2. The respondents are the plaintiffs. The parties are hereinafter referred as
arrayed before the trial court as plaintiffs and defendants.
3. The plaintiffs initially filed a suit for permanent injunction in respect of
in Survey No.280 situated at Makthal Village with specific boundaries. The
4. The case of the plaintiffs was that the plaintiff No.2 purchased an extent
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No.280. The plaintiff No.3 purchased an extent of Ac.0-10 guntas on
14.05.1984 in Survey No.280 of Makthal Village. All the plots were adjoining
each other and form a compact block of Ac.0-24 guntas. The lands so
purchased were mutated in the names of plaintiffs 2 to 4 in the revenue records.
possession of the plaintiffs over the suit land under a false claim that the suit
land was pertaining to Survey No.4. Police Makthal registered a criminal case
and initiated proceedings under Section 145 Cr.P.C. The suit land i.e. Ac.0-24
Magistrate, Narayanpet vide File No. C/487/87 dated 21.03.1987. The Sub-
possession of the suit land in favor of the plaintiffs. In compliance of the above
the plaintiffs on 28.01.1991 under a panchanama. The plaintiff No.2 obtained
No.255/86, which was subsequently renewed upto 07.01.1989. Later on, the
Gram Panchayat renewed permission upto 04.07.1991 and approved the plan.
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unlawfully into the possession of the plaintiffs over the suit land. As their
possession was endangered, the plaintiffs filed the suit for permanent injunction.
5. During the pendency of the suit, the plaintiffs filed I.A.No.132 of 1995
and the same was allowed on 20.11.1998. Thereafter, they filed I.A.No.26 of
6. The defendants 1 to 5 filed a common written statement denying that the
plaint schedule property was situated in Survey No.280. They specifically
pleaded that the suit schedule property was part and parcel of the land in Survey
No.4. The husband of defendant No.1 purchased Ac.0-26 guntas of land in
the property. The ownership of the defendants over the suit land was
No.4 and Survey Nos.4 and 280 were adjacent to each other. The plaintiff
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litigation. In view of the declaration of title and perpetual injunction in
same was not binding on the Civil Court. The plaintiffs could have impleaded
put forth their claim to the effect that the suit land was part of Survey No.280.
7. After amendment of the suit seeking the relief of declaration of title, an
plaintiffs failed to give the names of their vendors. The owner of Survey Nos.4
specific boundaries described in the sale deed. As both the survey Nos.4 and
location of the suit plot and its survey number. The defendants further
contended that the vendors of the plaintiffs had no valid and marketable title to
the suit plot to execute the sale deed in favor of the plaintiffs and no valid title
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plaintiffs, as the vendors of the plaintiffs never enjoyed possession over the suit
plot at any time. The defendants after obtaining decree in O.S.No.19 of 1981 on
M/s.SVN Plots Scheme. Mere amending plaint for declaration of title without
seeking the relief of possession by paying court fee was defective. It was also
further contended that the defendants perfected their title by adverse possession
over the suit plot by their continuous enjoyment of the same from 1978 i.e. from
openly and continuously. The title of the plaintiffs, if any, had extinguished due
to efflux of time. The defendants further contended that the proceeding initiated
by the Sub-Divisional Magistrate, Narayanpet in Case No. B/3063/1990 dated
20.10.1990 under Section 145 Cr.P.C. was set aside in revision by the
the suit.
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8. Basing on the said pleadings, the trial court framed the issues as follows:
8.2. Further, the plaintiffs filed I.A.No.21 of 2003 seeking amendment of the
plaint once again for the relief of mandatory injunction. The trial court again
(v) Whether the judgment on the file of the Court in O.S.No.19 of 1981 as
confirmed by the 1st and 2nd Appellate Courts operates as res judicata against
the plaintiffs?
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8.3. One more additional issue was framed on 13.12.2001 as per I.A.No.222
of 2004 filed by the plaintiffs as follows:
(vi) Whether the suit land was part of Survey No.4 of Makthal Village, as
claimed by the defendants?
9. During the course of trial, the plaintiff No.1 examined himself as PW.1
and got examined the witness, who was present at the time of conducting
panchanama by the Sub-Divisional Magistrate, Narayanpet as PW.2 and the
attestors of the sale deeds of plaintiffs 2 to 4 as PWs.3 and 4 in support of his
case and got marked Exs.A1 to A22 on their behalf. The defendant No.2 was
examined as DW.1 and got examined the owner of the adjacent suit land, who
also purchased a plot from the same vendor Sri Prabhakar Rao as DW.2 and got
marked Exs.B1 to B10 on behalf of the defendants.
