

averments in the plaint and stating that she purchased the

plaint schedule property on 30.01.1982 from her vendors

for a valuable consideration and has been enjoying the

same as the absolute owner without any interference since

the date of her purchase and paying taxes to the

authorities concerned; that as members of 2nd defendant

society tried to interfere with her possession and enjoyment

over the suit schedule property, she filed Original Suit

No.171 of 1996 against 2nd defendant for permanent

injunction and the said suit was decreed ex parte on

30.07.1998; that subsequently, as 2nd plaintiff and some

others, who are claiming as owners of neighbouring plots,

tried to interfere with her possession and enjoyment over

suit schedule property, she filed Original Suit No.1994 of

2007 against them for permanent injunction and the same

was decreed; that she is the absolute owner of the suit

schedule property and the same is in her possession and

enjoyment, and hence, the plaintiffs are not entitled to any

relief in the present suit.

5. 2nd defendant filed written statement stating

inter alia as follows.

It is a registered society and represented by its

Secretary. Suit filed by the plaintiffs showing

representation of 2nd defendant through President, is not

maintainable, and 2nd defendant is neither a necessary

party nor a proper party to the suit proceedings and

therefore suit is bad for mis-joinder of parties. 2nd

defendant is a society and the same was formed and

registered on 30.07.1981 with total 421 members, and the

late Pandu Ranga Rao was one of the members of 2nd

defendant society. The District Collector, Krishna, at

request of 2nd defendant, acquired Ac.14.12 cents of

property at Bhavanipuram and handed over to it, and the

plaint schedule property is part of the said land. The Writ

Petitions filed by 12 persons at that time, questioning the

acquisition proceedings, were dismissed and an Award

No.20 of 1985 was passed on 11.06.1985 and Ac.13.51

cents of land was handed over to 2nd defendant on

04.09.1985. Subsequently, lay out plan was approved by

VGT UDA under LP No.4 of 1995 and as per instructions of

LAO, 12 members, who filed Writ Petitions, were admitted

as members in the society and the entire land was divided

into 214 plots and distributed among members under

lottery system, and out of 12 objectors, who filed Writ

Petitions, 1st defendant and one Kandukuri Padmavathi did

not take plots on lottery basis and as such in the first

instance, sale deeds were not registered in their respective

names. Subsequently, Kandukuri Padmavati approached

2nd defendant and obtained registered sale deed in her

favour. Plot No.126 was allotted to late Pandu Ranga Rao

and registered sale deed dated 29.02.1996 was executed in

his name and vacant possession was delivered to him on

the same day. 2nd defendant did not execute any document

in the name of 1st defendant. Plaintiffs, without knowing

true facts, filed the suit against 2nd defendant

unnecessarily and hence it is prayed to dismiss the suit.

6. Basing on the above pleadings, the trial Court

framed the following issues.

1) Whether the plaintiffs are entitled for the relief of declaration as prayed for ?

2) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for ?

3) To what relief ?

7. During course of trial, 1st plaintiff was examined

as P.W.1 and 4th plaintiff was examined as P.W.2, and

Exs.A1 to A6 were got marked through them. Plaintiffs

examined the Special Tahsildar, Land Acquisition, as P.W.3

and Exs.X1 and X2 were got marked through P.W.3. On

behalf of 1st defendant, she examined herself as D.W.1 and

marked Exs.B1 to B23. No oral or documentary evidence

was adduced on behalf of 2nd defendant.

8. After hearing both the parties, the trial Court

recasted the issues as under, at the time of preparation of

judgment.

1) Whether the plaintiffs are in possession of suit schedule property ? if not.

2) Whether the property in possession of 1st defendant was acquired by Government to give the same to 2nd defendant ?

3) Whether the plaintiffs are entitled for permanent injunction, as prayed for ?

4) Whether the suit of plaintiffs for declaration of title is maintainable without seeking the relief of possession of suit schedule property ?

5) Whether the plaintiffs are entitled for the relief of declaration of their title as prayed for ?

6) To what relief ?

9. The trial Court, vide the impugned judgment

and decree, dismissed the suit holding that the plaintiffs

are not in possession of the suit schedule property and 1st

defendant is in possession of the property; that the

property now in possession of 1st defendant is not acquired

by Government under Ex.X1-Award; that without seeking

relief of possession of the suit schedule property, suit of the

plaintiffs for declaration of their title and for permanent

injunction is not maintainable, and hence, the plaintiffs are

not entitled for declaration of title and permanent

injunction as prayed for. Aggrieved by the said judgment

and decree, the present appeal came to be filed by the

plaintiffs.

