Andhra Pradesh High Court - Amravati
Smt. Dokkari Mutyalamma, vs Sri Miriyala Hanumatha Rao, on 13 October, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.368 of 2021
ORDER:
This Civil Revision Petition, under Article 227 of the
Constitution of India, by the unsuccessful petitioner/plaintiff is
directed against the order and decree, dated 18.06.2020, of learned
II Additional Senior Civil Judge, Visakhapatnam, dismissing
I.A.No.1028 of 2019 in OS No.1004 of 2013 filed under Order XIV
Rule 5 of CPC, requesting to recast the issues.
2. Heard Sri A. Sai Naveen, learned counsel for the revision
petitioner/plaintiff and Sri K. Sairam Murthy, learned counsel for the
respondent No.1/defendant No.1. Respondents/ defendant Nos. 2
to 13 are shown to be not necessary parties to this revision petition.
3. The suit is filed contending briefly as follows:
(a) The property of an extent of about Ac.8.00 cents in Survey
No.1/1, Chinnawaltair, M.V.P Colony, Visakhapatnam, was originally
purchased by late Pinninti Appili with his self acquisitions under a
registered sale deed, dated 15.10.1956, registered as document
No.2576/56 and the said Pinninti Appili was in possession and
enjoyment of the same. A part of the said land was acquired for
formation of beach road by the State Government. Out of the
above mentioned property, an extent of 600 square yards is being
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jointly owned, possessed and enjoyed by Pinninti Appili family.
Pinninti Appili died intestate, on 15.03.1982, leaving behind his
wife, P.Appayamma, son, Suribabu, the plaintiff and defendants 2 &
3. As Suribabu was mentally imbalanced, the mother of the
plaintiff, Smt. P.Appayamma, acted as his guardian and used to
look after the joint family affairs. The schedule property was
purchased by Pinninti Appili from the joint family funds and the
same is an ancestral property and the plaintiff and defendants 2 to
6 are the coparceners who succeeded to the property. There was
no partition of the property. Pinninti Suribabu passed away on
15.12.1998, leaving behind him his wife Pinninti Kanthamma, Son,
Pinninti Ramakrishna and daughter, Pinninti Shyamala.
(b) While things stood thus, the 1st defendant has been
demanding the plaintiff to hand over physical possession of the
schedule property on the ground that he got a sale deed in his
favour through Court in respect of 155 square yards. It is found
that the schedule mentioned therein is not correct and the
boundaries do not tally with the actual boundaries on ground.
(c) However, the defendant No.1 is making hectic efforts to
trespass into the joint family property highhandedly and illegally.
Hence, the plaintiff filed the suit to set aside the registered sale
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deed, dated 05.02.2013, as null and void, as the same was
obtained by playing fraud on Court.
4. The 1st defendant filed written statement denying the plaint
averments and contending, in brief, as under:
The plaintiff filed the suit O.S.1049/1991 on the file of the
Court of I Additional District Munsif, Visakhapatnam, against Pinninti
Suribabu for specific performance of contract, dated 23.06.1988,
executed by late Pinninti Suribabu, husband of the 4th defendant
and father of defendants 5 & 6 and obtained a decree. In the said
suit, late Pinninti Suribabu took a plea that he is only a joint owner
of the suit property along with his mother and sister while admitting
the execution of the agreement, dated 23.06.1988, but as he could
not place any material before the Court, the suit was decreed.
Suribabu did not prefer any appeal, the judgment and decree in
O.S.No.1049 of 1991 have became final. On the basis of the
decree, the plaintiff filed E.P.81 of 2004 under Order XXI Rules 22 &
34 CPC against the heirs of late Suribabu. In the execution petition,
the wife of late Suribabu, the 2nd JDr also filed counter and her
objections were negatived. The mother of late Suribabu, who is the
3rd judgment debtor, died on 24.05.2010, and therefore, the 1 st
defendant filed E.A.No.218 of 2010 to bring respondents 6 to 8, the
plaintiff and the defendants 2 & 3 in the suit, on record and add
them as judgment debtors 6 to 8. However, the said petition was
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dismissed on 06.02.2012, holding that the property devolved on the
3rd judgment debtor, after the death of 1st judgment debtor, being
his legal heir, the property reverts back to the wife and children of
the deceased 1st judgment debtor. Thus, the trial Court executed
the sale deed for the suit property on behalf of the judgment
debtors on 05.02.2013. The plaintiff herein is no other than the
sister whose cause was canvassed by late Suribabu as the joint
owner along with his mother and himself. The suit was decreed
negativing the contention of Suribabu. Therefore, the present suit
is hit by the doctrine of res judicata. Late Suribabu contested the
suit O.S.No.1049 of 1991 and deposed as DW1 and as such, the
plea that late Suribabu was mentally imbalanced is not true and
correct. The present suit is filed only with a view to cause hardship
to this defendant and hence, the same is liable to be dismissed.