10. On considering the oral and documentary evidence on record, the trial
court opined that the plaintiffs were in possession of the property. Exs.A2 to
A5 registered sale deeds would prove the ownership of the plaintiffs. The
vendors of the plaintiffs were having a saleable interest in the suit land and the
plaintiffs were entitled for declaration of title and that they were also entitled for
mandatory injunction and the judgment in O.S.No.19 of 1981 would not operate
as res judicata against the plaintiffs. The trial court also held that the suit land
of Ac.0-24 guntas in Survey No.280 was not part and parcel of Survey No.4 and
decreed the suit in favor of the plaintiffs.
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11. Aggrieved by the said judgment and decree passed by the learned Junior
Civil Judge, Narayanpet in O.S.No.29 of 1991 dated 31.01.2005, the defendants
preferred an appeal. The appeal was heard by the learned Senior Civil Judge,
Narayanpet and vide judgment and decree in A.S.No.3 of 2005 dated
03.06.2006, dismissed the appeal confirming the judgment of the trial court.
12. Aggrieved by the said dismissal of their appeal by the First Appellate
Court, the defendants preferred this Second Appeal.
13. This Court admitted the Second Appeal on 31.10.2006 on the following
substantial questions of law:
(a) Whether the suit for mandatory injunction of title was maintainable in the
absence of relief for recovery of possession, when the plaintiffs admitted the
defendants' possession?
(b) Whether the judgment in O.S.No.19 of 1981 as confirmed in appeals
would operate as res judicata in view of the fact that the predecessor in title of
the plaintiffs was a party to O.S.No.19 of 1981?
(c) Whether the Advocate Commissioner's report could be a basis for
granting a decree for declaration of title?
14. Heard Sri O.Manohar Reddy, learned Senior Counsel for the appellants
representing Sri P.Chakravarthy, learned counsel for the appellants on record
and Sri D.Prakash Reddy, learned Senior Counsel representing Sri Rupendra
Mahendra, learned counsel for the respondents on record.
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15. Learned Senior Counsel for the appellants contended that once the
vendors of the plaintiffs was party to the earlier suit in O.S.No.19 of 1981 and
the property was purchased by the vendors of the plaintiffs during the pendency
of the suit and there was no proof to show that the property claimed by the
plaintiffs was not the subject matter of the earlier suit, the courts below ought to
have seen that the earlier findings recorded by the trial court in O.S.No.19 of
1981 as confirmed in the Second Appeal were binding on the plaintiffs and
would operate as res judicata. In O.S.No.19 of 1981, the trial court held that
the appellants were entitled for permanent injunction. In A.S.No.61 of 1986
filed against it, the Appellate Court had framed the point for consideration and
gave a finding that the trial court was right in holding that the appellants herein
were the owners of the property and the said judgment was confirmed in Second
Appeal No.669 of 1993. Once the vendors of the plaintiffs were parties to the
suit, the findings recorded in the suit were binding upon the plaintiffs and they
operate as res judicata, the plaintiffs could not re-agitate their claim by filing a
suit for declaration of title and for mandatory injunction. No evidence was
adduced by the plaintiffs to show the source of title of their vendors. On the
other hand, the evidence on record would clearly show that their vendors
purchased the property from the persons, who were parties to the suit in
O.S.No.19 of 1981. The burden would always lie on the plaintiffs to prove their
title to the property and the suit could not be decreed on the basis of weakness
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of the case of the defendants. The plaintiffs failed to prove their title to the
property. Even their claim for possession was on the basis of order passed in
145 Cr.P.C. proceedings and the said order was set aside in appeal and
confirmed in revision. The plaintiffs failed to show that they were in possession
of the property. The reasoning of the courts below in decreeing the suit without
considering the earlier decree of the Civil Court in O.S.No.19 of 1981 would
amount to substantial question of law. The evidence on record would clearly
show that the appellants were in possession of the property and constructed a
room. Once the appellants were in possession of the property, the suit for
mandatory injunction without seeking the relief of recovery of possession was
not maintainable. The Appellate Court exceeded its jurisdiction and granted the
relief, which was not prayed for. The courts below failed to see that the entries
made in the revenue records were only for the purpose of collection of tax and
that they would not confer any title to the property. The reasoning of the courts
below in relying upon the entries in the revenue records and decreeing the suit
for declaration of title was not legal and the same was contrary to the law laid
down by the Hon'ble Apex Court and relied upon the judgment of the Hon'ble
Apex Court in Union of India and others v. Vasavi Co-operative Housing
Society Limited and Others 1.
