Telangana High Court

Kanukuntla Ramanujamma, Nalgonda Dist vs Yanala Jayamma Died Per Lrs And 5 Others on 3 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

            THE HONOURABLE DR.JUSTICE G. RADHA RANI

                   SECOND APPEAL No.232 of 2015

JUDGMENT:

This Second Appeal is filed by the appellant - respondent - defendant

aggrieved by the judgment and decree dated 26.02.2015 passed in A.S.No.57 of

2013 by the Judge, Family Court - cum - Additional District & Sessions Judge,

Nalgonda reversing the judgment and decree dated 30.08.2013 passed in

O.S.No.111 of 2007 on the file of the Junior Civil Judge, Nakrekal, Nalgonda

District.

2. The respondent No.1 is the plaintiff.

3. The parties are hereinafter referred as arrayed before the trial court as

plaintiffs and defendant.

4. The plaintiff filed the suit for perpetual injunction in respect of the suit

schedule property pertaining to an extent of Ac.4-06 guntas of land in Survey

No.200/AA situated at Nakrekal Village & Mandal with the boundaries

specified therein stating that she was the absolute owner and possessor of the

schedule land. The defendant was stranger to their family. The defendant had

no manner of right, title, interest or possession over the suit land. The

defendant criminally trespassed into the suit land on 26.12.2007 while the

Dr.GRR, J sa_232_2015

plaintiff was doing agricultural operations in her lemon garden in the suit land

and tried to stop the work of the plaintiff. The defendant also tried to dispossess

the plaintiff from the suit land. The plaintiff resisted her and drove her away

with the help of her relatives. To protect her possession, she filed the suit.

4. The defendant filed written statement submitting that she filed

O.S.No.125 of 1994 against one Yanala Ragaiah @ Rangareddy seeking the

relief of recovery of possession in respect of the land admeasuring Ac.4-06

guntas in Survey No.200 of Nakrekal Revenue Village. The said suit was

decreed in her favor. Against the said judgment and decree, the husband of the

plaintiff and others preferred an appeal as legal representatives of Yanala

Ragaiah. The appeal A.S.No.14 of 1999 was dismissed on 16.08.1999. The

husband of the plaintiff and some others filed Second Appeal vide S.A.No.987

of 2002 on the file of the High Court of Andhra Pradesh and obtained interim

stay. On the petition filed by the defendant, the interim stay was vacated on

10.02.2003. After that, the defendant filed an execution petition vide E.P.No.15

of 2002 for delivery of possession of suit schedule land. In the said execution

petition, the Court ordered delivery of possession. In pursuance of the orders of

the Court, the bailiff delivered possession of the suit land on 11.08.2003 under a

panchanama and receipt. After delivery of possession, the husband of the

plaintiff created a sale deed in the name of the plaintiff and the plaintiff filed a

claim petition under Order XXI Rule 58 of CPC. In the said claim petition, the

Dr.GRR, J sa_232_2015

plaintiff alleged that the possession of her Ac.2-20 guntas of land in excess of

the EP schedule property was delivered in favor of the defendant and claimed

recovery of the same. The claim petition filed by the plaintiff was dismissed on

07.10.2003. The plaintiff did not disclose in the plaint with regard to the filing

of the claim petition and its dismissal. She also did not disclose anywhere in the

plaint as to how she acquired the suit land and from whom she acquired the

same. Neither the plaintiff nor her so called vendor had any land in suit survey

No.200 of Nakrekal Village and Mandal. The total extent in Survey No.200 is

Ac.12-18 guntas. Out of the said land, the father of the defendant had Ac.7-32

guntas. After death of defendant's father, Ac.4-06 guntas was mutated in the

name of the defendant in revenue records being the surviving sole legal heir.

The paternal uncles of the defendant tried to grab away the land fallen to the

share of her father. The plaintiff's father-in-law grabbed the land of the

defendant. The defendant recovered her land in due course of law, but the

plaintiff's husband got filed the claim petition and the present suit to defeat the

claim of the defendant and to avoid her from enjoying the fruits of the decree

passed by the Court.

