Andhra Pradesh High Court - Amravati
Pethakamsetty Ramaswamy Naidu vs Pyla Venkataswamy Babu on 28 December, 2023
Author: U. Durga Prasad Rao
Bench: U.Durga Prasad Rao
[ 2605 ]
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
THURSDAY, THE TWENTY EIGHTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
CIVIL REVISION PETITION NO: 1969 OF 2023
Between:
1. PETHAKAMSETTY RAMASWAMY NAIDU, Narasinga
Rao, Hindu, aged 59 years, resident of 33-14-269, Allipuram
Road, Visakahaptnam
...PETITIONER(S)
AND
1. PYLA VENKATASWAMY @ BABU, S/o Venkataswamy,
Hindu, 53 years, R/o Bhogapuram, Atchutapuram Mandal,
Vizag Dist.
2. Kundrapu Kondadu, , S/o late Narasimham, Hindu, 89 years,
Rest-do
3. L. Demudamma,, W/o late Rambabu, Hindu, 53 years, R/o
Gajuwaka, Visakhapatnam.
4. B. Lakshmi,, W/o Kannayya, Hindu, 47 years, R/o Haripalem,
Atchutapuram Mandal, Visakhapatnam Dist.
5. Reddy Ramu,, W/o Nooka Raju, Hindu, 45 years, R/o
Appannapalem Village, Atchutapuram Mandal, Visakhapatnam
Dist.
6. Sabbavarapu Sanyasamma,, W/o Rambabu, Hindu, 41 years,
R/o Bhogapuram Village, Atchutapuram Mandal,
Visakhapatnam Dist
7. Kundrapu Lakshmi,, W/o late Nooka Raju, Hindu, 53 years,
R/o Vennelapalem, Parawada Mandal, Visakhapatnam Dist.
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8. Gudivada Venkatalakshmi, , W/o Swamynaidu, Hindu, 32
years, Yendapalli Village, Mallavaripalem P.O., Kotavuratla
Mandal, Visakhapatnam Dist.
9. Kundrapu Chittemma, , D/o late Nookaraju, Hindu, 28 years,
(Previously minor) Rep. by her mother and natural guardian,
Kundrapu Lakshmi, W/o late Nookaraju, Hindu, 46 years, R/o
Vennelapalem Mandal, Visakhapatnam Dist
10. Bheemarasetty Ramana Babu, , Son of late China Venkunaidu,
Hindu, aged 58 years, resident of Flat No. 302, Phase 1, Sai
Towers, Rednam Gardens, Visakhapatnam.
11. B.L. Narimani,, W/o. B. Ramana Babu, Hindu, aged 53 years,
resident of Flat No. 302, Phase 1, Sai Towers, Rednam
Gardens, Visakhapatnam.
12. P. Ramajoginaidu, (Died).
13. S.S. Vara Prasad, (Died).
14. T. Akhilandeswari,, W/o Ravindra Kumar, Hindu, 60 ears, R/o
near Hotel Southern Spice, Road No.3, Banjara Hills,
Hyderabad.
15. N. Raja Gopalarao, , S/o late Venkata Subbayya, Hindu, 63
years, R/o 29-42-20/6, S.B.I.Colony, Prakasaraopeta,
Visakhapatnam.
16. T. Balagangadhara Tilak, (Died).
17. A. Ashok, , S/o Sivaji Rao, Hindu, 62 years, R/o 44, Ocean
Drive Layout, Gudlavanipalem, Visakhapatnam.
18. V.Sreekrishna,, S/o late Venkayya, Hindu, 55 years, R/o 147,
Sector IV, MVP Colony, Visakhapatna
19. V.Ranga Prasad, , S/o late Venkayya, Hindu, 64 years, R/o 52-
1/16-3A, N.T.R. Colony, Vijayawada.
20. T.Ramesh Kumar, (Died).
21. Smt. Tummala Sobha Rani,, W/o. late Tummala Bala
Gangadhar Tilak, Hindu, aged 61 years, residing at Pent House,
Subhodaya Apartments, Municipal Employees Colony,
Vijayawada, Krishna District.