(2014) 2 SCC 269
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16. Learned counsel for the respondents on the other hand contended that
both the courts below after looking into the various documents and considering
the oral evidence of the parties came to a categorical conclusion that the suit
schedule property was part of Survey No.280 and not part of Survey No.4, as
claimed by the appellants - defendants. It was a concurrent finding of fact
recorded by both the courts after elaborately considering the oral and
documentary evidence on record, which could not be disturbed in the Second
Appeal. The scope of Second Appeal under Section 100 of CPC was limited to
substantial questions of law and could not disturb the concurrent finding of
facts. He further submitted that the Advocate Commissioner was appointed in
I.A.No.28 of 1999 by the trial court and the Advocate Commissioner with the
assistance of the Assistant Director, Surveyor of Land Records categorically
observed in the report that the suit land admeasuring Ac.0-24 guntas was
situated in Survey No.280. The Advocate Commissioner also furnished a plan
along with the report. The report of the Advocate Commissioner would go to
show that the suit land was identified in Survey No.280 within the boundaries
mentioned therein and totally match with the suit schedule property. The report
of the Advocate Commissioner being part of the record was considered and
taken note of by the trial court as well as the first Appellate Court. The first
Appellate Court while coming to the conclusion that the respondents - plaintiffs
were entitled for declaration and recovery of possession had also looked into the
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orders of the learned Sub-Ordinate Judge, Mahabubnagar passed in O.P.No.549
of 1981, wherein the rival claims of Prabhakar Rao and Seshadri (predecessor-
in-title of the respondents - plaintiffs) were considered and came to a positive
conclusion that the predecessor-in-title of the vendor of the respondents i.e.
Seshadri was entitled to receive compensation and he was in absolute
possession and enjoyment of the suit property. The contention of the appellants
that the trial court as well as the first Appellate Court relied upon the entries in
the revenue records as basis for grant of decree was not correct. The trial court
as well as the first Appellate Court categorically discussed all the documents
including Exs.A1 to A14 in support of the claim of the respondents - plaintiffs
and passed a decree. Both the courts below after considering the evidence on
record came to a conclusion that the judgment and decree in O.S.No.19 of 1981
would not operate as res judicata, as the property claimed under Ex.B2 i.e.
judgment in O.S.No.19 of 1981 and the boundaries of Ex.B1 were part of
Survey No.4, but not part of Survey No.280. The courts below also found
inconsistency in respect of the boundaries in Ex.B1 (sale deed) and Ex.B2
(judgment in O.S.No.19 of 1981) and further observed that the parties to the suit
were also not one and the same. He further contended that the first Appellate
Court at length discussed whether the respondents - plaintiffs could be granted
the relief of possession, which was not sought for at the time of amending the
plaint seeking for mandatory injunction for removal of the shed and
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categorically held that the relief could be granted subject to payment of court
fee after obtaining valuation certificate. Both the courts below categorically
observed that the shed was constructed by the appellants - defendants only
during the pendency of the suit illegally on a small portion of the suit schedule
property and that they failed to mention about the existence of the shed in their
written statement on 25.04.1991 and that the claim of existence of the shed was
made only after an application was filed by the respondents - plaintiffs seeking
for amendment of the plaint on 18.07.1989. The Appellate Court had
categorically discussed the same in its judgment and considering the long delay
in the progress of the suit before the courts below observed that it was not
desirable to drive the plaintiff from pillar to post for getting the relief of
possession after removal of the shed in pursuance of the mandatory injunction
and by taking into consideration the subsequent events during the pendency of
the suit and more particularly in the interest of justice, granted the relief of
recovery of possession, which was not originally sought for and relied upon the
judgments of the Hon'ble Apex Court in Rajendra Tiwary v. Basudeo Prasad
and another2, Bhagwati Prasad v. Chandramauli 3, Srinivas Ram Kumar v.
Mahabir Prasad and others 4, Ram Sarup Gupta (Dead) by LRs. v. Bishun
Narain Inter College and others 5 , Misrilal Ram Rathan and others,
AIR 2002 SC 136
AIR 1966 SC 735
AIR 1951 SC 177
AIR 1987 SC 1242
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Mansukh Lal and others v. Shaik Fathima (dead) by LRs. and others 6 and
of the High Court of Andhra Pradesh in Shaik Fathima Bi v. Shaik Nanne
Saheb (died) by LRs. 7 and Vemusetti Appayamma v. Lakshman Sahu 8.
17. The general rule is that the High Court will not interfere with the
concurrent findings of the courts below. But the said rule was not absolute.
Some of the well recognized exceptions are:
Where,
(i) the courts below have ignored material evidence or acted on no
evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying
the law erroneously; or
(iii) the courts have wrongly cast the burden of proof.
18. The contention of the learned Senior Counsel for the appellants was that
both the courts below had wrongly casted the burden of proof and decreed the
suit on the basis of weakness in the case of the defendants, but not considered
that the burden would always lie on the plaintiffs to prove their title to the
property and relied upon the judgment of the Hon'ble Apex Court in Union of
India and others v. Vasavi Co-operative Housing Society Limited and
Others (cited supra), wherein it was held that:
1995 Supplementary (4) SCC 600
2005 (4) ALD 164
AIR 1973 AP 168
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"15. It is trite law that, in a suit for declaration of title, burden
always lies on the plaintiff to make out and establish a clear
case for granting such a declaration and the weakness, if any, of
the case set up by the defendants would not be a ground to
grant relief to the plaintiff.
