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2005 DIGILAW 551 (AP)

Policherla Samuel v. Policherla Yesupadam

2005-06-27

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( 1 ) PLAINTIFFS in O. S. No. 141 of 1992 on the file of the learned principal Junior Civil Judge, Kandukur filed this second appeal, aggrieved by the dismissal of the suit and confirmation of the same by the Court of the Senior Civil judge, Kandukur in A. S. No. 26 of 1998. ( 2 ) THE suit was filed for the relief of injunction simplicitor in respect of four items of the suit schedule property, which consists of agricultural lands and house sites. The suit was initially filed by one mr. Policherla Samuel, the first appellant herein, alone. During the pendency of the suit, he died, and his legal representatives, appellants 2 to 7, were brought on record. ( 3 ) THE appellants pleaded that the suit schedule properties were originally held jointly by two brothers, by name B. Pitchaiah and B. Narsaiah. Pitchaiah had three daughters, who were married and living in their matrimonial houses, he was living with his brother Narsaiah. Narsaiah had a son by name Venkataiah, and a daughter by name Kondamma. While Venkataiah had three daughters, who are respondents 2, 4 and 5, Kondamma had three sons viz. , the first appellant, one Mr. Yesupadam (husband of respondent No. 2 and father of respondent No. 3), and another person, by name Ananda Rao. It was alleged that pitchaiah and Narsaiah had jointly executed a deed of settlement conveying items 1 to 3 of the suit schedule properties in favour of the first appellant, through a settlement deed, dated 30-10-1941, marked as Ex. A. 1. He pleaded that ever since the date of settlement, he is in possession and enjoyment of the property, and that he was issued a ryotwari Pass Book-Ex. A. 5 in respect of the said lands. He complained that the respondents are interfering with his possession. ( 4 ) RESPONDENTS denied the genuineness of Ex. A. 1. They pleaded that there was no necessity either for Pitchaiah or Narsaiah to exclude their children from succession to the property. It was pleaded that Ex. A. 1 is only a certified copy and that no one connected therewith was examined. ( 5 ) THE trial Court dismissed the suit and it was affirmed by the lower appellate court. ( 6 ) SRI M. Subba Reddy, learned counsel for the appellants submits that ex. It was pleaded that Ex. A. 1 is only a certified copy and that no one connected therewith was examined. ( 5 ) THE trial Court dismissed the suit and it was affirmed by the lower appellate court. ( 6 ) SRI M. Subba Reddy, learned counsel for the appellants submits that ex. A. 1 is more than thirty years old and the presumption provided for under Section 90 of the Evidence Act, 1872 (for short the act ) can be extended to it. He contends that both the Courts below erred in not extending such a presumption in respect of ex. A. 1. He further contends that even if ex. A. 1 is omitted from consideration, Ex. A. 5 discloses that the appellants are in possession of items 1 to 3 of the suit schedule properties and that the relief of injunction ought to have been granted in respect of the same. He urges that the observations made by the Courts invoking the concept of joint family to the parties, who are now Christians, and in the absence of any definite plea to that effect, cannot be sustained. ( 7 ) SRI Kota Subbarao, learned counsel for the respondents, on the other hand, submits that the presumption provided for under Section 90 of the Act is available only in respect of original documents and not certified copies. He alleges that except obtaining a certified copy, the appellants neither adduced any reliable evidence, nor explained the suspicious circumstances surrounding the document. As regards the entries in Ex. A. 5, learned Counsel submits that there is any amount of discrepancy between the entries in it on the one hand, and the description of property in the plaint schedule, on the other. ( 8 ) ON the basis of the pleadings before it, the trial Court framed the following issues :1. Whether the plaintiffs are entitled to injunction as prayed for ? 2. Whether the settlement deed dated 30-10-1941 is true, valid and lawful ? 3. Whether the suit schedule land is service Inamland ? 4. Whether the plaintiff is in possession and enjoyment of the suit schedule land by the date of the suit ? ( 9 ) ALL the issues were answered against the appellants. The lower appellate court framed the relevant points and answered the same against them. 3. Whether the suit schedule land is service Inamland ? 4. Whether the plaintiff is in possession and enjoyment of the suit schedule land by the date of the suit ? ( 9 ) ALL the issues were answered against the appellants. The lower appellate court framed the relevant points and answered the same against them. Though extensive discussion was undertaken by the Courts below and elaborate submissions were made by the learned Counsel for the parties touching on the validity of Ex. A. 2, this Court finds that it is not necessary to deal with that question. The reason is that the suit is for the relief of injunction simplicitor. No relief of declaration of title is prayed for. The necessity to examine the genuinety or otherwise of Ex. A. 1 would have arisen, if only any relief of declaration of title was prayed for. It is true that the presumption provided for under Section 90 of the Evidence Act is available only in respect of originals and where secondary evidence of such document is produced, an independent proof is required. However, since it is a suit for mere injunction, that issue is beyond the scope of the suit as well as this appeal. ( 10 ) IT is incumbent upon the appellants to prove to the satisfaction of the Court that they were in possession of the suit schedule property as on the date of filing of the suit, while claiming the relief of perpetual injunction. Ex. A. 5 is Ryotwari pass Book issued by the Tahsildar, Kandukur in favour of the first appellant. Only three items are referred to in it. Out of them, the Survey Numbers of the first two items tally with items 1 and 2 of the suit schedule properties. No evidence was adduced by the parties to correlate the entries in Ex. A. 5, on the one hand, and the items in the suit schedule, on the other. The Courts below proceeded as though ex. A. 5 establishes the possession of the appellants over items 1 to 3 of the suit schedule properties. However, they denied the relief to the appellants, on the ground that the first appellant held the properties as a Manager of the joint family. ( 11 ) THE observation of the Courts, in this regard, cannot be sustained at least for two reasons. However, they denied the relief to the appellants, on the ground that the first appellant held the properties as a Manager of the joint family. ( 11 ) THE observation of the Courts, in this regard, cannot be sustained at least for two reasons. Firstly, the concept of joint family is not prevalent among the parties, who became Christians, by the time the suit was filed. Secondly, the appellant, on the one hand, and the respondents, on the other, cannot be said to be members of the same family. Their origins are very different and the common point emerges, if at all, only after three pedigrees backward. ( 12 ) THEREFORE, there was no justification in denying the relief of injunction to the appellants in respect of the items covered by Ex. A. 5. This Court would have allowed the second appeal to that extent, but for the fact that the necessary correlation was not undertaken. ( 13 ) FOR the foregoing reasons, the second appeal is partly allowed and the matter is remanded to the trial Court for the limited purpose of ascertaining the extends indicated in Ex. A-5, and their interrelation with the entries in the suit schedule. The parties shall be given an opportunity to adduce evidence in this regard. If it emerges that the items of property contained in Ex. A. 5, either wholly or in part, correlate with the items of the suit schedule properties, the relief of perpetual injunction shall be granted, to that extent. The relief, so granted, shall, however, be without prejudice to the rights of the respondents to seek relief of declaration or recovery of possession in properly instituted proceedings. There shall be no order as to costs.