Billa Chennaiah 2 Others vs Bathula Venkata Nageswara Rao
2022 Latest Caselaw 8845 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

               SECOND APPEAL No.292 of 2015

JUDGMENT:

Defendants in the suit filed this second appeal under

Section 100 C.P.C. Respondent herein is the plaintiff in the

suit. The property in dispute between the parties is described

in the plaint schedule as 1,000 square foot of vacant site with a

thatched hut in it situate in Survey No.3 of Daravari Thota in

Ongole of Prakasam District. Plaintiff filed O.S.No.889 of 2005

seeking for permanent injunction as against the defendants.

After due trial, the suit was dismissed. Aggrieved of it, plaintiff

preferred A.S.No.129 of 2013 and the learned VII Additional

District Judge, Ongole allowed the appeal and decreed the suit

and thus, it granted permanent injunction in favour of the

plaintiff and against the defendants. Aggrieved by it, the

defendants in the suit preferred this second appeal.

2. A learned judge of this Court on 01.05.2015 admitted this

second appeal on the following substantial questions of law.

"1. Whether the lower Appellate Court failed to appreciate that the respondent herein suppressed the fact of vacating the order of status quo passed in W.P.No.8697 of 2012 on 27.09.2013 itself and the revenue authorities have put the appellants in

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possession of the plaint schedule land vide proceedings No.Rc.B/1212/2005, dt. 28.11.2013?

2. Whether the lower appellate Court was right in disposing of the appeal without formulating relevant questions for adjudication and whether the impugned judgment of the first appellate Court is perverse?"

3. The above questions have arisen in the context of the

following facts:

In the plaint, it is stated that plaintiff is a landless poor

and he is engaged in hill stone cutting and he occupied the suit

schedule site and raised a hut and this property originally

belonged to the Government. After thorough enquiry, Mandal

Revenue Officer, Ongole granted D.K.Patta in D.K.No.117/99 on

06.05.1990. Accordingly, plaintiff has been residing in the

thatched hut peacefully. Plaintiff has no other properties.

Defendant Nos.1 and 2 are spouses and defendant No.3 is

mother of defendant No.2. They are natives of Madanur and

have got their own properties there. In a rented house

defendant Nos.1 and 2 are living towards northern side of the

suit schedule property. These defendants developed evil eye

and without any right or possession they have been making

efforts to dispossess the plaintiff out of the suit schedule

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property and they wanted to occupy it illegally. In these

circumstances, plaintiff had to sue them. The prayer made in

the suit is to grant permanent injunction restraining the

defendants and their men from interfering with peaceful

possession and enjoyment of the plaintiff over the suit schedule

property. As against that, the defendants in their written

statement apart from denying the plaint mentioned allegations

specifically pleaded that the patta alleged in the plaint is fake

and the suit schedule property has been in possession and

enjoyment of 2nd defendant for a long time and the plaintiff is

not in possession and enjoyment of it. Revenue authorities

enquired and found the patta alleged by the plaintiff is a forged

document and he is not in possession and enjoyment of the

property. They further stated that revenue authorities found

the plaintiff as a land grabber and has been in the habit of

creating fabricated documents such as patta. Plaintiff filed

photographs along with the plaint and such photographs cannot

sustain the claim and the photographs do not belong to suit

property. Written statement further mentions about various

properties owned and possessed by plaintiff and his family

members and as to how they used to obtain assignments and

dispose of those properties etc. It is then stated that plaintiff

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has neither title nor possession over the property. Plaintiff also

filed C.D.313 of 2005 before the Consumer Forum and

thereafter, not pressed it since revenue authorities contested it.

It is then stated that about Plot Nos.38-A and 37-A in Survey

No.3 of Annavarappadu defendant Nos.2 and 3 filed O.S.No.849

of 2005 against father of the plaintiff and they were granted an

injunction as against father of the plaintiff. It is in those

circumstances this plaintiff and his father hatched a plan and

filed the suit. All the facts that are pleaded by the defendants

are there in the other suit in O.S.No.849 of 2005 and they are

known to the plaintiff. For these reasons, they sought for

dismissal of the suit.

