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2007 DIGILAW 215 (AP)

Nunna Venkateswara Rao v. Tota Venkateswara Rao

2007-02-28

V.V.S.RAO

body2007
Judgment :- This second appeal is filed by the second defendant against reversing judgment dated 14.7.1995 in A.S.No.42 of 1995 passed by the Subordinate Judge, Kovvur. By the impugned judgment, the first appellate Court reversed the findings of the Court of the Principal District Munsif, Kovvur, in O.S.No.782 of 1989 dated 10.3.1995 and decreed the suit filed by the respondents for permanent injunction. The brief fact of the matter is as follows. The respondents (hereafter called, the plaintiffs) filed the suit for permanent injunction restraining Nunna Venkatachalam (first defendant), Nunna Venkateswara Rao (second defendant and appellant herein) and Padilam Gangaraju (third defendant) from interfering with possession and enjoyment of the schedule property shown as ‘A B C D E F’ in the plaint plan, which is a house site admeasuring Acs.0.05 (out of total extent of Acs.4.90) situated at Dippakayalapadu village of Kovvur Taluk in West Godavari District. The plaintiffs alleged that they were in possession and enjoyment of the suit schedule property since times immemorial, that they were living there raising thatched hut, that their father, Thota Venkanna, and his ancestors occupied the land and that the defendants tried to interfere with the enjoyment. They alleged that the property was also assessed to panchayat tax and it was given a number. They also alleged that under the sale deed dated 02.6.1965 executed by Padilam Venkanna in favour of G.Lakshmi Narasamma, the eastern boundary is cited as the house site of Thota Venkanna, father of the plaintiffs 1 to 4. Opposing the suit, second defendant filed written statement and his father, first defendant, filed memo adopting the same. The third defendant, who is related to defendants 1 and 2, filed separate written statement. It is their case that Thota Venkanna, during his life time, raised a thatched shed on the southern side of the schedule property and that the schedule property was always in possession of Padilam Venkanna, who was absolute owner. The defendants purchased the schedule property under registered sale deed dated 25.4.1989 and obtained possession from the vendor. The second defendant constructed a thatched house on the northern side of the schedule property and has been residing therein. He also constructed a small thatched hut on the southern side for keeping goats or to lease out the same to others. The defendants purchased the schedule property under registered sale deed dated 25.4.1989 and obtained possession from the vendor. The second defendant constructed a thatched house on the northern side of the schedule property and has been residing therein. He also constructed a small thatched hut on the southern side for keeping goats or to lease out the same to others. On the request of the husband of third plaintiff, the same was leased out on a monthly rent of Rs.15/-. The suit schedule property was kept vacant till April 1989 by the vendor of the second defendant and, therefore, the payment of house tax does not arise. The first defendant went to the place of his father-in-law at Jangareddigudem about ten (10) years ago. At that time, he permitted the fifth plaintiff to reside in the house for some time. After his return, the first defendant started living with the fifth plaintiff demanding her to vacate the house. In the mean time, first defendant occupied tank poramboke and erected a thatched house with a view to obtain patta. While denying other allegations, the defendants also denied the relevancy of the sale deed dated 02.6.1965 executed by Padilam Venkanna in favour of G. Lakshmi Narasamma. The trial Court framed an issue to the effect that whether the plaintiffs are entitled for permanent injunction. The trial Court doubted Exs.A.2 to A.4 house tax demand notices issued to the vendor of the plaintiffs and came to the conclusion that the plaintiffs failed to prove possession to suit schedule property and accordingly dismissed the suit. The appellate Court, as mentioned earlier, reversed the trial Court judgment and granted decree in favour of the plaintiffs placing reliance on Ex.A.1 sale deed and Exs.A.2 to A.4 which are the documents evidencing payment of house tax to gram panchayat by the plaintiffs. Learned Counsel for the appellant/second defendant submits that the lower appellate Court erred in placing reliance on Ex.A.1 sale deed to which either the plaintiffs or the defendants are not parties. Ex.A.1 was not properly proved and, therefore, in placing reliance on a document, Ex.A.1, which has no relevance, the lower appellate Court went wrong giving rise to a substantial question of law. Ex.A.1 was not properly proved and, therefore, in placing reliance on a document, Ex.A.1, which has no relevance, the lower appellate Court went wrong giving rise to a substantial question of law. Secondly, he would urge that no other evidence was placed before the Court to come to the conclusion that the plaintiffs were in possession of the property as on the date of filing of the suit. According to her, even though the vendor of the second defendant was also vendor of Ex.A.1 sale deed and though the eastern boundary of the property demised under Ex.A.1 is shown to be the property in possession of Thota Venkanna, in the absence of evidence of the vendor of Ex.A.1, proving this document, the same cannot be conclusive proof of the possession of the plaintiffs. Learned Counsel placed reliance on the decisions in Jadho Nagu Bai v