Gollapalli Meenamma vs Reddimalla Kanakamma
2022 Latest Caselaw 5253 Tel

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.601 of 2014

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree in A.S.No.15 of 2010, dated 16.04.2012 on the file of V

Additional District Judge, Karimnagar against the judgment and

decree dated 22.12.2009 passed in O.S.No.10 of 2008 on the file of

Senior Civil Judge, Siricilla.

2. For the sake of convenience, the parties herein are

referred to as arrayed in the suit. The appellants are the

defendants.

3. Initially, a suit is filed for recovery of possession from

the defendants and also for future mesne profits.

4. The brief facts of the case are that the father of the

plaintiff by name Nagini Mallaiah was the original owner of the

suit schedule property and he was in possession of the property till

his death. The plaintiff being his daughter and the only class-1

legal heir, succeeded the schedule property and her name was also

mutated in the revenue records in the year 1985-86. In the year

1990, when the defendants 1 and 2 tried to interfere with the

peaceful possession of the plaintiff, the plaintiff has filed a suit

vide O.S.No.61 of 1990 against the defendants for permanent

injunction and it was decreed on 10.07.1991. It is the further case

of the plaintiff that as she got job in Anganwadi, she shifted her

residence to Sircilla in the year 2002 and taking advantage of her

absence, the defendants trespassed and occupied her property and

got their names entered in the revenue records. When the plaintiff

demanded the defendants to vacate the suit schedule land, they did

not vacate, therefore, she was constrained to file a suit for recovery

of possession and for future mesne profits.

5. On the other hand, the defendants filed a joint written

statement denying all the material allegations of the plaint.

6. It is the case of the defendants that the father of the

defendants by name Bijuga Nagaiah was the owner and possessor

of the suit land and that about 45 years back he died, leaving

behind his three daughters by name Thalari Yellavva, who is the

mother of the plaintiff, the 1st defendant and one Pothula Sarojana

as his legal heirs and thereafter, they have inherited the property by

way of succession. As there is no male assistance in the family of

late Nagaiah, father of the plaintiff and husband of the elder sister

of the 1st defendant used to manage the suit land. Later, a well was

dug in the suit land and an electric motor pump was also installed

by obtaining electric service connection. Further, the defendants

have constructed a "pakka house" in the suit schedule property in

the year 1989 and accordingly, door No.7-62 was also allotted by

the Grampanchayat to the said house in the year 1990 and that the

defendants are residing in the said house. The recitals of written

statement further disclose that summons were not served to the

defendants in the suit i.e, O.S.No.61 of 1990 which was filed by

the plaintiff against the defendants 1 and 2, and that the plaintiff

got the decree, as if the summons were served. The plaintiff

suppressed the fact of existing house in the suit land, filed a suit

showing the suit land as purely agricultural land. It is further

contended that the plaintiff was never in possession of the suit land

and that she has no right, title or possession over the suit schedule

property and therefore, prayed to dismiss the suit.

7. Basing on the pleadings, the trial Court has framed the

following issues:

"1. Whether the plaintiff is entitled for recovery of possession of the plaint schedule property as prayed for?

2. Whether the plaintiff is entitled for future mesne profits as prayed for?

3. To what relief?"

8. During the course of the trial, on behalf of the

plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-32 were

marked and on behalf of the defendants DWs.1 and 2 were

examined and Exs.B-1 to B-33 were marked.

9. The trial Court after considering the oral and

documentary evidence gave a finding that the plaintiff was able to

establish her title over the suit schedule property and she

established that the defendants have illegally trespassed into the

suit schedule property and are continuing in unauthorized

possession of the same. Hence, she is entitled for recovery of suit

schedule property from the defendants. Further, the defendants

have failed to establish their title and lawful possession over the

suit schedule property and as such, they are liable to be evicted

from the suit schedule property. It is the further finding of the trial

Court that the plaintiff is entitled for future mesne profits, since the

defendants are in unauthorized possession of the suit property and

decreed the suit with costs. The trial Court further directed the

defendants to handover the vacant possession of the suit schedule

property to the plaintiff, within two months from the date of decree

and judgment and also directed to file a separate application to fix

the quantum for mesne profits .

