Telangana High Court
K. Vishnumurthy vs Golla Rangamma on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.1300 of 2005
JUDGMENT:
This second appeal is filed against the Judgment and
decree dated 17.01.2005 in A.S.No.12 of 1997 passed by the
learned Senior Civil Judge, Wanaparthy, in which the Judgment
and decree dated 18.03.1996 in O.S.No.6 of 1988 passed by the
learned District Munsif, Wanaparthy, was confirmed.
2. Initially, appellants/plaintiffs have filed a suit vide
O.S.No.6 of 1988, for declaration and possession of the plot
measuring 10 x 39 ft. The trial Court examined P.Ws.1 to 3 on
behalf of the appellants/plaintiffs and marked Exs.A1 to A36 on
their behalf. D.Ws.1 and 2 were examined on behalf of the
respondent/defendant and also marked Exs.B1 to B9 on her
behalf. The trial Court after considering the arguments of both
sides, dismissed the suit. Aggrieved by the said Judgment and
decree, plaintiffs therein preferred an appeal before the first
appellate Court, but the same was also dismissed by confirming
the Judgment of the trial Court. Aggrieved by the concurrent
findings of both the Courts, plaintiffs before the trial Court
preferred the present appeal.
3. The learned Counsel for the appellants/plaintiffs mainly
contended that both the Courts erred in appreciating the fact
that suit schedule property was originally owned by one
H.Venkata Anantha Chary by virtue of partition between himself
and one Srinivas Dakshina Chary. After the demise of the said
H.Venkata Anantha Chary, the property was developed upon his
son H.Gunda Chary. He let out the same to one Ramachandran
and after his death, his son Srinivasulu continued as a tenant.
The said tenant inducted the respondent/defendant and she
can be termed as sub-tenant. The respondent/defendant
executed a lease deed dated 29.09.1977 and agreed to pay the
rent @ 7/-. The erstwhile tenant executed a sale deed dated
06.07.1978 in favour of respondent/defendant. The vendor of
the respondent/defendant does not have any title to convey the
interest. Both the Courts erred in relying upon the municipal
records to conclude the Srinivasulu as owner. Though the suit
schedule property in the present suit and in O.S.No.17/14 of
1955/Ex.A2 is different, it was not properly appreciated. Both
the Courts ignored Exs.A4 and A2 and also relied upon Exs.A6
to A10. Both the Courts failed to appreciate Exs.A12 to A14-
Gram panchayat records and also Exs.A23 and A24 lease deeds
executed by the respondent/defendant in favour of
appellants/plaintiffs. Both the Courts failed to appreciate
Ex.A25 and not relied upon Exs.A37 and A38. Further, lease
can be mortgaged, but it was not appreciated. When both the
parties laid the evidence, the best evidence is to be considered.
He further contended that both the Courts failed to appreciate
that prior partition of the vendors of the appellants/plaintiffs
has to be taken into account, since the possession of vendors is
transferred to the possession of vendees. Exs.A3 to A4 proves
the title of the appellants and the evidence of P.W.2 collaborate
the same, but it was not considered by both the Courts.
Therefore, requested this Court to set aside the concurrent
findings of both the Courts.
4. The facts of the present case are that originally, one
Venkata Anantha Chary was the absolute owner of the suit
property, after his death, his son Gunda Chary became the
owner of the suit schedule property. The said Gunda Chary was
the vendor of the appellants/plaintiffs. The suit schedule
property was the subject matter of O.S.No.17/14 of 1955, but it
was dismissed on 08.07.1958. One Ramachandran was the
tenant of the suit plot including open place measuring 19 ft x 39
ft along with the shop bearing door No.13-47. After his death,
his son Srinivasulu continued as tenant. During his tenancy, he
mortgaged the said premises by raising loans and also inducted
the respondent/defendant and one Chandramouli as tenant
over the half of the premises. Later, the said Srinivasulu
discharged the loans and obtained the return of documents and
handed over the same to the appellants' vendor. Appellants
purchased the plot measuring 19 ft x 39 ft from Husudurgam
Gunda Chary on 12.07.1977 under a registered sale deed and
he also delivered the possession. The respondent herein and the
said Chandramouli executed the lease deed in favour of the
appellants on 29.09.1977 and thus appellants became the
owners of the suit plot. When appellants were proceeding with
construction of the building after obtaining permission from the
local body, the respondent herein on the strength of bogus sale
deed obtained stay from the District Panchayat Officer,
Mahabubnagar and later construction was stopped. The sale
deed dated 06.07.1973 in favour of respondent by K.Srinivasulu
is a sham and bogus document and does not convey the title. As
the appellants are absolute owners of the suit plot, they are
entitled to obtain possession from the Court of law.
5. In the written statement filed by the
respondent/defendant in the trial Court, she stated that suit
property was not the subject matter of O.S.No.17/14 of 1955.
The Judgment in O.S.No.60 of 1979 and in A.S.No.13 of 1984
operates as res-judicata. The appellants' vendor was never in
possession and enjoyment of the suit property. The sale deed
executed by Gunda Chary in favour of the appellants was bogus
document. The Srinivasulu, who was referred in the plaint was
the owner of the suit property and he inducted her in the year
1977 and subsequently sold to her on 06.07.1978 for valid
consideration through registered sale deed. She raised the shed
and made improvements by incurring heavy expenditure, but
the appellants started claiming right over the suit schedule
property illegally, as such she filed appeal before the District
Panchayat, Mahabubnagar and obtained stay. The vendor of the
appellants has no title and was never in possession over the suit
property. Her vendor was the real owner and was in possession
of the suit property for more than 30 years and the suit was
barred by time.
