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2003 DIGILAW 1610 (AP)

Lingala Rama Rao v. Donepudi Sri Ramulu

2003-12-31

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri V. S. R. Anjaneyalu, counsel representing the appellant and Sri Srinivas rao representing Sri Garapati Krishna Murthy, counsel representing respondents. ( 2 ) THE operative portion of the judgment in A. S. No. 191 of 1987 on the file of I additional District Judge, Guntur reads as here under:"in the result, this appeal is allowed and the judgment and decree under appeal is set aside and the suit of the plaintiff is hereby dismissed with the observation that this dismissal of the plaintiff suit will not give any rights to these appellants to carry on the constructions along IMN shown in the plaint plan. In the peculiar circumstances of the case, each party shall bear their own costs. "sri Anjaneyulu, the learned counsel representing the appellant/plaintiff who had suffered the reversing judgment had pointed out that though Ragavamma died even by the date of institution of the suit, the Appellate Court had proceeded on a wrong premise by recording that Ragavamma was alive as on the said date. This is totally an erroneous approach. The learned counsel no doubt had pointed out several other factual aspects and the findings in detail, which had been recorded by the Court of first instance in O. S. No. 1058 of 1981 on the file of iii Addl. Munsif Magistrate, Guntur. Per contra, Sri Srinivas Rao, the counsel representing respondents/defendants had submitted that clear findings had been recorded by the Appellate Court how the legal rights did not accrue in favour of the plaintiff/appellant and hence, rightly the relief was negatived. The learned counsel in all fairness submitted that so far as the observation made by the Appellate Court as against the appellants/defendants in A. S. No. 191 of 1987 is concerned, the same had not been challenged and it had attained finality. Heard the counsel on record. ( 3 ) THE Second Appeal was admitted on grounds a to e in ground No. 11 raised in the grounds of Second Appeal. On a perusal of oral and documentary evidence adduced by both the parties before the Court of first instance and the findings recorded by the original Court and the Appellate Court as well the following substantial question of law would arose for consideration in this Second Appeal. On a perusal of oral and documentary evidence adduced by both the parties before the Court of first instance and the findings recorded by the original Court and the Appellate Court as well the following substantial question of law would arose for consideration in this Second Appeal. Whether the Appellate Court is right in reversing the judgment and decree made by the Trial Court. Just on the ground of death of Ragavamma and recording a finding in relation thereto and holding that the legal rights would not flow infavour of the plaintiff? All other questions which had been pointed out are only incidental to this principal question in controversy between the parties. The factual matrix as reflected from the pleadings may be narrated as here under: the appellant/plaintiff, Lingala Rama Rao instituted O. S. No. 1058 of 1981 on the file of III Addl. Munsif Magistrate, Guntur praying for permanent injunction restraining the defendants and their men from constructing a wall along with I M n in the plaint plan or from in any way interfering with the possession and enjoyment of the ABEF marked portion of the plaint plan, which is also fully described in the plaint schedule. It was pleaded in the plaint that " The BFGL site with a terraced building marked as BDHL therein originally belonged to late Etukuri Raghavamma. She executed a gift deed dated 9. 7. 1979 regarding ABEF property shown in the plaint plan in favour of her 2nd daughter mallampallin Anjamma and her son Mallampalli Veeraswamy conveying life interest in favour of Anjamma and absolute rights in favour of her grand son Veeraswamy, and put them in possession of the said property on the same day. There is a thatty along with AJI. The said property is also fully described in the schedule. Subsequently Mallampalli Anjamma and her son Veeraswamy sold the said property to the plaintiff under registered sale deed dated 30. 3. 1981 and put him in possession of the same. Due to Moudhyami the plaintiff wanted to enter the said property on the same suspicious day. He therefore allowed his vendors to continue to live in the said house. Subsequently Mallampalli Anjamma and her son Veeraswamy sold the said property to the plaintiff under registered sale deed dated 30. 3. 1981 and put him in possession of the same. Due to Moudhyami the plaintiff wanted to enter the said property on the same suspicious day. He therefore allowed his vendors to continue to live in the said house. Subsequent to the execution of the gift deed in favour of the plaintiff s vendors, late Etukuri Raghavamma is said to have bequeathed the remaining property marked as ALGF in the plaint plan in favour of the 2nd defendant who is no other than the son of her 1st daughter. Etukuri Raghavamma died about 2 months ago. The 2nd defendant thus became entitled to the said property. The said property has been in possession of the tenants of the 2nd defendant. Be that as it may, the defendant tried in vain to purchase the ABEF marked portion of the property. They did not relish the plaintiff purchasing the said property. They therefore began to pick up quarrels with the plaintiff as well as his vendors. The plaintiff who is mild and humble by nature has been carefully avoiding any unpleasant situation. Being emboldened by the same, the defendants began to dig foundation along IMN on yesterday morning with a proposal to construct a well therein. The plaintiff could somehow stop it with the assistance of elders. The plaintiff submits that the defendant