4.1. She further stated that she denied the right and title of the plaintiff at the

time of filing counter in claim petition E.A.No.20 of 2003 on 03.09.2003. The

said claim petition was dismissed on 05.10.2005. Admittedly, the plaintiff did

not prefer any appeal or revision against the orders dated 05.10.2005 passed in

Dr.GRR, J sa_232_2015

E.A.No.20 of 2003. So the orders passed in E.A.No.20 of 2003 dated

05.10.2005 became final. The claim of the plaintiff in the present suit and in

E.A.No.20 of 2003 was one and the same. So the suit of the plaintiff would

suffer from res judicata. As per the case of the plaintiff in her claim petition

vide E.A.No.20 of 2003, her land admeasuring Ac.2-20 guntas was delivered in

favor of defendant on 11.08.2003. It was not the case of the plaintiff that the

Court redelivered the said land in her favor in due course of law. Therefore, the

plaintiff was out of possession of the suit land. As such, she was not entitled for

the equitable relief of perpetual injunction. She contended that the suit of the

plaintiff was barred by res judicata and limitation. The plaintiff was not in

possession of the suit land and by suppressing the litigation in between her

family with the defendant, she filed the present suit, as such prayed to dismiss

the same with exemplary costs.

5. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff is entitled for perpetual injunction as prayed for?

ii) To what relief?

6. During the pendency of the suit, the plaintiff died and her legal

representatives were brought on record as plaintiffs 2 to 6. The son of the

plaintiff i.e. plaintiff No.4 was examined as PW.1 and Exs.A1 to A17 were

marked on behalf of the plaintiffs. One Yanala Peda Malla Reddy filed his

Dr.GRR, J sa_232_2015

evidence affidavit as PW.2. But his evidence was eschewed from consideration.

One Yanala Veerabhadra Reddy and one Yanala Anji Reddy, who were the

neighboring land owners, were examined as PWs.3 and 4. The defendant

examined herself as DW.1 and got marked Exs.B1 to B21. She got examined

her son as DW.2.

7. On considering the oral and documentary evidence on record, the trial

court held that the lands claimed by both the parties lie in two separate sub-

division numbers i.e. the suit schedule property of the plaintiffs was in Survey

No.200/AA and the land of the defendant was in Survey No.200/A though their

extents were similar. Neither party claimed title over the land of the other. The

trial court also rejected the contention of the defendant that the suit was hit by

Section 11 of CPC owing to the pendency of E.A.No.20 of 2003 and held that

the matters in issue in the suit and in E.A.No.20 of 2003 were not substantially

similar and the subject matter was also not one and the same. However, the trial

court observed that by filing E.A.No.20 of 2003, the plaintiff alleged possession

of Ac.2-20 guntas of land, which was part of the suit land herein, but as the

same was delivered to the defendant in 2003 vide orders in E.P.No.15 of 2002,

the same would disprove the contention of the plaintiff No.1 that she was in

possession of the entire suit schedule property as on the date of filing the suit.

As the plaintiff No.1 herself claimed to be out of possession of the major part of

the suit schedule property as on the date of filing of the suit in 2007 by litigating

Dr.GRR, J sa_232_2015

E.A.No.20 of 2003 and no oral or documentary evidence was produced by the

plaintiff to prove that possession of her Ac.2-20 guntas of land was re-delivered

to her, she set up two contradictory claims in respect of the same property vide

two different proceedings, as such, she was not entitled for the equitable relief

of injunction.

8. The trial court observed that merely because the plaintiffs could prove

their possession over the suit schedule property through the oral evidence of

adjacent land holders and merely because the defendant's land and the suit land

were distinct and separate, the plaintiffs could not be granted the equitable relief

of injunction when it was the case of the plaintiffs themselves that Ac.2-20

guntas of land out of the suit land was not in their possession. The suit land was

an agricultural land and the pendency of E.A.No.20 of 2003 by the date of filing

the instant suit itself would reveal the truth in the claim and contentions of the

plaintiffs and dismissed the suit.

