Telangana High Court
.Raghava Rao And Another vs Rana Sudarshan on 10 June, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA
APPEAL SUIT NO.2118 OF 2002
JUDGMENT:
This appeal is filed by the appellants aggrieved by the
judgment and decree dated 16.08.2001 in O.S.No.952 of 1997
on the file of Principal Senior Civil Judge, Ranga Reddy District.
2. The facts of the case are that the plaintiff and 2nd
defendant are siblings, the 1st defendant is the brother-in-law of
plaintiff and husband of his sister. The plaintiff purchased a
house plot No.153 admeasuring 400 Sq yards being part and
parcel of S.No.48/12 of Katedan village, Rajendranagar Mandal,
Ranga Reddy District under a registered sale deed dated
29.10.1983 for a valid sale consideration from its pattedar Sri
B.Ushaiah, represented by his GPA holder Sri G.Pandurangam.
The plaintiff was inducted in physical possession of the suit plot
by his vendor.
3. The plaintiff and defendants had an understanding
regarding the suit plot. The plaintiff agreed to spare the suit plot
for the defendants in exchange for another plot in the same
locality. However, the defendants failed to provide an alternative
plot as agreed upon. As a result, the plaintiff remained the
absolute owner and in possession of the suit plot. The plaintiff
decided to construct a house on the suit plot and stored granite
stones there. Despite efforts, the plaintiff couldn't obtain
necessary construction permission from the authorities.
Meanwhile, the defendants attempted to construct a shed on
the plot, leading to a dispute. The plaintiff prevented the
defendants from entering the plot with the help of friends and
neighbors. When the defendants showed hostility, the plaintiff
approached the local police for assistance but received no help.
Consequently, the plaintiff filed a suit for perpetual injunction
against the defendants.
4. The trial court granted an interim injunction in favor of
the plaintiff. However, due to a typographical error in the plaint
mentioning an incorrect Sy.No.40/12 instead of 48/12, the
defendants prevented service of injunction order. The plaintiff
then filed an application to correct the survey number, which
was allowed by the court. After the correction, the interim
injunction was served to the defendants. Taking advantage of
the delay, the defendants constructed temporary rooms on the
suit plot with an intention of frustrating the plaintiff's rights.
Despite these actions, the plaintiff remained the lawful owner
and possessor of the suit plot. The plaintiff later got the suit
reliefs amended, seeking a mandatory injunction against the
defendants. The defendants continued to add more structures
to the plot.
5. The plaintiff claims that the defendants have contested
the suit with false allegations, stating that the suit plot is jointly
owned by the plaintiff and his senior brother, R. Prabhakar.
However, the plaintiff asserts that his brother, who worked as
Karobar of Khatedan Gram Panchayat, later became an
employee of Rajendranagar Municipality, has been in collusion
with the defendants. The brother is believed to have helped the
defendants with forged documents to show that they have
constructed rooms on the plot with municipal permission. The
defendants also claim that there was a partition between the
plaintiff and his brother, relying on a document written by the
plaintiff stating that he would transfer the suit plot in exchange
for another plot. Nevertheless, neither the brother nor the
defendants have provided an alternative plot to the plaintiff.
6. The court found that the plaintiff is the lawful owner of
the suit plot. However, the court determined that the defendants
have permissive possession, primarily due to their custody of
the title deeds. The court ruled that the plaintiff is not entitled
to a perpetual injunction but may seek recovery of possession
from the defendants. The plaintiff alleges that the defendants
have unlawfully occupied the suit plot, constructed
unauthorized rooms, and are liable for mesne profits. The suit
seeks recovery of possession and mesne profits against the
defendants.
7. The defendants filed their written statement stating that
the allegations in the plaint are false except the relationship.
The defendants are the owners of suit plot which fact was
agreed and consented by the plaintiff, permission was granted
to build residential house in the suit plot after verification of
record and consent letter given by the plaintiff, by the Gram
Panchayat as early as in the year 1985 and after the Gram
Panchayat merged into Rajendranagar Municipality, the
Municipal authorities have also renewed the permission granted
in favour of 2nd defendant in the year 1987 and from the date of
purchase the defendants are in possession of the suit plot and
after obtaining permission they constructed a small house in
the said plot and are living there. The allegations made in the
plaint that the defendants are threatening the plaintiff is only
created for the purpose of filing suit and in the earlier suit, the
Court observed that plaintiff was never in possession of the suit
land and mere observations and findings does not entitle the
plaintiff to file the present suit. It is also stated that the brother
of plaintiff Sri Prabhakar was terminated from service in the
year 1983 as Gram Panchayat Karobar, as such, Prabhakar
helping the defendants is nothing but false. The defendants are
in physical possession of the property and they perfected their
title by way of adverse possession since they have been in
possession from 1983, taken permission from the municipal
authorities to construct house and paying municipal taxes from
time to time. As such, plaintiff is not entitled for any relief and
prayed the trial Court to dismiss the suit.
8. Basing on the above pleadings, the trial Court framed two
issues. On behalf of plaintiff, he himself was examined as Pw.1
and Exs.A.1 to A.5 are marked. On behalf of the defendants,
except filing written statement, they neither cross-examined
Pw.1 nor any witness was examined on their behalf and basing
on the evidence of Pw.1 and the documents, the trial Court
decreed the suit and directed the defendants to hand over
vacant possession of the suit property to the plaintiff within one
month and the prayer for mesne profits was dismissed
observing that no evidence was adduced to prove the same.
Aggrieved by the said judgment, the present appeal is filed by
the defendants.
9. Heard Sri Resu Mahender Reddy, learned counsel for the
appellants and Sri P.Pratap Reddy, learned counsel for the
respondent.
