Andhra Pradesh High Court - Amravati
Jannada Ramanayya vs Bobbadi Govindarao on 4 November, 2024
APHC010078012023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE FOURTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 89/2023
Between:
Jannada Ramanayya ...APPELLANT
AND
Bobbadi Govindarao ...RESPONDENT
Counsel for the Appellant:
1. V SUDHAKAR REDDY
Counsel for the Respondent:
1. SARIPALLI SUBRAHMANYAM
The Court made the following:
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.89 of 2023
Judgment:
This second appeal is filed aggrieved against the Judgment and decree
dated 31.10.2022 in A.S.No.80 of 2018, on the file of the Judge, Family Court-
cum-III Additional District Judge, Srikakulam, confirming the Judgment and
decree, dated 25.06.2018 in O.S.No.553 of 2014, on the file of the Principal
Senior Civil Judge, Srikakulam.
2. The appellant herein is the defendant and the respondent herein is
the plaintiff in O.S.No.553 of 2014, on the file of the Principal Senior Civil
Judge, Srikakulam.
3. The plaintiff initiated action in O.S.No.553 of 2014, on the file of the
Principal Senior Civil Judge, Srikakulam, with a prayer to evict the defendant
and deliver vacant possession of plaint schedule property to him and in the
event of default, to do so, evict the defendant and put the plaintiff in peaceful
possession through process of law and direct the defendant to pay an amount
of Rs.50,000/- per year from the date of suit to till the date of delivery of
possession and for costs of the suit.
4. The learned the learned Principal Senior Civil Judge, Srikakulam,
decreed the suit with costs. Felt aggrieved of the same, the unsuccessful
defendant in the above said suit filed A.S.No.80 of 2018, on the file of the
Judge, Family Court-cum-III Additional District Judge, Srikakulam. The
learned Judge, Family Court-cum-III Additional District Judge, Srikakulam,
dismissed the first appeal by confirming the judgment and decree passed by
the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant
approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.553 of 2014, is as follows:
(i) The plaintiff purchased item No.1 of plaint schedule property under a
registered sale deed from Karapati Yerrayya of Marripadu colony, originally
residing at Moola Showlapuram village, which was registered at Sub-Registrar
Office, Amadalavalasa and got physical possession and enjoyment since the
date of purchase. The item No.2 of plaint schedule property is absolute
ancestral property of plaintiff derived on the plaintiff in oral family partition.
The Government issued pattadar passbook and title deed books relating to
plaint schedule property in favour of plaintiff and also collecting revenue from
the plaintiff.
(ii) The defendant is no other than the son-in-law of brother of plaintiff
viz., Bobbadi Suryanarayana, thus the defendant is relative to the plaintiff.
The defendant approached the plaintiff in the year 2002 and requested to give
the plant schedule property for cultivation. The plaintiff agreed for the same
taking consideration into the relationship. Accordingly, the plaintiff executed a
written document for Bogabanda in favour of defendant in the year 2002 and
given the plaint schedule property for cultivation to the defendant only for a
period of three years, on that terms the defendant has to raise crops and
enjoy the produce for which the defendant has to pay Rs.1,30,000/- to the
plaintiff which is returnable without any interest to defendant in the month of
March, 2005 for which the defendant agreed. The defendant deposited
Rs.1,30,000/- with plaintiff on the date of execution of said Bogabanda
document and accordingly the defendant used to raise crops on the plaint
schedule land and enjoyed the produce.
(iii) In the month of March, 2005 the plaintiff paid the said amount of
Rs.1,30,000/- to the defendant and the defendant delivered possession of the
plaint schedule property to plaintiff. Again in the year 2009 the defendant
approached the plaintiff at Naira village and requested him to give the plaint
schedule property for cultivation as Bogabanda on the same conditions stated
above, for which the plaintiff agreed and in the presence of M.V. Ramadas,
both plaintiff and defendant entered into oral terms of koul for a period of four
years commencing from March, 2009 to March, 2013.
(iv) In the month of February, 2013 the plaintiff approached the
defendant and offered Rs.1,30,000/- to the defendant and demanded him to
handover the plaint schedule land to him. On that the defendant requested
the plaintiff to allow him to raise crops and enjoy the produce till January, 2014
in the presence of M.V. Ramadas and to keep the said amount with the
plaintiff. Accordingly, the plaintiff agreed for the same and the defendant
raised crops and enjoyed the produce till January, 2014. In the 2nd week of
February, 2014, the plaintiff offered Rs.1,30,000/- cash to defendant in the
presence of M.V. Ramadas, Bobbadi Ammadu, Satyam and others at Moola
Showlapuram village and demanded the defendant to receive the said cash
and handover possession of plaint schedule property for cist for the year
2014-15, for which the plaintiff refused and the defendant refused to receive
the said amount of Rs.1,30,000/- offered by the plaintiff.
