A.Peda Narasimhulu vs P.Krishna Murty
2022 Latest Caselaw 7410 AP

                                                                    BSS,J
                                                      S.A.No.630 of 2000

                                    1

             HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                          S.A.No.630 of 2000
JUDGMENT:

The plaintiff in O.S.No.123 of 1986 on the file of Munsif

Magistrate, Mummidivaram, is the appellant. The respondents 1

and 2 are D2, D3 in the suit.

2. The appellant is the sole plaintiff instituted the suit against

respondents 1 and 2 and also against one Mr.P.Tata Rao @

Appalaswamy against whom suit abated before trial Court as per

orders dated 16.12.1991. The plaint schedule described land is the

house site measuring 0.04 cents bounded by

East: House of Malladi Dhanaraju

South: House of Palepu China Venkanna

West: Vacant land

North: Land of plaintiff

The appellant filed suit for declaration of his right and title and

also for possession of plaint schedule property and for

consequential permanent injunction restraining the respondents or

their men from interfering in any way with his peaceful possession

and enjoyment of plaint schedule property and for costs. It is

averred in the plaint that plaint schedule property is the absolute BSS,J S.A.No.630 of 2000

property of the appellant having purchased the same under

registered sale deeds dated 18.06.1963 and 09.03.1978. The

appellant also said to be purchased another 0.02 cents of site apart

from plaint schedule property under an agreement of sale dated

18.09.1967 from Patta Muthyalamma for Rs.100/- wherein he

constructed a house and paying taxes and his possession in respect

of the plaint schedule property is open, peaceful and uninterrupted

which site he is using for drying fish, fishing nuts wherein

respondents have no right, title or interest. It is alleged that

respondents having sold all their properties bent upon to cause

obstruction to him for enjoyment and possession of plaint schedule

property, which is situated on the north of the house purchased by

him from Patta Muthyalamma. He also stated that further north of

the plaint schedule property, there is a property of Palepu Nagulu,

S/o.Dhanaraju and the plaintiff wanted to construct a house in the

vacant site, but respondents obstructed him and then he issued

notice for which the respondents kept quiet and he filed suit for

injunction in O.S.No.13 of 1983 on the file of Munsif Magistrate,

Mummidivaram, which was dismissed and then he preferred an

appeal in A.S.No.24 of 1984 on the file of Subordinate Judge,

Amalapuram, which was also dismissed on 24.03.1986 wherein it is BSS,J S.A.No.630 of 2000

held that nature of property being an open vacant site, which is

not possible to decide the possession and appellate Court advised

the appellant to file a suit for declaration of his title for protection

of his possession. Then plaintiff filed suit against defendants

seeking declaration of his title and for permanent injunction. He

also stated that it is customary among the caste of 'Agnikula

Kshatriya' to obtain sale deeds on white papers in the presence of

caste elders, due to that, he also obtained agreement of sale,

which is in fact a sale deed and from the date of purchase of the

site, he has been in peaceful possession and enjoyment of the

same to the knowledge of respondents. As respondents are said to

be denied his title and possession, he came up with a suit for

declaration and consequential relief of permanent injunction.

3. The contention of defendants in their written statement is

that findings in O.S.No.13 of 1983 which confirmed in A.S.No.24 of

1984 operates as resjudicata, due to that appellant is estopped

from claiming any relief over plaint schedule property and he is not

entitled to seek declaration of title and consequential relief of

permanent injunction. They also stated that they are in possession

and enjoyment of plaint schedule property and alleged registered

sale deeds dated 18.06.1963 and 09.03.1978, which are not BSS,J S.A.No.630 of 2000

pertaining to plaint schedule property and appellant not purchased

Ac.0.02 cents under an agreement of sale dated 18.09.1967 from

Patta Muthyalamma and there is no house in Ac.0.02 cents, which

is also not in the possession of the appellant. They further stated

that even Patta Muthyalamma had no site at all wherein appellant

not constructed any house and alleged customary right of obtaining

sale deeds on white paper also denied. They further stated that

plaint schedule is vague, not contained any survey number for the

extent which cannot be identified.

They pray to dismiss the suit.

