Rayachoti Lakshumma, Kadapa Dist vs K. Chenna Reddy, Kadapa Dist 3 ...
2022 Latest Caselaw 7414 AP

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

              SECOND APPEAL No.172 of 2017

JUDGMENT:

The plaintiff before the learned trial Court is the appellant

herein and this second appeal is filed under Section 100 of

C.P.C. questioning the correctness of judgment dated

28.11.2016 of learned IV Additional District Judge, Kadapa in

A.S.No.25 of 2016.

2. There are four respondents herein. Respondent Nos.1

and 2 are defendant Nos.1 and 2 in the suit. Respondent Nos.3

and 4 are defendant Nos.3 and 4 in the suit. This appeal has

been coming at the stage of admission. Therefore, it is for the

appellant to show that there exists substantial question of law.

3. Smt. R.Lakshumma sued four defendants in O.S.No.306

of 2012 alleging that the vacant site of Ac.0.30 cents is owned

and possessed by her and these four defendants were making

unjust claims of right over that property and were trying to grab

her property and they created spurious documents and

therefore, she sought protective relief of permanent injunction

against them. In her plaint, she stated that she purchased the

property from Sri Bellam Sudhakar Reddy. Her vendor got the

property from his grandmother Smt. Bellam Devaki Devamma.

Dr. VRKS, J S.A.No.172 of 2017

The said Bellam Devaki Devamma purchased this property

initially under the sale deed dated 11.06.1971. Necessary

averments are made in the plaint stating that since the time of

predecessors in interest till the time of filing of the suit property

it has been continuously owned and possessed by the people

referred above and finally it is the plaintiff who holds title and

possession by the time of the suit.

4. Out of the four defendants, defendant Nos.3 and 4 did not

choose to appear and contest and therefore, they were set ex

parte by the trial Court. Defendant Nos.1 and 2 contested the

suit and filed a written statement. They stated that the plaint

referred by Smt. Bellam Devaki Devamma originally purchased

the plaint referred Ac.0.30 cents of plaint schedule property

from Sri Sunku Subbaiah and others under a registered sale

deed dated 11.06.1971 and subsequently by a registered sale

deed dated 13.03.1979 the said Smt. Devaki Devamma sold out

that Ac.0.30 cents of site to Sri Y.Narayana Reddy and others.

Thus, the plaintiff neither owned nor possessed that property

since Bellam Devaki Devamma lost her title, possession and

there was nothing that remained with her grandson Sri

B.Sudhakar Reddy from whom plaintiff claimed source of title.

Dr. VRKS, J S.A.No.172 of 2017

In the written statement, it is further alleged that the total

extent of land in Survey No.570/3 in Chemmumiahpeta Village

is Ac.0.83 cents. In the above referred transactions, Ac.0.30

cents were alienated and the remaining Ac.0.53 cents of land

was purchased by defendant No.2 and two others under a

registered sale deed dated 14.12.1981 from the very original

owner Sri Sunku Subbaiah and others and defendant No.2 and

two others were in peaceful possession and enjoyment of this

property of Ac.0.53 cents till 1986. Thereafter, defendant Nos.3

and 4 in the suit raised claims against defendant Nos.1 and 2

therein and therefore, defendant Nos.1 and 2 filed O.S.No.43 of

1999 as against defendant Nos.3 and 4 and learned Senior Civil

Judge, Kadapa after full trial declared the title and granted

recovery of possession in favour of defendant Nos.1 an 2.

Aggrieved by that, defendant Nos.3 and 4 preferred A.S.No.417

of 2005 before this Court and the same was dismissed on

merits. That judgment became final. Thereafter, for taking

back possession of this property of Ac.0.53 cents, these

defendant Nos.1 and 2 filed E.P.No.154 of 2011 against

defendant Nos.3 and 4 and the same is pending before learned

Senior Civil Judge, Kadpa. These defendant Nos.3 and 4, who

Dr. VRKS, J S.A.No.172 of 2017

are hand-in-glove with the plaintiff got created spurious

documents and filed this false suit. On these rival pleadings,

parties went to trial and the trial Court framed following two

issues:

"1. Whether the plaintiff is entitled for permanent injunction as prayed for.

2. To what relief?"

5. Both sides adduced their evidence. For plaintiff, PWs.1 to

3 were examined and Exs.A.1 to A.4 were marked. For

defendants, DWs.1 and 2 were examined and Exs.B.1 to B.6

and Exs.X.1 to X.6 were marked.

