Telangana High Court
D. Ramaiah Died vs Gutta Radhamma on 6 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUIT No. 1355 OF 2000
JUDGMENT:
Feeling aggrieved and dissatisfied with the
judgment and decree passed by the learned Senior Civil Judge,
Khammam in O.S.No.28 of 1989, dated 31.03.2000, defendants
in the suit preferred the present Appeal.
2. Appellants are defendants in the suit and
respondent is plaintiff, who filed the suit on the basis of
agreement dated 14.02.1979, for rectification of the agreement
by inserting Survey No. 258 instead of Survey No.291 and for
perpetual injunction to restrain the defendants from interfering
in suit property.
3. For the sake of convenience, array of parties is
made as was done in the trial Court.
4. It is the case of plaintiff that she is the youngest
daughter of the 1st defendant and sister of defendants 2 and 3
and her marriage was performed in 1978 as per Hindu
Customs. Defendants gave Acs. 7.12 gts. situated at Lalapuram
Village, Konijarla Mandal, Khammam District towards Pasupu
Kumkuma (Gift) at the time of her marriage and executed an
agreement dated 14.02.1979 and delivered possession thereof
and since then, she has been in peaceful possession and
enjoyment over the subject land and the revenue authorities
mutated her name in revenue records in respect of the subject
land. Her matrimonial house is at Hasangurti village, which is
at distance of 20 kilometers from the subject land, hence, she
entrusted the subject land to defendants for cultivation, on
condition to pay Rs.3,000/- per year towards lease and
accordingly, defendants are paying. It is the case of plaintiff
that after death of her mother in 1988, defendants developed
greedy eye over the subject land due to surge in land rates and
had taken 'U' turn and declined to pay the lease amount. In
view of the obstructions made by defendants, she filed the suit
for rectification of wrong survey number and to restrain
defendants from interfering in suit schedule property.
5. In the suit, defendants filed written statement
denying the averments made in plaint and possession of
plaintiff over the suit schedule land, however, admitted the
relationship and execution of the agreement in her favour.
They further contended that they performed the marriage of
plaintiff and agreed to pay dowry of Rs.30,000/- to her
husband, but due to financial problems, they could not pay the
same. Subsequently on the pressure of plaintiff's husband, they
executed agreement towards security to pay the balance amount
of Rs.25,000/-. It is the case of defendants that subsequently,
they paid the due amount of Rs.25,000/- to plaintiff's husband,
but the latter did not return the agreement saying that it was
destroyed by white ants.
6. Defendant No.3 had taken out I.A. No.1005 of 1994
seeking compromise with plaintiff on 02.12.1994, during
pendency suit, duly admitting execution of agreement dated
14.02.1979 and delivery of suit property in favour of plaintiff.
7. Plaintiff got examined PWs.1 to 3 on her behalf and
marked Exs. A1 to A4 to substantiate her case. Plaintiff as PW1
reiterated the averments made in the plaint; PW2, attestor of
Ex.A1-agreement, deposed in favour of plaintiff as to the
execution of Ex.A1 by defendants 1 to 3 and delivery of the
subject land in favour of the plaintiff. Defendants did not
dispute the evidence of PW2 and attestation of Ex A1. PW3,
who is none other than own sister of plaintiff and defendants 2
and 3, deposed that subject property was given to plaintiff by
defendants at the time of her marriage. Defendant No. 3 -
brother of plaintiff filed sworn affidavit admitting execution of
Ex. A1 and delivery of possession of subject land in favour of
plaintiff. Village pahanies marked as Exs. A3 and Ex A4 reflect
the name of plaintiff in respect of subject land. On behalf of
defendants, DWs.1 to 8 were examined and Ex.B1 promissory
note was marked. DW5 former patwari of the village deposed
that on the request of the 1st defendant, he scribed Ex.A1 and
delivered physical possession of subject land in favour of
plaintiff.
8. The stand taken by defendants is that Ex.A1 was
executed only towards security of dowry amount of Rs.25,000/-
payable to the husband of plaintiff and later, paid the said
amount to the husband of plaintiff, but PW1 did not return the
same. The trial court held that, DW1 deposed in his evidence
that on the demand of plaintiff's husband, they executed Ex. A1
agreement, whereas in the written statement, defendants stated
that agreement was executed for the land in Survey Nos. 260
and 261 on the demand of plaintiff, the evidence of defendants
are inconsistent and not reliable.
9. Learned counsel for appellants Sri Jiteder Rao
Veeramalla submits vehemently that the learned trail Court
ought not to have decreed the suit. On the other hand, learned
counsel appearing for the respondent Sri Kadaru Prabhakar Rao
submits that there is no ground to interfere with the impugned
decree and judgment, hence, appeal may be dismissed.
10. In view of the material on record and having heard
learned counsel on either side, the following points are
formulated for determination in this appeal.
1) Whether trial Court was right in passing decree and Judgment
relying on Ex.A1 agreement?
2) Whether the trial court was right in correcting the Sy.No.258 in the
place of Sy.No.291 for the subject land ?
3) Whether plaintiff satisfied essential ingredients to grant perpetual
injunction?