4. The trial Court basing on the above pleadings, settled the

following issues:

1. Whether the plaintiff is entitled for a declaration of his right, title, interest and possession in the plaint schedule property?

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

3. Whether the plaintiff is estopped from claiming any relief over plaint schedule property in view of the binding in O.S.No.13 of 1983 which became final in A.S.No.24 of 1984?

4. Whether the suit is barred by resjudicata?

BSS,J S.A.No.630 of 2000

5. Whether the relief prayed for is valued properly and Court fee paid is correct?

6. To what relief?

5. The parties went to trial. The appellant examined himself as

P.W.1 and also examined P.W.2 Malladi Nallayya and P.W.3 Sangani

Narayana Murthy on his behalf while relying on Ex.A1 true extract

of sale deed dated 18.07.1963, which is marked by consent on

17.02.1993, which is one day prior to advancing arguments in the

suit. On behalf of the respondents, D.Ws.1 to 3 were examined,

Exs.B1 and B2, which are certified copies of decree and judgment

in O.S.No.13 of 1983, were marked.

6. On the material and evidence, the trial Court held that the

appellant established his right, title and interest to the suit site

against respondents and decreed the suit as prayed for.

7. Against the decree and judgment passed by the trial Court,

respondents herein presented A.S.No.26 of 1993 on the file of

Senior Civil Judge, Amalapuram, which was allowed and suit filed

by the appellant was dismissed.

BSS,J S.A.No.630 of 2000

8. In these circumstances, the present second appeal is

presented.

9. I have heard learned counsel Mr.S.Nagarjuna, representing

learned counsel Mr.T.V.S.Prabhakar Rao, for the appellant. There

is no representation for the respondents.

10. This second appeal was admitted on the following substantial

questions of law raised at ground No.7 of grounds of appeal, which

are:

1. Whether the lower appellate Court is correct in reversing the decree and judgment of the trial Court?

2. Whether granting relief though prayed is correct or not?

11. Both Courts gave concurrent finding in respect of issue No.4

and held that suit is not barred by resjudicata on the ground that

property shown in O.S.No.13 of 1983 and present suit schedule

property are not one and the same. The learned counsel for the

appellant would submit that as per the observation of appellate

Court in A.S.No.24 of 1984, appellant filed suit for declaration

though he previously filed suit for injunction simplicitor, due to

that both Courts have rightly held that present suit filed by the

appellant is not barred by resjudicata. He submits that dispute is BSS,J S.A.No.630 of 2000

only in respect of Ac.0.02 cents of land and appellate Court failed

to consider the admissions made by D.W.1 in his cross-examination

that they are not obstructing the possession of plaintiff in respect

of plaint schedule property and erroneously dismissed the suit. He

argued that there is no dispute about identity of the property,

which is wrongly observed by learned appellate Court.

He prays to allow the second appeal.

12. As per Section 100 CPC, this Court can interfere with the

judgment of appellate Court, if it is satisfied that case involves

a substantial question of law. A finding of fact recorded by

appellate Court is binding on this Court unless there is any error of

law in such finding. Even wrong finding of fact is not sufficient to

constitute a question of law. The Hon'ble Apex Court in Narayan

Sitaramji Badwaik (dead) through LRs. Vs. Bisaram and others,

in Civil Appeal No.6124 of 2011 judgment dated 17.02.2021

explained circumstances under which High Court determine issue of

fact.

13. In the present case, basis for the claim of appellant/plaintiff

as per averments in his plaint is that he purchased plaint schedule

property under two registered sale deeds dated 18.06.1963 and BSS,J S.A.No.630 of 2000

09.03.1978. As rightly pointed out by learned appellate Judge that

appellant failed to produce those sale deeds before the trial Court

and filed Ex.A1 true extract of sale deed dated 18.07.1963 one day

before submitting arguments, which is not pertaining to the suit

schedule property. Para - 15 of the appellate Court judgment

reads as under:

"15. However curiously enough, plaintiff filed a registration extract of sale deed dated 18.07.1963. It was marked by consent on 17.02.1993. This matter was heard by the trial Court on 18.02.1993. Thus, one day prior to advancing arguments, Ex.A1 was filed into Court and it was marked by consent. This document discloses the sale of Ac.0.02 cents of house site. Plaintiff himself admitted that he purchased Ac.0.02 cents house site besides the plaint schedule property by way of an agreement of sale dated 18.09.1967 from one Patta Mutyalamma. However, this document cannot be connected to the said house site purchased by him, from Patta Mutyalamma. Moreover the said Ac.0.02 cents of site is not the subject matter to this suit. Obtaining the sale deed dated 18.07.1963 does not find place in the plaint or in the evidence of P.W.1. However plaint discloses a reference to the registered sale deed dated 18.06.1963 whereas Ex.A1 is dated 18.07.1963. There is no explanation regarding commission of any error in mentioning the month of the registered sale deed in the plaint.

BSS,J S.A.No.630 of 2000

Even if it is assumed that this document was mistakenly referred as a registered sale deed dated 18.06.1963 it is only for an extent of Ac.0.02 cents. This site is bounded on east by the site of Malladi Dhanaraju, on south of the house of Palepu Venkayya and on west by the site of Palepu China Sattiraju and on north the land of the plaintiff. Thus two of the boundaries i.e. East and north tally with the boundaries mentioned in Ex.A1. The other two boundaries in the plaint schedule property do not tally. However it is deposed by P.W.1 that one Palepu Nagoor has got his house site to the north of plaint schedule property. Thus, though the plaintiff alleged in his plaint that the northern boundary is his own site and though Ex.A1 discloses that the northern boundary for the said Ac.0.02 cents of site is belonging to the plaintiff, according to plaintiff (as P.W.1) the northern boundary for the disputed property is the house site of one Palepu Nagoor.

Thus, evidently, he did not mention correct boundaries in the plaint schedule. The property for which he has been agitating is the property for which the northern boundary is that the northern boundary for the said Ac.0.02 cents of site is belonging to the plaintiff, according to plaintiff (as P.W.1) the northern boundary for the disputed property is the house site of one Palepu Nagoor.

Thus, evidently, he did not mention correct boundaries in the plaint schedule. The property for which he has been agitating is the property for which the northern boundary is the house of Palepu Nagoor, whereas he mentioned the northern boundary as his own site in plaint schedule. Thus, his own evidence casts any amount of doubt BSS,J S.A.No.630 of 2000

with regard to the identity of actual disputed property. Hence, Ex.A1 cannot be connected to the suit property. Moreover even if it is connected to the suit property the extent in Ex.A1 is Ac.0.02 cents whereas the plaint schedule property is Ac.0.04 cents. Even on said ground Ex.A1 cannot be connected to the suit property. Ex.A1 does not establish the title or right or interest to the Ac.0.04 cents of plaintiff to the plaint schedule property as referred supra the evidence of P.W.1 is highly vague."

14. The learned appellate Judge after elaborately discussing

contents of Ex.A1 held that it is not related to suit schedule

property but it is only in respect of Ac.0.02 cents of site whereas

plaintiff is claiming Ac.0.04 cents of site in the suit and

appellant/plaintiff not obtained any document evidencing purchase

of plaint schedule property, due to that Ex.A1 cannot be connected

to the suit property, which failed to consider by the trial Judge.

The observation of learned trial Judge that D.W.2 stated in his

cross-examination that they never tried to dispossess the plaintiff

from the plaint schedule property and they never obstructed the

possession of the plaintiff over the said property itself shows that

plaintiff is in possession of plaint schedule property is perverse and

it is against to the settled principles of law that plaintiff cannot

rely on the weaknesses of defendants case. The Hon'ble Apex BSS,J S.A.No.630 of 2000

Court in Union of India Vs. Vasavi Cooperative Housing Society

Limited1 judgment dated 07.01.2014 wherein it is held at para 12,

which reads as under:

"12. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."

15. The Hon'ble Apex Court in Union of India Vs. Vasavi

Cooperative Housing Society Limited (referred supra) explained

legal position with regard to whom the burden of proof lies in a

suit for declaration of title and possession and held that in a suit

for declaration if the plaintiffs have to succeed, they must do so on

the strength of their own title.