9. Aggrieved by the said dismissal, the plaintiffs preferred an appeal. The

appeal was heard by the Judge, Family Court - cum - Additional District and

Sessions Judge, Nalgonda and vide A.S.No.57 of 2013 dated 26.02.2015, the

said appeal was allowed setting aside the judgment and decree of the trial court.

Dr.GRR, J sa_232_2015

10. Aggrieved by the said judgment and decree passed by the first Appellate

Court, the defendant preferred this Second Appeal. The Second Appeal was

admitted on 05.01.2016 on the following substantial questions of law.

a) Whether the observation of the courts below that the suit is not hit by the doctrine of res judicata is correct in view of the categorical finding given by the executing court in E.A.No.20 of 2003 in E.P.No.15 of 2002 filed by Jayamma, the original plaintiff in the suit in respect of the very same property?

b) Whether the judgment of the Lower Appellate Court is vitiated for the reason that there is a deliberate mistake in evaluation of the documentary evidence placed by the defendant with respect to the disposal of the claim petition filed by the plaintiff earlier in respect of the suit schedule property?

c) Whether the judgment of the Lower Appellate Court is vitiated for the reason that its reason is erroneous and perverse?

An additional substantial question of law was framed on 11.10.2017 as

follows:

i) Whether the appreciation of Exs.B17 and B19 by the Lower Appellate Court is in accordance with law or whether its judgment is vitiated in view of the wrong appreciation of those documents?

11. During the course of hearing, some more additional substantial questions

of law were also raised by the appellant vide S.A.M.P.No.2358 of 2015. They

were as follows:

Dr.GRR, J sa_232_2015

i. Whether the Appellate Court was right in setting aside the judgment of the trial court when the principles of res judicata are applicable?

ii. Whether the subordinate Appellate Court was competent to go behind the order of the Hon'ble High Court in S.A.No.1259 of 2012 (Ex.B19)?

iii. Whether the subordinate Appellate Court was right in ignoring the order of this Court in W.P.No.20047 of 2011 (Ex.B17), which was allowed on 11.10.2017?

12. Considering all these substantial questions of law raised by the learned

counsel for the appellants and formulated by this Court, it is considered fit to re-

formulate the same as follows:

a. Whether the suit for injunction is hit by the doctrine of res judicata?

b. Whether the first Appellate Court was competent to go behind the orders of the High court in S.A.No.1259 of 2012 (Ex.B19) or could ignore the orders of this Court in Writ Petition No.20047 of 2011 (Ex.B17)?

c. Whether the judgment of the Lower Appellate Court is perverse?

13. Heard Sri M.V.Durga Prasad, learned Senior Counsel representing on

behalf of Sri K.Jagadeeshwar Reddy, learned counsel for the appellant on record

and Sri A.Ravinder Reddy, the learned Senior Counsel representing on behalf of

Sri Ch.Venkateshwar Reddy, learned counsel for the respondents 2 to 6 on

record.

Dr.GRR, J sa_232_2015

14. Learned Senior Counsel for the appellants contended that the suit for

injunction was filed subsequent to the claim petition, which was dismissed on a

categorical finding that the claim petitioner was none other than the wife of the

J.Dr. / respondent No.3 in the claim petition, who had suffered a decree for

delivery of possession in favor of appellant / D.Hr. and he had set up a second

round of litigation after failure in both the suit as well as in the appeal. The

respondent herein who admitted delivery of possession had set up an

independent title and claimed excess delivery in her claim petition, which was

dismissed on merits. The same was also confirmed in appeal and also in the

Second Appeal, wherein it was held that she failed to prove her independent

title to any part of EP schedule property, which was delivered by the bailiff to

the D.Hr. / appellant and there was no excess delivery. Therefore, the suit was

not maintainable as being barred by res judicata and the same was not saved as

per Rule 104 of Order XXI of CPC. The land allegedly claimed in EP

proceedings and injunction suit was one and the same. However, the excess

claimed was not found either in records or by the bailiff report while delivering

possession to the appellant / D.Hr. Having admitted the possession of the

appellant / D.Hr. the respondent's suit for injunction was barred by res judicata.

