Dharmapuri Sreenivas vs Dharmapuri Lingaiah
2022 Latest Caselaw 4936 Tel

HON'BLE SMT.JUSTICE G. ANUPAMA CHAKRAVARTHY

             SECOND APPEAL NOs.232 & 233 of 2013

COMMON JUDGMENT:

      Both these Second Appeals are arising out of judgment and

decree in A.S.No.143 of 2009 and A.S.No.145 of 2009 dated

25.08.2012

, on the file of II Additional District Judge at Warangal

respectively confirming the judgment and decree dated 19.01.2009 in

O.S.No.603 of 2002 on the file of II Additional Junior Civil Judge,

Warangal.

2. For the sake of convenience, the parties shall be arrayed

as in the suit.The plaintiff is the appellant in both the appeals.

3. S.A.No.232 of 2013 is arising out of the appeal No.145

of 2009 on the file of II Additional District Judge which was filed

against the judgment and decree in O.S.No.528 of 1990 passed by the

II Additional Junior Civil Judge, Warangal 10.11.1995. Originally,

the suit is filed by the plaintiff for cancellation of decree in

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O.S.No.523 of 1990 dated 10.11.1995, on the file of II Additional

Junior Civil Judge, Warangal and for grant of perpetual injunction

restraining the defendants from interfering with the peaceful

possession and enjoyment of the plaintiff over the suit schedule

property. A.S.No.143 of 2009 was filed by the plaintiff against the

counter claim made by the 1st defendant against the plaintiff for the

decree of injunction in respect of the land admeasuring Ac.0-6 gts in

Sy.No.1657 of Fort Warangal.

4. It is pertinent to mention that in the suit filed by the

plaintiff, counter claim has been made by the defendants. The trial

Court while dimissing the suit filed by the plaintiff decreed the

counter claim of the defendants. Therefore, plaintiff being agrrieved

by the dismissal of the suit, as well as being aggrieved by the

decreeing the counter claim of the defendant preferred the above two

Appeals before the 1st appellate Court.

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5. In brief, the case of the plaintiff is that the father of the

defendants and the father of the plaintiff are the parties to the suit i.e.,

O.S.No.523 of 1990 on the file of II Additional Junior Civil Judge,

Warangal which was decreed on 10.11.1995. It is the contention of

the plaintiff that it is an ex-parte decree and the father of the

defendants played fraud and got ex-parte decree against the suit

schedule property and further sold the property to an extent of Ac.0-

18 gts to the 1st defendant in Sy.No.1657 about 35 years ago under

unregistered sale deed and that it is brought to the knowledge of the

plaintiff at a very belated stage. Therefore, the plaintiff is constrained

to file a suit for cancellation of decree i.e. O.S.No.528 of 1990 and for

grant of perpetual injunction restraining the defendants from

interfering with peaceful possession and enjoyment over the suit

schedule property.

6. A detailed written statement was filed by the 1st

defendant denying about the sale of land in Sy.No.1657 and further

contended that the suit filed by the plaintiff is not maintainable, as the

GAC,J SA NOs.232 & 233 OF 2013

1st defendant filed suit for declaration of title, recovery of possession

against the other defendants including the father of the plaintiff who is

arrayed as defendant No.24 and the said suit was decreed. Further, EP

was filed vide E.P.No.358 of 1996 and on execution, the Court

delivered the possession of Ac.0.8 ½ guntas of land in Sy.No.1657 on

26.02.1998 and further partition also was effected. Therefore, the 1st

defendant seeks counter claim by way of permanent injunction.

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

following issues:

"1. Whether the plaintiff is entitled for perpetual injunction as sought for?

2. To what relief?"

The trial Court has also framed the following additional issues:-

        "3.    Whether     the        plaintiff   is     entitled   for
                cancellation     of      judgment        and    decree

dt:10.11.1995 on the file of this court as prayed for?

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4. Whether defendant No.1 is entitled for permandent injunction as prayed for in the counter claim?"

8. On behalf of the plaintiff PWs.1 and 2 were examined

and Exs.A-1 to A-16 were got marked and on behalf of the defendants

DW.1 was examined and Exs.B.1 to B.8 were got marked.

9. Considering the oral and documentary evidence on

record, the trial Court has dismissed the suit of the plaintiff and

decreed the counter claim granting injunction to the defendant.

