Guttula Johnson vs Pulla Govindu
2024 Latest Caselaw 9272 AP

Andhra Pradesh High Court - Amravati

Guttula Johnson vs Pulla Govindu on 14 October, 2024

 APHC010273152020
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                           [3397]
                           (Special Original Jurisdiction)

               MONDAY ,THE FOURTEENTH DAY OF OCTOBER
                  TWO THOUSAND AND TWENTY FOUR

                                  PRESENT

      THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
                        KRISHNA RAO

                      SECOND APPEAL NO: 232/2020

Between:

Guttula Johnson                                                  ...APPELLANT

                                     AND

Pulla Govindu                                                 ...RESPONDENT

Counsel for the Appellant:

1. T N M RANGA RAO

Counsel for the Respondent:

1. P DURGA PRASAD

The Court made the following:

Judgment:

The appellant herein (connected with O.S.No.162 of 2009 of Principal Junior Civil Judge's Court, Kakinada) is the plaintiff in O.S.No.162 of 2009 and the respondent herein is the defendant in the said suit. The defendant herein filed another suit vide O.S.No.239 of 2009 against the plaintiff herein. The learned Principal Junior Civil Judge, Kakinada, clubbed both the suits and tried together and passed a common judgment against which, A.S.Nos.105 and 112 of 2012 are filed by the respective plaintiffs in both the suits and both these appeals were dismissed by confirming the judgment of the trial Court by the IV Additional District Judge, Kakinada, by passing common judgment dated 07-02-2020. Aggrieved against the judgment and decree passed in O.S.No.162 of 2009 (connected with A.S.No.105 of 2015), this second appeal is preferred by the plaintiff. No second appeal is preferred against the judgment and decree passed in O.S.No.239 of 2009 (connected with A.S.No.112 of 2015).

2. The case of the plaintiff as narrated in the plaint, in brief, is as follows:

It is pleaded that item No.1 of plaint schedule property i.e. plot bearing No.49 was purchased by one N. Sri Rama Sastry from the Postal Employees' Cooperative Building Society under a registered sale deed dated 07-4-1994 and he sold the same to the plaintiff under a registered sale deed dated 10-6-2008. One Smt. B. Nagamani purchased item No.2 of plaint schedule property i.e. plot bearing No.37 from the Society on 10-4-1990 and in turn, she sold the same to the plaintiff under a registered sale deed dated 16-02-2009. It is further pleaded that the defendant has got an agricultural land towards eastern side of the plaint schedule property and that the defendant and his henchmen are openly proclaiming that he will enter into the plaint schedule property and thus the suit is filed.

3. Brief averments in the written statement filed by the defendant are as follows:

It is contended that on 20-4-1962, the defendant's father purchased an extent of Ac.4-84 cents of land in Old Survey No.102 (New Survey No.111) and an extent of Ac.0-38 cents of land in Old Survey No.103 (New Survey No.112) and other property by a registered sale deed bearing document No.1793/1962 on 20-4-1962 from one Vagu Radha Krishna Murthy and others and he was put in possession and enjoyment of the same with absolute rights. It is further contended that the defendant's father orally partitioned the properties and the same was reduced into writing on 08-11-1982 and a partition list was prepared in between the defendant and his family members and landed properties were jointly fell to the share of the defendant and his brother P. Venkata Ramana. The defendant urged before the Court to dismiss the suit with costs.

4. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial in O.S.No.162 of 2009:

(1) Whether the sale deeds dated 10-6-2008 and 16-02-2009 are true and valid ?

(2) Whether the plaintiff is entitled for permanent injunction as prayed for ? and (3) To what relief ?

5. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 7 are examined and Exs.A-1 to A-5 are marked. On behalf of the defendant, D.Ws.1 and 2 are examined and Exs.B-1 and B-10 are marked. The plaintiff also examined Advocate Commissioner as C.W.1 and Ex.C-1 was marked through Advocate Commissioner.

6. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed both the suits. Felt aggrieved of the aforesaid common judgment and decrees, A.S.Nos.105 of 2015 and 112 of 2015 are filed and both the appeals were also dismissed by the first appellate Court. Aggrieved by the judgment and decree passed by the first appellate Court, the present second appeal is filed by the plaintiff in O.S.No.162 of 2009 (connected with A.S.No.105 of 2015) and no second appeal is filed against the judgment and decree in O.S.No.239 of 2009 (connected with A.S.No.112 of 2015).

7. On hearing both sides, the following substantial questions of law are framed by this Court on 05-7-2021:

(1) Whether the Courts below are justified in saying that without complete report of the Commissioner is a material fact to decide the issue involved in the suit or not ? and (2) Whether both the Courts below are justified without taking into consideration of the law laid down in the judgments in (2000) 7 SCC 379 and 1985(2) APLJ 151 or not ?