17. At the outset, let us examine the legal position with regard
to whom the burden of proof lies in a suit for declaration of title
and possession. This Court in Maran Mar Basselios
Catholicos v. Thukalan Paulo Avira [AIR1959 SC 31]
observed that:
"20. ... in a suit for declaration if the plaintiffs
are to succeed, they must do so on the strength
of their own title."
18. In Nagar Palika, Jind v. Jagat Singh,
Advocate [(1995) 3 SCC 426], this Court held as under:
"The onus to prove title to the property in
question was on the plaintiff. In a suit for
ejectment based on title it was incumbent on the
part of the court of appeal first to record a
finding on the claim of title to the suit land made
on behalf of the plaintiff. The court is bound to
enquire or investigate that question first before
going into any other question that may arise in a
suit."
19. The legal position, therefore, is clear that the plaintiff in
a suit for declaration of title and possession could succeed only
on the strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved
their case or not. We are of the view that even if the title set up
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by the defendants is found against, in the absence of
establishment of plaintiff's own title, plaintiff must be non-
suited.
21. This Court in several Judgments has held that the
revenue records does not confer title. In Corporation of the
City of Bangalore v. M. Papaiah and another [(1989) 3 SCC
612] held that:
"5. ... It is firmly established that revenue
records are not documents of title, and the
question of interpretation of document not being
a document of title is not a question of law."
19. On a perusal of the judgment of the trial court in O.S.No.29 of 1991,
specific issues were framed with regard to the title of the plaintiffs on
17.06.2000, whether the plaintiffs 2 to 4 were the owners in possession of the
suit land, whether the vendor of the plaintiffs got a saleable interest in the suit
land and whether the plaintiffs were entitled for declaration of title under the
suit property and all the three (03) issues were answered considering the
evidence on record marked as Exs.A2 to A5, the registered sale deeds which
would prove the title of the plaintiffs and also Exs.A19 to A21, the ROR records
showing the ownership and title over the suit land by the plaintiffs. The trial
court also considered the evidence of PWs.3 and 4, the attestors to Exs.A2 to
A5 and held that they supported the case of the plaintiffs stating about their
purchase of the suit land and were in possession of the same since their
purchase. The trial court also considered Ex.A8, permission granted by the
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Gram Panchayat, Makthal to construct a house over the suit land in Survey
No.280. Answering on the issue whether the vendor of the plaintiffs had got a
saleable interest in the suit land, the trial court held that as per Section 103 of
the Indian Evidence Act, 1872, the burden of proof of a particular fact would lie
on the person, who wanted the Court to believe in its existence or non-existence
and no objection was raised by the defendants or the vendor of the defendants
that the vendor of the plaintiffs had no saleable interest and no suit was filed by
any of them since 1984 i.e. since the date of the purchase of the suit schedule
property by the plaintiffs. The trial court also observed that the vendor of the
defendants i.e. Prabhakar Rao had not contested the matter in O.S.No.19 of
1981, the suit filed by the husband of the defendant No.1 and father of
defendants 2 to 5 and that he remained ex-parte. The trial court also observed
that the defendants failed to examine their vendor in the present suit also and the
registered sale deed marked by the defendants under Ex.B1, through which they
were alleging that they purchased the suit schedule property was pertaining to
Survey No.4, but not with regard to Survey No.280 and that they failed to prove
that Survey No.280 was part and parcel of Survey No.4. The trial court on
considering the oral and documentary evidence on record held that the plaintiffs
were owners of the suit land to an extent of Ac.0-24 guntas in Survey No.280
and declared the title in favor of the plaintiffs.
