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2004 DIGILAW 33 (AP)

Koilada Ramanamma v. Thummala Lakshmi

2004-01-09

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) KOILADA Ramanamma, appellant herein filed a suit O. S. No. 522/84 on the file of VI additional District Munsif, Visakhapatnam for the relief of permanent injunction in relation to plaint schedule property and originally in the plaint the name of the respondent/defendant was shown as D. Lakshmi and in view of the plea taken by her in the written statement that her name is not D. Lakshmi, but Thurumelu lakshmi, the appellant/plaintiff filed I. A. No. 1078/89 which was allowed on 30-3-1989 and amendment was carried as Thummala Lakshmi in the cause title. The suit was decreed and aggrieved by the same, the defendant filed a. S. No. 4/91 on the file of District Judge, Visakhapatnam and the appellate Court allowed the Appeal and aggrieved by the same, the present Second Appeal is filed. ( 2 ) SRI K. V. Subrahmanya Narsu and Smt. Anjanadevi Satyanarayana made elaborate submissions pointing out the relevant findings recorded by both the Courts below. After hearing the rival contentions and after perusing the findings recorded by both the Courts below, the Court of first instance decreeing the suit and the appellate Court allowing the Appeal, the following substantial questions of law arise for consideration: substantial questions of law :1. Whether the identity of the plaint schedule property is established by the parties in the light of the stand taken by the respective parties and also the recitals and the Schedules in Ex. A-1, Ex. B-1 and Ex. B-2 ?2. Whether the appellate Court is justified in raising the ground of admissibility of Ex. A-1 on the ground that it is only secondary evidence when the said ground was not raised at all in the Court of first instance ?3. Whether the appellate Court in the facts and circumstances had carved out a new case relating to identity of the plaint schedule property when the said question was not raised by the defendant ? ( 3 ) PLEADINGS of the parties in O. S. No. 522/84 on the file of Additional District munsif, Visakhapatnam:the appellant/plaintiff pleaded that she is the absolute owner of Acs. 2. 00 of dry land situated in T. S. No. 252 and now comprised in R. S. No. 6, Maddilapalem, visakhapatnam. ( 3 ) PLEADINGS of the parties in O. S. No. 522/84 on the file of Additional District munsif, Visakhapatnam:the appellant/plaintiff pleaded that she is the absolute owner of Acs. 2. 00 of dry land situated in T. S. No. 252 and now comprised in R. S. No. 6, Maddilapalem, visakhapatnam. The said laid is a part of the land which he got under settlement deed dated 27-8-1958 and since then the appellant/plaintiff is in possession and enjoyment of the same with absolute rights. In a small portion of the said land, the plaintiff had put up a thatched shed and tethering her cattle therein and the site is to an extent of 250 sq. yards which is the plaint schedule property. Except the appellant/plaintiff none others are having any right, title and possession over the plaint schedule property. The plaint schedule property and the house of the plaintiff are separated by a road. The defendant who is a stranger to the locality has come with some men to the said site on 13-6-1984 and attempted to occupy the property forcibly and when the plaintiff obstructed the defendant stated that the site belongs to her and he purchased it from some third parties and stating that he would come again with her people and would occupy the same. The defendant had no right or title over the plaint schedule property. The title and right of the plaintiff under the settlement deed was recognized and upheld by the II Additional Sub-Court, visakhapatnam in O. S. No. 43/73 which was filed by the plaintiff and some third parties. The defendant is no way concerned with the plaint schedule property and her attempt to trespass and occupy is illegal. Hence the suit is filed for permanent injunction restraining the defendant and her men from in any way interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property. ( 4 ) THE respondent in the Second Appeal/defendant filed a written statement virtually denying all the allegations. It was pleaded in the written statement that the plaint schedule property is not correct and the name of the defendant is not D. Lakshmi, but her name is Thurumelu Lakshmi. It was further pleaded that the defendant s parents Bala Nookalamma and Bala Appanna purchased the plaint schedule property which is to an extent of 250 sq. yards and another 50 sq. It was further pleaded that the defendant s parents Bala Nookalamma and Bala Appanna purchased the plaint schedule property which is to an extent of 250 sq. yards and another 50 sq. yards under registered sale deed in the year 1971 from Vammi Appala Swamy and they are in possession and enjoyment of the property since then. Hence the plaintiff is not having any right, title and possession thereof and even if the plaintiff is having any right or title, the parents have acquired the title by adverse possession. It was further averred that the said Ommi Appala Swamy, the vendor of the defendant s parents purchased the property from Koilada Kasi naidu, the