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22. Sri T.N.V. Krishna,, S/o. late Tummala Bala Gangadhar Tilak,
Hindu, aged 37 years, residing at Pent House, Subhodaya
Apartments, Municipal Employees Colony, Vijayawada,
Krishna District.
23. Sri T. Venkateswara Rao,, S/o. late Tummala Bala Gangadhar
Tilak, Hindu, aged 34 years, residing at Pent House,
Subhodaya Apartments, Municipal Employees Colony,
Vijayawada, Krishna District.
24. Smt. D. Sree Ramya,, D/o. late Tummala Bala Gangadhar
Tilak, Hindu, aged 32 years, residing at Pent House,
Subhodaya Apartments, Municipal Employees Colony,
Vijayawada, Krishna District. (Petitioner/Plaintiffs 21 to 24 are
added as legal heirs of deceased 09th plaintiff as per orders in
I.A. 319/2022, Dt. 09/05/2022.) No relief is claimed against
Respondents 2 to 24, hence Notice to them may be dispensed
with
...RESPONDENTS
This Court made the following
ORDER:
The challenge in this Civil Revision Petition at the instance of
the revision petitioner/1st plaintiff is to the order dated 07.08.2023 in
I.A.No.184/2019 in O.S.No.357/2004 passed by learned II Additional
District Judge, Visakhapatnam dismissing the petition filed by the
plaintiffs U/s 151 CPC praying the trial Court to pass a decree in
their favour and against the Defendant No.1 granting relief of
declaration of title and injunction and also cancelling of the sale deed
dated 14.07.2004 executed by the Defendant No.2 in favour of
Defendant No.1 without the necessity of the conducting trial.
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2. The factual matrix of the case is thus:
(a) The plaintiffs filed O.S.No.357/2004 seeking the following
reliefs against the defendants:
i. To declare the right and title and possession of the
plaintiffs 1 to 13 in respect of the properties
covered under items 1 to 12 of the B-schedule;
ii. Consequential relief of permanent injunction
restraining the defendants, their men and servants
from ever interfere with the peaceful possession
and enjoyment of the plaint B-schedule properties
by the plaintiffs;
iii. To declare the sale deed dated 14.07.2004 executed
by the 2nd defendant in favour of the 1st defendant is
collusive, nominal and without any right or in the
alternative to declare it as void;
iv. For costs of the suit;
v. For such other relief or reliefs as your Honourable
court, deems fit and proper in the circumstances of
the case."
(b) The plaintiffs' case briefly is that the Defendant Nos.2 to 8
are the owners of the subject property and they executed the
agreement to sell in favour of the plaintiffs and also one Petakamsetty
Varaha Venka Nageswara Rao and his wife Venkata Padmavathi on
08.05.2000 and subsequently they sold the subject property in favour
of the plaintiffs on 28.05.2004 under a registered sale deed and
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delivered possession and thus plaintiffs have got title and possession
over the suit property.
(c) Plaintiffs' further case is that in the meanwhile, the
Defendant No.1 in collusion with the one Kundrapu Ramaswamy
filed a suit in O.S No.132/1995 against the 2 nd defendant on the file of
the Senior Civil Judge Court, Yellamanchili on the strength of a
forged agreement to sell and the said suit was decreed by the trial
Court. However, the defendant Nos.2 to 8 filed appeal
A.S.No.986/2001 on the file of High Court of Judicature at
Hyderabad. Pending the appeal, the Defendant Nos.2 to 8 executed a
registered sale deed dated 28.05.2004 in favour of the plaintiffs 1 to
13 in respect of the plaint schedule property as stated supra.
(d) The further case of the plaintiffs is that suspecting the
movements of the Defendant No.2 that he was acting against the
interests of the plaintiffs and trying to collude with the Defendant
No.1, the 1st plaintiff filed a suit in O.S.No.150/2004 on the file of
Junior Civil Judge Court at Yellamanchili and obtained injunction
against him restraining him from alienating suit schedule property.
The said suit is pending. However, the Defendant No.2 under the
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influence of one Kundrapu Ramaswamy and the Defendant No.1 and
to cause wrongful loss to the plaintiffs, executed a registered sale
deed dated 14.07.2004 in favour of the Defendant No.1. It is a bogus
sale deed without any sale consideration which was intended to
thwart the right, title and interest of the plaintiffs in the suit property.