In view of the finding on title in Ex.B1 claim petition in execution proceedings

under Rule 97 and 99 of Order XXI of CPC, the same was binding on the

respondents and it was also barred by Rule 101 and 103 of Order XXI of CPC.

Dr.GRR, J sa_232_2015

The respondent No.2 / defendant No.2 was the J.Dr.No.2 in the EP. No Court

would go into the validity or otherwise of the findings in Ex.B19, which became

final. The proceedings in respect of claim petition attained finality as per the

order in S.A.No.1259 of 2012 dated 15.03.2013, wherein this Court dismissed

the claim petition. The respondent herein failed to challenge the said order. As

such the same was binding on the parties as well as the courts below. The lower

appellate court being inferior to the High Court could not re-appreciate the

evidence in execution proceedings and give a contrary finding. Hence, the

judgment of the lower appellate court was perverse, warranting interference

under Section 100 read with Section 103 and prayed to allow the appeal.

15. Learned Senior Counsel for the appellant relied upon the judgments of

the Hon'ble Apex Court in Asgar and Others v. Mohan Varma and Others 1,

Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others 2 ,

Bhaskar Laxman Jadhav and Others v. Karamveer Kakasaheb Wagh

Education Society and Others3, Ramjas Foundation and Another v. Union

of India and Others 4.

16. Learned Senior Counsel for the respondents on the other hand contended

that the suit in O.S.No.111 of 2007 was filed by the respondent No.1, who died

(2020) 16 SCC 230

(2008) 4 SCC 594

(2013) 11 SCC 531

(2010) 14 SCC 38

Dr.GRR, J sa_232_2015

pending the suit. Her husband and others were added as legal representatives.

The suit was filed for perpetual injunction in respect of land admeasuring

Ac.4-06 guntas in Survey No.200/AA of Nakrekal Village. On the dismissal of

the suit, A.S.No.57 of 2013 was filed and the same was allowed. The claim

petition filed vide E.A.No.20 of 2003 in E.P.No.15 of 2002 in O.S.No.125 of

1994 was dismissed on 26.10.2009 and the suit for injunction was filed by the

respondent No.1 on 27.12.2007 much before the claim petition was dismissed.

E.P.No.15 of 2002 was infact once dismissed on 07.10.2005. The same was

finally allowed on 26.10.2009. The suit for injunction was filed when neither

E.P. proceedings nor E.A. proceedings were pending. As such, Rule 104 of

Order XXI of CPC would not bar the suit, which was pending on the date of

revival of the EP after initial dismissal. As per Order XXI Rule 104 of CPC,

every order made under Rule 101 or 103 should be subject to the result of any

suit that might be pending on the date of commencement of the proceeding in

which such order, was made if in such suit the party against whom the order

under Rule 101 or 103 was made had sought to establish a right. As the suit for

injunction was filed when the EP was dismissed on 07.10.2005, the suit filed for

injunction was protected. He further contended that in the present suit

Yanala Jayamma, i.e. the plaintiff claimed independent title over the land in

Survey No.200/AA and the subject matter in the E.P. was for the land in Survey

No.200/A. The trial court also held that the plaintiffs could prove their

Dr.GRR, J sa_232_2015

possession over the suit schedule property through the oral evidence of adjacent

land holders and that the defendant's land and the suit land were distinct and

separate. The said observation was sufficient to hold that the respondents were

entitled for injunction. The plaintiff Yanala Jayamma purchased the property

under a registered sale deed bearing document No.976 of 1993 dated

19.07.1993 i.e. before filing of O.S.No.125 of 1994 dated 26.09.1994 by the

appellant Kanukuntla Ramanujamma herein for recovery of possession against

Yanala Ragaiah. Therefore, it was incorrect to allege that a second round of

litigation was started by her husband. An Advocate Commissioner was

appointed in EP proceedings to induct Ramanujamma into possession of the

schedule land. The Advocate Commissioner who was appointed filed a memo

on 27.06.2005 that the EP schedule land could not be localized for want of

naksha. The surveyor had also given in writing that the due to lack of naksha,

he could not locate Survey No.200 / 548, on 25.06.2005, as such, the EP was

closed. Though EA was filed, the EP schedule land was not delivered. After

that, there was no mention that plaint schedule land was surveyed as per naksha.

