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2002 DIGILAW 307 (AP)

Burra Ellaiah v. Burra Ramaiah

2002-02-25

L.NARASIMHA REDDY

body2002
NARASIMHA REDDY, J. ( 1 ) IN this second appeal the plaintiff in OS No. 764 of 1980 on the of the District Munsif, Karimnagar, challenges the reversing judgment in AS No. 35 of 1987 on the file of the District Judge, Karimnagar. ( 2 ) IT is the case of the appellant herein that himself and the father of the respondents by name Venkaiah are brothers, he purchased the share of his brother-Venkaiah in Sy. Nos. 127, 195 and 196 admeasuring Ac. 3. 16 guntas, Ac. 0. 20 guntas and 0. 18 guntas respectively under an unregistered document dated 18-5-1971. According to him, his brother-Venkaiah and the respondents herein executed that document. It is his further case that on the basis of the said document he was issued a pattedar passbook in respect of the said lands and thereby he has been enjoying the rights of owner to the exclusion of the defendants. It is asserted that he has been paying the land revenue for these lands. Complaining that the respondents have been interfering with his possession and enjoyment of the suit property, he filed the suit for permanent injunction simplicitor. ( 3 ) THE respondents filed a written statement disputing the very factum of the sale by their father and themselves in favour of the appellant. They have asserted that the properties remained joint. It was also their plea that the so called document under which the sale took place was neither registered nor stamped and is inadmissible in evidence. The trial Court framed the relevant issues on the basis of the pleadings. ( 4 ) THE appellant examined PWs. 1 to 4 and filed documents Exs. A1 to A9. The respondents herein examined DWs. 1 and 2 and did not file any documents. ( 5 ) ON the basis of the evidence before it, the trial Court came to the conclusion that the appellant had established the factum of his being in possession of the property and on that basis decreed the suit. The respondents herein filed A. S. No. 35 of 1987 in the Court of the District Judge, Karimnagar. The lower appellate Court took the view that the property remained joint between the appellant and the respondents herein and once they remained joint it was not permissible in law to grant injunction against the co-owner. Hence this second appeal. The respondents herein filed A. S. No. 35 of 1987 in the Court of the District Judge, Karimnagar. The lower appellate Court took the view that the property remained joint between the appellant and the respondents herein and once they remained joint it was not permissible in law to grant injunction against the co-owner. Hence this second appeal. ( 6 ) SRI Ramesh Sagar, learned counsel for the appellant submits that there was no issue regarding the family or the properties being joint and it was not open for the lower appellate Court to assume that the properties remained joint. It is his further contention that once it is established on the basis of documentary evidence that the appellant is in possession, grant of injunction was a matter of course. It is his further contention that the judgment of the lower appellate Court does not conform to Order 41, Rule 30 C. P. C. , in that, the Court did not frame the points that arose for consideration. ( 7 ) SRI Y. Arjun Rao, learned counsel appearing for the respondents submits that when the factum of family being joint, was not at all in dispute, the appellant was not entitled for any injunction. He also disputed the factum of the appellant being in exclusive possession of the property. ( 8 ) AS regards the framing of points, the learned counsel submits that in view of the recent pronouncements of the Supreme Court and this court, the same is not maintainable. ( 9 ) THE appellant had specifically pleaded that he purchased the property from the respondents and their father in 1971. He did not plead that there was any partition between himself and his brother-Venkaiah. The complaint of the learned counsel for the appellant that in the absence of any issue as to the joint-ness of the family, the lower appellate Court ought not to have rejected the injunction, could have carried weight, if there was an assertion by the appellant that the family ceased to be joint and there was a denial of the same. It is fundamental principle, which is evident from Order 14, Rule 1 C. P. C. , that the necessity to frame an issue would arise if only there is an assertion by one party and denial by other party. It is fundamental principle, which is evident from Order 14, Rule 1 C. P. C. , that the necessity to frame an issue would arise if only there is an assertion by one party and denial by other party. Nowhere in the plaint, the appellant herein has pleaded that there was any partition between himself and his brother-Venkaiah or the respondents herein after the death of Venkaiah. The respondents have categorically stated in their written statement that the property continued to be joint. The necessity for the trial Court to frame an issue would have arisen, if there was an assertion by the appellant that the family ceased to be joint. In a way, the absence of the plea on this aspect by the appellant and the assertion by the respondents to the effect that the property continued to be joint, virtually obviated the necessity for the trial Court to frame an issue. The fact that the property remained joint was almost an admitted fact. In that view of the matter, no exception can be taken to the view adopted by the lower appellate Court on this aspect. ( 10 ) THE appellant pleaded that the document dated 18-5-1971 was executed by his brother-Venkaiah and his children, the respondents herein. When he was claiming the right under that document, it was obligatory on his part to place the same before the Court. For reasons best known to him, he did not choose to do so. It is settled principle of law that revenue entries or records, by themselves do not create any right or title nor do they extinguish the one, which already exists. In the absence of the plea and proof of partition, even if the appellant was in possession of the said property, it has to be presumed in law that he did so on behalf of the family comprising of himself and the respondents herein. The same situation is bound to continue till the partition takes place. ( 11 ) THE plea of the learned counsel for the appellant that the lower appellate Court did not frame the points and thereby the judgment is vitiated is no longer res integra. The same situation is bound to continue till the partition takes place. ( 11 ) THE plea of the learned counsel for the appellant that the lower appellate Court did not frame the points and thereby the judgment is vitiated is no longer res integra. This court in a series of judgments, following the judgments on the subject held that as long as it is evident from the Judgment of the appellate Court that it had referred to the various issues that fell for consideration before it, mere non-framing of points with independent numbers is not infraction of Order 41, Rule 30 C. P. C. , and the same does not vitiate the judgment in any manner. A reading of the judgment of the lower appellate Court would clearly indicate that it has meticulously addressed itself to the various issues that have arisen for consideration in the suit as well as the appeal. It is not demonstrated that any aspect of the matter has missed the attention of the lower appellate Court. ( 12 ) FOR the foregoing reasons, I do not see any reason to interfere with the judgment and decree in appeal. The second appeal is accordingly dismissed. No order as to costs.