Jakkula Shankaraiah vs Aggi Bheemaiah
2022 Latest Caselaw 1412 Tel

              HON'BLE SMT. JUSTICE P.SREE SUDHA

                  SECOND APPEAL No.308 of 2014

                         JUDGMENT

1. This appeal is directed against judgment and decree dated

25.09.2013 passed by the learned III Additional District Judge

(FTC), Asifabad, in A.S.No.24 of 2011 confirming the judgment and

decree dated 22.09.2011 passed by the learned Senior Civil Judge,

Asifabad, in O.S.No.14 of 2009. The said suit was filed by the

plaintiff against the defendants seeking permanent injunction. By

the judgment dated 22.09.2011, the trial Court decreed the suit as

prayed for.

2. O.S.No.14 of 2009 was filed by Aggi Bheemaiah-plaintiff

against Jakkula Shankaraiah and Jakkula Banaiah-defendants,

for permanent injunction restraining the defendants from

interfering into the land in Sy.No.20 of an extent of Ac.13.13 cents

situated at Gampalapalli Villagee, Tandur Mandal (hereinafter

referred to as 'suit schedule land'). The plaintiff would submit that

he purchased the suit schedule land on 28.02.2005 from Durgam

Rajaiah for a valid sale consideration of Rs.92,000/- through a

registered Sale Deed bearing No.433 of 2005 and after receiving

the entire sale consideration, possession was delivered to him and

mutated the suit schedule land in his name in the revenue records

also and accordingly the Mandal Revenue Officer, Tandur, had

issued title deed and pattadar pass book. From then onwards the

plaintiff is in exclusive possession and enjoyment of the suit

schedule land. On 12.04.2009 while he was clearing the bushes in

the suit schedule land, the defendants tried to evict him and also

threatened to dispossess him, and as such, he filed the present

suit.

3. The first and second defendants filed their written statement

contending that one Sriramulu Chinnaiah was the owner and

pattadar of the suit schedule land. The second defendant

purchased the said land from him for a consideration of Rs.300/-

under ordinary sale deed and the first defendant is his brother

and both of them are in possession and enjoyment of the suit

schedule land. In the year 1984 when Sriramulu Chinnaiah and

his agents tried to interfere, the defendants filed a suit in

O.S.No.22 of 1984 seeking perpetual injunction and the said suit

was decreed in their favour and that the plaintiff herein has no

manner of right over the suit schedule land and the sale deed is

not binding upon them, and therefore, prayed for dismissal of the

suit.

4. In support of his contentions, the plaintiff himself examined

himself as P.W.1 and Durgam Rajaiah and Koyyada Gopal were

examined as P.Ws.2 and 3 on his behalf. The second defendant

examined himself as D.W.1 Sriramula Bheemaiah and Tallapally

Bapu were examined as D.Ws.2 and 3. Ex.A.1 to A.8 were marked

on behalf of the plaintiff and Exs.B.1 to B.12 were marked on

behalf of the defendants.

5. Considering the oral and documentary evidence adduced by

both the parties, the trial Court decreed the suit as prayed for.

Aggrieved by the said order, the defendants in the suit preferred

an appeal but it was dismissed by confirming the order of the trial

Court. Aggrieved by the same, the defendants preferred this

Second Appeal with similar contentions.

6. For the sake of convenience, the parties hereinafter are

referred to as arrayed in the suit.

7. Heard the learned counsel appearing for the appellants and

the learned counsel appearing for the respondent.

8. Learned counsel for the appellants would contend that the

suit filed for permanent injunction against Sriramulu Chinnaiah @

Mallesam in O.S.No.22 of 1984 would operate not only against

him but also against his vendee-P.W.2 and the subsequent vendee

ie., the plaintiff. He would further argue that though the

defendants established their possession through pahanies and tax

receipts pertaining to various years, the plaintiff has not turned up

for cross-examination and hence his evidence was eschewed. He

mainly contended that the suit in O.S.No.22 of 1984 was decreed

in favour of the defendants and thus the present suit is barred by

res judicata and not maintainable at all. He would also contend

that the first appellate Court failed to appreciate the evidence in

proper perspective and overlooked the evidence adduced by them.