6. Learned III Additional Junior Civil Judge, Kadapa heard

arguments on both sides and considered the evidence on record

and stated that injunction is an equitable relief and possession

is primary to grant such a relief and the burden to prove

possession was on the shoulders of plaintiff and the evidence of

plaintiff as PW.1 and the evidence of her son as PW.2 and the

evidence of a third party, who testified as PW.3 showed that the

plaintiff came to own and possess the plaint schedule property

under Ex.A.1 registered sale deed dated 29.11.2011. Then

referred to the oral evidence and documentary evidence adduced

Dr. VRKS, J S.A.No.172 of 2017

on defendants' side and especially that of Joint Sub-Registrar of

Kadapa/DW.2 and referred to Exs.X.1 to X.6 and noted that by

virtue of that evidence, it was established that Smt. Bellam

Devaki Devamma in the year 1979 itself sold away the present

suit schedule property to third parties and from the evidence of

DWs.1 and 2 it found that out of Ac.0.83 cents of land in Survey

No.570/3, Bellam Devaki Devamma owned and possessed

Ac.0.30 cents and she sold out to third parties and from the

remaining Ac.0.53 cents in that survey number was purchased

by defendant No.2 and others under Ex.B.1 registered sale deed

dated 14.12.1981. At page No.11 and para No.16, the trial

Court noted that DW.1 in his cross-examination admitted that

he has nothing to do with the plaint schedule Ac.0.30 cents. It

is on that admission learned trial Court stated that even if

defendant Nos.1 and 2 have shown that the plaintiff's claim over

the property is not correct still as defendant Nos.1 and 2 stated

that they had no claim over the plaint schedule property, it

granted the judgment and decree in favour of the plaintiff.

Defendant Nos.1 and 2 were not satisfied with that judgment

and they preferred A.S.No.25 of 2016 showing plaintiff as

respondent No.1 and the remaining two defendants as

Dr. VRKS, J S.A.No.172 of 2017

respondent Nos.2 and 3. The appeal was contested by the

appellants and respondent No1. Learned IV Additional District

Judge, Kadapa on considering the entire material on record and

the grounds raised in the appeal and the arguments submitted

on both sides, framed the question as to whether judgment of

trial Court is legally and factually sustainable or not? It

discussed the oral and documentary evidence and noticed the

principles contained in Section 38 of the Specific Relief Act,

which govern the relief concerning perpetual injunction and

then considered the precedent with reference to the law of

injunctions as to when a suit for injunction could be decided

only by looking into evidence concerning possession and when it

becomes necessary to consider the title so as to determine

possession etc. points. It noticed that Ex.A.1 was the only

document that was there for the plaintiff to establish her title

and possession. The property in dispute is a vacant house site

and possession of such property can be determined only by

referring to title of the property and that the evidence of

defendant Nos.1 and 2 established that the vendor had no title

to convey property under Ex.A.1 in favour of the plaintiff and

thus, it expressed its dismay as to how the trial Court could

Dr. VRKS, J S.A.No.172 of 2017

conclude possession in favour of the plaintiff. It further

observed that plaintiff did not file the link document of her

predecessor in title and then referred to admissions made by

son of plaintiff/PW.2 that the boundaries mentioned in the link

document are different from the boundaries mentioned in the

suit schedule and stated that the trial Court ignored all those

aspects. It stated that plaintiff seems to have purposefully

withheld the link document to avoid the Court from noticing the

differences in boundaries. Thus, in a way it has tacitly observed

that the plaintiff was not scrupulous enough in fairly

participating in the legal battle. At para No.17, the learned first

appellate Court stated that the plaintiff had to establish de-jure

possession since the property in dispute is a vacant site and in

such cases a reference to title became necessary and since title

of the plaintiff is in serious dispute and since the plaintiff filed a

plaint bereft of important facts, a simple suit for perpetual

injunction was not maintainable. Learned first appellate Court

referred to celebrated principles laid down by the Hon'ble

Supreme Court of India in Ananthula Sudhakar Vs. P.Buchi

Reddy (dead) by L.Rs. and others1 in support of the finding

AIR 2008 S.C. 2033

Dr. VRKS, J S.A.No.172 of 2017

referred above. It was in those circumstances it found that the

trial Court's judgment was erroneous and it ought not to have

granted permanent injunction. Therefore it allowed the appeal

and set aside the trial Court's judgment.