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20. The lower Appellate Court also framed a specific point for determination
as point No.2, whether the plaintiffs were entitled to seek declaration of title
over the suit schedule land and discussed in detail appreciating the oral and
documentary evidence on record. The lower Appellate Court considered that
"since it was a suit for declaration of title, a simple discussion with regard to the
purchase claimed by the parties under their sale deeds was not sufficient and
that it was always desirable to make a thorough discussion into the aspect of the
original title of their vendors, and, more particularly with regard to the
intricacies of the title of Seshadri through whom the plaintiffs were tracing out
their title and late Prabhakar Rao, through whom the defendants were tracing
out their title" and considered Ex.A12, the certified copy of the order dated
30.04.1988 in O.P.No.549 of 1981 passed by the Sub-Ordinate Judge,
Mahabubnagar with regard to payment of compensation by the Government
following acquisition of land in Survey Nos.269 and 280 of Makthal, wherein
rival claims were made by late Prabhakar Rao and Seshadri and the Court came
to a positive conclusion that Seshadri was alone entitled to receive the
compensation and late Prabhakar Rao had no manner of right to receive the
compensation and that the said order became final with no appeal preferred
against the same by late Prabhakar Rao. The Lower Appellate Court also
considered Exs.A14, the certified copy of the proceedings dated 30.11.1980 by
the Revenue Divisional Officer, Narayanpet, wherein it was recorded that late
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Prabhakar Rao had withdrawn the appeal preferred against the order passed by
the Tahsildar, Makthal in connection with the grant of succession in favor of
Seshadri for the lands covered in Survey Nos.280 and 4 and that mutation was
affected in favor of Seshadri for Survey Nos.280 and 4. The Lower Appellate
Court also considered that the initial findings given by the trial court and the
first Appellate Court in Exs.B2 and B3 against the adoption of Seshadri by late
Sumitra Bai, the widow of late Sridhar Rao, were set aside by the High Court in
its judgment in Second Appeal No.669 of 2023 marked under Ex.B4 dated
04.04.2002 and directed the defendants (the appellants herein) to implead
themselves as parties to O.S.No.55 of 1999 filed by the son of late Prabhakar
Rao seeking partition of the properties of late Prabhakar Rao to work out
equities for the purpose of allotment of property covered by Ex.B1 to the
defendants. The Lower Appellate Court also considered the evidence of DW.1,
wherein in his cross-examination, he admitted that he did not get the land
covered by Ex.B1 surveyed and the Advocate Commissioner appointed in the
present case also stated in his report that the suit schedule land was covered by
Survey No.280, but not by Survey No.4 and that DW.1 deposed in his cross-
examination that they did not have any claim over the land covered by Survey
No.280, and they were having right only over the land in Survey No.4. The
lower Appellate Court also observed that there was repugnancy between the
boundaries given in the schedule of Ex.B1 and the boundaries mentioned in the
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schedule annexed to Ex.B2 and commented that the evidence of DW.1 was
incomprehensible, as on one breath, he admitted that the said descriptions
would not match with each other, but still maintained that both the descriptions
were one and the same.
21. Thus, on considering the evidence, the lower Appellate Court observed
that the defendants themselves were unaware of the actual location of their land
in Survey No.4 and that the same was also observed by the Advocate
Commissioner in his report. The lower Appellate Court by referring to a
judgment in Secretary to Government of India, Ministry of Defence, New
Delhi and another v. Indira Devi and another [1998 (5) ALT 32] held that
the burden of proof of a fact rests on a party, who substantially affirms and
asserts and not upon the party who denies it; for a negative is usually incapable
of proof, and held that it was for the defendants to prove that the suit schedule
land was situated in Survey No.4 as against the proof offered by the plaintiffs
that the same was covered by Survey No.280 and it was for them to establish
that their land, though described in a wrong survey number was identifiable
within the definite boundaries and that they failed to prove the suit schedule
land was existing in Survey No.4.
22. Thus, both the trial court as well as the lower Appellate Court after
considering the registered sale deeds in favor of the plaintiffs and also that the
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vendor of the plaintiffs had a saleable interest in the suit schedule property and
the contentions of the defendants, rightly placed the burden of proof on the
parties and held that the plaintiffs are entitled to seek declaration of title over
the suit schedule land. This Court does not find that the courts below have
ignored any material evidence or acted on no evidence or had drawn any wrong
inferences from proved facts or applied the law erroneously or wrongly casted
the burden of proof to interfere with the concurrent findings of the courts below
on this aspect.
Substantial question "c":-
Whether the Advocate Commissioner's report could be a basis for granting
a decree for declaration of title?
23. Admittedly, an Advocate Commissioner was appointed by the trial court
to ascertain the fact where exactly the suit schedule land was existing and was
asked to show the actual location and existence of the suit schedule land in
definite survey number. The Advocate Commissioner with the assistance of the
Assistant Director, Survey and Land Records, Mahabubnagar visited the suit
schedule property and gave a definite finding in his report that the suit schedule
land admeasuring Ac.0-24 guntas is situated in Survey No.280 and also
enclosed a plan to his report showing the lands in Survey Nos.280 and 4 in
different colors. The Advocate Commissioner also in his report specified that
the defendants failed to locate their land of Ac.0-26 guntas in Survey No.4 and
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that the land claimed by the defendants was unidentifiable. The boundaries of
the suit schedule land were also stated by the Advocate Commissioner in his
report and the said boundaries were stated to be matched with the boundaries
given by the plaintiffs for the schedule annexed to the plaint.
24. Learned Senior Counsel for the respondents placed reliance upon the
judgments of the Hon'ble Apex Court in Misrilal Ram Rathan and others,
Mansukh Lal and others v. Shaik Fathima (dead) by LRs. and others (cited
supra) , wherein it was held that:
"It is now settled law that the report of the Commissioner is
part of the record and that therefore the report cannot be
overlooked or rejected on spacious plea of non-examination of
the Commissioner as a witness since it is part of the record of
the case."