16. The appellant seeking relief of declaration and injunction

basing on title deed which he failed to produce either before the

trial Court or in the appellate Court and produced Ex.A1 true

extract of sale deed dated 18.07.1963 which is not pertaining to

the suit schedule property, which rightly observed by the learned

appellate Judge. On reappraisal of evidence, the learned

2014(2) ALD 157 BSS,J S.A.No.630 of 2000

appellate Judge held that there is a dispute with regard to identity

of property also, which failed to establish by the

appellant/plaintiff. This Court in Krishna (died) and others Vs.

Indian Institute of Economics, Hyderabad and others2 held that

it is the bounded duty of the plaintiff to establish identity of the

property in dispute in declaratory claim in para - 21 of the ruling,

it is stated that

"In a suit for declaration of title, in respect of immovable property, the plaintiff has to give description of the property sufficient to identify it and, if the property can be identified by boundaries, they must be given. This essential rule of pleading has been given a go-by by the plaintiff......."

17. The learned appellate Judge also observed discrapancy of

boundaries mentioned in Ex.A1 with that of oral evidence and no

survey number is mentioned in the plaint schedule property to

identify the same.

18. In Yerra Venkatesh Vs. Nathi Mallesh and others3 wherein

this Court while dealing with an order for temporary injunction

under Order 39 Rules 1 and 2 CPC held at para Nos.15 and 16 that

2011 SCC Online AP 412 = (2011) 6 ALD 174 (DB)

2013(2) ALT 396 BSS,J S.A.No.630 of 2000

"Thus, as matters stood, the identity of the suit plot was not established, be it through the survey number or through its boundaries. The trial Court seems to have placed reliance only upon the plaintiff's sale deed and drew the inference that he thereby proved his possession over the suit plot as on the date of the suit. Such an inference was not borne out on facts in the light of the contradictions indicated supra. In the absence of clear proof that the plaintiff was in possession of the suit plot as on the date of the suit, it is manifest that he failed to cross the first hurdle of proving his prima facie case based on possession. The appellate Court was therefore justified in setting aside the injunction granted by the trial Court. This Court finds no reason to interfere with this exercise by the appellate Court."

19. In the present case also there is no reference of survey

number and title deeds on which appellant/plaintiff claiming

declaration not produced before the trial Court and it is not the

case of appellant that he purchased plaint schedule property under

Ex.A1 dated 18.07.1963 from the vendors stated therein. It is the

case of the plaintiff that he purchased the plaint schedule property

under registered sale deeds dated 18.06.1963 and 09.03.1978 and

he also purchased another Ac.0.02 cents of house site apart from

plaint schedule property under an agreement of sale dated

18.09.1967 from one Patta Muthyalamma for Rs.100/- and not BSS,J S.A.No.630 of 2000

obtained sale deed, which is said to be custom in the community of

'Agnikula Kshatriya' obtaining sale deeds on white paper. But the

said custom though pleaded is not proved by the appellant and

even otherwise, both the Courts below concurrently held that said

site of Ac.0.02 cents is different from the suit schedule property.

20. The learned appellate Judge is justified in setting aside the

decree and judgment granted by the trial Court as judgment of

trial Court was based on wrong application of law and facts, which

rightly interfered by the learned appellate Judge. The

appellant/plaintiff failed to prove his title and possession over the

plaint schedule property to grant relief as claimed by him in the

plaint.

21. Basing on the material and evidence, learned appellate Court

rightly appreciated the evidence and reversed finding of trial Court

and dismissed the suit.

22. In these circumstances, finding no such questions that

require consideration in this second appeal, much less, substantial

question of law not as pointed out for the appellant, this second

appeal has to be dismissed.

BSS,J S.A.No.630 of 2000

23. This Court is satisfied that this is not an instance where

Section 100 CPC has to be applied nor interference is warranted

with the decree and judgment of the appellate Court that reversed

the decree and judgment of the trial Court.

24. In the result, this Second Appeal is dismissed confirming the

judgment of appellate Court. In the circumstances, there shall be

no order as to costs.

25. As a sequel, pending miscellaneous petitions if any, stand

closed. Interim orders granted if any, stand vacated.

______________________ BANDARU SYAMSUNDER, J Dt:27.09.2022.

Rns BSS,J S.A.No.630 of 2000

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

S.A.No.630 of 2000

Date: 27.09.2022

Rns BSS,J S.A.No.630 of 2000