7. It is as against that reversing judgment the plaintiff has

come in this second appeal. Since the contentions are raised

believing that they are substantial questions of law, they are

extracted here:

"A) Whether the appellate Court has committed error in reversing the well considered judgment of the trial Court?

B) Whether the appellate Court is justified in reversing the well considered judgment of the trial Court in as much as when the plaintiff has proved obligation under Sec. 38 r/w 2(a) of Specific Relief Act against the defendants?

C) Whether the appellate Court is justified in its perversity, misreading of evidence and for impropriety?

D) Whether the appellate Court is justified in giving a finding that the suit for permanent injunction is not maintainable contrary to the plaintiff established right and title under Sec. 38 of the Specific Relief Act without declaratory suit for title?"

Dr. VRKS, J S.A.No.172 of 2017

8. The efficacy of the above questions shall be considered on

the basis of law laid down by the Hon'ble Supreme Court of

India in Chunilal V. Mehta and sons Ltd. v. Century Spinning

and Manufacturing Co. Ltd.,2. Ratio therein is relevant to be

noticed:

"6. ....The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

9. For the contesting respondent Nos.1 and 2/defendant

Nos.1 and 2 before the trial Court, learned counsel submitted

that the errors committed by the trial Court were properly

recognized by the first appellate Court and based on the

evidence available on record alone and applying the well

AIR 1962 SC 1314 (5 Judges)

Dr. VRKS, J S.A.No.172 of 2017

established principles of law only, the learned first appellate

Court found justice with defendant Nos.1 and 2 and found no

case for plaintiff and when the title was so seriously disputed,

there is no merit for the plaintiff to present this second appeal

and that this second appeal failed to indicate any substantial

questions of law and deserves dismissal at the threshold.

10. Entire record is placed before this Court. Having

considered the evidence on record, the judgments of the Courts

below and having considered the arguments on both sides and

grounds raised in this second appeal, the following aspects have

to be stated:

Many aspects are not in dispute. The plaint schedule

indicates that in Survey No.570/3 in Chemmumiahpet, Balaji

Nagar within Kadapa Municipal Corporation Limits, there is

Ac.0.83 cents of land out of which the plaintiff's claim is for

Ac.0.30 cents. On which side this Ac.0.30 cents situated and

on which side the remaining extent of Ac.0.53 cents situated

cannot be deciphered from the plaint schedule and there is no

reference to it in the pleadings and evidence. Fact remains that

by pleadings and evidence on both sides there is Ac.0.83 cents

of land in Survey No.570/3 is accepted. The oral evidence of

Dr. VRKS, J S.A.No.172 of 2017

both parties and the documents produced by both sides further

indicated that the claim for Ac.0.30 cents raised by the plaintiff

traces title to Smt. Bellam Devaki Devamma. According to

plaintiff, the property came to grandson of Bellam Devaki

Devamma and from that grandson plaintiff as a bona fide

purchaser paid valuable consideration and purchased that

Ac.0.30 cents under Ex.A.1 registered sale deed dated

29.11.2011. It is undisputed that it is a vacant house site. It is

also described so in the plaint schedule. Ex.A.2 is

Encumbrance Certificate, Ex.A.3 is office copy of legal notice

and Ex.A.4 is a courier receipt disclosing that Ex.A.3 notice was

dispatched. These were the only documents filed for plaintiff.