10. Heard Sri S.Sreeramachandra Murthy, learned

counsel for the appellants and Sri M.L.Ali, learned counsel

for 1st respondent, and perused the evidence available on

record.

11. It is the contention of the learned counsel for the

appellants that late Pandu Ranga Rao, who is husband of

1st plaintiff and father of plaintiffs 2 to 4, is a member of 2nd

defendant society, and he purchased the suit schedule plot

for a valuable consideration under a registered sale deed

dated 29.02.1996 from 2nd defendant society. It is his

further contention that after reserving the suit for

judgment, the trial Court re-casted the issues, and though

some of the re-casted issues casts burden on the plaintiffs

to prove the same, no opportunity was given to the

plaintiffs to adduce necessary evidence. It is his further

contention that on 07.08.2015, this Court allowed I.A.

No.1490 of 2014 (I.A.No.1 of 2014) which was filed by the

appellants/plaintiffs to amend the suit prayer by adding

consequential relief of recovery of possession of suit

schedule property, and I.A. No.1491 of 2014 (I.A.No.2 of

2014) filed by the appellants/plaintiffs, under Order XLI

Rule 27 CPC praying to receive certified copy of L.P. No.4 of

1995 as additional evidence and mark it as Ex.A7, is

pending adjudication before this Court, and the said

document goes to the root of the case. It is his further

submission that the findings recorded by the trial Court

run contrary to the plan, and in the absence of the said

plan in the record as exhibit, the lis in the suit cannot be

adjudicated effectively. It is his further submission that

the trial Court went beyond the scope of the lis involved in

the suit and the reasoning given by the trial Court for

arriving at the conclusions is perverse. Hence, he prays to

remand the matter to the trial Court by providing liberty to

the appellants/plaintiffs to produce necessary additional

evidence on their behalf for proper adjudication of the

matter.

12. On the other hand, learned counsel for 1st

respondent/1st defendant contended that the trial Court,

upon proper appreciation of the evidence on record,

dismissed the suit holding that the appellants/plaintiffs are

not in possession of the suit schedule property and 1st

respondent/1st defendant is in possession of the said

property, and the plaintiffs failed to establish their title over

the suit schedule property, and the same is based on the

evidence on record. It is his further submission that the

evidence adduced by the parties is sufficient to adjudicate

the recasted issues and there was no need to provide an

opportunity to any party to adduce any further evidence,

and the appeal is devoid of merits and is liable to be

dismissed.

13. Now, the point that arises for consideration in

the present appeal is whether the appellants/plaintiffs are

entitled for declaration of their title over the suit schedule

property and permanent injunction restraining the

defendants from interfering with their possession and

enjoyment over the said property, and whether the findings

recorded by the trial Court are based on proper

appreciation of the evidence on record ?

14. The suit was filed for declaration of title and

permanent injunction. Plaintiffs are claiming title through

Ex.A1-registered sale deed dated 29.02.1996 executed by

2nd defendant society in favour of late Pandu Ranga Rao,

who is husband of 1st plaintiff and father of plaintiffs 2 to 4.

According to the plaintiffs, suit schedule property is plot

No.126 admeasuring 183.75 square yards of vacant site

situated in R.S.No.35/2A, 36/2B, 37/1B, 37/2, 37/5,

37/6, 38/2B, 38/3B2, 38/4B2, 39/1C1 and 39/3C2 of

Bhavanipuram, Vijayawada under Award No.20/85 and

L.P. No.4/95. 1st defendant is claiming the said property

by virtue of Ex.B1-registered sale deed dated 30.01.1982

obtained by her from one Jasti Krishna Murthy, who

purchased it under Ex.B2-registered sale deed dated

30.12.1980. According to 1st defendant, her vendor

purchased an extent of Ac.0.25 cents of land in R.S.

No.36/2 under Ex.B2 and sold 273 square yards, out of the

said property, to her under Ex.B1.