10. The contention of learned counsel for the appellants
herein is that the trial Court failed to see that the suit is filed for
recovery of possession by the respondent with an intention to
take fraudulent decree behind the back of appellants herein in
collusion with their previous counsel, that the trial Court failed
to see that issuance of summons in O.S.No.952 of 1997 is not
proper as the signature appearing on the reverse of the suit
summons does not belong to 2nd appellant and the trial Court
failed to see that signature on vakalat with that of signature on
the back of summons alleged to be the signature of 2nd
appellant Aruna, are different and that can be proved by
technical examination as both the signatures are not of one
person and the trial Court failed to see the presence of
appellants in O.S.No.952 of 1987 through their counsel to
adduce evidence and the said counsel never informed about the
said suit even though they are in touch with him, which itself
clearly infers that the respondent herein played fraud on the
appellants in colluding with their previous counsel. The trial
Court failed to see that the judgment in O.S.No.441 of 1991
filed by the respondent herein was dismissed with costs; the
trial Court also failed to see the contents settled in the written
statement dated 12.08.1998 in O.S.No.952 of 1997 are not
binding on the appellants and the record pertaining to the above
proceedings was obtained by certified copies, the trial Court
ought to have seen that the ex parte evidence in O.S.No.952 of
1987 is very much apparent that the suit is almost decided ex
parte as appellants have no opportunity to contest the frivolous
claim of the respondent. The appellants came to know about
the decree only on 28.06.2002 when the respondent through
the Court bailiff visited the suit schedule property to take
permission from the appellants. Till such date the appellants
are unaware of the impugned judgment as well as execution
petition in E.P.No.95 of 2002, and hence approached the trial
Court and obtained certified copies of entire record of
O.S.No.952 of 1987, that the appellants came to know about the
judgment and decree only on 28.06.2002, made application for
certified copies on 03.07.2002 and the copies were delivered on
04.07.2002. As such, the appeal is within the limitation and
prayed to set aside the impugned judgment.
[
11. The contention of the respondent herein is that there is
no illegality in the judgment of trial Court. The respondent is a
purchaser of the suit schedule property, though the appellants
alleged that there is an understanding between the parties that
the respondent has to part with the suit property and the
appellants have to give another property in lieu of the same, but
no property was given to the respondent, there is no reference of
any purpose of payment of sale consideration by the 1st
appellant-brother-in-law of respondent herein, there was no
pleading in the written statement that the suit for declaration
has to be filed instead of possession. Admittedly, the sale deeds
stand in the name of respondent and the question whether
property is a joint family property and whether there was
partition or not are beyond the scope of injunction suit and it is
also held that any finding recorded by the learned Judge, shall
not operate as res judicata, sofar as title or interest in the
property is concerned. In the memorandum of appeal grounds,
the allegations are against previous counsel and more reliance
is placed on the grounds that when the appeal came up for
hearing, it was argued on merits that the suit for declaration
ought to have been filed as there was partition, and suit is
barred by limitation. Hence, prayed this Court to dismiss this
appeal.
12. Considering the submissions made by both the counsel
and the material on record, admittedly suit is filed by the
respondent herein for recovery of possession, though the
appellants filed written statement, not cross-examined the
plaintiff in the suit and no evidence was adduced. The
contention of the appellants herein is that the previous counsel
on record, played fraud on them, as such, they could not appear
before the trial Court for cross-examination or for adducing
evidence and the written statement is also not in accordance
with their consent. The appellants are also disputing their
signatures on vakalat as well as on the written statement in the
earlier suit.
13. The respondent herein filed suit for injunction initially,
later it was amended for mandatory injunction and their
contention is that the trial Court as well as the appellate Court
observed that the respondent has to seek necessary relief to get
possession of the suit property, but not the relief of injunction.
It was also observed by the trial Court that the contents of
Ex.B.5 filed by the appellants herein shows that plaintiff and his
brother partitioned their properties in the presence of their
brother-in-law. In Ex.B.5 it is stated that the plot in the name
of plaintiff belongs to 1st defendant was agreed to be transferred
by the plaintiff in the name of 1st defendant or his successors
and plot number was given as 153 in Sy.No.48/12 which is the
suit property and the evidence of plaintiff is that he agreed to
give the suit plot to the defendants in exchange, but he did not
give as the defendants did not offer any other plot to him. The
said observations of the trial court shows that there is a
document of understanding between the appellants and
respondent, as the appellants herein have not adduced any
evidence and their contention is that the counsel on record
played fraud which shows that suit decided by the trial Court is
not on merits, but basing on the evidence of respondent and the
written statement filed by the appellants and further the
evidence of respondent is not tested by cross-examination by
the appellants. Therefore, it cannot be said that the judgment
of trial Court is on merits. Further contention of appellants
herein is that they came to know about the decree passed by the
trial Court only when the bailiff came to the suit property for
execution of suit decree, as such, they immediately obtained
certified copies and filed appeal, and that delay was already
condoned by this Court. The record shows that the decree was
passed basing on the uncontested evidence, therefore, it cannot
be a contested judgment, though written statement is on record.
As such, the decree is liable to be set aside by remanding back
the matter to the trial Court.
14. IN THE RESULT, the Appeal suit is allowed. The judgment
and decree of the trial court dated 16.08.2001 in O.S. No. 952 of
1997 is hereby set aside. The matter is remanded to the trial
court with a direction to permit the appellants herein to cross-
examine PW.1 and adduce evidence on their behalf. The trial
court shall thereafter dispose of the suit afresh in accordance
with law by giving opportunity to both parties for adducing
evidence. There shall be no order as to costs.
Miscellaneous petitions, pending, if any, shall stand
closed.
_______________
K. SUJANA, J
Date :10.06.2025
Rds