As such, the property claimed by Ramanujamma was not localized till date.

However, it was held that no part of the property of Jayamma in Survey

No.200/AA was delivered to Ramanujamma. As such, the injunction sought by

Jayamma was proper and just. Kanukuntla Ramanujamma filed O.S.No.125

of 1994 against Yanala Ragaiah in respect of land in Survey No.200/A

Dr.GRR, J sa_232_2015

admeasuring Ac.4-06 guntas, which land Yanala Ragaiah had purchased from

Kanukuntla Ramanujamma. The claim of Yanala Jayamma was for the land in

Survey No.200/AA. Yanala Papi Reddy, the eldest son of Yanala Ragaiah was

brought as legal representative in O.S.No.125 of 1994. He was added as

plaintiff No.2 as legal representative of Jayamma in O.S.No.111 of 2007 being

her husband. The claims were different and the properties were also different

and relied upon the judgments of the Hon'ble Apex Court in Kondiba Dagadu

Kadam v. Savitribai Sopan Gujar and Others 5 and Damodar Lal v. Sohan

Devi and Others 6.

17. Substantial question of Law No.1: Whether the suit for injunction is hit by the doctrine of res judicata?

The contention of the learned counsel for the appellant was that the

respondent - plaintiff filed a claim petition vide E.A.No.20 of 2003 in

E.P.No.15 of 2002 in O.S.No.125 of 1994 setting up an independent title and

claiming excess delivery in her claim petition. The same was dismissed on

merits under Rule 97 and 99 of Order XXI of CPC. In view of the finding on

title in Ex.B1 claim petition, the same is binding on the respondents. Filing a

fresh suit for injunction was not maintainable being barred by res judicata and

the same was not saved as per Rule 104 of Order XXI of CPC. The land

(1999) 3 SCC 722

(2016) 3 SCC 78

Dr.GRR, J sa_232_2015

allegedly claimed in EP proceedings and in injunction suit was one and the

same.

18. Learned counsel for the respondents on the other hand vehemently

opposed the said contention. His contention was that the suit for injunction in

O.S.No.111 of 2007 was filed when neither EP proceedings nor EA proceedings

were pending, as such Rule 104 of Order XXI of CPC would not bar the suit

which was pending by the date of revival of the EP after initial dismissal.

19. Rule 104 of Order XXI of CPC reads as follows:

"104. Order under rule 101 or rule 103 to be subject to the result of pending suit - Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property."

20. Rule 101 of Order XXI of CPC reads as follows:

"101. Questions to be determined - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceedings on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the

Dr.GRR, J sa_232_2015

application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

21. Rule 103 of Order XXI of CPC reads as follows:

"103. Orders to be treated as decrees - Where any application has been adjudicated upon Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."

22. The suit schedule property claimed by the plaintiff in the present suit filed

for injunction in O.S.No.111 of 2007 is to an extent of Ac.4-06 guntas of land in

Survey No.200/AA of Nakrekal Village and Mandal with boundaries as follows:

East: Kadaparthy Road.

West: Land of Yanala Papi Reddy.

North: Land of Yanala Linga Reddy.

South: Land of Yanala Malla Reddy ITI College.

23. She claimed her right basing on a registered sale deed document No.976

of 1993 dated 19.07.1993 executed by one Pannala Saidi Reddy in her favor.

She relied upon Exs.A1 and A2, the pattedar pass book and title deed issued by

Dr.GRR, J sa_232_2015

the revenue authorities in her favor and also on the certified copies of the

pahanies from 1992-93 to 2003-04 marked under Exs.A4 to A15 and the true

copies of pahanies for the years 2004-05 and 2005-06, marked under Exs.A16

and A17. She also got examined her neighboring land owners as PWs.3 and 4,

who admitted the title and possession of the plaintiff and her son, who was

examined as PW.1 after her demise over the suit land.