8. As stated supra, in the case on hand, the plaintiff filed O.S.No.162 of 2009 before the Principal Junior Civil Judge, Kakinada, for claiming the relief of permanent injunction restraining the defendant and his men from ever interfering with the possession and enjoyment of the plaint schedule property. After completion of trial, the learned trial Judge dismissed the said suit. The plaintiff filed A.S.No.105 of 2015 before the first appellate Court. The learned IV Additional District Judge, Kakinada, on hearing both sides, dismissed the said appeal. The plaintiff, who suffered, has come up with this second appeal under Section 100 of CPC.

9. Points 1 and 2: Sri T.N.M. Ranga Rao, learned counsel for the appellant/plaintiff would contend that both the Courts below erred in dismissing the suit and the judgments and decrees passed by the trial Court and the first appellate Court may be set aside and the matter may be remanded to the trial Court for appointing an Advocate Commissioner to localize the suit schedule property.

10. Sri P. Durga Prasad, learned counsel for the respondent/defendant, would contend that the appellant herein is failed to show his property to the Advocate Commissioner and failed to identify exact location of his property and also failed to prove the possession of the plaintiff and that the trial Court rightly dismissed the suit and there is no need to interfere with the finding given by both the Courts below and the second appeal may be dismissed.

11. The plaintiff in the suit is seeking the relief of permanent injunction to restrain the defendant and his men from interfering with the possession of the plaintiff in the plaint schedule property as on the date of institution of the suit. It is well settled that in a suit for perpetual injunction, prima facie title has to be looked into and it is also the bounden duty of the appellant/plaintiff to prove his possession in the plaint schedule property as on the date of filing of the suit. The plaintiff examined himself as P.W.1 before the trial Court. In cross-examination, the plaintiff admits that his plot is situated in Survey No.108. Admittedly, in the sale deeds Exs.A-1 and A-2, there is no specific recital that his plot is situated in Survey No.108 and in the sale deeds also, there is no mention about the names of the persons who are in the possession of the plots of all neighbouring persons to his plot. As seen from the plaint schedule, survey number of the property is not at all mentioned and the names of the neighbouring owners on all four sides of the schedule property is also not at all mentioned in the plaint schedule except the eastern boundary is shown as agricultural land of the defendant. As stated supra, in the sale deeds of the plaintiff Exs.A-1 and A-2, the names of all neighbouring owners of the suit schedule property on all four sides is not at all mentioned. Item No.1 of the schedule property is 300 1/3 sq. yards and item No.2 of the schedule property is 358 sq. yards. The date of purchase of item No.1 of the plaint schedule property by the plaintiff is on 10-6-2008, item No.2 is purchased on 16-02-2009 and the date of filing of the suit before the trial Court is 25-02-2009. It seems that just 9 days prior to the institution of the suit, the plaintiff purchased item No.2 of the property and item No.1 of schedule property just 6 months prior to the institution of the suit. In such a case, it is not much difficulty to the plaintiff to identify his property on land.

12. Admittedly, the plaintiff has not filed any petition before the trial Court to appoint an Advocate Commissioner to visit the suit schedule property along with Mandal Surveyor. Furthermore, the defendant filed a petition to appoint an Advocate Commissioner and he visited the suit schedule property several times along with Mandal Surveyor. Though the Advocate Commissioner visited the property with Mandal Surveyor for several times, the plaintiff failed to identify his land on the ground exactly. The Advocate Commissioner filed his incomplete report. For the reasons best known to both the parties, no steps are taken by either of the parties for filing a petition before the trial Court to redirect the same Advocate Commissioner to revisit the schedule property or they did not move any petition to appoint a fresh Advocate Commissioner to visit the plaint schedule property. Furthermore, the appellant herein has not filed any petition before the first appellate Court to appoint an Advocate Commissioner to visit the suit schedule property. Very surprisingly, after filing of second appeal in the year 2020 after a lapse of one year, the appellant/plaintiff filed a petition in the second appeal to appoint an Advocate Commissioner to visit the suit schedule property.

13. As stated supra, just 9 days before institution of the suit, the plaintiff alleged to have purchased the property. It is also relevant to say that the names of boundary holders are not at all mentioned in the plaint schedule except one of the boundaries is the land of the defendant. But, in Exs.A-1 and A-2, eastern boundary is shown as agricultural land but not the land of the defendant. In the sale deeds of the appellant, the names of boundary holders on all four sides are not at all mentioned. As per the own admissions of the plaintiff in his evidence on oath, his plot is situated in Survey No.108. Admittedly, in the plaint schedule, no survey number is mentioned and in the sale deeds Exs.A-1 and A-2 also, no survey number is mentioned. Furthermore, the plaintiff admits that the defendant is raising vegetable plants in the schedule property and that he is in possession of the said property. According to the Advocate Commissioner, the properties claimed by the plaintiff are found in Survey Nos.111 and 112. The plaintiff also examined father of the vendor of the property as P.W.2. As per his evidence, he purchased the part of the plaint schedule property i.e. Plot No.49 in the name of his son. He admits that at the time of purchase by them, he did not verify the boundaries of the property on land and the property was purchased in the name of his son in Survey No.119/92. In Exs.A-1 and A-2, survey numbers of the property is not at all mentioned.