(b) The 1st defendant also filed additional written statement
contending as follows:
The suit is not maintainable either in law or on facts. The
plaintiff got amended the plaint by getting the relief 'to set aside the
decree and judgment in O.S.1049/1991, dated 03.03.1997, passed
by the Court of I Additional Junior Civil Judge, Visakhapatnam, as
the same is obtained by 'playing fraud'. The decree passed therein
was not on merits. It is clearly mentioned in exhibit A1, sale deed,
dated 05.02.2013, that by virtue of the agreement, dated
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23.06.1988, executed in favour of this defendant, possession of the
suit property was delivered to this defendant. In the plaint schedule
property, this defendant got constructed a three storied building
after obtaining permission from the Municipal Corporation in the
year 2012-2013 and this defendant is in peaceful possession and
enjoyment of the property. The judgment debtors did not come
forward and cooperate to register the sale deed and hence, the
Court ordered execution of the registered sale deed in favour of this
defendant on 05.02.2013. Hence, the plaintiff cannot raise the plea
that this defendant played fraud against her in obtaining the decree.
The defence of Suribabu in O.S.1049 of 1991, E.P.No.81 of 2004
and in O.S.No.1004 of 2013 is one and the same and as such, the
plaintiff is stopped, as per law, from taking a similar plea. The
present suit is also barred by time. The suit is liable to be
dismissed as the plaintiff neither valued the suit on the additional
relief nor did she pay the required court fee. Further, she failed to
prove the fraud alleged against this defendant. Hence, the suit is
liable to be dismissed with exemplary costs.
5. The plaintiff filed rejoinder to the additional written statement
filed by the 1st defendant contending that late Pinninti Suribabu
never executed any sale agreement in favour of the 1st defendant
much less the alleged agreement, dated 23.06.1988. The 1 st
defendant made unauthorised constructions pending the suit and as
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such, they are liable for demolition. The schedule property
mentioned in the sale agreement, sale deed, dated 05.02.2013, and
decree in O.S.No.1049 of 1991 is not existent on ground, as no
survey number was mentioned therein. The conduct of the 1st
defendant in obtaining decree & judgment by misleading the trial
Court in respect of property which is not in existence amounts to
fraud and as such, the decree & judgment in O.S.No.1049 of 1991,
dated 03.03.1997, are not valid under law and are liable to be set
aside. In E.P.No.81 of 2004 in O.S.No.1049 of 1991, legal
representatives of Pinninti Appayamma (plaintiff's mother) are not
brought on record and the estate of the deceased Appayamma was
not represented in the execution proceedings, which is fatal to the
case of the 1st defendant.
6. The issues initially framed by the trial Court on 21.01.2016, read
as under:
1. Whether the plaintiff is entitled for
setting aside of the registered sale deed of
633/13, dt.05.02.13 executed by I AJCJ,
Visakahapatnam in favour of D1 as prayed for?
2. Whether the plaintiff is entitled for the
relief of permanent injunction as prayed for?
3. To what relief?
(ii) On 19.08.2019, the trial Court framed the following additional
issues:
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Additional Issues:
1. Whether decree and judgment in OS 1049/91,
dt.3.3.1997 on the file of I ADJ,
Visakhapatnam, obtained by playing fraud?
2. Whether subject matter in OS 1049/91 on the
file of IAJCJ, VSP is in existence on the ground
or not?
3. Whether sale agreement dt.23.6.1985 is bad
on account of non adding of other joint family
members of Pinninti Appili?
4. Whether D1 is in possession and enjoyment of
schedule property since 23.6.1988?
5. Whether plaintiff is entitled to set aside the
decree and judgment in OS 1049/91
dt.3.3.1997 as prayed for?
6. To what relief?
(iii) Further, the trial Court framed the following additional issues,
vide orders, dated 18.06.2020, passed in I.A.No.1208 of 2019:
1. Whether the amended relief to set aside the
decree and judgment in O.S.No.1049/1991,
dated 03.03.1997" is barred by limitation?
2. Whether the suit is bad on account of non
payment of separate court fee on such
amended relief?'
7. When the suit is coming up for trial, the plaintiff had filed the
aforementioned interlocutory application requesting the trial Court
to recast the issues and consider the points (proposed issues) as
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additional issues. The said application was resisted by the 1st
defendant. On merits, the trial Court dismissed the application.
8. The plaintiff sought the relief of recasting the issues as under:
1. Whether the sale agreement dated 23-6-1988
alleged to have been executed by late Pinninti
Suribabu in favour of 1st defendant is true and
valid under law?