25. Learned Senior Counsel for the respondents also placed reliance upon the
judgment of the High Court of AP in Shaik Fathima Bi v. Shaik Nanne Saheb
(died) by LRs.(cited supra), wherein the erstwhile High Court of Andhra
Pradesh held that:
It is no doubt true that when substantial objections are raised to
the report of the Commissioner, it would be advisable and
desirable to examine the Commissioner for the purpose of
having a clear picture. But on that ground alone, it cannot be
said that the report of the Commissioner cannot be looked into
by the Court unless the same is exhibited or the Commissioner
is examined. Such a narrow proposition cannot be laid down
Dr.GRR, J
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and this would depend upon the facts and circumstances of a
particular given case.In Chintalapatla Arvind Babu v. K.
Balakistamma [AIR 1992 AP 300], it was held that the report
of the Commissioner appointed under Order XXVI Rule 9
C.P.C., is evidence and it is generally more credible
evidence. In V. Appayyamma v. L. Sahu [AIR 1973 AP 168],
it was held that the report of the Commissioner is a part of
record and can be considered as evidence irrespective of the
fact whether the Commissioner was examined as a witness or
not. In Kalandi Swain v. Braja Kishore [AIR 1980 Ori 98], it
was held that a report is automatically admitted in evidence
under Order 26 Rule 9 C.P.C., and forms part of the record.
In Sathya Engineering Contractors v. Nachammal [1992 (2)
MLJ 221], it was held that unless it appears to the Court that
the examination of the Commissioner is necessary, his report
can be exhibited and acted upon. In Chandrapal v. Roop
Rama [1979 All. LJ 55], it was held that the report of the
Commissioner may be read in evidence but it is not conclusive
or binding on the Court and the report has to be assessed in the
light of other evidence and material on record like any other
piece of evidence. Reliance also was placed on Marcoli
Achuthan v. Kunhipathumma [AIR 1968 Kerala 28],
and State of Uttar Pradesh v. Smt. Ram Sri and
Another [AIR 1976 Allahabad 121]
26. Learned Senior Counsel for the respondents also relied upon the
judgment of the High Court of AP in Vemusetti Appayamma v. Lakshman
Sahu (cited supra), wherein also, it was held that the report of the Advocate
Commissioner is part of the record and can be considered as evidence
Dr.GRR, J
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irrespective of the fact, whether the Advocate Commissioner is examined as a
witness or not.
27. Thus, the report of the Advocate Commissioner, which is part of the
record, can be taken into consideration by the Courts for deciding the aspects,
with its assistance. An opportunity would also be given to the other side for
recording their objections on the report and on considering the report as well as
the objections only, the Court would come to a conclusion on its own, whether
the said report could be relied upon or not. Thus, it was a settled position of law
that the Advocate Commissioner's report could be basis for coming to a
conclusion with regard to the location of the property and on considering the
other evidence also adduced before the Court, the courts below came to a
conclusion that the boundaries specified by the plaintiff were matching with the
suit schedule property and gave a clear finding on this aspect. As both the
courts below had decided the matter by taking reliance upon the binding
precedents, this Court does not find any substantial question of law arising on
this aspect.
Substantial question "b":-
Whether the judgment in O.S.No.19 of 1981 as confirmed in appeals would
operate as res judicata in view of the fact that the predecessor in title of the
plaintiffs was a party to O.S.No.19 of 1981?
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28. The contention of the learned Senior Counsel for the appellants was that
the courts below had not taken into consideration the judgment and decree in
O.S.No.19 of 1981, which was also confirmed in First and Second appeals and
as the original owner / vendor to the vendors of the plaintiffs was party to the
said case, the same was binding upon the plaintiffs and would act as
res judicata.
29. The principle of res judicata is incorporated in Section 11 of the Code of
Civil Procedure, 1908. To attract the principle of res judicata, the matter in
issue between the previous suit as well as in the current suit must be one and the
same and that it must be between the same parties or between the parties under
whom they are litigating under the same title and the Court which decided the
former suit is competent and the matter should be heard and finally decided on
merits by the earlier Court.
30. O.S.No.19 of 1981 is filed by the husband of defendant No.1 and father
of defendants 2 to 5 against one Prabhakar Rao, B.Ramanna Naik, Surender
Reddy and one Seshadri, minor under the guardianship of Vidyadesha Chary.
