Telangana High Court

P. Vengaiah Died vs Smt. Mujeebunjhisa Begum on 23 June, 2022

Bench: M.Laxman

      THE HONOURABLE SRI JUSTICE M.LAXMAN

            SECOND APPEAL No.1394 OF 2003

JUDGMENT:

1. The present appeal assails the judgment and decree

dated 22.05.2003 in A.S.No.55 of 1998 on the file of the

Court of the IV Additional District Judge (Fast Track Court),

Karimnagar (for short, lower appellate Court), whereunder

the appeal was allowed reversing the judgment and decree

dated 30.11.1998 in O.S.No.1087 of 1990 passed by the

Court of the Principal Junior Civil Judge at Karimnagar (for

short, trial Court), whereby the trial Court rejected the relief

prayed by the plaintiff for grant of declaration and perpetual

injunction in respect of the suit schedule property.

2. The appellants herein are the defendants and the

respondent herein is the plaintiff in the above suit. For the

sake of convenience, the parties hereinafter are referred to

as they are arrayed in the suit.

3. The case of the plaintiff is that she is the absolute

owner and possessor of land admeasuring Ac.9-09 guntas

forming part of Sy.No.70 of Kharkhanagadda Village,

Karimnagar Town and District. The suit land i.e., open land

admeasuring 197.77 square yards adjoining to the house of 2 ML,J SA_1394_2003

the plaintiff bearing No.6-3-239/A, Kharkhanagadda Village,

is part and parcel of larger extent of land admeasuring

Ac.9-09 guntas. The suit land is clearly described in the

sketch within EBHG portion. Originally, late A.Komuraiah

was the owner and possessor of land admeasuring Ac.9-09

guntas, and he sold the same in favour of Smt.Begum

Saheba in the year 1334 Fasli under a registered sale deed.

After purchase, she enjoyed the property as absolute owner

and possessor and also perfected her title by adverse

possession since she was in possession of the land for more

than 12 years. After her death, her son Abdul Turab

inherited the property and he sold out the same in favour of

the plaintiff in the year 1964 under a simple sale deed. The

said simple sale deed was presented before the revenue

authorities for effecting mutation and the same was

misplaced. From the date of purchase, the plaintiff has been

in enjoyment over the larger extent of land including the suit

land.

4. It is the further case of the plaintiff that she filed

O.S.No.38 of 1978 on the file of the District Munsiff,

Karimnagar and the same was decreed on 21.02.1978. She 3 ML,J SA_1394_2003

also filed O.S.No.155 of 1989 on the file of the Court of the

Sub-Court, Karimnagar against one Roshaiah. One

Sanjeeva Reddy filed O.S.No.130 of 1988 against the

plaintiff. O.S.Nos.130 of 1988 and 155 of 1989 were jointly

tried and the suit filed by the plaintiff was decreed granting

injunction in favour of the plaintiff and the suit filed by

Sanjeeva Reddy was dismissed. As per the plaintiff, in all

those proceedings, it has been clearly held by the said

Courts below that the plaintiff had been in possession of the

said larger extent of land. When the defendants, without

any right and entitlement, tried to interfere with the suit

land by denying the title of the plaintiff, she filed the present

suit.

5. The case of the defendants is that they are the

absolute owners of land admeasuring Ac.1-10½ guntas

forming part of Sy.Nos.69 and 70 of Kharkhanagadda

Village, having purchased the same under a regd. sale deed

dated 10.11.1965 from A.Malla Reddy. Prior to that, they

purchased an extent of land admeasuring Ac.0-38 guntas

forming part of Sy.Nos.69 and 70. The suit land is part and

parcel of the land purchased by the defendants which is 4 ML,J SA_1394_2003

being used for their ingress and egress. Accordingly, the

defendants prayed to dismiss the suit.

6. The trial Court, on the basis of the above pleadings,

has framed the following issues:

"1. Whether the plaintiff is entitled to declare that the plaintiff is owner and possessor of suit schedule property, measuring about 197.77 square yards from out of Sy.No.70 of Karimnagar?

2. Whether the plaintiff is entitled for perpetual injunction against defendants restraining them from interfering with peaceful possession and enjoyment of suit schedule property as prayed for?

3. To what relief?"

7. The plaintiff, to support her case, examined P.Ws.1

and 2 and relied upon Exs.A-1 to A-26. The defendants, to

support their case, examined D.W.1 and relied upon Exs.B-1

and B-11.

