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2008 DIGILAW 454 (AP)

K. Narayanappa v. A. Sreeramulu Reddy

2008-07-02

C.Y.SOMAYAJULU

body2008
JUDGMENT: 1 Plaintiff in a suit for declaration of title and perpetual injunction is the appellant in this second appeal. For the sake of convenience, parties to this appeal would hereinafter be referred to as they are arrayed in the trial Court. 2 The suit was instituted against the defendants i.e. defendants 1 to 3. After the first defendant filed is written statement, on a petition filed for that purpose by the plaintiff, defendants 4 to 6 were brought on record. 3 The case, in brief, of the plaintiff, is that his father was the owner of Ac.1-27 cents in S.No.718/3 of Gonumakulapalli (the suit land) and after the death of his father about two years prior to the filing of the suit, he became entitled to the suit land and hence he is in possession and enjoyment of the same from then onwards and that defendants 1 to 3, who have no right over the suit land seem to have brought into existence a nominal and spurious sale deed, executed by defendants 2 and 3 and Akkamma in favour of the 1st defendant when in fact the suit land has always been in his possession and enjoyment only and so he got issued a notice to the 1st defendant and the revenue officials of Palamaneru Taluq in 1980 bringing to their notice that 1st defendant has no right over the suit land and as he only is in possession and enjoyment of the suit land no patta pass book should be issued in favour of the 1st defendant. When defendants 1 to 3 had illegally and unlawfully tried to plough the suit land on 12.03.1986 he resisted their acts with the help of the villagers. As defendants 1 to 3 started proclaiming that they would cause trouble to him, he filed the suit for declaration of his title and injunction in respect of the suit land. 4 First defendant filed his written statement inter alia contending that Pedda Ramappa @ Ramudu was the original owner of the suit land and that plaintiff and defendants 2 and 3 are the lineal descendants of the said Ramudu, who had two wives. The said Ramudu begot Peda Muneppa and China Muneppa through his first wife and through his second wife he begot Kodiginti Muneppa @ Gantla Muneppa. The said Ramudu begot Peda Muneppa and China Muneppa through his first wife and through his second wife he begot Kodiginti Muneppa @ Gantla Muneppa. After the death of Ramudu his children through his two wives partitioned his properties equally whereat the suit land was allotted to the share of Patel Muneppa who is the father of defendants 2 and 3, and the son of Peda Muneppa. Ramayya, father of the plaintiff is the son of Kodiganti Muneppa @ Gantla Muneppa. As nobody from the branch of China Muneppa is claiming any title or right over the suit land that branch is not relevant. Patel Muneppa had four sons i.e. Ramayya, Venkatappa (who died leaving behind his wife Akkamma) and defendants 2 and 3. Kodiganti Muneppa @ Gantla Muneppa had a son by name Ramayya who was also known as Kodiganti Ramayya. The said Ramayya had three sons i.e. plaintiff, Peddanna @ Pedda Muneppa and Kristappa and one daughter by name Lakshmamma. In order to meet the marriage expenses of his eldest son Ramayya, Patel Muneppa hypothecated the suit land and other properties under registered mortgage deed dated 22.02.1951. Plaintiff in fact alienated some of the properties that were allotted to the share of his father to his own brother Pedda Muneppa. Defendants 2 and 3 along with Akkamma the widow of their brother Venkatappa, sold the suit land to him under registered sale deed dated 24.12.1966 and put him in possession thereof and from then onwards he is paying the land revenue and is enjoying the suit land as his own and had even mortgaged it under a registered mortgage deed to the knowledge of the plaintiff and his brothers. He did not receive the notice allegedly issued by the plaintiff. Plaintiff filed the suit in collusion with defendants 2 and 3 and his elder brother Ramayya, with a view to gain wrongfully at his expense. The revenue records relied on by the plaintiff are tampered with by him in collusion with the former Karanam of the village. In any event, the suit is liable to be dismissed as he perfected his title to the suit land by adverse possession. 5 Defendants 2 and 3 chose to remain ex-parte. The revenue records relied on by the plaintiff are tampered with by him in collusion with the former Karanam of the village. In any event, the suit is liable to be dismissed as he perfected his title to the suit land by adverse possession. 5 Defendants 2 and 3 chose to remain ex-parte. 6 Plaintiff filed a rejoinder denying knowledge of Patel Muneppa hypothecating the suit land under a registered mortgage deed dated 22.02.1951 and contending that the suit land was allotted to the share of Pitchiguntla Ramappa in the partition within his brothers and in the partition between Pitchiguntla Ramappa and his sons also it was allotted to Pitchiguntla Ramappa with a condition that it would go to that son who maintains Pitchiguntla Ramappa and as his father Pitchiguntla Ramappa lived with him till his death, he became entitled to the suit land. The contention of the 1st defendant that the suit land was allotted to the share of Patel Muneppa is not true. The alleged collusion between him and defendants 2 and 3 and Ramayya is also not true. 7 After defendants 4 to 6 were brought on record, 4th defendant filed his written statement which was adopted by defendants 5 and 6, alleging that the suit land was allotted to the share of their father and in the subsequent family partition there was an understanding that it should be allotted to the son who maintains their father till his death. As their father was living with the plaintiff, as per the agreement, plaintiff became entitled to the suit land. 8 In support of his case, the plaintiff examined himself as P.W.1 and five other witnesses as P.Ws.2 to 6 and marked Exs.A.1 to A.22 on his behalf. In support of his case, the 1st defendant examined himself as D.W.1 and examined three other witnesses as D.Ws.2 to 4 and marked Exs.B.1 to B.8. Ex.X.1 to X.7 were marked through witnesses. Defendants 4 to 6 did not adduce any evidence either oral or documentary on their behalf. 