10. Being aggrieved by the same, the defendants have

preferred 1st appeal before the V Additional District Judge,

Karimnagar vide A.S.No.15 of 2010.

11. After hearing the arguments of both sides, the 1st

appellate Court has framed the following point for determination:

"Whether the judgment and decree of the lower Court can be set aside?"

12. Considering the material on record, the 1st appellate

Court has dismissed the appeal but restrained the plaintiff from

interfering with the possession of the house of the defendants

located in the suit land.

13. Being aggrieved by the said judgment and decree of

the 1st appellate Court, the defendants herein filed the present

Second Appeal with the following substantial questions of law:-

"a. Because the mutation entries in Revenue Records in favour of respondent do not decide title and in the absence of clear evidence of acquiring title in the suit property by the respondent to the exclusion of the share of 1st appellant, the findings of the Courts below granting decree for possession of suit property in favour of respondent assuming title of respondent is perverse and is substantial question of law.

b. Because, the appellate Court has not framed properly the point for determination of appeal and failure to consider oral evidence under Rule 31 or Order 41 is substantial question of law.

c. Because, the appellate Court having observed that the 1st appellant has established the fact of construction of house by her in part of suit property, ought to have dismissed the suit holding that claim for recovery of possession is barred by limitation instead of restraining the respondent from interfering in the possession of appellants in respect of the house.

d. Because, the findings of the Court below are based on wrong test, assumptions, and conjectures as tainted with perversity and it involves substantial question of law.

e. Because the judgment of Courts below is perverse in not framing proper issues basing on the pleadings and whether the judgment is legally tenable.

f. Because, non consideration material evidence Exs.B-31; B-32 and B-33 which are proving share of father of 1st appellant involves substantial question of law and the judgment is unsustainable.

g. Because, when is established by evidence and documents that the property belongs to the members of one family having share in the property, and whether suit for recovery of possession is maintainable and would lie by the person in whose name the property is recorded

against another co-owner in the absence of proving exclusive ownership rights by cogent evidence."

14. Admittedly, cross objections are filed by the plaintiff

with respect to suit schedule house as the 1st appellate Court has

restrained the plaintiff from interfering with the same.

15. On the other hand, the plaintiffs raised the following

substantial questions of law in the cross objections filed by them:-

"A. Whether the injunction granted by the Lower Appellate Court in favour of the Respondents/Appellants and against the Cross Objector is sustainable in the absence of any counter claim to the said effect by the Respondents/Appellants?

      B.       Whether the Lower Appellate Court is justified in
               granting     injunction against     the   Cross-

Objector/Respondent, who is the true owner of the suit schedule property?

C. Whether the Respondents/Appellants are entitled for any relief much less injunction as granted by the Lower Appellate Court in the absence of any pleading and prayer to the said effect?

D. Whether relief of inunction can be granted in favour of the Respondents/Appellants in a suit filed by the Cross-Objector/Respondent? E. Whether the grant of injunction in favour of the Respondents/Appellants and against the Cross Objector/Respondent stand for the test of judicial

scrutiny in view of the settled principle of law laid down by the Hon'ble Courts in contra?

       F.    Whether the Lower Appellate Court is right in
             granting     injunction    against   the     Cross

Objector/Respondent without there being any existence of extraordinary circumstances in favour of the Respondents/Appellants?"

16. Heard the learned counsel for the appellants and for

the respondent.

17. On perusal of the substantial questions of law raised

by the appellants, it is evident that they all relate to the facts but not

of law. It is raised in substantial questions of law that the appellant

Court has not framed properly the point for determination of appeal

and failed to consider oral evidence under Rule 31 of Order 41 of

CPC.

18. Order 41 of Rule 31 of CPC envisages that the

judgment of the appellate Court shall be in writing and shall state:-

       (a)    the points for determination;
       (b)    the decision thereon;

       (c)    the reasons for the decision;

       (d)    where the decree is appealed from is reversed or

varied, the relief to which the appellant is entitled.

19. On perusal of the judgment of the 1st appellate Court,

it is evident that the 1st appellate Court has framed the points for

determination, gave decision thereon, stated the reasons for the

decision and decree was also passed to that effect. Therefore, it

cannot be a substantial question of law as urged by the learned

counsel for the appellant.