24. The appellant - respondent filed a suit for recovery of possession vide

O.S.No.125 of 1994 to an extent of Ac.4-06 guntas in Survey No.200/A situated

at Pannalagudem, Nakrekal Village against the father-in-law of the plaintiff

herein at Pannalagudem hamlet of Nakrekal Village with the following

boundaries:

North: Garre Rama Murthy Rice Mill.

South: Land of Yanala Malla Reddy.

East: R & B Road leading to Gurajala.

West: Land of Yanala Malla Reddy and Yanala Ragaiah.

25. The said suit was decreed in favor of the appellant - respondent herein,

who was the plaintiff therein and the appeal filed by the husband of the plaintiff

as legal representative of the respondent, Yanala Ragaiah therein vide

A.S.No.14 of 1999 was also dismissed directing the legal representatives of

Yanala Ragaiah to delivery the possession of the suit schedule property therein.

The appellant - respondent herein filed E.P.No.15 of 2002 and the EP schedule

Dr.GRR, J sa_232_2015

property was delivered to the appellant - respondent herein i.e. the plaintiff

therein as per the report of the bailiff on 11.08.2003 after conducting a

panchanama on 07.08.2003. In the said EP, the plaintiff herein filed a claim

petition vide E.A.No.20 of 2003 claiming that her land to an extent of Ac.2-20

guntas out of Ac.4-06 guntas of land purchased by her from Pannala Saidi

Reddy was delivered in excess of EP schedule property to the appellant -

respondent herein. The said claim petition was dismissed under Ex.B2 on

26.10.2009. The Executing Court observed that the claim petitioner was none

other than the wife of Papi Reddy, the second J.Dr., in the suit and the

respondent No.3 in the claim petition. The contentions raised by the claim

petitioner about the mandal surveyor could not locate the schedule land and the

surveyor's report that due to lack of naksha he could not locate the property of

Ac.4-06 guntas of land pertaining to the appellant - respondent herein were

discussed by the Executing Court and answered that there was no proof that the

Advocate Commissioner had convened to the spot on 26.06.2004 and the report

of the surveyor appeared to be unauthenticated as there was no official stamp or

any attestation by the concerned authority and the surveyor's report was not on

the date of Advocate Commissioner said to have posted the matter for

proceeding to execute the warrant. But, however, considering the bailiff's report

with panchanama and the signature of the Village Secretary, Mandal Surveyor

Dr.GRR, J sa_232_2015

and the panchas including the decree holder and the receipt along with the

report, which were filed by the bailiff, dismissed the claim petition.

26. Against the said dismissal of the claim petition, the claim petitioner i.e.

the plaintiff herein preferred an appeal vide A.S.No.44 of 2011. The said appeal

was dismissed by the Special Sessions Judge for Trial of SC / STs (POA) Act

Cases - cum - Additional District Judge, Nalgonda on 15.06.2012. A Second

Appeal was also preferred by the claimant vide S.A.No.1259 of 2012 and the

same was also dismissed vide judgment dated 15.03.2012 observing that the

claim petitioner / appellant was engineered by the J.Drs. to continue the

litigation in a litigious manner. It was also observed that:

'The claim petitioner was claiming independent right for the land of Ac.4-06 guntas in Survey No.200/AA under Ex.A1 registered sale deed dated 19.07.1993 obtained from Pannala Saidi Reddy. The Executing Court commented on Ex.A1 sale deed in favor of the appellant to the effect that the appellant could not establish as to how Pannala Saidi Reddy conveyed title for the land of Ac.4-06 guntas in Survey No.200/AA to the appellant therein. The prior title of Saidi Reddy was not proved by the petitioner / appellant during enquiry in the Executing Court. Therefore, it could not be said that the appellant could prove her independent title to any part of the EP schedule property, which was delivered by the bailiff to the D.Hr.'

Thus, the title and possession claimed by the claim petitioner was not

believed by the Executing Court, the First Appellate Court as well as the High

Court in the Second Appeal and the same attained finality.

