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2002 DIGILAW 716 (AP)

S. Erakka v. K. Abdul Rahman

2002-06-13

P.S.NARAYANA

body2002
P. S. NARAYANA, J. ( 1 ) IN both these second appeals, though the appellants are different, the respondent is common and since the facts involved in both the matters also are almost similar, both these appeals are being disposed of by this common judgment. ( 2 ) S. A. No. 443 of 1991 was filed by the unsuccessful plaintiff who had no doubt succeeded in the Court of first instance but had suffered a reversing judgment in A. S. No. 59 of 1984 on the file of the District judge, Ananthapur reversing the judgment in O. S. No. 745 of 1978 on the file of principal District Munsif, Ananthapur. Likewise, S. A. No. 463 of 1991 was filed against the reversing judgment made in A. S. No. 60 of 1984 on the file of the District judge, Ananthapur reversing the judgment of the Court of first instance in O. S. No. 746 of 1978 on the file of the Principal District munsif, Ahanthapur. ( 3 ) THE appellants in both these appeals who are the plaintiffs in respect of the suits specified above had filed the respective suits for confirmation of right, title and possession relating to the plaint schedule property and in the event of failure to do so, for a decree against the respondent-defendant for refund of the sale consideration paid under the sale deed. ( 4 ) IT is the case of the appellants- plaintiffs that they purchased the plaint schedule property-house sites of 5 cents each for a sale consideration recited in the sale deeds dated 27. 12. 1976 marked as Ex. A. I. The respondent-defendant had undertaken to confirm the right, title and possession of the plaint schedule property and to indemnify the appellants-plaintiffs in these two suits. But, however since they learnt that the respondent-defendant had no title and had made the alienations fraudulently and by making misrepresentation, the suits were filed and the respondent-defendant filed written statements wherein he had taken the defence that the plaint schedule property is the house site in Papampeta Shotrium village. One of the original shortriumdars by name seetaramaiah sold the plaint schedule property in favour of one A. Narciyanappa and put him in possession thereof. The said Narayanappa in turn executed a sale deed dated 11. 4. One of the original shortriumdars by name seetaramaiah sold the plaint schedule property in favour of one A. Narciyanappa and put him in possession thereof. The said Narayanappa in turn executed a sale deed dated 11. 4. 1972 in favour of the respondent-defendant for proper and valuable consideration and had put him in possession of the said property and thus he had been in possession and enjoyment of the same. The execution of the sale deeds in favour of the appellants-plaintiffs no doubt had been admitted. But, as far as the other allegations are concerned, they had been specifically denied. ( 5 ) THE Court of first instance on appreciation of the evidence of P. Ws. 1 to 5 and D. W. 1 and Ex. A. 1 to A. 6 and Ex. X. 1 had granted a decree to the following effect: the defendant is having right, title and possession in the plot in S. No. 94/1 to an extent of 0. 05 cents. Hence the defendant is hereby directed to get the plot surveyed with the help of the Taluk Surveyor and put the plaintiff in possession of S. No. 94/1 to an extent of 0. 05 cents within two months from the date of this order i. e. on or before 26. 5. 1984 or in the alternative the plaintiff is entitled to the sale consideration as prayed for together with interest at the rate of 12 % p. a. towards future interest failing which the plaintiff can seek the relief according to law. It is further ordered that the defendant shall bear the costs for the survey of the plot and the registration charges and other charges if any in respect of the said transaction. In the result the suit is decreed with costs in favour of the plaintiff accordingly. " ( 6 ) THE unsuccessful defendant in both the suits aggrieved by the said judgment and decree of the Court of first instance in the respective suits had preferred the appeals referred to supra and the appellate court after hearing both the parties had reversed the said judgments and had allowed the appeals and aggrieved by the same, the unsuccessful plaintiffs in both the matters had preferred the present second appeals. ( 7 ) SRI Sitaram, the learned Counsel representing the appellants in both the appeals had submitted that this Court had framed a substantial question of law while admitting these appeals and the said question reads as follows:"whether the lower appellate Court was wrong in dismissing the suit even without granting the relief of the refund of the sale consideration when the defendant has no title to the property sold to the plaintiffs. " ( 8 ) THE learned Counsel had submitted that even