20 Learned counsel for the appellants has also urged that

the Courts below ought to have dismissed the suit holding that the

claim for recovery of possession is barred by limitation. On

perusal of the material on record, there is no pleading either before

the trial Court or before the 1st appellate Court that the suit is

barred by limitation. In the absence of any pleadings, none can

expect an issue on the point of limitation and therefore, it cannot be

treated as a substantial question of law in the Second Appeal. The

written statement of the defendants is silent, as to when the

defendants have come into possession of the property, except

contending that the father of defendant No.1 have purchased the

suit land. On perusal of the documents, it is evident that no sale

deed was filed before the Court below to prove that the father of

the defendants had purchased the property. Ex.B-24 disclose that

an injunction was granted by the competent Court in favour of the

plaintiff in O.S.No.163 of 1995. Both the Courts below have given

concurrent findings, that the plaintiff is entitled for recovery of

vacant land.

21. On the other hand, learned counsel for the respondent

contended that initially the land was an Inam land and the father of

the plaintiff is Inamdar and O.S.No.61 of 1990 was decreed on

10.07.1991 vide Ex.A-21, which has become final. O.S.No.165 of

1994 on the file of Junior Civil Judge, Sircilla was decreed on

22.04.1997 against which an appeal was filed which is Ex.A-24

i.e., A.S.No.33 of 1999 on the file of Senior Civil Judge, Sircilla

and the said appeal was dismissed.

22. It is the contention of the learned counsel for the

respondent that the trial Court has granted injunction and directed

to deliver the possession of the suit schedule house, which is the

finding of the Court that the appellants have trespassed into the suit

land and made constructions. Therefore, prayed to allow the

cross-objections. In support of his contentions, he relied on M.

Ramulamma vs. Revenue Divisional Officer1, wherein their

lordships have held that the petitioners were not in possession of

the subject lands on the appointed day i.e., 01.11.1976 and so they

were not entitled for grant of Occupancy Rights Certificate. He

also relied on Vatticherukuru Village Panchayat vs. Nori

Venkatarama Deekshithulu2, wherein their lordships have held as

under:

"Earlier the Grampanchayat had also filed a suit (out of which C.A.No.931 of 1977 arose) against the descendants of 'NLS' for possession. The descendants therein inter alia pleaded that the Gram Panchayat unlawfully took possession of the tank on July, 7 1965, that they acquire title by grant of ryotwari patta under Section 3 of the A.P.

Inams (Abolition and Conversion into Ryotwari) Act and that the Gram Panchayat had no right to interfere with their possession and enjoyment. The trial Court found that the land was endowed to NLS for the maintenance of the tank

1 2019 LAWsuit (TS) 67 2 1991 Supp (2) SCC 228

and the descendants obtained ryotwari patta under the Inams Act and were entitled to remain in possession and enjoyment as owners subject to maintaining the tank. Accordingly, the suit was dismissed. On the appeal the High Court confirmed the decree on further finding that by operation of Section 14 of the Inam Act, the civil suit was barred."

23. On the other hand, learned counsel for the respondent

relied on the common judgment of this Court in "CRP.Nos.1101 of

2018 and batch" dated 08.06.2018 wherein their lordship held that

in the light of the statutory scheme, Section 29 of the Andhra

Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short

'the Act') which is sought to be pressed into service by the 1st

defendant may be examined. Section 29 of the Act reads as under:

"29 Savings:- Save as otherwise provided in this Act, no order passed by the Collector or by the Special Tribunal under this Act shall be liable to be cancelled or modified except by the High Court as aforesaid or be question in any Court of law."

24. As per the above proposition, no order passed by the

Collector or by the Special Tribunal under the Act shall be liable to

be cancelled or modified except by the High Court either in

exercise of appellate jurisdiction under Section 27 or revisionary

jurisdiction under Section 28 of the Act. In the present case, no

orders of Inam lands are challenged before the Civil Court. But a

suit is filed for recovery of possession and for future mesne profits.

Further, there are no proceedings of the Collector or Special

Tribunal which were challenged before the Civil Court. Therefore,

the jurisdiction of the Civil Court cannot be ousted. No plea was

taken by the defendants about the subject land as Inam land.