31. The contention of the learned Senior Counsel for the appellants was that
as the plaintiffs alleged that they purchased the suit schedule property from their
vendor B.Ramanna, S/o.Narsappa, who was shown as defendant No.2 in
O.S.No.19 of 1981 and the original vendor from whom their vendor B.Ramanna
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purchased i.e. Seshadri, minor under the guardianship of Vidyadesha Chary,
was also a party to O.S.No.19 of 1981 as defendant No.4, the said judgment
which attained finality was binding upon the plaintiffs and would operate as res
judicata. However, the suit schedule property in O.S.No.19 of 1981 is
Ac.0-26 guntas in respect of Survey No.4, which was shown as out of an area of
Ac.7-36 guntas with its boundaries as:
East: Land of Gopal Rao
West: Grave yard
North: PWD road from Mahabubnagar to Raichur
South: Bund situated within the limits of village Makthal, Makthal Taluk.
But the suit schedule property in O.S.No.29 of 1991 is shown as Ac.0-24
guntas out of Survey No.280 (dry) situated at Makthal with the boundaries
shown as:
East: Survey No.281
North: PWD Road to Hyderabad and Survey No.280
South: Survey No.4
32. The trial court on considering the same observed that the subject matter in
O.S.No.19 of 1981 was different from the subject matter of the present suit and
that the same would not operate as res judicata. Though the trial court observed
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that the parties to the suit were also not one and the same, but however as the
vendors of the plaintiffs were parties to O.S.No.19 of 1981, the said observation
is incorrect.
33. However, the vendors of the plaintiffs were having lands both in Survey
Nos.280 and 4. The defendants were claiming the land in Survey No.4 stating
that they have purchased the same from one Prabhakar Rao, who was shown as
defendant No.1 in O.S.No.19 of 1981. The contention of the plaintiffs in the
present suit is that they have purchased the land in Survey No.280 from one of
their vendors Ramanna Naik shown as defendant No.2, who had purchased the
same from Seshadri, minor, who was represented by Vidyadesha Chary, shown
as defendant No.4. Thus, both the plaintiffs and defendants were alleging that
they purchased the properties in different survey numbers from different
persons, which were adjoining each other, but were not one and the same. As
both the trial court as well as the first Appellate Court on considering the
evidence on record as well as the Advocate Commissioner's report came to a
conclusion that the defendants failed to locate the property and that the
boundaries in their registered sale deed marked under Ex.B1 and in judgment in
O.S.No.19 of 1981 were also not matching each other, unless the defendants
were able to show that the property purchased by the plaintiffs was one and the
same, as purchased by them in Survey No.4 with specific boundaries mentioned
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by them, the same would not operate as res judicata, as the subject matter in
both the suits is not one and the same.
Substantial question "a":-
Whether the suit for mandatory injunction of title was maintainable in the
absence of relief for recovery of possession, when the plaintiffs admitted the
defendants' possession?
34. Another point which was strongly contended by the learned Senior
Counsel for the appellants was that the suit for mandatory injunction was not
maintainable in the absence of seeking the relief of recovery of possession. The
said aspect was raised before the lower Appellate Court and the lower Appellate
Court gave a clear finding on this aspect after considering various judgments
referred before it, as:
"43. In the light of the settled proposition of law, it is clear that technically the
present suit for the relief of mandatory injunction without seeking the relief of
recovery of possession is not maintainable. However, the long delay occurred in
the progress of the suit before the lower court since 1991 till its disposal on
31.05.2005 cannot be lost sight of. When once the plaintiffs are made to spend
several years in the present suit litigation before the Court, it is not desirable to
once again drive the plaintiffs to run from pillar to post for getting the relief of
recovery of possession of the illegal structure raised by the defendants in the suit
schedule land, that too, when once this Court is of the view that the plaintiffs are
otherwise entitled to the mandatory injunction and for a perpetual injunction as
discussed under points 2 and 3 above.
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44. At one stage, it was the conservative view of the Courts that a relief, which
was not sought for in the plaint cannot be granted by the Courts, but there seems
to be some change in the approach of the Courts on this principle by taking note
of the subsequent events taken place during the pendency of the suit land and,
more particularly, in the interests of justice. The law has undergone several
changes in this regard and now the Courts are very liberal in granting the
appropriate reliefs suitably to the facts and circumstances of a given case and also
granting time to pay the additional court fee, if any, for purpose of an alternative
relief or any additional relief granted by the Courts at the finality of the litigation,
though the same was not originally sought for by a plaint. In Rajendra Tiwary
v. Basudeo Prasad and another [AIR 2002 SC 136], the Hon'ble Apex Court
was of the view that Order VII Rule 7 CPC permits the Court in granting a relief
to the parties when the Court is of the view that such a relief was a smaller relief
out of the larger relief sought by the plaintiff. In Prakash v. Pushpa Vani [2004
(4) ALT 286], the AP High Court has also shared the same view by holding that
'a relief which was not originally sought for can be granted by a Court in the
interest of justice if the entitlement to such a relief is made out basing on the
evidence available before the Court.
45. In the light of the above discussed case law, this Court is of the considered
opinion that the plaintiffs are entitled to seek the relief of recovery of possession
of the tin sheet shed erected by the defendants in the western side corner of the
suit schedule land and such a relief can be granted to the plaintiffs in order to
rectify the defect of not entitlement to the mandatory injunction without seeking
the relief of recovery of possession."