(v) So, the plaintiff raised dispute for about two times before the above
said elders, in spite of advice given by the elders to receive Rs.1,30,000/- and
handover the possession of the plaint schedule property to plaintiff, the
defendant postponed the same on one pretext or the other.
(vi) The plaintiff got issued legal notice on 10.032014 to the defendant
and the defendant received the notice and got issued reply notice. Hence, the
plaintiff constrained to file the suit.
7. The defendant filed written statement before the trial Court denying
the contents of plaint averments and further contended as follows:
(i) The plaintiff himself executed a possessory agreement of sale in
favour of the defendant on 14.05.2002 for Rs.70,000/- towards advance
amount and the plaintiff has to execute a registered sale deed in favour of
defendant at the end of June, 2002 as and when the defendant agreed to
obtain registered sale deed, but the plaintiff did not come forward to execute
the registered sale deed.
(ii) The item No.2 of schedule property locally called as Godilivaripolam
for an extent of Ac.0-47 cents, on 14.05.2002 the plaintiff executed a
possessory agreement of sale in respect of said land at Rs.1,050/- per cent
and paid entire consideration of Rs.49,300/- by the defendant to the plaintiff, it
was agreed as and when the defendant demands the plaintiff to register item
No.1 and 2 of schedule properties, he has to register the same but the plaintiff
did not come forward to register the documents. Now as the value of the
lands is high rate, the plaintiff with a malafide intention and in order to create
trouble to the defendant, got filed the suit. The defendant is in possession and
enjoyment of the plaint schedule property from 2002. Hence, the defendant
prays to dismiss the suit with costs.
8. On the basis of above pleadings, the learned Principal Senior Civil
Judge, Srikakulam, framed the following issues for trial:
(1) Whether the defendant is in possession and enjoyment of the
suit schedule properties item Nos.1 and 2 from the year 2002
onwards by virtue of two possessory agreement of sale, dated
14.05.2002?
(2) Whether the plaintiff is entitled for eviction and recovery of
possession of plaint schedule property from the defendant as
prayed for?
(3) Whether the plaintiff is entitled for damages @ Rs.50,000/- per
year as prayed for?
(4) Whether the suit is within time?
(5) To what relief ?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 to P.W.4 were examined and Exs.A-1 to A-13 were marked. On behalf
of the defendant, D.W.1 and D.W.2 were examined and no documents were
marked.
10. The learned Principal Senior Civil Judge, Srikakulam, after
conclusion of trial, on hearing the arguments of both sides and on
consideration of oral and documentary evidence on record, decreed the suit
with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal
suit in A.S.No.80 of 2018, on the file of the Judge, Family Court-cum-III
Additional District Judge, Srikakulam, wherein, the following points came up
for consideration.
(1) Whether the plaintiff is entitled for recovery of possession of
the plaint schedule property from the defendant?
(2) Whether the plaintiff is entitled for damages as prayed for?
(3) Whether the suit is within time?
(4) Whether the decree and judgment, dated 25.06.2018 in
O.S.No.553 of 2014, on the file of Principal Senior Civil
Judge, Srikakulam needs any interference of this Court
(5) To what relief?
11. The learned Judge, Family Court-cum-III Additional District Judge,
Srikakulam i.e., the first appellate Judge, after hearing the arguments,
answered the points, as above, against the defendant/appellant and in favour
of the plaintiff/respondent and dismissed the appeal filed by the defendant.
Felt aggrieved of the same, the unsuccessful defendant in O.S.No.553 of
2014 filed the present second appeal before this Court.
12. Heard Sri V. Sudhakar Reddy, learned counsel for the appellant and
Sri Saripalli Subrahmanyam, learned counsel for the respondent.
13. It has to be kept in mind that the right of appeal is neither a natural
nor an inherent right attached to the litigation. It is regulated in accordance
with law. A second appeal preferred under Section 100 of CPC could be
admitted only when the appellant satisfies this Court that the substantial
questions of law between the parties arise in this case. A proper test for
determining whether a questions of law raised in the case is substantial would
be 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 the superior Courts or is not free from difficulty or cause for
discussion of alternative views. In a case of Boodireddy Chandraiah v.