(e) The further case of the plaintiffs is that while
A.S.No.986/2001 filed by the Defendant No.2 against the Defendant
No.1 challenging the judgment in O.S.No.132/1995 was pending,
some other parties therein also filed appeal A.S.No.986/2001,
A.S.No.3664/2004 and C.M.A.No.772/2006 on the file of High Court
and in all these appeals as well as the present suit O.S.No.357/2004,
the subject matter is one and the same. While the matter stood thus,
the Defendant No.2 in continuation of his collusion with the
Defendant No.1 changed his stand and even pending his appeal
A.S.No.986/2001, he clandestinely executed the sale deed dated
14.07.2004 ignoring the fact that the Defendant No.2 already
executed a sale deed dated 28.05.2004 in favour of the plaintiffs.
Since the plaintiffs' rights fell in jeopardy due to the unjust and illegal
act of the Defendant No.2, the plaintiffs got themselves impleaded in
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A.S.No.986/2001 pending before the High Court. Further, since the
plaintiffs have already filed present suit in O.S.No.357/2004 which is
pending disposal, the petitioners filed I.A.No.438/2010 seeking to
stay in O.S.No.357/2004 U/s 10 r/w Section 151 of Cr.P.C pending
disposal of the appeals before the High Court as the subject matter is
one and the same in all the matters. Stay was accordingly granted.
(f) Subsequently, the matters were disposed of by the High
Court. The two appeals were allowed and C.M.A No.772/2006 filed
by the Defendant No.1 herein was dismissed by a common order.
The said common order was assailed by the Defendant No.1 in three
Special Leave Petitions (SLPs) before the Hon'ble Supreme Court
and those SLPs were dismissed. The Defendant No.1 filed review
petitions before the Hon'ble Supreme Court and those review
petitions were also dismissed.
(g) Thus pursuant to the dismissal of the SLPs and Review
Petitions by the Hon'ble Supreme Court, it is manifest that the
Defendant No.1 has no right, title or interest in the present suit
schedule property. Therefore the plaintiffs sought for reopening of
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the suit in I.A.No.992 of 2017 in O.S.No.357/2004 for taking up trial
and the same was allowed.
(h) In the above back ground, the plaintiffs filed
I.A.No.184/2019 U/s 151 C.P.C stating that by virtue of the dismissal
of SLPs by the Hon'ble Apex Court, the right asserted by the
Defendant No.1 by virtue of the agreement to sell which was the
subject matter of O.S.No.132/1995 was rejected by the Hon'ble High
Court of Andhra Pradesh and Hon'ble Supreme Court of India and
the paramount title of the Defendant No.2 who died pending the
appeals and defendant Nos.3 to 5 & 7 to 9 was confirmed and as the
Defendant No.2 and contesting Defendant Nos.3 to 5 & 7 to 9 have
executed registered sale deed dated 28.05.2004, the plaintiffs' right
over the subject property is crystallized. In that view, the plaintiffs
pleaded, there is no need of conducting trial in O.S.No.357/2004 and
basing on the judgments of Hon'ble Supreme Court and High Court
of Andhra Pradesh in the earlier round of litigation, this Court can
straight away grant decree in favour of the plaintiffs in
O.S.No.357/2004 as prayed for, inasmuch as, conducting trial will
become abuse of process of law.
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3. The Defendant No.1 filed counter and opposed the petition
inter alia contending that subsequent to dismissal of SLPs, the
Defendant No.1 once again filed review petitions in A.S.M.P
No.2990/2017 and 2998/2017 before the High Court of Andhra
Pradesh and the same are pending adjudication and therefore the
earlier round of litigation has not attained finality and as such the
plaintiffs cannot seek for decree in their favour straight away without
holding trial.
(a) It is further contended that the other contesting defendants
have filed their additional written statement in the present suit
O.S.No.357/2004 denying the right, title and interest of the petitioners
over the suit schedule property and basing on the said statement,
additional issues were framed by this Court. They also filed an
application to amend the written statement in I.A.No.785/2018. It is
contended that though said application was dismissed on merits, the
Hon'ble Court has given an opportunity to file their written statement
and the same can be traceable from the orders passed in the above
referred petition. Therefore, the petitioners are debarred from
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canvassing that the rights were crystallized by virtue of the concurrent
findings in the appeals.