have absolutely no right to do so. The distance between D E as well as F and I is only about 2 yards. It is a vacant site in which there is hand boring pump. The defendants are having stairs as well as a bath room, and latrine in their site, marked as F G H I. The defendants are trying to inconvenience the plaintiff and put him to unnecessary hardship with the malicious intention of coercing him to sell his portion of the property to them. ( 4 ) THEY are also openly proclaiming as such. Again the defendants are making preparations today to dig the foundation. The plaintiff is therefore constrained to file the suit for a permanent injunction restraining the defendants and their men from either constructing a wall along IMN or in any way interfering with the possession and enjoyment of the property shown as ABDF. Again the defendants are making preparations today to dig the foundation. The plaintiff is therefore constrained to file the suit for a permanent injunction restraining the defendants and their men from either constructing a wall along IMN or in any way interfering with the possession and enjoyment of the property shown as ABDF. " the respondents in the Second Appeal as defendants in the suit filed a written statement denying all the allegations. It was further pleaded that "the allegations made in paragraph 4 of the plaint that Etukuri Raghavamma executed a gift deed dated 9. 7. 1979 regarding A B E F property shown in the plaint plan in favour of her 2nd daughter - Mallampalli Anjamma and hr son Veera swamy conveying life interest in favour of Anjamma and absolute rights in favour of her grandson Veeraswamy and put them in possession of such property on the same day; or that the said property subsequently was sold to the plaintiff under a registered sale deed dated 30. 3. 1981 and put him in possession of the same; or that the plaintiff was put in possession of the same: or that due to Moudhyami, the plaintiff wanted to enter the same on some auspicious day; or that he allowed his vendors to continue to live in the said house are all false and invented for the purpose of this suit. The allegations made in paragraph 5 of the plaint are not correct. Further allegations made in paragraph 6 of the plaint that the defendants tried in vain to purchase A B E F property; or that they did not relish the plaintiff in purchasing the said property; or that they began to pick up quarrels with the plaintiff as well as his vendors; or that the plaintiff is mild and humble by nature and has been carefully avoiding any unpleasant situation; or that the defendants have no right in the site D E FC; or that the defendants are trying to inconvenience the plaintiff and put to him to unnecessary hardship with malicious intention of coercing him to sell his portion of the property to them are nothing but falsehood. The plaintiff is not at all entitled to the plot indicated as A B E F in the plaint plan. The plaint plan is incorrect and misleading. The plaintiff is not at all entitled to the plot indicated as A B E F in the plaint plan. The plaint plan is incorrect and misleading. The 1st defendant filed a suit in o. S. No. 650 of 1980 on the file of District Munsif s Court, Tenali against one of the vendors of the plaintiff-Mallampalli Anjamma and not attached the property purchased by the plaintiff under sale deed dated 30. 3. 1981 before Judgment in i. A. No. 1957/1980 and the said suit is pending. Hence the sale deed dated 30. 3. 1981 is invalid, in operative and void. The plaintiff gets no title to the property covered by the aforesaid alleged sale in his favour. The recitals in the said document are false and fabricated. The sale deed was brought into existence by the aforesaid Anjamma and Veeraswamy in the name of the plaintiff. ( 5 ) THE alleged gift deed dated 9. 7. 1979 referred to in the plaint is a fabricated one by the vendors of the plaintiff. The defendants are entitled to the plot shown as A J I M N E F G H K L and they have been in possession and enjoyment thereof in their own right from the date of the registered gift deed dated 19. 9. 1979. The original owner viz. , late Etukuri Raghavamma, who is no other than the grand-mother of the 2nd defendant, conveyed the same thereunder. These defendants are using the passage N E F M to reach the northern road from their plot. The defendants have got every right to construct a wall along I M N. ( 6 ) THE plaintiff has no manner of right to obstruct these defendants in construction of the wall in their own site. When the plaintiff caused obstruction to the construction of the wall I M N in April, 1980, the 1st defendant made a report to the S. H. O. II Town Police Station, Tenali. The 1st defendant was also hurt on that occasion. There is a boring pipe in the premises of the defendants shown as M N E F in the plaint plan and the defendants and their tenants have been using the same. The plot M N E F is meant for purpose of reaching the northern municipal road from the plaintiff of these defendants. There is a boring pipe in the premises of the defendants shown as M N E F in the plaint plan and the defendants and their tenants have been using the same. The plot M N E F is meant for purpose of reaching the northern municipal road from the plaintiff of these defendants. The plaintiff is not entitled to any relief much less permanent injunction as prayed for. " on the strength of raised pleadings of the parties, the Court of first instance had settled the following issues: 1. Whether the plaintiff is entitled to the permanent injunction prayed for? 2. To what relief? before the Trial Court P. Ws1 to 5 were examined. On behalf of the appellant/defendant Exs. A. 1 to A. 3 were marked. Liksewise, D. Ws1 to 4 were examined on defendants side and Exs. B. 1 to B. 10 were marked. The Court of first instance in an elaborate judgment had discussed the oral and documentary evidence