Arigela Laxmi1, the Apex Court held that;
"it is not within the domain of the High Court to investigate the grounds
on which the findings were arrived at by the last Court of fact namely, the
first appellate Court. In a case where from a given set of circumstances
two inferences of facts are possible, one drawn by the lower appellate
Court will not be interfered by the High Court in a second appeal.
Adopting any other approach is not permissible. Where, the facts
required for a point of law have not been pleaded, a litigant should not be
allowed to raise that question as a substantial questions of law in second
appeal. The mere appreciation of facts, the documentary evidence and
the contents of the documents cannot be held to be raising substantial
questions of law."
14. The defendant having chosen to invoke the jurisdiction of this Court
under Section 100 of Civil Procedure Code, it is for him to meet the above
principles and satisfy the Court whether there exists any substantial questions
of law.
15. This second appeal is filed against the concurrent findings arrived
by both the Courts below, therefore the grounds urged in the second appeal
are to be scrutinized to find out whether the appellants have shown any
substantial questions of law. The contention of the appellants is that the
judgment and decree of the trial Court as well as the first appellate Court are
contrary to law and that the second appeal may be allowed by setting aside
1
(2007) 8 SCC 155
the judgment and decree passed by both the Courts below i.e. the trial Court
and the first appellate Court.
16. At the outset, it has to be noted that the questions are raised on the
grounds of appeal as a substantial questions of law is as follows:
(a) Whether the courts below failed to consider the fact that the simple
suit for eviction is not maintainable when the defendant is in possession
of the property on Bogabanda-Usufructuary mortgage?
(b) Whether the courts below are right in decreeing the suit when the
plaintiff admittedly not repaid mortgage-money or deposit the same in
the court at the time of filing the suit?
(c) When it is the case of the plaintiff that the suit schedule properties
are mortgaged to the defendant on deposit of Rs.1,30,000/- with a
condition to enjoy the usufruct of the same whether the simple suit for
eviction is maintainable or the plaintiff has to file a mortgage suit for
redemption of the mortgage property?
(d) Whether the judgments of courts below directing the appellant-
defendant to vacate and deliver the vacant possession of plaint
schedule property to the plaintiff without directing the respondent-
plaintiff to repay the mortgage money to the appellant-defendant are
sustainable?
17. The material on record reveals that the plaintiff has given the
plaint schedule item Nos.1 and 2 of landed property to the defendant for
cultivation by receiving an amount of Rs.1,30,000/- towards lease amount and
the defendant has to raise the crops and enjoy the produce and it was
renewed from time to time till 2014. The material on record also further
reveals that in the 2nd week of February, 2014, the plaintiff offered
Rs.1,30,000/- cash to the defendant in the presence of M.V. Ramadas,
Bobbadi Ammadu, Satyam and others and demanded the defendant to
receive the cash and deliver the possession of the plaint schedule landed
property for which the defendant requested the plaintiff to give the plaint
schedule property for lease for the year 2014-15 for which the plaintiff refused
to give the land and the defendant also refused to receive the amount of
Rs.1,30,000/- as offered by the plaintiff, the same is also well supported by
P.W.2 to P.W.4. The evidence of P.W.2 to P.W.4 goes to show that in their
presence the plaintiff offered to refund Rs.1,30,000/- to the defendant, but the
defendant refused to receive the said amount and insisted the plaintiff to
extend the lease period for the year 2014-15. It is not at all in dispute that the
plaintiff is owner of the plaint schedule landed property. The material on
record also reveals that the plaintiff is owner of the suit schedule property, the
same is well supported by documentary evidence. In order to prove the same,
the plaintiff also relied on the registration extracts of the sale deeds. The
ownership of the plaintiff in the schedule property is not at all disputed by the
defendant. The case of the defendant is also that the plaintiff is original owner
of the plaint schedule property. The defendant pleaded in the written
statement that the plaintiff executed possessory agreement of sale in favour of
him on 14.05.2002 for Rs.70,000/- toward advance amount and the plaintiff
has to execute a registered sale deed in favour of the defendant at the end of
June, 2002. For the reasons best known to the defendant, he failed to produce
the alleged possessory agreement of sale or sale deed either before the trial
Court or before the first appellate Court, the same is not at all proved by the
defendant.