10. As already stated supra, the plaintiff filed the above two

appeals before the 1st appellate Court vide A.S.No.145 of 2009 and

A.S.No.143 of 2009 and the 1st appellate Court considering the

material on record framed the following points for consideration:-

"1. Whether the judgment and decree obtained in O.S.No.No.528 of 1990 on the file of II Additional Junior Civil Judge, Warangal is liable to be cancelled and whether the plaintiff is in

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possession of suit property and whether the trial court is justified in dismissing the suit of plaintiff and decreeing the counter claim?

2. To what relief?"

11. Considering the rival contentions of both the parties, the

1st appellate Court dismissed both the appeals confirming the

judgment and decree of the trial Court in O.S.No.603 of 2002. Being

aggrieved by the same, the present Second Appeals are filed raising

the following substantial questions of law:-

A. Whether the Courts below are justified in holding that the plaintiff has right in suit Sy.No.1657, even though there is an admission of defendant No.1 stating that the plaintiff has right in Sy.No.1657?

B. Whether courts below can dismiss a suit filed by the plaintiff?

C. Whether the burden lies on the plaintiff to show that there is no property in favour of the defendant in particular Survey Number or the burden lies on the defendant No.1 to prove that

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there is a property in his favour in a particular Survey Number?

D. Whether a duty cast on the courts below to decide the main issue, whether a fraud has been committed by the defendant No.1 while obtaining an ex-parte decree in O.S.No.528 of 1990, in a suit filed for cancellation of judgment and decree in O.S.No.528 of 1990?

E. Whether the court below can grant an injunction without there being any evidence proving the possession of the suit schedule property in the facts and circumstances of the case?

F. The observations made and the findings recorded by the courts below in relation to the material brought on record amounts to perversity in decreeing the claim of injunction to the counter claimant?

G. Whether the courts below are right in law in decreeing the relief of injunction in a counter claim merely based on the pleadings in another suit, where in the plaintiff is not a party?"

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12. Order VIII Rule 6(a) to 6(g) deal with counter claim and

the counter claim has to be looked into as if it is a suit filed

defendants, when the court fee is paid. As the subject matter is one

and the same, the defendants have made his counter claim and paid

fee. Therefore, there is no error or irregularity in granting decree in

favour of the defendants as per the provisions of the civil procedure

code.

13. Both the courts have given concurrent findings as to the

facts of the case and the substantial questions of law raised are not

relating to any provision of law. Therefore, I do not find any error or

irregularity in the orders passed by the 1st appellate Court in

dismissing the suit or in granting decree in favour of the defendants.

Admittedly, when ex-parte decree was granted in O.S.No.528 of 1990

on the file of II Additional Junior Civil Judge, Warangal, it is for the

plaintiff to make an application to set aside the ex-parte decree but the

same was not done for the reasons best known to the appellant. On

the other hand, a suit is filed before the same Court to set aside the

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judgment and decree. Apart from that, the appellant can also prefer an

appeal against the exparte decree in O.S.No.528 of 1990 instead of

filing suit for cancellation of judgment and decree. The order in

O.S.No.528 of 1990 have become final as it was not challenged.

Moreover, the appellant cannot take the plea that he has no knowledge

about the suit as the father of the plaintiff and the father of defendants

are the parties to the suit. It is the specific contention of the appellant

that it has come to the knowledge of the appellant in 2002 about the

decree in O.S.No.528 of 1990 and by that time, the father of the

defendant is no more, therefore, he could not file a petition to set aside

the ex-parte decree. Though the parties die, the right to the suit

survives. As the legal heir of the defendant, in O.S.No.528 of 1990,

the plaintiff has every right to file a petition to set aside the exparte

decree if it is within limitation of Right Section 5 petition of the

Limitation Act. Instead of filing the petition to set aside the ex-parte

decree, the plaintiff has preferred a suit to cancel the judgment and

decree in the suit.

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14. As discussed supra, there is no error or irregularity in the

judgments of the Court below so as to interfere with the same.

Further, under Section 100 of CPC, this Court can interfere with the

orders of the Courts below, only if any substantial question of law is

involved. As there is no substantial question of law, these Second

Appeals deserve to be dismissed.

15. Accordingly, these Second Appeals are dismissed as they

is devoid of merits. No order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.

_________________________________ G.ANUPAMA CHAKRAVARTHY,J 27.09.2022 dv