11. From a perusal of the material on record, it is clear
that plaintiff's case is that pursuant to the agreement executed
by defendants on 14.02.1979, she has been in continuous
possession and enjoyment of the property. PW-2 - scribe of
Ex.A1, P.W.3 - sister of PW-1 supported PW-1 version. D.W.5 -
former patwari of Village, who is scribe of Ex-A1, admitted
execution of Ex-A1. Thus, the evidence of PWs.1 to 3 and DW5
clearly supported the plaintiff's case and Exs. A1 to 4
corroborated the said evidence. Defendants also admitted the
very execution of Ex.A1 agreement, but took a plea in the
written statement that it was done only towards security for
dowry payable to plaintiff's husband. However, no credible
evidence was adduced in that regard, except marking one
promissory note as Ex-B1, which does not concern to the facts
of the case. Plaintiff also submitted a copy of FIR dated
21.06.2014 on the file of P.S. Konijerla registered for the
offences under Sections 324, 294(b) and 506 read with Section
34 IPC against defendant - Appellant No.2, which clearly reveals
their interference with peaceful possession of plaintiff over the
subject land.
12. Learned counsel for respondent - plaintiff submitted
that during pendency of the Appeal, interim stay was granted on
11.02.2011 directing the appellants to deposit Rs.15,000/- per
year towards lease amount for the subject land in favour of
plaintiff, however, appellants failed to comply with the said
direction and ṭhe said order was vacated by order dated
05.03.2014, directing the appellants to hand over possession of
property to plaintiff. This Court in Contempt Case No. 1328 of
2014 vide order dated 26.02.2015, observed that appellant
deliberately violated the order dated 05.03.2014 and sentenced
to simple imprisonment for three months along with fine of
Rs.2,000/-. The Divisional Bench in Contempt Appeal No. 3 of
2013, directed the appellants to handover possession of subject
property to the plaintiff vide order dated 08.03.2021. In
pursuance of the said direction, in E.P.No.85 of 2015, the trail
Court directed to put the plaintiff in possession of subject land.
Accordingly, physical possession of subject land was delivered
to plaintiff vide panchanama dated 24.06.2015.
13. Ex.A1 recitals clearly disclose the specific
boundaries of subject land and DW-5, former patwari of village,
scribe of Ex-A1 categorically deposed that the relevant survey
number is Survey No.258 for the subject land but it was
wrongly entered as Survey No. 291 in Ex.A1. Learned counsel
for the respondent submitted that in the event of boundaries
established the correct survey number specified in the
document, the relief sought for correction of wrong survey
number is admissible. He placed reliance on the decisions of
Hon'ble Supreme Court in Sheodhyan Singh v. Sanichara
Kuer 1 held that where the boundaries as well as plot number
were mentioned in sale certificate, but there was a mistake in
AIR 1963 SC 1879,
mentioning the plot number, mistake must be treated as mere
miss-description which does not affect the identity of the
property sold. The same finding has been considered by the
Hon'ble Apex Court in P. Udayani Devi v. V.V. Rajeswara
Prasad Rao 2. In Gurram Anantha Reddy v. Katla Sayanna 3,
it was observed that in respect of property within the
boundaries as mentioned in the suit agreement of sale and
decree only and in the name of miss-description of one of the
survey numbers, the legitimate right of the decree holder cannot
be permitted to be frustrated. As such, the trial court rightly
decreed the suit for rectification of Survey No. 258 for the
subject land in the place of Survey No. 291 as entered in Ex.A1.
14. Further, the recitals of Ex. A1 clearly speak passing
of title and possession of subject land in favour of plaintiff by
the defendants without imposing any condition. Plaintiff apart
from title, established prima facie lawful possession over the
subject land on the date of filing of suit. The trial Court did not
commit any illegality or impropriety and rightly passed the
decree and judgment impugned restraining the defendants from
interfering with the peaceful possession and enjoyment of
(1995) 3 SCC 252
2015 (4) ALD 716
plaintiff over the subject land and rectifying the wrong survey
number. The trial court rightly observed that Ex.A1 is reliable
document and the contention of defendants that they executed
the same as security towards dowry amount, is highly
unbelievable. Hence there is no ground to interfere with in the
impugned judgment and decree.
15. The Appeal is accordingly, dismissed, confirming
the judgment and decree passed by the learned Senior Civil
Judge, Khammam in O.S.No. 28 of 1989 dated 31.03.2000.
16. At this stage, learned counsel for plaintiff submitted
that during pendency of the Appeal, Appellant No.2 created a fift
deed dated 27.07.2011 in favour of his wife Smt. Dama
Susheela in respect of subject land and filed an Application
before the Tahsildar, Konijerla Mandal to issue pattadar
passbook under ROR Act and the same was rejected vide order
dated 30.04.2015. Questioning the rejection order, Appeal
No.A3/7312 of 2015 was filed before the Revenue Divisional
Officer, Khammam and the same was also dismissed vide order
dated 26.03.2020. Therefore, respondent / plaintiff is at liberty
to proceed for recovery of dues payable by defendants, pursuant
to the interim orders of this Court duly following due process of
law, without looking in to the limitation period. No costs.
17. Consequently, the miscellaneous Applications, if
any shall stand closed.
-------------------------------------
NAGESH BHEEMAPAKA, J
06th September 2024
ksld