Jadho Gangu Bai (AIR 1958 AP 19 (DB)), V.A.A.Nainar v A.Chettiar (AIR 1972 Madras 154 (DB)), P. Saraswathi v V.Veerabhadra Rao ( 1985(1) APLJ 277 ) and V.Satyavathi v P.Venkataratnam (1988(1) ALT 915), In V.A.A. Nainar (supra), the Division Bench of Madras High Court, after referring to the relevant case law, concluded that the recitals as to boundaries in documents not inter parties are inadmissible in evidence under Sections 11, 13(1), 32(2) and 32(7) of Indian Evidence Act, 1872 (the Act, for brevity), and that the only method by which recitals in a document not being inter parties could be admitted in evidence is by examination of executant of the document in which such recitals as to boundaries are found. In P. Saraswathi (supra), Hon’ble Sri Justice M. Jagannadha Rao, (as His Lordship then was), observed that where the pleading does not refer to the plaintiff’s title but only refers to the plaintiff’s prior possession the prima facie case of the plaintiff has to be judged with reference to his case of prior possession. Therefore, in a suit for perpetual injunction, a document not inter parties can as well be a corroborative piece of evidence. In Moberik Ali Ahmed v The State of Bombay ( AIR 1957 SC 857 ), to which a reference is made by this Court in V. Satyavathi (supra), it was held. “It (the document) may also be proved by internal evidence afforded by the contents of the document. In Moberik Ali Ahmed v The State of Bombay ( AIR 1957 SC 857 ), to which a reference is made by this Court in V. Satyavathi (supra), it was held. “It (the document) may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court.” The second defendant also claimed to have purchased the property under Ex.B.1 registered sale deed dated 25.4.1989. Ex.A.1 registered sale deed executed by Padilam Venkanna in favour of G.Lakshmi Narasamma. Further, Ex.A.1 registered sale deed is dated 02.6.1965, which is more than 30 years old and, therefore, it certainly carries the presumption as to its genuineness. Be it noted that the proviso to Section 68 of the Act is to the effect that it shall not be necessary to call an attesting witness in proof of a document registered in accordance with Indian Registration Act, 1908. As per Section 90 of the Act, a document which is of 30 years old carries the presumption that every part of such document and signature thereon is executed and attested as mentioned therein (see Konda Rama Krishna Reddy v Bayana Sesha Reddy ( 2006(6) ALD 360 ). Therefore, the judgment of the lower appellate Court cannot be faulted merely because it placed reliance on Ex.A.1. The submission of the learned Counsel for the appellant that Ex.A.1 was the basis for decreeing the suit for perpetual injunction is misconceived. A perusal of paragraph 22 of the lower appellate Court judgment would certainly belie any such contention. Dealing with Exs.A.2 to A.4, house tax demand notices and house tax receipts, the lower appellate Court observed as under. If really Ex.A.2 to Ex.A.4 are not issued by the Panchayat Officials nothing prevented the defendants to summon the officials of the Panchayat with relevant records and disprove Ex.A.2 to Ex.A.4. Strangely they have not done it. Unless Ex.B.8 to Ex.B.14 are proved to be genuine and they relate to the neighbouring houses they cannot be compared with Ex.A.1 to Ex.A.4. Ex.A.2 to Ex.A.4 contains the signatures and the seal of the Panchayat Officials. As such it cannot be said that they are fabricated documents. Strangely they have not done it. Unless Ex.B.8 to Ex.B.14 are proved to be genuine and they relate to the neighbouring houses they cannot be compared with Ex.A.1 to Ex.A.4. Ex.A.2 to Ex.A.4 contains the signatures and the seal of the Panchayat Officials. As such it cannot be said that they are fabricated documents. Even if these documents are taken to be false even then it cannot be said that the plaintiffs are not in possession of the suit property. This Court is convinced that the lower appellate Court considered Ex.A.1, oral evidence of D.Ws.1, 3 and 4, keeping in view the ratio in P. Saraswathi (supra) and observed as under. In this decision their lordships held that while granting a temporary injunction in a suit for permanent injunction the question of prima facie title of the plaintiff has to be gone into. His Lordships further held that even the real owner of the property cannot take forcible possession of the property from a trespasser. Admittedly the plaintiffs are claiming the suit property as their ancestral property. Since the defendants have not denied their title by issuing a notice to them, the plaintiffs have filed this suit for the relief of injunction only. It cannot be said that they have no right to file a suit for mere injunction. Since there is no prayer for declaration of their title I am not inclined to go into the question of title. Since I found that plaintiffs are in possession of the suit property it is for the defendants to file a separate suit for declaration of their title and for possession of the property. In case on hand there is adequate evidence to show that the plaintiffs’ family alone has been in possession of the suit property since more than thirty years. As such their possession has to be protected. If no injunction is granted the defendants will take law into their own hands and dispossess the plaintiffs. The lower appellate Court observed in paragraph 23 that Ex.A.1 has been admitted by D.Ws.1, 3 and 4. Therefore, the decisions relied on by the learned Counsel for the appellant are of no assistance. The second appeal is devoid of any merit and is accordingly dismissed.