At the trial, plaintiff testified as PW.1 and got examined

three more witnesses as PWs.2 to 4. He got exhibited the patta

as per Ex.A.1 and photographs with negatives and CD as per

Exs.A.2 to A.6 and filed electricity bills 21 in number as per

Ex.A.7 and copy of voters list of the year 2009 as per Ex.A.8 and

proceedings of the Tahsildar as per Ex.A.9. As against that, 1st

defendant gave evidence as DW.1 and got marked Exs.B.1 to

B.29 out of which Ex.B.1 is D.K.Patta dated 18.04.2005 in

favour of 2nd defendant. Learned trial Court for its

consideration framed the following issues:

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1. Whether the plaintiff is in possession and enjoyment over the suit schedule property?

2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

3. To what relief?

Considering the evidence on record and the rival

submissions, it observed that Ex.A.1 patta produced by plaintiff

does not contain the door number and the extent that is

mentioned therein differs from the extent that is mentioned in

the plaint schedule and the boundaries mentioned therein are

also not proved properly by the plaintiff. It observed that as per

the evidence in O.S.No.849 of 2005 the patta produced in

Ex.A.1 by the plaintiff was found to be false. It then stated that

photos filed by the plaintiff cannot be used for proving the

plaintiff's possession and on the electricity bills produced by the

plaintiff in Ex.A.7 it stated that they do not contain the door

number or plot number and they all pertain to a period that is

subsequent to filing of the suit and therefore they are not useful

to prove possession as on the date of suit. On Ex.A.8-voters list

it stated that the suit was filed in the year 2005, but the voters

list was obtained in the year 2009 and being subsequent to the

suit it does not help the plaintiff. It further stated that there is

an advocate commissioner's report with reference to the

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physical features of the property, but that cannot be used to

prove possession of the plaintiff as advocate commissioner is

not competent to decide possession. With such reasons,

learned trial Court held all the issues against the plaintiff and

dismissed the suit. As against that, when the matter was

carried to first appellate Court, the learned VII Additional

District Judge, Ongole framed the following point for

consideration:

"Whether the judgment in O.S.No.889/2005, dated 29.07.2013 on the file of the learned Prl. Junior Civil Judge, Ongole, is liable to be set aside or not?"

Learned first appellate Court considered the very same

evidence and then stated that as per Ex.A.1 plot No.38-A in

Survey No.3 patta was granted to plaintiff on 06.05.1990. It

then stated that there is advocate commissioner's report

showing that the plaintiff is in possession of the suit schedule

property. That had to be considered since the defendants did

not file any objections against that advocate commissioner's

report. It further stated that report of the advocate

commissioner is a good piece of evidence to decide the matter.

It then stated that the tax receipts and electricity bills produced

by the plaintiff/appellant therein are also pieces of evidence to

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decide the equitable relief of injunction. It made a mention

about certain writ petitions pending before this Court where

status quo orders were granted and stated that title of both

parties is in question in those writ petitions. It is with these

reasons, it set aside the lower Court's judgment, allowed the

appeal, decreed the suit and granted perpetual injunction in

favour of the plaintiff and against the defendants. It is in the

above context, the earlier mentioned substantial questions of

law fell for consideration in this second appeal.

4. Learned counsel on both sides submitted their

arguments.

5. Learned counsel for respondent/plaintiff submits that

writ petitions are still pending. It is further submitted that

based on the material on record, the first appellate Court

granted the decree of injunction and that need not be disturbed.

As against that, the submissions of the learned counsel for

appellants/defendants is that learned trial Court was accurate

in deciding the facts and law and dismissed the suit and the

entire approach of the first appellate Court is erroneous and is

against law and cannot be sustained. Learned counsel submits

that the judgment of the first appellate Court, which is

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impugned in this second appeal, is perverse and is against law.

Considering these rival submissions, the decision in this appeal

has to be taken.

6. In a suit for permanent injunction the material fact for

determination is to see whether the plaintiff has been in settled

possession and whether it is equitable to grant a protective relief

of a permanent injunction to him or not?