He also argued that when P.W.2 failed to turn up for cross-

examination, adverse inference was not taken.

9. The suit O.S.No.22 of 1984 was filed by them against

Sriramula Pedda Pocham, Sriramula Ankulu, Sriramulu

Chinnaiah and Sriramulu Shankare, in respect of the same

schedule property but it was ex parte decree and instant suit is

filed by the plaintiff against the defendants and the parties in both

the suits are different. Moreover, the prior suit was an ex parte

decree. Therefore, the doctrine of res judicata is not applicable.

10. As per Exs.B.3 to B.8, Sriram Mallesam was show as owner

and pattadar of the suit schedule land and the second defendant

was shown as possessor and enjoydar of the suit schedule land.

Exs.B.9 to B.12 are the land revenue receipts. Defendants would

contend that the second defendant purchased the suit schedule

land for an amount of Rs.300/- in the year 1960 from Sriramula

Chinnaiah @ Mallesh under ordinary sale deed and later he along

with his brother are in possession of the suit land. In support of

their contention, they did not file any sale deed. Though they filed

suit for possession, it was an ex parte decree and even after the

decree, they have not made any efforts to mutuate their names in

the revenue records as per Exs.B.1 and B.2. D.W.1 in his cross-

examination admitted that he purchased the suit land in the name

of his father in the year 1960 and by that time he was aged about

13 years, but later the patta was not transferred either in the

name of his father or in his name. Admittedly, the suit land

belongs to one Sriramula Mahesh. Durgam Rajaiah purchased the

same from Sriramula Mahesh under Ex.A.8 and thereafter the

plaintiff purchased it from Durgam Rajaiah under Ex.A.1 and later

it was mutated in the name of the plaintiff and as such he is in

possession and enjoyment of the same under Exs.A.1 to A.8 from

the date of purchase till the date of filing the suit. As per Exs.B.4

to B.12, the first defendant was in possession and enjoyment of

the suit land for the year 2003-04 but not on the date of filing the

suit. D.W.1 second defendant has not filed any document to prove

that he purchased the suit schedule land in the year 1960 and he

is in possession of the same till the filing of the suit and moreover

he has not challenged the validity of Ex.A.8, and therefore,

considering the oral and documentary evidence adduced by both

the parties and the recitals marked therein the trial Court rightly

decreed the suit in favour of the plaintiff. The appellate Court also

observed that ordinary sale deed, as stated by the second

defendant, is not filed. Any movable property more than Rs.100/-

is compulsorily registerable document. Though the defendants

obtained ex parte decree in the year 1984, they have not filed any

sale deed in the said suit. Patta was not mutated in their names.

As per 'B' series documents, the name of the pattadar was shown

as Mallesham and Shankaraiah as cultivator. The possessor name

was mentioned as vacant. The second defendant purchased the

suit schedule land under an unregistered agreement and he

neither tried to mutate his name in the pahanies or revenue

records nor register the document in his father's name and thus

Mallesh was the original and pattadar of the suit schedule land.

11. Admittedly, Durgam Rajaiah purchased the land from

Mallesh and sold the same to the plaintiff under Ex.A.1. Ex.A.2 is

the ROR proceedings Ex.A.3 is the title deed, Ex.A.4 is the

pattadar pass book, Exs.A.5 to A.7 are pahanies for the years

2004-05 to 2008-09 and Ex.A.8 is the registered sale deed

executed in favour of the plaintiff, and thus, the plaintiff

successfully established the ownership of his vendor and also

continuous possession from the date of filing the suit.

12. In a suit for injunction, the possession is to be established.

Admittedly, the defendants failed to establish their possession and

whereas the plaintiff established his title and possession over the

suit schedule land by way of documentary evidence, and thus, the

suit was decreed in his favour and it was rightly confirmed by the

lower appellate Court and there is no questions of law much less

substantial question of law involved in this second appeal, and as

such, it merits no consideration.

13. In the result, the Second Appeal is dismissed. However,

there shall be no order as to costs.

14. Pending miscellaneous petitions, if any, shall also stand

dismissed in the light of this final judgment.

____________________ P.SREE SUDHA, J.

23rd MARCH, 2022.

PGS