on appreciation of facts, there is no dispute that a wrong survey number had been mentioned but within the specified boundaries. The learned Counsel had contended that in the facts and circumstances of the case and also on equity, the trial court had granted appropriate relief and the appellate Court had totally erred in reversing the said well considered judgments. The learned Counsel also had pointed out that when there is no dispute that a wrong survey number had been mentioned, it should be taken that there is breach of condition relating to the warranty of title and hence the appellants-plaintiffs are bound to be compensated as far as the refund of sale consideration is concerned and in this view of the matter, the judgments made in this regard by the appellate Court are not sustainable. ( 9 ) ON the contrary, Sri O. Manoher reddy the learned Counsel representing one of the respondents in one of the appeals had submitted that it is not a question of total want of title or any serious defect in title but only a mistake relating to survey number. The learned Counsel also had contended that it is not the case of even the plaintiffs- appellants that these properties were not delivered and further these properties are within the specified boundaries and there is no difficulty in even identifying these properties and hence the appellate Court had arrived at the correct conclusion in this regard. ( 10 ) HEARD both the Counsel and also perused the judgments made by the Court of first instance and also by the appellate court in this regard. ( 11 ) THE plaint schedule properties in both these suits in both these matters are small extents of vacant sites. As can be seen from Ex. ( 10 ) HEARD both the Counsel and also perused the judgments made by the Court of first instance and also by the appellate court in this regard. ( 11 ) THE plaint schedule properties in both these suits in both these matters are small extents of vacant sites. As can be seen from Ex. A6, the original owner of these properties was one Gollapalli Seetaramaiah and the total extent of the land is about ac. 800. 00. He had divided a part of the said land into house plots and sold them to various parties. The respondent-defendant purchased 11 cents within the specific boundaries and the respondent-defendant had sold the said property with specific boundaries in favour of the appellants- plaintiffs. But, however, while giving the survey number, S. No. 93/1 was mentioned instead of S. No. 94/1 and no doubt this was explained in detail by D. W. 1 in his evidence. It is not the case of the appellants that the sites in question are unidentifiable and it is not a case where the respondent-defendant is not having title to the property at all. The evidence of P. W. 1, the plaintiffs in both the suits and also the evidence of PW2, the husband of the plaintiff in both the suits also are to the same effect and these sites can be well identified by boundaries though measurements had not been taken in this regard. The problem appears to be that there was some dispute or controversy because pw5 dug some foundations and most probably that is the reason why PW5 had given evidence stating that the site in which he had put up his house was purchased by him and it is a different site than the one covered by Exs. A. l and A. 6. But, however, the appellate Court on appreciation of recitals of Ex. A. 1, the location of the plaint schedule property and also the boundaries and also after discussing in detail the oral and documentary evidence available ,on record had arrived at the conclusion that the respondent-defendant had got title to the plaint schedule properties and he had delivered possession of the same by virtue of Ex. A. 1, the location of the plaint schedule property and also the boundaries and also after discussing in detail the oral and documentary evidence available ,on record had arrived at the conclusion that the respondent-defendant had got title to the plaint schedule properties and he had delivered possession of the same by virtue of Ex. A. 1 in both the matters and hence it is not a case of any defect in title or warranty of title and simply because the appellants- plaintiffs had got some other problem, that may not amount to breach of warranty of title so as to entitle the appellants-plaintiffs to claim the relief of refund of sale consideration. The findings recorded by the appellate Court while reversing the judgments made by the Court of first instance are well considered findings on appreciation of both oral and documentary evidence and thus these are all findings based on facts and inasmuch as no substantial question of law, in fact, arises for consideration in these appeals, I do not find any merits in both these appeals and accordingly these appeals are dismissed. But, however in the peculiar facts and circumstances, no order as to costs.