(b) It is further contended that the petitioners are tracing out
their right, title and interest from the deceased 2nd defendant and his
legal heirs but they are agitating the transfer of rights conveyed to the
petitioners as narrated in their written statement.
(c) As can be seen from the issues framed by the court, the
burden is heavily on the petitioners to prove their claim in respect of
the suit schedule property and they cannot avoid to proceed with trial,
particularly when the petitioners seek for declaration of their right
over the suit schedule property and cancelation of the Sale Deed,
which requires a full-fledged trial giving an opportunity to the
petitioners concerned including the 1st respondent herein.
4. The trial Court in the impugned order observed that there is no
strength in the contention of the petitioners to foreclose the trial and
grant decree in their favour. The trial court observed that there are
many defects in the petition. Firstly, it observed that admittedly, the
plaintiffs 14 & 15 are the legal heirs of the deceased plaintiff No.6
and though they were brought on record in the main suit
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O.S.No.357/2004 as his legal representatives, for the reasons best
known to the petitioners herein, they failed to show the plaintiffs 14
& 15 who are necessary parties, as parties in the present petition.
Non-impleadment of the plaintiffs 14 & 15 is fatal to the present
petition.
(a) Nextly, the trial court observed that as rightly contended by
the 1st respondent / 1st defendant, written statements of defendants 1
& 2 would show that they are challenging the claim of
petitioners/plaintiffs in the main suit O.S.No.357/2004. The 2 nd
defendant in the written statement denied the possession of the
petitioners/plaintiffs over the suit schedule property and he also
denied that there is collusion between the defendants 1 and 2.
Further, the 2nd defendant vehemently contended that the 1st defendant
is in possession of the suit schedule property and there is no proof in
the contention of the petitioners that the 1st defendant is making
attempts to dispossess the plaintiffs from the suit schedule property.
The 2nd defendant further contended that the petitioners/plaintiffs
have no right, title or possession over the suit schedule property. On
the other hand, the contention of the petitioners / plaintiffs is that they
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are in physical possession of the suit schedule property as such there
is a heavy burden on the petitioners/plaintiffs to prove their
possession by adducing oral and documentary evidence. The
possession is one of the facts to be proved.
(b) Nextly, the trial court observed that there are lot of
differences in respect of the extents of the suit schedule property.
Even as per the case of the petitioners/plaintiffs, the plaintiffs sold
away some of the properties to third-parties, those third-parties are
not made as parties to the petition. Once some of the plaintiffs sold
away their properties, they cannot claim right, title and possession
over the entire suit schedule property. As rightly contended by the 1st
respondent / 1st defendant, the extents of the land are at variance. The
extent of the land as per the present suit is Ac.32.49 cents. The trial
court having regard to the crucial facts involved, observed that though
the Hon'ble High Court in its common judgment in A.S.No.986/2001
& batch observed that the Sale Deed obtained by 1st defendant is
collusive one, however basing on such observation, the plaintiffs
cannot say that the Hon'ble High Court has decided that the present
plaintiffs are the absolute owners of the suit schedule property.
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Finally, the trial Court observed that as per the 1st respondent / 1st
defendant, review petitions in A.S.M.P No.2990/2017 and 2998/2017
filed by 1st respondent / 1st defendant against the common judgment
in A.S.No.986/2001 & batch are pending and in the written
arguments of the petitioner, they admitted about the filing of review
petitions. With these observations, the trial Court dismissed the
C.R.P.
5. Heard Sri V.V.Ravi Prasad, learned counsel for petitioners, and
Sri A.S.C. Bose, learned counsel for respondents. Both the learned
counsel reiterated their pleading and made elaborate arguments.
6. The point for consideration is whether there are merits in the
C.R.P. to allow?
7. Point: It is trite law that the person who seeks comprehensive
relief of declaration of his title and possession over an immovable
property, shall establish his case without depending on the defect in
the case of defendants. Keeping this principle in mind, the case on
hand is scrutinized.