14. The cause of action to file the suit as alleged in the plaint is on 24-02-2009. The defendant and his henchmen are proclaiming in the vicinity that they will trespass into the plaint schedule property on 25-02-2009 and on 25-02-2009 the suit is instituted by the plaintiff on the very next day. It seems that the alleged cause of action as stated by the plaintiff in the plaint is only a myth, the alleged cause of action as shown by the plaintiff in the plaint is not at all correct and there is no cause of action to institute the suit before the trial Court. It is also made it clear that in the sale deeds of the plaintiff, the names of boundary persons on all four sides are also not mentioned and survey numbers are also not mentioned. Furthermore, the plaintiff is unable to identify his property on land at the time of visit by the Advocate Commissioner along with Mandal Surveyor. The plaintiff also failed to identify exact location of his property on the ground. Furthermore, the plaintiff's vendor i.e. P.W.2 admits that at the time of purchase, he purchased the property in the name of his son and he purchased the property without verifying the boundaries on land. The fact remains that the defendant got appointed the Advocate Commissioner along with Mandal Surveyor before the trial Court. The plaintiff did not file any petition for appointment of Advocate Commissioner either before the trial Court or before the first appellate Court.

15. As seen from the judgments of both the Courts below, the learned trial Judge on appreciating the entire evidence on record along with Ex.C-1 report of the Advocate Commissioner, dismissed the suit and the same is confirmed by the first appellate Court.

16. It was contended by Sri S.N.M. Ranga Rao, learned counsel for the appellant, that both the Courts below are not justified without taking into the consideration the legal position in Shreepat v. Rajendra Prasad1. But, the ratio laid down in the said case law relates to the suit for declaration and recovery of possession. It seems that the dispute in the aforesaid case law is in between lessor and lessee. The learned counsel for appellant also relied on another case law in Jagannadha Rao v. Y. Subba Rao2. The facts in the

2000 Law Suit (SC) 444

1983 Law Suit (AP) 225 aforesaid case law relate to a suit for specific performance of agreement of sale. Therefore, the ratio laid down in the aforesaid two case laws is not at all applicable to the present facts of the case.

17. The learned counsel for appellant also placed another reliance in Santosh Hazari v. Purushottam Tiwari3. The ratio laid down in the said case law relates to the suit for declaration of title and recovery of possession. The learned counsel for appellant also relied on another decision in Rajasthan State RTC v. Bajrang Lal4. The facts in the aforesaid case relate to service matters. Therefore, the ratio laid down in the aforesaid two case laws is not at all applicable to the present case on hand.

18. The learned counsel for appellant also relied on Kunja Bhaskar v. Korsa Mallaiah5. The facts in the said case relate to a temporary injunction petition filed by the plaintiff under Order XXXIX, Rule 1 of CPC in the main suit instituted by the plaintiff but not judgment and decree passed by the trial Court.

19. The learned counsel for appellant also placed another reliance in Sk. Bhikan v. Mehamoodabee6. The ratio laid down in the aforesaid case law is not at all in dispute but the said case law relates to the suit for partition and possession. The learned counsel for appellant placed another reliance on Rajasthan State RTC v. Bajrang Lal7. There is no dispute about the ratio laid down in the said case law that there is no prohibition for the High Court to entertain the second appeal even on question of fact where factual findings are found to be perverse, but the facts cited in the said decision relate to service matters.

20. The plaintiff filed the suit for the relief of permanent injunction restraining the defendant and his men from interfering with the possession in

2001 Law Suit (SC) 237

2014 Law Suit (SC) 179

2018 (6) ALD 1

2017 (3) ALD 100 (SC)