Therefore, it can be safely concluded that the Civil Court has

jurisdiction and suit is not barred under Section 29 of the Act and

the contentions of the appellants cannot be accepted.

25. The above said propositions squarely relate to the

proceedings issued by the revenue authorities, therefore, they are

not relevant to the present facts and circumstances of the case.

26. It is pertinent to note that the 1st appellate Court has

discussed about the exhibits relied by both the parties and basing

on the documentary evidence considering the relationship between

the parties as admitted by the plaintiff, gave a finding that the

pattadar of the suit land prior to 1954-1955 was father of the

defendants. Ex.A-31, Khasra pahani at Column No.9, it is written

as "Inam Nowkari" by some revenue official and at the column of

the name of pattadar or Inamdar "Malluga" was written and in

possession column, three names were mentioned as "Nagini

Malluga", "Bijiga Baluga" and "Bijiga Rajuga". For Nagini

Malluga in Column No.15, it is mentioned as "Inamdar" and two

others as successors. But the recitals of written statement of the

defendants disclose that Bijuga Nagaiah died about 45 years back.

Further, written statement was filed on 21.07.2008. When

computed, the period of 45 years, it comes to 1967. As the change

of the name was found in the year 1954-55 in the Ex.A-31,

thereafter, Bijiga Nagaiah was alive for 10 more years. It is the

finding of the trial Court that when the said change had come

during his life time, he would have got it rectified in Khasra Pahani

and other revenue records.

27. As per the evidence of PW-1, Nagini Mallaih died

during 1975-76 and by that time the plaintiff was aged about 15-16

years. It is admitted by both the parties that the name of the father

of the plaintiff was also Talari Karre Mallaiah i.e. he was a village

servant. Further, PW-1 testified that Bijuga Nagaiah was doing

Talari work. The name of the father of the plaintiff appeared all of

a sudden, after the name of the father of the 1st defendant in the

revenue records. But the father of 1st defendant has not rectified

the revenue records. It is an admitted fact that the 1st defendant in

O.S.No.165 of 1994 is the plaintiff in the suit, which was filed for

perpetual injunction restraining the plaintiff and her husband from

interfering with the suit schedule land but the said suit was

dismissed as not pressed. The 1st defendant, Sarojana filed a suit

for partition and a decree was passed. Ex.A-24 discloses that

A.S.No.33 of 1999 on the file of Senior Civil Judge, Sircilla was

disposed of on 22.07.2004 and the said appeal was filed against

O.S.No.163 of 1995 on the file of Junior Civil Judge, Sircilla,

which was filed for partition, claiming her 1/3rd share. It is an

admitted fact that the 1st defendant, the mother of the plaintiff and

Sarojana are the sisters, who are the daughters of Bijuga Nagaiah

and B.Nagaiah had no male issues, these three daughters succeeded

the entire property.

28. It is the case of the plaintiff before the trial court that

her father was Inamdar who was in possession and enjoyment of

the land, till his death (died in the year 1975-76) and thereafter, the

name of the plaintiff was mutated in the revenue records as owner

and pattadar of the suit land. The plaintiff has filed O.S.No.61 of

1990 against defendants 1 to 3 and others for perpetual injunction

and the same was decreed against defendants 1 and 2 herein and

the other defendants were set ex-parte. Ex.A-4 to A-17 clearly

reveal that the plaintiff was pattadar and possessor of the suit

schedule land upto 2001-2002 and on 21.03.1995, the plaintiff was

issued with pattadar passbook, which is marked as Ex.A-23.

Ex.A-18 is the pahani for the year 2002-2003 which shows the

name of the 1st defendant in possession column of the suit land.

Therefore, there is no error or irregularity in the findings of the trial

Court in granting a decree for recovery of possession and for future

mesne profits. The 1st appellate Court have also confirmed the

finding that the plaintiff has successfully established succession

from her father from the year 1954-55 till filing of the suit and in

the year, 2001, the defendants forcibly occupied the suit land.