15. While dealing with recasted issue No.1 viz.

"Whether the plaintiffs are in possession of suit schedule

property, if not", the trial Court observed that as per the

recitals of Ex.A1-sale deed, Land Acquisition Authorities

handed over Ac.14.12 cents of property to 2nd defendant on

11.12.1985 under Award No.20 of 1985 and 2nd defendant

divided the said property into 215 plots and obtained

approval of lay out from VGT VUDA and Municipal

Commissioner of Vijayawada under L.P.No.4/95 on

25.10.1995 and the entire property got acquired by 2nd

respondent is in R.S. Nos. 35/2A, 36/2B, 37/1B, 37/2,

37/5, 37/6, 38/2B, 38/3B2, 38/4B2, 39/1C1 and 39/3C2

of Bhavanipuram, Vijayawada.

16. The trial Court refers to the recitals in the

written statement of 2nd defendant that Land Acquisition

Authorities delivered Ac.13.51 cents of land only to 2nd

defendant and total plots laid in that property is 214, and

observes that there is no material on record to know

whether 2nd defendant land 215 plots or 214 plots on

ground and whether 2nd defendant laid out plots in

Ac.14.12 cents or in Ac.13.51 cents, and arrives at the

conclusion that the recitals in Ex.A1-sale deed are against

the pleadings of 2nd defendant. In the considered opinion

of this Court, the said finding is perverse. Though 2nd

defendant filed written statement, no one was examined on

its behalf before the Court and no documents were got

marked on its behalf. There is no evidence on oath on

behalf of 2nd defendant to substantiate the said version nor

any documents were got marked to substantiate the same.

In the absence of the same, the said averment in the

pleading of 2nd defendant cannot be a ground to come to

such a conclusion.

17. While dealing with recasted issue No.2 viz.

whether the property in possession of 1st defendant was

acquired by Government to give the same to 2nd defendant

?, the Court below held that plaintiffs or 2nd defendant have

not taken steps to produce layout plan No.4 of 1995 and

the plaintiffs have not taken steps to identify plot No.126

which was purchased under Ex.A1 on ground nor taken

any steps to prove that the property now in the possession

of 1st defendant is in R.S. No.36/2B and not in R.S.

No.36/2. Originally, the Court below framed 3 issues for

consideration, as stated supra. After hearing both sides

and before pronouncement of judgment, the Court below

recasted the issues, framing as many as six issues.

According to the plaintiffs, to substantiate the recasted

issues, evidence has to be adduced by the plaintiffs and the

plaintiffs were not given any opportunity to that effect.

18. Now that, I.A. No.1490 of 2014 (I.A.No.1 of 2014)

filed by the appellants/plaintiffs to amend the suit prayer

by adding consequential relief of recovery of possession of

suit schedule property, was allowed by this Court on

07.08.2015. I.A. No.1491 of 2014 (I.A.No.2 of 2014) is also

filed by the appellants/plaintiffs, under Order XLI Rule 27

CPC praying to receive certified copy of L.P. No.4 of 1995,

as additional evidence and mark it as Ex.A7. The plan

which has been filed in the appeal gives a totally diagonal

picture of the contentions raised before the Court below.

The said plan goes to the root of the case. Admittedly, the

suit is filed for declaration of title. Substantial rights of

the parties are involved in the matter. Therefore, this

Court feels that it is a fit case to remand the matter to the

trial Court with a direction to provide opportunity to the

parties to adduce necessary evidence on the recasted issues

and pass appropriate orders afresh in accordance with law.

19. Accordingly, the Appeal Suit is allowed, setting

aside the judgment and decree dated 21.02.2014 passed in

Original Suit No.52 of 2010 on the file of the XII Additional

District Judge, Krishna at Vijayawada. The matter is

remanded to the trial Court for disposal of the suit in

accordance with law, by providing opportunity to the

parties to adduce relevant evidence with regard to L.P. No.4

of 1995 and after hearing both the parties. The entire

exercise shall be completed within a period of six months

from the date of receipt of a copy of this judgment. Both

the parties shall co-operate for disposal of the suit.

A.S.M.P.No.1491 of 2014 (I.A.No.2 of 2014) is closed.

Certified copy of L.P. No.4 of 1995 filed along with the said

petition shall be returned to the appellants/plaintiffs after

the same is substituted with photo copy.

There shall be no order as to costs of the Appeal Suit.

Miscellaneous petitions pending, if any, in the Appeal

Suit stand disposed of.

__________________________________ JUSTICE K.SREENIVASA REDDY 23.06.2022 DRK

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

APPEAL SUIT No.406 OF 2014

23.06.2022