2. Whether the decree and judgment in
O.S.1049/1991 passed by the I Additional
Junior Civil Judge, Visakhapatnam in respect
of a property which is not in existence is valid
under law?
3. Whether the decree and judgment in
O.S.1049/1991 dated 03-3-1997 passed by
the I Additional Junior Civil Judge,
Visakhapatnam are liable to be set aside?
4. Whether the alleged sale agreement dated
23-6-1988 is bad under law as the properties
of Pinninti Appili are Joint Family Properties?
5. Whether no Survey Number was mentioned in
the alleged sale agreement, O.S.1049/1991
Decree and registered sale deed dated
05-02-2013?
6. Whether the Eastern and western boundaries
mentioned in the sale agreement,
O.S.1049/1991 decree and registered sale
deed dated 05-02-2013 are not in existence
on ground?
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7. Whether the schedule property mentioned in
the alleged sale agreement, O.S.1049/1991
decree and registered sale deed dated
05-02-2013 was delivered to the 1st
defendant?
8. Whether non joinder of Pinninti Appayamma
(plaintiff's mother) legal representatives
E.P.81/2004 in O.S.1049/ 1991 is bad under
law?'
9. The findings of the trial Court on the proposed additional
issues/recasting of the issues are excerpted hereunder:
The proposed additional issue/recast issue No.1, i.e.,
'Whether the sale agreement, dated 23.06.1988 alleged to
have been executed by Pinninti Suribabu in favour of 1st
defendant is true and valid under law' was already covered in
additional issue No.3;
The proposed additional issue/recast issue No.2, was already
covered in the additional issue Nos.2 & 5 settled on
19.08.2019;
Even the proposed additional issues/recast issue Nos.3 to 7
were already covered in the additional issues framed on
19.08.2019;
As regards the additional issue/recast issue No.8, it was
observed by the trial Court that such an issue is much beyond
the purview of the present suit and that moreover, the said
issue was already covered in additional issues 3 & 5, in
another way.
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10. Though the plaintiff prayed to consider recasting of the issues
proposed in the petition, the trial Court did not agree with the
contention of the plaintiff holding that the crux of all such proposed
issues was already covered in the issues and additional issues
already settled by the trial Court, and thereby, proceeded to dismiss
the petition.
11. Aggrieved thereby, the plaintiff had preferred the present
revision petition.
12. Learned counsel for the revision petitioner/plaintiff, while
reiterating the pleaded case of the plaintiff, would further contend
that the trial Court failed to understand that the additional issues
are very much essential to establish the fraudulent transaction and
that the trial Court ought to have allowed the petition. The
impugned order of the trial Court is contrary to law as it erred in
concluding that the proposed additional issues were already settled.
13. Learned counsel, in support of his contentions, had placed
reliance on the following decisions:
In Syed Mahmood v. Manik Chandra1, it was held as
follows:
".....Order 14(1) CPC, an issue arises when a material
proposition of fact or law is affirmed by one party and
denied by the other party. Every such material
1 1995 Law Suit (AP) 792
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proposition should form a subject of distinct issue.
The object of framing issue plays a very important
and distinctive role in a suit. The whole object is to
direct the attention of the parties to the principle
questions on which they are at variance. Issues are
required to be framed for the purpose of having the
material points in controversy rightly decided and to
bring a finality in the litigation and as such it is the
duty of the Court to frame proper issues on the basis
of the materials as referred to in Order 14 Rule 3 CPC
and while framing issues Court must bear in mind
that it is an absolute necessity that determination in
a case should be founded upon a case to be found on
pleadings or involved in or consistent with the case as
made. ........"
In Smt. Kaniz Fatima (deceased) and another v. Shah
Naim Ashra2, it was held at paragraph No.11, as follows:
"11. The foremost question which crops
up for consideration is as to what is the object of
the framing of the issues and on whom the
responsibility rests for framing accurate issues
in the suit. A reference may be made to Order
14, Rule 1(5) of the Code which provides:
At the first hearing of the suit the Court
shall, alter reading the plaint "and the written
statements if any and after examination under
Rule 2, Order X and after hearing the parties or
their pleaders, ascertain upon what material
propositions of fact or of law the parties are at
variance, and shall thereupon proceed to frame
and record the issues on which the decision of
the case appears to depend.