husband of the plaintiff under a registered sale deed. So this suit is a collusive suit between the plaintiff and her husband to grab the property. It is also averred that in the year 1982, the parents of the defendant constructed a cattle shed and when the plaintiff tried to interfere with their possession they gave a police complaint. Hence, the parents of the defendant are the owners of the disputed 250 sq. yards and another 50 sq. yards and they are in possession and enjoyment thereof. The parents of the defendant are alive by the date of filing of the suit and they demised two months prior to the filing of the written statement. Hence, this suit against the defendant is not maintainable and it is bad for necessary parties and it is also pleaded that as the plaintiff had no title, without a prayer for declaration the suit for permanent injunction is not maintainable. The parents of the defendant, besides the defendant, are having two other daughters and three sons and without adding them, the suit is also not maintainable. Hence the plaintiff is not entitled for any relief. ( 5 ) ISSUES settled in O. S. No. 522/84: 1. Whether the plaintiff is entitled for a permanent injunction as prayed for ? 2. Whether the suit is bad for non-joinder of necessary party ? 3. Whether the suit for mere permanent injunction without the relief for declaration is maintainable ? 4. To what relief ? ( 6 ) EVIDENCE adduced by both the parties :on behalf of the appellant/plaintiff, PW-1 and PW-2 were examined and Exs. A-1 and A-2 were marked and on behalf of respondent/defendant, DW-1 to DW-4 were examined and Exs. 3. Whether the suit for mere permanent injunction without the relief for declaration is maintainable ? 4. To what relief ? ( 6 ) EVIDENCE adduced by both the parties :on behalf of the appellant/plaintiff, PW-1 and PW-2 were examined and Exs. A-1 and A-2 were marked and on behalf of respondent/defendant, DW-1 to DW-4 were examined and Exs. B-1 and B-2 were marked. PW-1 is the plaintiff K. Ramanamma, pw-2 is K. Appala Naidu. Likewise, DW-1 is T. Lakshmi, respondent/defendant, DW-2 is O. Appayamma, DW-3 is B. Nookalamma and DW-4 is S. Ramulu. Ex. A-1 is the registration extract of settlement deed dated 27-8-1958, Ex. A-2 is a certified copy of the Judgment in O. S. No. 43/73, dated 20-8-1977. Ex. B-1 is the sale deed dated 12-3-1970 and Ex. B-2 is the registration extract of the sale deed dated 20-10-1971. Findings recorded by the Court of first instance :plaint schedule property is situated in T. P. No. 252 and R. S. No. 6 in Maddilapalem which is part and parcel of Acs. 2-00 of dry land and there is no doubt with regard to the identity of the property. The first item in Ex. A-1 is the dry land which is of an extent of Acs. 2-00. The boundaries referred thereof are : east : Land under cultivation of Koilada Appala Naidu, South : land which fell to the share of K. Veeri Naidu, West : joint land and North : land which fell to the share of Koilada Veeri Naidu. On the strength of these recitals, a finding had been recorded that there was a partition between the brothers. The oral and documentary evidence adduced by both to the parties had been discussed in detail. On the strength of Ex. A-1, a finding was recorded that appellant/plaintiff is in possession and enjoyment of the plaint schedule property. A finding also was recorded that Ex. A-2, though not a Judgment inter-parties, would also establish the contention advanced by the appellant/plaintiff. The evidence of DW-1 to DW-4 also had been discussed and findings had been recorded relating to Exs. B-1 and B-2. A finding also was recorded that the cause of action arise only against the defendant who tried to interfere with the possession of the plaintiff and the other members of the family who had not interfered are not necessary parties to the suit. B-1 and B-2. A finding also was recorded that the cause of action arise only against the defendant who tried to interfere with the possession of the plaintiff and the other members of the family who had not interfered are not necessary parties to the suit. Ultimately, the suit was decreed as prayed for, with costs. Points for consideration framed by the appellate Court in A. S. No. 4/91:1. Whether the plaintiff is entitled for permanent injunction ? 2. To what relief ?findings recorded by the appellate Court :the oral and documentary evidence available on record had been discussed in detail. A finding was recorded that except placing reliance on the registration extract of the settlement deed purported to have been executed by her husband on 27-8-1958 i. e. , Ex. A-1, it is not stated as to what happened to the original settlement deed, much less, none concerned with the settlement deed had been examined. A finding also was recorded that Ex. A-2 Judgment in O. S. No. 43/73 is only a Judgment in personam and not a Judgment in rem and hence it would not help the plaintiff in establishing the title. A further finding was recorded that when the identity of the property is in dispute and except the interested testimony of PW-2 no other independent witness was examined, the plaintiff ought to have sought of appointment of a Commissioner to identify whether the plaint schedule property is in S. No. 6 or in S. No. 7 and