8. The trial Court, after appreciating the evidence on

record, found that the plaintiff has not made out her title

and that she failed to establish her possession over the suit

land and consequently, dismissed the suit. Aggrieved by

the same, the plaintiff preferred an appeal i.e., A.S.No.55 of

1998, wherein the lower appellate Court, after scrutiny of

the evidence, came to a different conclusion holding that the 5 ML,J SA_1394_2003

plaintiff established her title and possession over the suit

land and consequently, decreed the suit. Hence, the present

appeal at the instance of the defendants.

9. This Court has framed the following substantial

questions of law.

"Whether the findings of the 1st Appellate Court in decreeing the suit for declaration and injunction suffers from perversity?"

Findings on substantial question of law:

10. As seen from the evidence on record, the plaintiff

claimed to have purchased the suit land in Sy.No.70, which

is part and parcel of larger extent of land admeasuring

Ac.9-09 guntas. She filed the sale deed of her vendor under

Ex.A-6. The recitals of Ex.A-6 show her vendor purchased

land admeasuring Ac.9-09 guntas forming part of Sy.No.70

from A.Komuraiah. However, the plaintiff failed to produce

any sale deed under which she claimed to have purchased

the said property.

11. To establish the title, the plaintiff relied upon the

Municipal records under Exs.A-1 to A-5, the common

judgment and decree in O.S.Nos.130/1988 and 155/1989

under Exs.A-8 to A-10, the deposition of Pasha Vengaiah in 6 ML,J SA_1394_2003

O.S.No.130/1988 under Ex.A-11, land receipts under

Exs.A-12 to A-19, passbook under Ex.A-20 and the decree

in O.S.No.1127/1987 under Ex.A-25.

12. The trial Court, after considering the evidence of the

plaintiff, found that no document establishes the title of the

plaintiff not only in respect of suit land, but also larger

extent of land admeasuring Ac.9-09 guntas. Hence, the trial

Court dismissed the suit. The lower appellate Court,

without noticing the fact that the Municipal records,

permissions and land receipts do not confer any title, has

laid a foundation on them for granting the relief prayed by

the plaintiff, which ex facie is not in accordance with law.

13. Further, the lower appellate Court took into

consideration the common judgment and decree in

O.S.Nos.130/1988 and 155/1989 in granting the relief to

the plaintiff, but before relying upon such documents, the

lower appellate Court failed to look into the provisions of

Sections 39 to 44 of the Indian Evidence Act, 1872. The

defendants to the present suit are not the parties to the

judgments and decrees which the plaintiff relied upon.

Therefore, such judgments cannot be pressed into service 7 ML,J SA_1394_2003

under Section 39 of the Indian Evidence Act and that

judgments also do not fall under Sections 40 to 42 of the

said Act. The relevancy of the previous judgment as per

Section 43 of the said Act can be taken into consideration to

the extent when the existence of such judgments is in

dispute. The defendants have not denied the truthfulness or

existence of judgments and decrees which the plaintiff relied

upon. Except for that purpose, that judgments and decrees

are relevant. The lower appellate Court, without taking the

same into account, has relied upon the said judgments and

decrees to confer title on the plaintiff which ex facie is not in

tune with the established law.

14. The plaintiff approached the Court for declaration and

injunction and hence, she has to establish her title as well

as possession over the suit land. The plaintiff's claim is that

she purchased larger extent of land admeasuring Ac.9-09

guntas without filing her sale deed. Even going by the sale

deed of her vendor, the boundaries are shown as follows:

"North : Land of Khadarpasha South: Road to Sultanabad East : Passage of Khaderpasha West : Land of Komuraiah i.e., the Vendor"

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                                                         SA_1394_2003

15. The plaintiff failed to localize those boundaries

vis-a-vis with the suit land, so that it can be held that the

suit land is part and parcel of the boundaries contained

under Ex.A-6. Apart from that, the sketch annexed to

Ex.A-10, judgment and decree in O.S.No.155 of 1989, shows

that immediately after the house structure, there is

boundary of land of defendant No.1 i.e., Vengaiah. The

present suit land is located after the house structure which

is contrary to the boundaries previously given by the

plaintiff in obtaining the injunction in O.S.No.155 of 1989.

16. A close looking at the sketch map filed along with

O.S.No.155 of 1989 shows that the land of Vengaiah starts

immediate to the house structure raised by the plaintiff over

the land which she claimed to have purchased. The space

left which is now claimed by the plaintiff is shown to be

Vengaiah's land, whereas ignoring the same, the plaintiff is

now claiming such a land also as her land. This part of the

evidence is not correctly appreciated by the lower appellate

Court in declaring the title and injunction. Therefore, the

findings of the lower appellate Court are not based on 9 ML,J SA_1394_2003

evidence and such findings suffer from perversity.

Accordingly, the substantial question of law is answered.