in detail and ultimately came to the conclusion that the plaintiff is entitled to the relief prayed for and decreed the suit without costs. Aggrieved by the same, the defendants preferred A. S. No. 191 of 1987 on the file of District judge, Guntur and at para 6, the Appellate Court framed the following point for consideration. "whether the judgment and decree of the learned Munsif is sustainable in facts and in law?" and had recorded certain findings at para 7 and 8 and had ultimately allowed the appeal, but with an observation that this dismissal of the plaintiff s suit will not give any rights to the appellants in the appeal and also to carry on constructions along with I M N in the plaint plan. The Appellate Court while dealing with the contents of Ex. A. 2 had stated as here under:"a reading of the contents of Ex. A. 2 would disclose that under this gift deed ex. A. 2 the donor executant Yetukuri Raghavamma has retained the right to enjoy the property gifted till her life time and to retain the possession thereof and first donee under Ex. A. 2 has to take possession of the property only after the death of Yetukuri Raghavamma and enjoy the property during her life time and after her death second donee Mallampalli Veera Swamy will take the property with absolute rights. A. 2 has to take possession of the property only after the death of Yetukuri Raghavamma and enjoy the property during her life time and after her death second donee Mallampalli Veera Swamy will take the property with absolute rights. As observed by me above Yetukuri Raghavamma died in the year 1981 after filing of the suit. That means by the date of execution of the sale deed Ex. A. 3 in favour of the respondent-plaintiff the vendor s of the plaintiff had only right to get the possession after the death of Yetukuri Raghavamma and at the most they could have conveyed there under the same right in favour of the respondent-plaintiff. Therefore, on the date of Ex. A. 3 the vendors of the respondent-plaintiff cannot be said to have delivered possession of the property abf in favour of the respondent-plaintiff. In this background the contents of the plaint that though the plaintiff was put in possession, but due to moudyami the plaintiff wanted to enter the property on some suspicious day assumes more importance and it suggests that this respondent-plaintiff did not get possession over the schedule property ABEF on the date of the filing of the suit. Except Exs. A. 1 to A. 3 the respondent-plaintiff has not filed any other document to show that he has been in possession and enjoyment of the property on the date of the suit. No doubt, the defendants have no case and no rights over the portion EFMN shown in the plaint plan, but the respondent-plaintiff has to succeed or fail on his own evidence and he cannot take advantage of weaknesses of the appellant-defendants. As the main ingredient for granting permanent injunction i. e. , possession on the date of the suit is conspicuously absent and not proved by the respondent-plaintiff, as such, irrespective of the appellants-defendants having no rights in the property EFMN shown in the plaint plan the respondent-plaintiff cannot be extended the helping hand by the Court by granting permanent injunction. Hence, the Judgment and decree are liable to be set aide with the observation that this Judgment will not give any right to these appellants to carry on the constructions along with points IMN shown in the plaint plan. Hence, the Judgment and decree are liable to be set aide with the observation that this Judgment will not give any right to these appellants to carry on the constructions along with points IMN shown in the plaint plan. " ( 7 ) THUS, from the findings recorded by the Appellate Court, it is clear that in view of the fact that in as much as Raghavamma was alive, no legal rights would accrue in favour of the appellant/plaintiff. The learned counsel for the appellant had pointed out that in the pleading itself it was specifically stated that even by the date of institution of the suit Raghavamma was not alive and hence, the pleading was to the effect late raghavamma. ( 8 ) I had carefully gone through the findings recorded by the Court of first instance and also the Appellate Court as well. It is peculiar that the appellate Court having negatived the relief to the appellant/plaintiff also had made an observation as against the respondents herein / defendants in the suit as well. It is no doubt true that the suit is a very old one, but in the light of what had been recorded and also in the light of the fact that Sri Anjaneyulu, the learned counsel for the appellant had produced the death certificate of late ragavamma at this stage, in the light of the findings recorded by the Appellate court, this Court is of the considered opinion that it should be just and necessary to frame the following issue. "what is the date of death of Ragavamma and the effect there of on the rights of the parties to the present suit?" ( 9 ) IT is needless to say that the parties may have to let in some evidence on this aspect and in the light of the fact that the original suit is of the year 1981, the judgment and decree of the Appellate Court are hereby set aside and the matter is remanded to the Appellate Court to afford an opportunity to both the parties to let in evidence, on the issue referred to supra and decide the matter afresh. Till then, the status quo existing as on to day shall be maintained by both the parties. ( 10 ) THE Second Appeal is accordingly allowed to the extent indicated above. No order as to costs. Till then, the status quo existing as on to day shall be maintained by both the parties. ( 10 ) THE Second Appeal is accordingly allowed to the extent indicated above. No order as to costs. The counsel for the appellant is at liberty to receive the death certificate of Raghavamma produced before this Court.