6. The trial Court held that Ex.A30 and Ex.B3 were marked
subject to objection. Both are unregistered mortgage deeds. A
mortgage deed is a document, which has to be compulsorily
registered. Hence, both the documents are inadmissible in
evidence and it was also held that the evidence of D.Ws.l and 2
was silent regarding the valuation of the suit property, as such
the said issue was answered in favour of the
appellants/plaintiffs. It was further held that Section 11 of the
C.P.C was not applicable, as the appellants are permitted to
withdraw the suit with a liberty to file the suit for declaration of
their title. Initially, appellants have filed the suit in O.S.No.60 of
1979 against the respondent and Chandraiah for evicting them
from the area measuring 40 Sq.yrds, but it was dismissed on
merits and the same was marked under Ex.B8. Appellants have
also filed A.S.No.13 of 1984 against the said Judgment and
decree in O.S.No.60 of 1979 and the same was also dismissed
under Ex.B9 and against the said Judgment, appellants
preferred an appeal in S.A.No.316 of 1987. In view of the above
facts, Exs.A28, B8 and B9 need not be considered. The Hon'ble
High Court permitted them to withdraw the suit with liberty to
file fresh suit, as such it cannot be said that suit was barred by
limitation. It was also observed that the nature of O.S.No.60 of
1979 was quite different from the present suit and the cause of
action was also different. Under Ex.A28, appellants are
permitted to withdraw the suit with a liberty to file fresh suit to
establish their title.
7. The trial Court also observed that the said Srinivasulu not
only mortgaged the property to Gangi Chandraiah, but also to
the respondent. The non-examination of the said Srinivasulu by
the appellants was suicidal. The plaint was silent with regard to
as and when the respondent came to possession of the suit
property. The suit was filed on 22.12.1987. Considering the act
of the Srinivasulu coupled with the admission made by the
respondent, it was held that suit was barred by limitation. The
trial Court further observed that appellants are claiming
ownership of the suit property under Ex.A1 through H.Gunda
Chary, while the respondent is claiming ownership of the
property covered by Ex.B2 through K.Srinivasulu. The property
covered by Exs.A1 and B2 is one and the same. To prove the
title of the appellants, they relied on Exs.A1 to A21. The said
suit in O.S.No.17/14 of 1955 was dismissed as no evidence was
adduced. Ex.A12 is the true copy of draft revision register of
house tax receipts of Grampanchayat for the year 1974-75. The
appellants have sent the Ex.A27 to the expert for the opinion
and it was returned along with the opinion. Though the
Advocate Commissioner was appointed, he returned the warrant
unexecuted for non-cooperation of parties. According to the
appellants, Srinivasulu (vendor of the respondent) was the
tenant of Gunda Chary, but they did not examine the said
Srinivasulu or Nanda Kishore Gupta. Therefore, mere filing of
the document did not amount to proof. D.W.1 admitted that her
vendor Srinivasulu was alive, but he was not examined by the
respondent for the reasons best known to her. The respondent
also failed to prove the title of her vendor as pleaded by her and
the appellants failed in proving the title of their vendor and
accordingly dismissed the suit with costs.
8. The first appellate Court held that appellants must prove
their title in spite of the failure of establishing title by the
respondent. It was also held that appellants failed to prove the
title of the suit property, but regarding limitation aspect, the
first appellate Court held that article 65 of the Limitation Act is
to be applied. As per the Article 65, the limitation period is 12
years and accordingly held that suit was within limitation. It
was pleaded that respondent claimed possession of the suit plot
in pursuance of the registered sale deed dated 06.07.1978,
executed in her favour by K.Srinivasulu and thus appellants are
the absolute owners, but in the evidence of P.W.1, it was stated
that after dismissal of the suit in O.S.No.60 of 1979 filed for
eviction, respondent occupied the property and thus his
evidence was contrary to the plaint. With the said observation,
the appeal was dismissed confirming the Order of the trial
Court.
9. Though in the present second appeal, no substantial
question of law was raised by the appellants, they raised the
said issues which are not considered by both the Courts. Both
the Courts considering the oral and documentary evidence at
length, in a detailed Judgment, answered all the points with
valid reasoning, and finally held that appellants/plaintiffs
cannot be declared as absolute owners of the suit schedule
property. Admittedly, the second appeal is preferred against the
concurrent findings of both the Courts. It was clearly held by
both the Courts that the vendor of the appellants has no title,
as such he cannot convey the proper title to the appellants
herein. The said Srinivasulu is also alive, but he was not
examined before the Court for the reasons best known to them.
The first appellate Court considered all the documents filed by
both the parties and finally confirmed the Judgment of the trial
Court. Therefore, this Court finds that there are no substantial
questions of law involved in the present second appeal and
accordingly it is dismissed.
10. In the result, the second appeal is devoid of merits and is
dismissed, confirming the concurrent findings of both the
Courts. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 03.06.2024
tri