Having purchased property under Ex.A.1 in the year 2011,

plaintiff claims to have come into possession. Plaintiff neither

filed the link document nor filed any other document which

could disclose plaintiff holding title of an open vacant house

site. The whole claim was rested on Ex.A.1 sale deed and

nothing else. So it was right on part of the first appellate Court

to say that in such circumstances, there was a need to look into

the title. The reason for so holding was that in such cases

possession is presumed on the principle that possession follows

Dr. VRKS, J S.A.No.172 of 2017

title. According to averments in the plaint, her title was

questioned by the defendants. Even then she did not sue for

declaration of title but remain satisfied with a suit for

permanent injunction. Even by the time the plaint was

presented the adverse claim of defendants was known to the

plaintiff as disclosed by plaint itself. The first appellate Court

stated that defendants have shown that the vendor of plaintiff

had no title. That finding was based on Exs.X.1 to X.6, evidence

of DW.2 Sub-Registrar and the evidence of DW.1. Thus, the

findings rendered by the first appellate Court are based on

material. The evidence on record disclosed that this Ac.0.30

cents of land, which was shown in the plaint schedule was sold

out by Smt. Bellam Devaki Devamma on 13.03.1979 and the

certified copy of that registered sale deed is Ex.B.2. There is

clear evidence on record and the factual finding of the Courts

below is that Smt. Bellam Devaki Devamma had only this

Ac.0.30 cents of land in that Survey No.570/3. Thus, under

Ex.B.2 Smt. Devaki Devamma not only alienated her ownership,

but also delivered possession of the property to the purchasers

under that document. Plaintiff in the suit did not purchase

property from those purchasers under Ex.B.2. Thus, by the

Dr. VRKS, J S.A.No.172 of 2017

very case set up in the plaint and the evidence adduced by the

plaintiff, plaintiff did not derive her title and did not obtain

possession from the owners under Ex.B.2 sale deed dated

13.03.1979. Thus, by 1979 plaintiff was not in possession of

the property. Plaintiff claims possession only in the year 2011

under Ex.A.1 registered sale deed. The executant is the

grandson of Bellam Devaki Devamma. The first appellate Court

recorded a finding that the plaint is bereft of all important

details, namely, when Devaki Devamma died and when her

children died and how her grandson came to own that property

etc. Added to that, plaintiff's own son as PW.2 testified that

there are marked differences between boundaries mentioned in

the link document and the boundaries mentioned in the plaint

schedule. Thus, plaintiff after production of evidence on both

sides was clearly exposed that her Ex.A.1 would not have

granted her possession nor title by the grandson of Devaki

Devamma since Devaki Devamma herself lost her possession

and title under Ex.B.2. Thus possession of executant of Ex.A.1

is not proved. Therefore, plaintiff could not prove taking

possession under Ex.A.1. When all this is a matter of fact and

when the first appellate Court had recapitulated the principles

Dr. VRKS, J S.A.No.172 of 2017

contained in Section 38 of the Specific Relief Act and came to

conclusion that plaintiff could not be seen in possession of the

property and therefore, it could not be said that her rights were

invaded. That is a well reasoned judgment based on proper

appreciation of facts and law. No particular question of law

arises between parties. That the grounds raised in this second

appeal which are extracted in the earlier paragraphs do not

raise any substantial question of law except questioning the

correctness of appreciation of evidence. The question that is

raised in this appeal by the plaintiff that she established right

and title in terms of Section 38 of the Specific Relief Act but the

fist appellate Court erroneously negatived the claim, is not a

question of law at all. Learned counsel for appellant submits

that out of Ac.0.83 cents, it is only Ac.0.30 cents that is claimed

by plaintiff and Ac.0.53 cents is claimed by defendant Nos.1 and

2 and DW.1 admitted that they are bothered about their Ac.0.53

cents and they have nothing to do with these Ac.0.30 cents and

therefore, trial Court rightly granted injunction and appellate

Court erroneously reversed it. There is absolutely no merit in

this contention. The plaintiff having stated that defendant

Nos.1 and 2 without any manner of right were making claims of

Dr. VRKS, J S.A.No.172 of 2017

right and title over the plaint schedule property sued defendant

Nos.1 and 2 in fact that assertion itself is found to be incorrect

since plaintiff/appellant now argues that the defendant Nos.1

and 2 fairly admitted that they had no claim over this Ac.0.30

cents. If defendant Nos.1 and 2 in their pleadings and in their

evidence showed that they were worried about their own Ac.0.53

cents and they have no botheration of Ac.0.30 cents claimed by

the plaintiff that does not by itself permitted the plaintiff to say

that plaintiff established possession. The plaintiff was properly

informed by the trial Court as well as first appellate Court that

she has to stand on her own legs and the first appellate Court

properly stated that the plaintiff failed to stand on legs in proof

of her possession. In this second appeal except reiterating the

contentions based on facts, the appellant failed to raise any

substantial question of law. There is absolutely no perversity in

the findings of the first appellate Court. The first appellate

Court's judgment indicates proper focus on the accurate point

that was to be dealt with and within the established legal limits

and it perfectly concluded the lis and rightly upset the trial

Court's judgment and the decision rendered by the first

appellate Court that plaintiff ought to have presented a suit for

Dr. VRKS, J S.A.No.172 of 2017

declaration of title. This Court finds absolutely no substantial

question of law to entertain this second appeal. Therefore, point

is answered against the appellant.

11. In the result, this Second Appeal is dismissed at the

admission stage. 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: 27.09.2022 Ivd

Dr. VRKS, J S.A.No.172 of 2017

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

SECOND APPEAL No.172 of 2017

Date: 27.09.2022

Ivd