Dr.GRR, J sa_232_2015

27. E.P.No.15 of 2002 was once dismissed on 07.10.2005 basing on the

report filed by the Advocate Commissioner as well as the Mandal Surveyor

about their inability to execute the warrant as they could not locate the suit

schedule property. The same was revived and was finally allowed on

26.10.2009. The present suit for injunction in O.S.No.111 of 2007 was filed on

27.12.2007 between the period when the EP proceedings were dismissed on

07.10.2005 and prior to its revival.

28. The contention of the learned counsel for the respondent was that the suit

for injunction was filed much before the claim petition was dismissed on

26.10.2009. As such, the orders under Rule 97 / 99 of the executing court

should be subject to the result of the pending suit.

29. As seen from the Rule 101 of Order XXI of CPC, all questions relating to

right, title or interest in the property arising between the parties to a proceeding

or their representatives and relevant to the adjudication of the application shall

be determined by the Court dealing with the application and not by a separate

suit.

30. The Hon'ble Apex Court in Asgar and Others v. Mohan Varma and

Others (cited supra), held that:

43. "Under Order XXI Rule 101, all questions including questions relating to right, title and

Dr.GRR, J sa_232_2015

interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v Rajesh [(1998) 4 SCC 543], Justice A P Misra, speaking for a two judge Bench of this Court, while interpreting the expression "any person" in Rule 97, held thus :

"10...We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule

97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."

44. These principles have been reiterated in Har Vilas v Mahendra Nath [(2011) 15 SCC 377], in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession.

Dr.GRR, J sa_232_2015

45. In a succinct elucidation of the law in Nusserwanji E Poonegar v. Shirinbai F Bbesania [AIR 1984 Bombay 357], Justice R A Jahagirdar as a Single Judge of the Bombay High Court interpreted Rule 101 of Order XXI:

"10. From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing Court under the said rule are plenary. The powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise.

By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule."

46. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the

Dr.GRR, J sa_232_2015

course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103."

31. The proceeding under Rule 97 / 99 is not a summary proceeding and the

Executing Court is clothed with full jurisdiction to determine all questions

including questions relating to right, title and interest in the proprety between

the parties and the order passed in such a proceeding is also made an appealable

decree. A reading of the Rule 104 of Order XXI of CPC also makes it clear that

any order made under Rule 101 / 103 would be subject to the result of a suit

pending as on the date of commencement of the proceeding. The filing of the

suit in between the dismissal of the EP and its revival could not be considered

as the one pending on the date of commencement of the proceeding, as the

revival of the EP would revert it back to the date of filing the EP, but not to the

date of its revival. As such, the suit for injunction filed by the respondent -

plaintiff herein could not considered as the one pending by the date of

Dr.GRR, J sa_232_2015

commencement of the proceedings in E.P.No.15 of 2002. As all the questions

raised by the claim petitioner relating to her right, title and interest in the

property are decided by the Executing Court, which was confirmed by the First

and Second Appellate Courts, the same would act as res judicata upon the

plaintiff and bars the plaintiff in filing the present suit. The fundamental policy

of law is that there must be finality to litigation. Multiplicity of litigation enures

to the benefit of those who seek to delay the fruits of a decree reaching those to

whom the decree is meant. As all the grounds taken by the plaintiff in the

present suit were considered by all the three Courts, the plaintiff is not permitted

to raise the same again by filing a fresh suit. As such, the suit for injunction

filed by the plaintiff was hit by the doctrine of res judicata and the substantial

question of Law No.1 is answered accordingly.

32. Substantial Question of Law No.2: Whether the first Appellate Court was competent to go behind the orders of the High court in S.A.No.1259 of 2012 (Ex.B19) or could ignore the orders of this Court in Writ Petition No.20047 of 2011 (Ex.B17)?