2014 (4) ALD 43 (SC) the plaint schedule property as on the date of institution of the suit. Therefore, the entire burden is on the plaintiff to prove that he is in lawful possession of the schedule property by the date of filing of the suit. Admittedly, Exs.A-1 and A-2 certified copies of sale deeds are filed before the trial Court. As noticed supra, in the said sale deeds, the names of boundary holders are not at all mentioned and survey number of the property is not at all mentioned. As per the evidence of P.W.1, his property is situated in Survey No.108. As per the evidence of Advocate Commissioner, the property of the plaintiff is situated in Survey Nos.111 and 112. The material on record reveals that the plaintiff failed to identify his property on ground at the time of visit of Advocate Commissioner along with Mandal Surveyor. It is also an admitted fact that just 9 days prior to the institution of the suit, the plaintiff purchased the property. Furthermore, there was a clear admission by the plaintiff that he did not file original sale deeds of his vendors and he did not file any petition for appointment of an Advocate Commissioner before the trial Court. The defendant herein filed a petition for appointment of an Advocate Commissioner before the trial Court. The material on record reveals that the Advocate Commissioner along with Mandal Surveyor visited the schedule property for about 4 to 5 times, but the plaintiff unable to identify his property exactly on ground. It is well settled law that boundaries prevail over survey numbers. As noticed supra, the names of boundary holders are not at all mentioned in the sale deeds of the plaintiff. The plaintiff failed to prove the existence of item Nos.1 and 2 of the plaint schedule property on ground and he also failed to prove the identity of the property exactly on ground. For the aforesaid reasons, I am of the considered view that the appellant failed to prove that he is in possession of the plaint schedule property as on the date of filing of the suit.

21. Another important circumstance to disbelieve the case of the plaintiff is that cause of action to file the suit as alleged in the plaint is on 24-02-2009 as "the defendant and his henchmen are proclaiming in the vicinity that they will trespass into the plaint schedule property". As noticed supra, on the very next day, the plaintiff instituted the suit before the trial Court. It seems that undoubtedly, the alleged cause of action as mentioned in the plaint is only a myth and the alleged cause of action is created by the plaintiff just before one day of the filing of the suit. As stated supra, admittedly there is no material on record to prove that the plaintiff is in possession of the plaint schedule property as on the date of filing of the suit which is mandatory requirement in a suit for perpetual injunction instituted by the plaintiff. Therefore, I do not find any illegality in the finding given by both the Courts below that the plaintiff herein is not entitled to the relief of permanent injunction as sought for in the plaint. Accordingly, points 1 and 2 are answered.

22. I.A.No.1 of 2020: The petitioner/appellant filed this application by praying the Court to grant ad interim injunction restraining the respondent and his men from interfering with the petitioner's possession and enjoyment over the subject suit schedule property till the date of disposal of the second appeal. Since the main appeal has been disposed of, this application is dismissed as infructuous.

23. I.A.No.1 of 2021: This application is filed by the appellant/plaintiff to appoint an Advocate Commissioner with the assistance of not below the rank of Assistant Director of Survey and Land Records, Kakinada, to note down the physical features of the schedule property. The case of the petitioner/ appellant herein is that he has filed an interlocutory application for appointment of an Advocate Commissioner with the assistance of Mandal Surveyor before the trial Court, but the respondents herein have not cooperated with the survey by creating several hurdles on various reasons and on that ground, the Advocate Commissioner filed his incomplete report. In the case on hand, on perusal of the material part of the entire record, it is noticed that the appellant/plaintiff herein has not filed any application before the trial Court for appointment of an Advocate Commissioner. On an application filed by the defendant only, the Advocate Commissioner was appointed before the trial Court and he visited the schedule property for about 4 or 5 times along with the Mandal Surveyor and filed his incomplete report. Admittedly, none of the parties filed objections against the said report of the Advocate Commissioner and they also did not file any application before the trial Court to redirect the same Advocate Commissioner to revisit the suit schedule property and they also did not file any fresh application before the trial Court to appoint another Advocate Commissioner to visit the suit schedule property along with Mandal Surveyor. Admittedly, the suit is filed by the plaintiff in the year 2009 and the learned trial Judge, after completion of trial, dismissed the suit and first appeal is filed by the plaintiff before the IV Additional District Court at Kakinada in the year 2015 and on hearing both sides, the first appeal is also dismissed by confirming the judgment and decree passed by the trial Court. The appellant herein has not availed any opportunity to file an application either before the trial Court or before the first appellate Court for appointment of an Advocate Commissioner along with Mandal Surveyor. The petitioner herein sought the relief after a lapse of 12 years of institution of the suit. The said delay of 12 years is not at all properly explained by the petitioner. Therefore, I do not find any merits in this application filed by the petitioner. Admittedly, the suit for perpetual injunction is instituted by the plaintiff before the trial Court, he has to produce either oral or documentary evidence to prove that he is in possession of the plaint schedule property as on the date of filing of the suit, but he is not supposed to seek the assistance of an Advocate Commissioner with Mandal Surveyor to identify his property on ground. It is also held in above points in the appeal proceedings that the plaintiff failed to identify the exact location of his property on land before the Advocate Commissioner and Mandal Surveyor. Therefore, I do not find any grounds to allow this application. Therefore, this application is dismissed.

24. For the aforesaid reasons, the second appeal and I.A.Nos.1 of 2020 and 1 of 2021 are dismissed. Pending applications, if any, shall stand closed. Each party is directed to bear their own costs in the second appeal.

VENUTHURUMALLI GOPALA KRISHNA RAO,J