After occupation of the suit land, the defendants have constructed a

house in the suit land and door number was issued by the

Grampanchayat and basing on it defendants tried to prove that the

suit land belong to them. It is also admitted by PW-1 in her cross-

examination that at about 3 years back, the defendants have

constructed a house in the suit land but the 1st appellate Court have

come to a finding that the defendants have occupied the suit land in

the year, 2001 but the documents establish that even prior to

construction of house in the suit land, the defendants were in

possession and enjoyment of the same and gave a finding that the

plaintiff cannot interfere with the possession and enjoyment of the

house constructed in the suit land.

29. Once it is established by the plaintiff that she is the

owner of the property and filed a suit for recovery of possession

from the defendants, the 1st appellate Court erred in coming to a

conclusion that though the defendants have trespassed and

occupied the possession, the plaintiff cannot interfere with the

possession and enjoyment of the defendants with respect to the

house in the suit schedule land.

30. There are no pleadings before the Court as to the

construction of the house by the defendants. If at all, the

defendants have constructed the house in the suit schedule

property, the plaintiff ought to sought relief for mandatory

injunction for removing the illegal construction made by the

defendants therein in the suit schedule property and for recovery of

possession. Admittedly, there is no pleading before the trial Court

or the 1st appellate Court to that effect.

31. On perusal of the documents, it is evident that an E.P.

was filed before the Senior Civil Judge, Sircilla, wherein the suit

schedule property is shown as agricultural dry land bearing

Sy.No.713 to an extent of Ac.4-21 gts situated at Vanthadupuda

Village of Ellanthakunta Mandal. There is no mention in the

schedule, that a house is constructed in the said property. In the

absence of proper pleadings or evidence, this Court cannot give

any finding as to interference of the plaintiff with respect to house

which is alleged to have been constructed in the suit schedule

property. Admittedly, Exs.B-2 to B-7 are the house tax receipts

from the year 1994-2008 and the suit is filed in the year, 2008.

32. One has to approach the Court with clear hands. The

plaintiff has suppressed the fact that a house is situated in the suit

land. The trial Court has not appreciated the fact of house being in

the suit land.

33. As per Exs.B-2 to B-7, it is an admitted fact that the

house was constructed in the year, 1994. But the plaintiff has not

made any effort to amend the prayer for demolition of illegal

structures or for mandatory injunction as the recitals of the written

statement disclose the same. Appeal is the continuation of the suit

and the appellate Court can appreciate evidence on mixed question

of law as well as the facts. However, there is no counter claim by

the defendants seeking relief of perpetual injunction and at the

same time there is no specific prayer for mandatory injunction by

the plaintiff, but the 1st appellate Court granted limited injunction

in favour of the defendants as far as the house is concerned.

Therefore, it can be construed that the 1st appellate Court also erred

in granting injunction in favour of the defendants in the absence of

any prayer seeking relief for injunction. In an appeal of the

defendants, in the absence of cross-objections or cross-appeal, the

1st appellate Court cannot grant relief to the plaintiff. Therefore, the

cross-objections are hereby allowed and judgment of the 1st

appellate Court is hereby set aside as to the relief of granting

injunction to the plaintiff with respect to the house in the suit

schedule property, further the orders of the trial Court in O.S.No.10

of 2008 on the file of Senior Civil Judge, Siricilla, are hereby

confirmed.

34. It is pertinent to mention that there is limited scope

under Section 100 of CPC while dealing with the appeals by the

High Courts. In a Second Appeal, if the High Court is satisfied

that the case involves a substantial question of law, only then, this

Court can interfere with the orders of the Courts below. On perusal

of the entire material on record, this Court is of the considered

view that the orders of the Courts below are not perverse and there

is no misreading of evidence except in granting injunction to the

plaintiff in the appeal preferred by the defendants. Therefore in the

absence of substantial question of law, it is not proper to interfere

with the concurrent fact findings of the Courts below. Therefore,

the Second Appeal deserves to be dismissed.

35. As discussed supra, this Second Appeal is dismissed

at the admission stage, as devoid of merits, confirming the

judgment and decree in A.S.No.15 of 2010, dated 16.04.2012 on

the file of V Additional District Judge, Karimnagar. Further, the

cross-objections of respondents are also hereby allowed.

As a sequel, pending miscellaneous applications, if any, shall

stand closed. No order as to costs.

_______________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 22.10.2022 dv