As the orders in E.A.No.20 of 2003 in E.P.No.15 of 2002 in O.S.No.125

of 1994 attained finality, they are binding on the parties as well as the courts

below. No Court can go into the validity or otherwise of the fact findings,

which became final. The First Appellate Court being inferior to the High Court

cannot re-appreciate the evidence in Executing Proceedings and cannot give a

Dr.GRR, J sa_232_2015

contrary finding. The observations of the First Appellate Court that the Village

Secretary had fixed the boundaries instead of Mandal Surveyor and there was

no basis for the Village Secretary to fix the boundaries and there were no

independent proceedings relating to dispossession and identification of Survey

No.200 from the surveyor and that the report of the panchanama was silent

whether any naksha was available with them at the time of fixing the boundaries

and locating the Survey Number and the delivery proceedings were not fairly

done by the bailiff can be considered as beyond its jurisdiction and perverse

warranting interference by this Court under Section 100 read with Section 103

of CPC.

33. Substantial Question of Law No.3: Whether the judgment of the Lower Appellate Court is perverse?

Perversity had been the subject matter of umpteen number of decisions by

the Hon'ble Apex Court.

The Hon'ble Apex Court in Guruvachan Kaur v. Salirma 7, held that:

"It is settled law that in exercise of power under Section 100 of CPC, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse."

(2010) 15 SCC 530 : (2013) 2 SCC (Civ) 113

Dr.GRR, J sa_232_2015

The finding of facts of the first appellate court can be challenged in

Second Appeal on the ground that the said findings are based on no evidence or

perverse.

34. In an injunction suit, possession assumes significance. In view of Ex.B1,

the affidavit and petition filed by the present plaintiff as claim petitioner in

E.A.No.20 of 2003 in E.P.No.15 of 2002 in O.S.No.125 of 1994, wherein the

claimant admitted delivery of possession in EP schedule property, her claim to

be in possession of the property and the approval of the same by the First

Appellate Court is considered as perverse.

35. Though the plaintiff claimed the suit schedule property as one in Survey

No.200/AA and that she had purchased the same from one Pannala Saidi Reddy,

the title of the plaintiff is not put to test by the courts below as the present suit is

filed for injunction, but not for any declaration of title. When the appellant-

respondent contested the title of the plaintiff, who filed the claim petition in

E.A.No.20 of 2003 by filing her counter and raised a cloud over her title, the

plaintiff ought to have filed a suit for declaration as per the judgment of the

Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs.

and Others (cited supra), wherein it was held that:

"13.3.Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title

Dr.GRR, J sa_232_2015

thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

As such, the suit for injunction simplicitor filed by the plaintiff is not

maintainable.

36. The plaintiff failed to state in the plaint about the claim petition filed by

her in EP in O.S.No.125 of 1994. The same amounts to suppression of a

material fact. Learned Senior Counsel for the appellant relied upon the

judgment of the Hon'ble Apex Court in Ramjas Foundation and Another v.

Union of India and Others (cited supra), wherein it was held that:

"21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute

Dr.GRR, J sa_232_2015

the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.

22. In Dalglish v. Jarvie [(1850) 2 Mac & G 231] at Page.238, Lord Langdale and Rolfe B. observed:

"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward."

37. In Bhaskar Laxman Jadhav and Others v. Karamveer Kakasaheb

Wagh Education Society and Others (cited supra), the Hon'ble Apex Court

held that:

"44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and

Dr.GRR, J sa_232_2015

circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality."

38. Thus, the respondent - plaintiff, who failed to disclose the material fact

about her filing E.A.No.20 of 2003 in E.P.No.15 of 2002 in O.S.No.125 of 1994

is not entitled to seek the equitable remedy of injunction. The observation of

the First Appellate Court that 'the defendant was also party to the EA

proceedings and as the said facts were within the knowledge of both the parties,

such suppression would not yield any benefit to the plaintiff and non-reference

of the same in the plaint would not prejudice the defendant and such lapse was

not a justification to deny the equitable relief to the plaintiff' is perverse which

needs interference by this Court in the Second Appeal.

39. In the result, the Second Appeal is allowed setting aside the judgment and

decree passed in A.S.No.57 of 2013 on the file of the Judge, Family Court -

cum - Additional District & Sessions Judge, Nalgonda. The judgment of the