7. In every suit the burden lies on the plaintiff to sustain his

contentions. The entire case is about a plot of land granted by

the Government in the form of a D.K.Patta. Respondent/

plaintiff filed the plaint on 25.10.2005. Therefore, it is for him

to establish his possession and enjoyment of the suit schedule

property. In proof of his allegations, he basically relied on

Ex.A.1 patta. Ex.A.1-D.K.Patta is in favour of the plaintiff and it

refers to allotment of Plot No.38-A to the plaintiff. It mentions

that 2,000 square foot of site is allotted to plaintiff by that patta.

Boundaries on four sides are mentioned there. These aspects

are significant. The plaint schedule has not mentioned the plot

number and has not mentioned the door number. Plaint

schedule refers to only 1,000 square foot. Boundaries

mentioned therein are reproduction of boundaries mentioned in

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Ex.A.1 patta. If the patta granted 2,000 square foot and if the

plaint refers only to 1,000 square foot, the remaining 1,000

square foot must be on one side of the boundary for the plaint

schedule, but that is not how it is available on record. This was

pointed out by the learned trial Court saying that the patta and

the schedule of the plaint do not match properly. As against

such finding, the first appellate Court paid no attention at all.

During trial, through DW.1 Ex.B.1 patta was exhibited. Ex.B.1

is D.K. Patta No.78/1414 for this very plot No.38-A granted on

18.04.2005 standing in the name of Smt. Billa Vijaya Nirmala

W/o. Chennaiah, who is the 2nd appellant herein and in other

words she is the 2nd defendant in the suit. Thus, Exs.A.1 and

B.1 pattas are the pattas that were given to parties prior to the

filing of the suit. When Ex.B.1 patta was granted whether the

Government cancelled Ex.A.1 patta or not and whether the

patta could be granted to a person without cancelling the earlier

patta or not are not the facts that are borne by pleadings and

are not facts against which any particular relief was claimed in

the suit. It is stated by learned counsel on both sides that writ

petitions pertain to illegality of issuance of such pattas.

Therefore, this Court need not delve into those aspects.

However, as the things stand Ex.B.1 is now latest patta

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indicating possession of plaint schedule property by defendant

No.2. Learned first appellate Court did not pay any attention

and did not make any finding as to how and why that document

should be discarded.

8. The first appellate Court framed only one point for its

consideration, which is once again extracted here:

"Whether the judgment in O.S.No.889/2005, dated 29.07.2013 on the file of the learned Prl. Junior Civil Judge, Ongole, is liable to be set aside or not?"

9. The appellants very seriously challenged the illegality of

that approach of the first appellate Court stating that it is

against Order XLI Rule 31 C.P.C. This Court notices

Karamalakunta Kadiramma v. Karamalakunta Dasappa1.

That was a suit for permanent injunction and the trial Court

dismissed it. When the first appeal came, the only point that

was framed for consideration was "Whether the judgment and

decree of the trial Court is liable to be set aside?" Learned first

appellate Court dismissed the appeal. In the second appeal

before this Court plaintiffs sought Order XLI Rule 31 C.P.C. and

questioned the approach of the first appellate Court. Agreeing

with the submission, this Court had stated that such type of

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framing the point for consideration is absolutely of no use in

deciding the real dispute between the parties. Stating so, it set

aside the judgment of the first appellate Court and remanded

the appeal to be disposed of afresh in accordance with law.

Thus, this Court had ruled that the real dispute between the

parties should form part of point for consideration in case where

first appeal was heard by the Courts. This Court also notices

Ali Mohamood v. Special Court under A.P. Land Grabbing

(Prohibition) Act, Hyderabad2. There also Order XLI Rule 31

C.P.C. fell for consideration. On analysis of the facts available

on record, learned Division Bench of this Court held that under

Order XLI Rule 31 C.P.C. law contemplates that both parties

should have an understanding as to what are the points that

fall for consideration before the appellate Court and that the

judgment of the appellate Court should indicate that it applied

its mind to the evidence available on record and stated that

simply because there is failure to frame the points for

consideration by the first appellate Court itself cannot make the

judgment invalid as long as the judgment of the appellate Court

indicates full consideration of facts and law on its part. Thus,

1999 (2) ALT 256

2000 (4) ALT 673 (D.B.) (AP)

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this Court ruled that it is not mere technical compliance of

Order XLI Rule 31 C.P.C. that is required but the Courts are to

comply with its spirit. Thus, it is clear that against the mandate

of law, the first appellate Court went ahead in disposing of the

first appeal and such dispensation of justice cannot be

approved by this Court.