in such a case, the Court of first instance had erred in decreeing the suit for injunction. The appellate court also had recorded a finding that when the title of the plaintiff is denied and when the plaintiff failed to establish that she is in possession of the property on the date of suit, the proper remedy for the plaintiff would be to file a suit praying for declaration of her title in stead of filing a suit for bare injunction. Exs. B-1 and B-2 were relied upon and ultimately Appeal was allowed dismissing the suit with costs throughout. ( 7 ) SUBMISSIONS made by Sri Subrahmanya Narsu, Counsel representing the appellant :sri Subrahmanya Narsu, Counsel representing the appellant/plaintiff submitted that no doubt Ex. Exs. B-1 and B-2 were relied upon and ultimately Appeal was allowed dismissing the suit with costs throughout. ( 7 ) SUBMISSIONS made by Sri Subrahmanya Narsu, Counsel representing the appellant :sri Subrahmanya Narsu, Counsel representing the appellant/plaintiff submitted that no doubt Ex. A-1 is the registration extract of the settlement deed dated 27-8-1958 and the ground that it is inadmissible being only secondary evidence had not been raised in the Court of first instance, but this was made a ground by the appellate Court. The Counsel also submitted that the appellant/plaintiff came with a specific case that the plaint schedule property is in R. S. No. 6 and when the respondent/defendant is contending otherwise, definitely it is for her to show that either the survey number is a wrong survey number or the boundaries tally or the identity of the property is one and the same and hence at any stretch of imagination, in the peculiar facts and circumstances it cannot be said that the burden is on the plaintiff especially in the light of the clear and specific case of the plaintiff as pleaded in the plaint. The Counsel also submitted that when Exs. B-1 and B-2 and the boundaries specified in the said document do not tally, then necessarily the Court may have to come to a conclusion that inasmuch as the plaint schedule property forms part and parcel of the property covered by Ex. A-1 settlement deed, the plaintiff is automatically entitled to the relief of permanent injunction. The Counsel also would maintain that the appellate Court recording a finding that the plaintiff should have taken out a Commissioner also cannot be sustained since the plaintiff had taken a clear and specific stand in the pleading and it is the defendant who is taking a different stand relating to the plaint schedule property on the ground that the property covered by Ex. B-1 and Ex. B-2 is in s. No. 7 and not in S. No. 6. Then necessarily the burden is on the defendant to establish the same and in the light of these peculiar facts, casting burden on the plaintiff in this regard and non-suiting the plaintiff definitely cannot be sustained. The learned Counsel also would maintain that Ex. B-1 and Ex. B-2 is in s. No. 7 and not in S. No. 6. Then necessarily the burden is on the defendant to establish the same and in the light of these peculiar facts, casting burden on the plaintiff in this regard and non-suiting the plaintiff definitely cannot be sustained. The learned Counsel also would maintain that Ex. A-2, certified copy of Judgment in O. S. No. 43/73, though not a Judgment inter-parties, definitely it is a relevant piece of evidence to show that the legal right was asserted by the plaintiff at a particular point of time and the same was affirmed in relation to the plaint schedule property. The learned Counsel concluded that at any rate the findings recorded by the appellate Court definitely are perverse findings and cannot be sustained at all. ( 8 ) SUBMISSIONS made by Smt. Anjanadevi Satyanarayana, Counsel representing the respondent :on the contrary, Smt. Anjanadevi Satyanarayana with all vehemence had contended that the appellate Court had recorded findings in detail on appreciation of both oral and documentary evidence and these are all factual findings. The learned counsel also would point out that this is a suit for mere injunction and the plaintiff has to positively establish that she has been in possession of the plaint schedule property as on the date of institution of suit and in the absence of material, automatically the plaintiff has to be non-suited irrespective of the case of the defendant. The learned Counsel also would maintain that the original of Ex. A-1 was not produced and the reasons for non-production thereof are not explained at all. Hence, Ex. A-1, secondary evidence is inadmissible and this ground being a question of law can definitely be considered even by the appellate Court. The Counsel also would maintain that except the evidence of PW-1 and some vague evidence of PW-2, there is no clear evidence to substantiate either the title or the possession of the plaintiff relating to the plaint schedule property. The learned Counsel also would contend that Ex. A-2, certified copy of Judgment in O. S. No. 43/73 is not a judgment inter-parties and definitely not a Judgment in rem but it is a Judgment in personam and hence the same is not binding on the respondent/defendant. The learned Counsel also would contend that Ex. A-2, certified copy of Judgment in O. S. No. 43/73 is not a