18. The learned counsel for the appellant/defendant would contend
that the plaintiff is enjoying the money of Rs.1,30,000/- which is kept with him
and the plaintiff before seeking recovery of possession, he has to deposit the
said amount before the trial Court or it has to be refunded to the defendant
prior to the institution of the suit. As stated supra, the witnesses of the plaintiff
also clearly supports the contention of the plaintiff that when he offered to
refund Rs.1,30,000/- to the appellant, the appellant refused to receive the
same and insisted the plaintiff to extend the lease for one more year and the
same is refused by the plaintiff. Furthermore, the above plea is not at all
raised by the defendant either before the trial Court or before the first
appellate Court. Furthermore, there is no pleading in the written statement to
that effect. No counter claim is filed by the defendant in the same suit before
the trial Court by paying the Court fees.
In the case of Bachhaj Nahar vs. Nilima Mandal and another 2
wherein the Apex Court held as follows:
"The object and purpose of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly defined and to prevent cases
being expanded or grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that are likely to be
raised or considered so that they may have an opportunity of placing the
relevant evidence appropriate to the issues before the court for its
consideration. This Court has repeatedly held that the pleadings are
meant to give to each side intimation of the case of the other so that it
may be met, to enable courts to determine what is really at issue
between the parties, and to prevent any deviation from the course which
litigation on particular causes must take."
In the case of Ram Sarup Gupta (dead) by LRs. vs. Bishun Narain
Inter College and others3 wherein the Apex Court held as follows:
"The question which falls for consideration is whether the respondents in
their written statement have raised the necessary pleading that the
licence was irrevocable as contemplated by Section 60(b) of the Act and,
if so, is there any evidence on record to support that plea. It is well
settled that in the absence of pleading, evidence, if any, produced by the
parties cannot be considered. It is also equally settled that no party
2
(2008) 17 Supreme Court Cases 491
3
(1987) 2 Supreme Court Cases 555
should be permitted to travel beyond its pleading and that all necessary
and material facts should be pleaded by the party in support of the case
set up by it. The object and purpose of pleading is to enable the
adversary party to know the case it has to meet."
In the case on hand, as stated supra, the defendant has not raised any
plea in the written statement that the plaintiff is enjoying money which is kept
with him and he has not deposited the said amount in the trial Court or he did
not refund the money to the defendant before institution of the suit. As stated
supra, no counter claim is filed by the defendant before the trial Court for
claiming the amount of Rs.1,30,000/- from the plaintiff by paying the Court
Fees for refund of money.
19. The learned counsel for the appellant/defendant placed reliance
in the case of Sajana Granites, Madras and another vs. Manduva
Srinivasa Rao and others4 wherein the Division Bench of the composite High
Court of Andhra Pradesh held as follows:
"The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices
v. Polo Avira case (supra) and this Court in C. Audilakshmamma case
(supra) held that plaintiff in a suit for declaration of title, and for recovery
of possession, can succeed only on the strength of his own title and that
it is not obligatory on the defendants to plead and prove the possible
defects in the plaintiffs title and so if the plaintiff fails to establish his title,
even if the defendant fails to establish his own title, plaintiff must be non
suited. In this case since appellants are seeking declaration of their title
to the suit property they have to establish their title; and cannot except
relief on the basis of the weakness of the case of respondents 1 and 2,
or on the basis that the evidence adduced by respondents 1 and 2 does
not establish their title to the suit property."
4
2002 (2) ALD 436 (DB)
In the case of hand, the ownership of the plaintiff is not at all disputed
by the plaintiff and the same is well supported by Ex.A.1 to Ex.A.13
documentary evidence. The first appellate Court having thus examined the
facts and evidence in proper perspective and also correctness of the judgment
of the trial Court, agreed with the finding of the trial Court and dismissed the
appeal. Viewed thus, this Court finds that the questions being sought to be
raised are not substantial questions of law and that the said questions are not
even pure questions of law, but, are either only mixed questions of fact and
law or pure questions of fact. This Court further finds that no questions of law
much less the substantial questions of law are involved requiring interference
with the impugned decree and judgment. Accordingly, this Court holds that
there is no substance in the questions being sought to be raised. The law is
well settled that a second appeal shall not be admitted, if no substantial
questions of law aroses for consideration and when no substantial questions
of law is involved. The view of this Court is reinforced by the ratio laid down by
the Apex Court in the case of Gurdev Kaur v. Kaki5. In the case on hand, as
stated supra, this Court finds after careful examination of the pleadings,
evidence and contentions that no substantial questions of law is involved, this
second appeal is liable for dismissal at the stage of admission, in view of
narrow compass of Section 100 of Civil Procedure Code.
20. In the result, the second appeal is dismissed at the stage of
admission, confirming the judgment and decree of both the trial Court as well
as the first appellant Court. There is no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT. 04.11.2024.
PGR
AIR 2006 SC 1975
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Dt.04.11.2024.
(PGR)