AIR 1983 ALLAHABAD 450
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The aforesaid provision would indicate
that the object of framing of issues is to direct
the attention of the parties to the main
questions of fact or law to be decided and the
duty of framing and recording the proper issues
has been placed on the Court by the Code of
Civil Procedure. It is expected that in framing
the issues the Courts of law should exert
themselves so as to make them sufficiently
expressive of the matters which they desire to
consider under such issues. The provision
contained in Rule 5 of Order 14 of the Code
further indicates that in case any, relevant issue
has been left out to be framed, the Court may,
at any time before passing the decree, amend
the issues or frame additional issues on such
terms as it thinks fit and all such amendments
or additional issues, as may be necessary for
determining the matter in controversy between
the parties, shall be made or framed, It is thus
evident that for proper determination of the
matters in controversy between the parties, a
duty is cast on court to frame proper issues
before embarking upon to record a decision on
the point. The court would not be justified, in
the absence of a definite issue, in going into the
question and recording a finding on a point,
although the same may appear to be very
material for recording proper decision in the
case."
14. On the other hand, learned counsel for the 1 st respondent/1st
defendant, relied on the decision in M.B.Chander and others v.
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M/s. Balakrishna Rao Charitable Trust, Hyderabad rep. by its
Managing Trustee Sri M. Jayanth Tagore3 and would contend
that the powers of this Court under Article 227 of the Constitution of
India are very limited and when the trial Court exercised its power,
this Court cannot interfere with such findings.
15. The proposed additional issues sought to be recast and the
issues framed by the trial Court read as hereunder:
Sl. Proposed additional Issues/Additional Issues
No. issues/recast of issues framed by the trial Court
sought for by the petitioner
Whether the sale agreement Whether the sale agreement,
dated 23-6-1988 alleged to dt.23.6.1988 is bad on
(1) have been executed by late account of non adding of
Pinninti Suribabu in favour of other joint family members
1st defendant is true and valid of Pinninti Appili?
under law?
Whether the decree and Whether subject matter in
judgment in O.S.1049/1991 OS 1049/91 on the file of I
(2) passed by the I Additional AJCJ, VSP is in existence on
Junior Civil Judge, ground or not? (and)
Visakhapatnam in respect of a Whether the plaintiff is
property which is not in entitled to set aside the
existence is valid under law? decree and judgment in OS
1049/1991 dt.3.3.1997 as
prayed for?
Whether the decree and Whether the plaintiff is
judgment in O.S.1049/1991 entitled to set aside the
(3) dated 03-3-1997 passed by decree and judgment in OS
the I Additional Junior Civil 1049/1991 dt.3.3.1997 as
Judge, Visakhapatnam are prayed for?
liable to be set aside?
Whether the alleged sale This issue can be reframed as under:
Whether the property of Pinninti
agreement dated 23-6-1988
Appili are joint family properties?
(4) is bad under law as the If so, whether the agreement of
properties of Pinninti Appili sale, dated 23.06.1988, is not
are Joint Family Properties? valid?
2016 (6) ALT 1 (S.B)
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Whether no Survey Number
was mentioned in the alleged Whether subject matter in
sale agreement, O.S.1049/ OS 1049/91 on the file of I
(5) 1991 Decree and registered AJCJ, VSP is in existence on
sale deed dated 05-02-2013? ground or not?
Whether the Eastern and
western boundaries Whether subject matter in
(6) mentioned in the sale OS 1049/91 on the file of I
agreement, O.S.1049/1991 AJCJ, VSP is in existence on
decree and registered sale ground or not?
deed dated 05-02-2013 are
not in existence on ground?
Whether the schedule
property mentioned in the
alleged sale agreement, Whether D1 is in possession
(7) O.S.1049/1991 decree and and enjoyment of schedule
registered sale deed dated property since 23.6.1988?
05-02-2013 was delivered to
the 1st defendant?
Whether non joinder of Such issue is beyond the
Pinninti Appayamma purview of the present suit.
(8) (plaintiff's mother) legal
representatives E.P.81/2004
in O.S.1049/ 1991 is bad
under law?
The proposed recast issue No.1 is already covered by additional
issue No.3. The recast issue No.2 is covered by additional issues 2
& 5 and recast issue No.3 is covered partly by additional issue No.5.
The recast issue Nos.5 & 6 are already covered by additional issue
No.2. The recast issue No.7 is covered by additional issue No.4. As
regards additional issue No.8, the trial Court rightly held that such
issue is beyond the purview of the present suit.
16. It is only the proposed additional issue/recast issue No.4
which needs to be reframed as under:
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"Whether the property of Pinninti Appili are joint
family properties? If so, whether the agreement
of sale, dated 23.06.1988, is not valid?"
Except that issue, no other additional proposed issues/recasting of
issues, as sought for by the petitioner, in the petition are required.
17. In the result, the Civil Revision Petition is allowed in part,
reframing the proposed additional issue No.4, as indicated supra, in
addition to the issues and additional issues already framed by the
trial Court. The rest of the proposed additional issue Nos.1, 2, 3, 5
to 8, which are sought to be recast, are not required to be
considered.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________
B.S BHANUMATHI, J
13th October, 2022
RAR