judgment inter-parties and definitely not a Judgment in rem but it is a Judgment in personam and hence the same is not binding on the respondent/defendant. The learned Counsel would conclude that inasmuch as the questions specified supra cannot be said to be substantial questions of law, in the light of the limitations imposed on this Court in interfering with the factual findings recorded by the appellate Court, the Judgment of the appellate Court cannot be interfered with and the said factual findings are liable to be affirmed and consequently the Second Appeal may have to be dismissed. ( 9 ) HEARD both the Counsel. The factual matrix, the relevant Issues settled by the Court of first instance, the oral and documentary evidence adduced by the parties and the findings recorded by the Court of first instance and the Points for consideration framed by the appellate Court and the findings recorded by the appellate Court and the substantial questions of law raised in the Second Appeal already had been referred to supra. The factual matrix definitely is well reflected from the respective pleadings of the parties. The appellate Court at para 26 had observed :". . . . . . . . . . WHEN the identification of the property is in dispute and except the interested testimony of PW-2 no other independent witness was examined, she ought to have sought for appointing a Commissioner to identify whether it is situated in S. No. 6 or S. No. 7, in my considered opinion the learned District munsif erred in decreeing the suit for injunction. . . . . ". ( 10 ) THE appellate Court at para 24 had observed as hereunder :"it is to be noted that when the plaintiff filed the suit seeking for permanent injunction, it is for the plaintiff to establish that he has been in possession of the property. Except relying upon the registration extract of the settlement deed purported to have been executed by her husband on 27-8-1958, it is not stated as to what happened to the original settlement deed, much less did she examine her husband of the attestors of the settlement deed. She has relied upon ex. Except relying upon the registration extract of the settlement deed purported to have been executed by her husband on 27-8-1958, it is not stated as to what happened to the original settlement deed, much less did she examine her husband of the attestors of the settlement deed. She has relied upon ex. A-2 which is the certified copy of the Judgment in O. S. No. 43/73 dated 20-8-77. It is seen from Ex. A-2 dated 20-8-77 that was a suit filed by three plaintiffs of whom the plaintiff No. 2 is no other than the present plaintiff herein, wherein the plaintiffs claimed as owners of the property therein and being in possession and enjoyment stating that the 1st plaintiff is the daughter of Ramunaidu who during his life time in 1951 gifted to the 1st plaintiff item no. 1 and put her in possession and since then she has been in possession and after the death of Ramunaidu, his sons who fully know of the gift have registered the gift by executing a registered document dated 27-8-58 and that the plaintiffs 2 and 3 are in possession and enjoyment of items 2 and 3 as the same were gifted to them under settlement deeds dated 27-8-58 and 17-8-54, by koilada Kasinaidu and Ramunaidu respectively. The 2nd plaintiff in O. S. No. 43/73 is no other than the plaintiff herein. So, according to their averments in that suit, the 2nd plaintiff has been in possession and enjoyment of item No. 2 of the said plaint schedule property. " ( 11 ) THE appellate Court while dealing with relevancy of the Judgment and decree in o. S. No. 43/73 at para 25 had stated as hereunder :"it is to be noted that the defendant herein is not a party to the said Judgment and decree in O. S. No. 43/73. That being so, since it is only a judgment in personam but it is not a judgment in rem, the defendant herein being not a party to the said suit, it is not at all binding on the defendant. Further I am at a loss to understand how the learned District Munsif came to the conclusion that there was a partition between Kasinaidu and his brothers because in the settlement deed, the registration extract of which has been marked as Ex. A-1, the boundaries are given. Further I am at a loss to understand how the learned District Munsif came to the conclusion that there was a partition between Kasinaidu and his brothers because in the settlement deed, the registration extract of which has been marked as Ex. A-1, the boundaries are given. Further, the learned District Munsif failed to take into consideration the most important aspect of the matter viz. , that the judgment is only a Judgment in personam and the defendant being not a party, she is not bound by the said Judgment. It is well settled that a Judgment in another suit which is not inter-parties may be evidence for certain purposes viz. , to prove the fact of the Judgment; to show who the parties of the suit were; to show what was the subject matter of the suit; to show what was decided or declared by the Judgment; to show what documents had been filed by the parties in the proceedings; to establish the transaction referred to in the judgment; as evidence to show the conduct of the parties or particular instance of the exercise of a right or