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8. As narrated supra, the petitioners/plaintiffs filed
O.S.No.357/2004 seeking various reliefs such as declaration of the
right, title and possession over the schedule property and additionally
for a declaration that the Sale Deed dated 14.07.2004 executed by 2 nd
defendant in favour of 1st defendant is a collusive, nominal and void.
The defendants filed the statements and contesting the suit. The 2 nd
defendant, who is said to be the original owner of the suit schedule
property, vehemently denied the plaintiffs' right, title and possession
over the plaint schedule property and claimed that they sold the said
property to 1st defendant under registered Sale Deed dated 01.11.2002
in pursuance of the decree dated 12.02.2001 passed in
O.S.No.132/1995 by Senior Civil Judge, Elamanchili. While
narrating certain circumstances, he also stated that subsequently he
executed another registered sale deed dated 14.07.2004 in favour of
1st defendant and pleaded that the 1st defendant became the owner of
the suit schedule property. The 2nd defendant further pleaded that the
plaintiff by misrepresentation and fraud, obtained an Agreement to
sell-cum-GPA from 2nd defendant and his family members by
creating differences in his family. No payment was made and no
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possession was delivered to the plaintiffs as alleged. He took other
pleas questioning the right, title and possession of the plaintiffs. The
defendants 3 to 5 and 7 to 9 also filed written statement and they
supported the plaint allegations.
(a) While so, the 1st defendant also filed a separate written
statement and challenged the plaint allegations as false and untenable.
He claimed that he purchased the suit property under a registered Sale
Deed dated 01.11.2002 pursuant to the decree in O.S.No.132/1995 on
the file of Senior Civil Judge, Elamanchili. He also narrated other
circumstances and stated as if he obtained registered Sale Deed dated
14.07.2004. He denied the title and possession of the plaintiff. He
took further pleas.
9. Thus, a perusal of the individual written statements filed by the
defendants would show that defendants 1 and 2 are vehemently
opposing the plaintiffs' title and possession, whereas other defendants
admitted his case. It is in these circumstances, as per the principle
laid down in a number of decisions, the plaintiffs being the suitor
have to establish their title and possession in respect of plaint
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schedule property without depending on the defect or deficiency in
the case of the defendants, for this purpose, trial is essential.
10. Further, as rightly observed by the trial court, the petitioners
not only seek for declaration but also a permanent injunction. To
claim this relief, the plaintiffs must establish their lawful possession
as on the date of suit which is staunchly denied by the defendants 1
and 2. Therefore, in this context also, the process of trial is essential.
11. So far as the common judgment in AS.No.986/2001 & batch,
on which much reliance is placed by the petitioners is concerned,
according to the respondents, the 1st defendant filed review petitions
in AS.M.P.No.2990/2017 and 2998/2017 on the file of the common
High Court of Hyderabad and they are pending and as such the
common judgment has not attained finality. Though the plaintiffs
contended that the SLPs and review petitions filed by the 1st
defendant were dismissed by the Hon'ble Apex Court, they did not
specifically deny the filing of review petitions AS.M.P.No.2990/2017
and 2998/2017 in the High Court of A.P. and their pendency. That
being the case, the plaintiffs cannot shore upon their case on the
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common judgment in AS.No.986/2001 and batch because the matter
appears to be still pending.
12. So far as the common judgment in A.S.No.986/2001 & batch
and observations made therein are concerned, the plaintiffs can utilize
the same as a piece of evidence on their behalf but as rightly observed
by the trial court, they cannot seek foreclosure of the trial and
granting of decree straight away in their favour on the strength of the
said judgment. The various decisions cited by the learned counsel
for petitioners on the point of res judicata etc. will not be of much
help to petitioners.
13. Thus, on a conspectus of facts and law, I find no illegality or
irregularity in the order impugned.
14 Accordingly, the C.R.P. is dismissed. However, as the suit
O.S.No.357/2004 is an old suit, the trial Court shall make every
endeavour to complete the trial and pronounce the judgment
expeditiously, but not later than four (4) months from the date of
receipt of a copy of this order. No costs.
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As a sequel, interlocutory applications pending, if any, shall
stand closed.
__________________________
U. DURGA PRASAD RAO, J
28.12.2023
Krk / mva