35. Learned Senior Counsel for the respondents relied upon the judgment of
the Hon'ble Apex Court in Rajendra Tiwary v. Basudeo Prasad and another
(cited supra), Bhagwati Prasad v. Sri Chandramauli (cited supra), Firm
Srinivas Ram Kumar v. Mahabir Prasad and others (cited supra), Ram
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Sarup Gupta (Dead) by LRs. v. Bishun Narain Inter College and others
(cited supra), wherein it observed that:
"14. Where the relief prayed for in the suit is a larger relief and if no case is made
out for granting the same but the facts, as established, justify granting of a smaller
relief, Order VII Rule 7 permits granting of such a relief to the parties. However,
under the said provision a relief larger than the one claimed by the plaintiff in the
suit cannot be granted."
36. Considering the judgment in Bhagwati Prasad v. Chandramauli (cited
supra), wherein it was held that:
"The general rule no doubt is that the relief should be founded on pleadings made
by the parties. But where the substantial matters relating to the title of both parties
to the suit are touched, though indirectly or even obscurely, in the issues, and
evidence has been led about them, then the argument that a particular matter was
not expressly taken in the pleadings would be purely formal and technical and
cannot succeed in every case. What the Court has to consider in dealing with such
an objection is did the parties know that the matter in question was involved in
the trial, and did they lead evidence about it? If it appears that the parties did not
know that the matter was in issue at the trial and one of them has had no
opportunity to lead evidence in respect of it, that undoubtedly would be a
different matter. To allow one party to rely upon a matter in respect of which the
other party did not lead evidence and has had no opportunity to lead evidence,
would introduce considerations of prejudice, and in doing justice to one party, the
Court cannot do injustice to another."
37. The Hon'ble Apex Court in Ram Sarup Gupta (Dead) by LRs. v.
Bishun Narain Inter College and others (cited supra) also held that:
"It is well settled that in the absence of pleading, evidence, if any, produced by
the parties cannot be considered. It is also equally settled that no party should be
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permitted to travel beyond its pleading and that all necessary and material facts
should be pleaded by the party in support of the case set up by it. The object and
purpose of pleading is to enable the adversary party to know the case it has to
meet. In order to have a fair trial it is imperative that the party should state the
essential material facts so that other party may not be taken by surprise. The
pleadings however should receive a liberal construction, no pedantic approach
should be adopted to defeat justice on hair splitting technicalities. Sometimes,
pleadings are expressed in words which may not expressly make out a case in
accordance with strict interpretation of law, in such a case it is the duty of the
Court to ascertain the substance of the pleadings to determine the question. It is
not desirable to place undue emphasis on form, instead the substance of the
pleadings should be considered. Whenever the question about lack of pleading is
raised the enquiry should not be so much about the form of the pleadings, instead;
the court must find out whether in substance the parties knew the case and the
issues upon which they went to trial. Once it is found that in spite of deficiency in
the pleadings parties knew the case and they proceeded to trial on those issues by
producing evidence, in that event it would not be open to a party to raise the
question of absence of pleadings in appeal."
38. Thus, when the parties knew that the said plea was involved, and the
mere fact that the relief was not expressly claimed by the plaintiffs, would not
necessarily disentitle a party from claiming relief upon it, if it was satisfactorily
proved by evidence.
39. The lower Appellate Court on considering the facts and circumstances of
the case came to a conclusion that the defendants erected the shed after filing
their original pleadings in the Court on 25.04.1991, as they had not mentioned
in their original written statement about the shed and that they have raised the
said pleading only in their additional written statement filed before the Court on
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07.04.2000. It further observed that the evidence of PWs.1, 3 and 4 would
show that the defendants raised the illegal structure only after filing the suit and
considered the same as un-authorized structure. The lower Appellate Court also
considering that the litigation was pending for several years and that it would be
unjust to direct the plaintiffs once again to approach the trial court for seeking
the said relief, ordered the same and held that as the plaintiffs were otherwise
entitled to the relief of mandatory injunction and perpetual injunction, they were
also entitled for the relief of recovery of possession on payment of deficit court
fee. This Court does not find any error of law or any substantial question of law
arising on this aspect.
40. As such, this Court considers that there was no error committed by the
lower Court or the First Appellate Court in appreciating the evidence or
documents on record or in coming to the conclusion that the plaintiffs are
entitled to the relief of declaration of title, recovery of possession, perpetual and
mandatory injunction as claimed by them and any substantial questions of law
in this matter.
41. In the result, the Second Appeal is dismissed confirming the judgments of
the courts below. No order as to costs.
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As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
____________________
Dr. G. RADHARANI, J
Date: 31st January, 2025
Nsk.