10. One important point that was considered by the first

appellate Court, which convinced it to upset the trial Court's

judgment, in allowing the appeal is about report of advocate

commissioner. In many words, the first appellate Court stated

that to prove possession over immovable property, advocate

commissioner's report is a very valuable piece of evidence. Such

finding on part of the first appellate Court is totally untenable at

law. It has been the law that in a suit for perpetual injunction

the Court has to adjudicate as to who is in actual possession of

the suit property as on the date of institution of the suit on the

basis of oral and documentary evidence adduced by the parties.

That essential function cannot be delegated to advocate

commissioner and the report of the advocate commissioner

cannot be used for deciding physical possession of immovable

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property vide B.Ramulu v. Gudur Narender Reddy3, Penta

Urmila v. Karukola4 and Parepally v. Vutukuri5. Thus, the

first appellate Court committed grave error in considering

material that ought not to have been considered while deciding

possession of a person over immovable property. Consideration

of such extraneous material led to perverse judgment.

11. Ex.A.8 voters list was of the year 2009. Ex.A.7 electricity

bills pertain to a period from the year 2006 to 2010. Learned

trial Court stated that all of them were subsequent to filing of

the suit in the year 2005 and that they do not contain the plot

number or door number and therefore, no value would be

granted to those documents while deciding as to whether

plaintiff was in possession of the suit property as on the date of

the suit. Learned first appellate Court did not meet those

observations and simply stated that such documents are good

pieces of evidence. This observation of the first appellate Court

is unsustainable since the plaint and the evidence of PWs.1 to 4

do not even refer to the date on which they had applied for

electricity service connection and the service connection

1998 SCC Online AP 196/1998 (3) ALT 473

(2005) 2 ALD 130

(2008) 1 ALD 461

Dr. VRKS, J S.A.No.292 of 2015

number. It is unfortunate that the first appellate Court simply

expressed its readiness to accept any document without any

effort to find out whether such document pertains to the suit

disputed property or not? The well considered observation of

the trial Court were simply overlooked by the first appellate

Court. One may also notice that the plaintiff as PW.1 in his

cross-examination stated that his patta was cancelled. Learned

first appellate Court did not choose to make any comment on

such evidence that was available before it. Thus, the judgment

of the first appellate Court failed to read the required evidence

and considered evidence that ought not to have been a material

to form a conclusion and thus, its judgment is against law and

cannot be sustained.

12. During the course of hearing of this appeal, one more

contention argued by the learned counsel for appellants/

defendants is that accepting their possession over this suit

disputed property their suit in O.S.No.849 of 2005 was decreed

and no appeal was preferred against it. Learned counsel for

appellants also submits that on 27.09.2013 itself the status quo

orders that were there in the writ petition were vacated, but that

was not noticed by the lower Courts. The above aspects are not

challenged by the learned counsel for respondent. In

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summation, it has to be stated that the trial Court properly

considered the evidence on record about possession of property

as on the date of institution of the suit and found that there was

no reliable evidence proving possession of the plaintiff, but the

first appellate Court without addressing itself properly went on

to decide the appeal and got carried away by considering

impermissible material such as advocate commissioner's report

for proving possession. Therefore, the judgment of the first

appellate Court, which is impugned in this appeal, has to be set

aside. There are merits in the grounds urged in this second

appeal. Hence, the points are answered in favour of the

appellants.

13. In the result, this Second Appeal is allowed setting aside

the judgment dated 07.04.2015 of learned VII Additional

District Judge, Ongole in A.S.No.129 of 2013. There shall be no

order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 18.11.2022 Ivd

Dr. VRKS, J S.A.No.292 of 2015

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.292 of 2015

Date: 18.11.2022

Ivd