assertion of a title; or to identify previously dealt with; to establish a particular transaction in which a right is asserted and the name of the person, if any, who is declared in the Judgment as entitled to possession; but the Judgment is not evidence to establish the truth of the matter decided in that Judgment. . . . . . ". ( 12 ) NO doubt, the Court of first instance had recorded that there is no dispute in relation to the identity of the property, but the appellate Court had well doubted while considering the recitals of the boundaries in the context of consideration of the documentary evidence. It is no doubt true that except the evidence of PW-2 apart from the evidence of PW-1, there is no other evidence forthcoming. The appellant/plaintiff had taken a specific stand that the plaint schedule property is covered by the property specified in Ex. A-1 and when a contrary stand is taken by the respondent/defendant it is for the respondent/defendant to establish the same. It is no doubt true that even the appellant/defendant could have taken out a Commissioner for the purpose of clearly identifying the property. A-1 and when a contrary stand is taken by the respondent/defendant it is for the respondent/defendant to establish the same. It is no doubt true that even the appellant/defendant could have taken out a Commissioner for the purpose of clearly identifying the property. It is really unfortunate that though specific contrary stand had been taken - one contending that the property falls in S. No. 6 and another contending that the property falls in S. No. 7 - in the fitness of things, the property should have been localized and unless the identity of the property is clearly established, whether there are two separate properties lying in S. No. 6 or S. No. 7 or whether both the properties are one and the same, there is no question of properly and effectively adjudicating the question in controversy between the parties. Hence, definitely the identity of the property in relation to the documentary evidence Ex. A-1 and also Ex. B-1 and Ex. B-2 may have to be clearly established by the parties to the litigation and in the light of the specific stand taken by the respondent/defendant that the plaint schedule property is in a different survey number, relevancy of establishing the identity of the property would definitely become essential for the purpose of deciding the question in controversy. It is no doubt true that in relation to Ex. A-1, it is only secondary evidence and none of the conditions specified in Section 65 of the Indian Evidence Act dealing with Cases in which secondary evidence relating to documents may be given had been established. It is pertinent to note that such objection had not been taken at all either at the time of marking or in the court of first instance, but however a finding had been recorded in this regard by the appellate Court. ( 13 ) IT is no doubt true that Ex. A-2 is not a Judgment inter-parties. In TIRUMALA tirupati DEVASTHANAMS Vs. K. M. KRISHNAIAH it was held that a previous Judgment not inter-parties is admissible in evidence under Section 13 of the Indian evidence Act, 1872 as a transaction in which a right to the property was asserted and recognized. At least to this limited extent, definitely Ex. A-2 can be looked into. In TIRUMALA tirupati DEVASTHANAMS Vs. K. M. KRISHNAIAH it was held that a previous Judgment not inter-parties is admissible in evidence under Section 13 of the Indian evidence Act, 1872 as a transaction in which a right to the property was asserted and recognized. At least to this limited extent, definitely Ex. A-2 can be looked into. The main grievance ventilated by the Counsel for the appellant is that the reasons recorded by the appellate Court are perverse and unsustainable reasons and hence the Judgment and decree of the Court of first instance are to be restored. In the light of the controversy relating to the identity of the property, I am of the considered opinion that the following issue may have to be settled which is as hereunder :"whether the property claimed in the plaint schedule by the plaintiff and the property claimed by the defendant under Ex. B-1 and Ex. B-2 are one and the same, or these are different properties, especially in the light of the documents ex. A-1, Ex. B-1 and Ex. B-2". ( 14 ) SINCE this Issue is more concerned with the localization of the plaint schedule property in relation to the documentary evidence already available on record and if necessary by appointing a Commissioner to have local inspection to identify the plaint schedule property and also in the light of the insufficient evidence available on record, I am of the considered opinion that both the parties should be given an opportunity to adduce further evidence on the additional Issue framed by this Court referred to supra. ( 15 ) IN the light of the findings recorded above, the Judgment and decree of the appellate Court in A. S. No. 4/91 dated 30-12-1992 are hereby set aside and the matter is remanded to the Court of first instance for the purpose of affording opportunity to both the parties to let in further evidence in relation to the issue framed specified supra. The Second Appeal is allowed to the extent indicated above. No order as to costs.