9 The trial Court held that the plaintiff is entitled to the relief sought and decreed the suit. On appeal by the 1st defendant, the first appellate court reversed the decree of the trial Court and dismissed the suit by the judgment under appeal. Hence this second appeal by the plaintiff. 9 The trial Court held that the plaintiff is entitled to the relief sought and decreed the suit. On appeal by the 1st defendant, the first appellate court reversed the decree of the trial Court and dismissed the suit by the judgment under appeal. Hence this second appeal by the plaintiff. 10 A learned Judge admitted this second appeal on the following questions of law: a) Whether on the facts and circumstances of the case in a suit for declaration of title and permanent injunction, the prima facie title and possession has to be seen or not? b) Whether on the facts and circumstances of the case, it is not the duty of the Court when the 1st defendant set up plea of adverse possession, the burden lies on the defendant to prove the same as per Section 101 of the Indian Evidence Act? c) Whether in a suit for declaration of title and permanent injunction the physical possession of the land plays a vital role or not? d) Whether on the facts and circumstances of the case, the oral evidence of D.W.3 and D.W.4 can be taken into consideration without supporting any documentary evidence? e) Whether on the facts and circumstances of the case, the Lower Appellate Court is right in relying on Ex.B.7 though it is not between the parties and the same cannot be taken into consideration as per Section 32 of the Indian Evidence Act? 11 The main contention of the learned counsel for the plaintiff is that the first Appellate Court was in error in reversing the well-considered and well reasoned judgment of the trial Court without assigning any reasons. The main contention of the learned counsel for the 1st defendant is that inasmuch as no question of law much less substantial question of law arises for consideration in this second appeal, the same is not maintainable. It is his contention that when the plaintiff himself admitted about the boundary recitals in Ex.B.7, the non-examination of the executant of Ex.B.7 pales into insignificance, because admitted facts need not be proved. 12 Both the Courts below seem to have failed to focus their attention on the question of limitation. It is his contention that when the plaintiff himself admitted about the boundary recitals in Ex.B.7, the non-examination of the executant of Ex.B.7 pales into insignificance, because admitted facts need not be proved. 12 Both the Courts below seem to have failed to focus their attention on the question of limitation. The averment in the plaint that the plaintiff got a notice issued in 1980 to the 1st defendant and the revenue officials is not a correct statement of fact because Ex.A.14 office copy of the notice shows that it was got issued by the father of the plaintiff, but not the plaintiff, to the 1st defendant and the revenue officials. There is a postal receipt to show that a notice was sent to the 1st defendant through registered post. No acknowledgement from the 1st defendant is produced. There is a reference to a document executed by defendants 2 and 3 and Akkamma in favour of the 1st defendant in respect of two items of property mentioned therein, which is the suit land. In the rejoinder filed by the plaintiff also there is a reference to the execution of a document by defendants 2 and 3 and Akkamma in favour of the 1st defendant, the original of which is produced by the plaintiff and is marked as Ex.A.19. The specific averment in the rejoinder filed by the plaintiff is "With regard to the sale deed dated 24.12.1966, this plaintiff submits that it is not binding on him as it appears to be a fraudulent document". In fact execution of Ex.A.19 by defendants 2 and 3 and their sister Akkamma in favour of the 1st defendant in respect of the suit land is not denied or disputed by the plaintiff either in the plaint or in the rejoinder. From the above extracted averment it is easy to see that plaintiff is not disputing the execution of Ex.A.19 by defendants 2 and 3 and Akkamma in favour of 1st defendant. Even then, surprisingly the trial Court, on the ground that D.W.3 one of the attestors to Ex.A.19 did not speak about the requirements of attestation, disbelieved Ex.A.19 without keeping in view of the fact plaintiff did not deny execution of Ex.A.19 by defendants 2 and 3 and Akkamma in favour of the 1st defendant and that sale deed is not a document which requires attestation. So the first appellate Court rightly did not agree with the view taken by the trial Court. 13 When the plaintiff is aware of the execution of Ex.A.19 sale deed dated 24.12.1966, by defendants 2, 3 and Akkamma in favour of 1st defendant, and when the father of plaintiff alleged in Ex.A.14 notice issued in 1980 that that sale deed is casting a cloud on his title in respect of the suit land and some other land mentioned therein, even assuming that the father of the plaintiff became aware of Ex.A.19 only in 1980, and felt that that document is casting cloud on the title he allegedly was having over the suit land, he should have filed the suit for declaration of title over the suit land within three years from the date of knowledge of Ex.A.19 in view of Article 58 of the Limitation Act, 1963. But he did not do so. So the suit for declaration of title of the plaintiff in respect of the suit land filed in 1986 i.e. beyond the period of three years from the date of Ex.A.19 cannot but be said to be barred by time. When I pointed out that fact to the learned counsel for the plaintiff he contended that as the 1st defendant did not raise the plea of limitation, that question cannot be gone into by this Court at the stage of second appeal. I am unable to agree with the said contention because as per Section 3 of the Limitation Act, 1963, the Court, in spite of the defendant not taking the plea of limitation, has a duty to look into the question of limitation. So, the plaintiff has to be non suited with regard to the relief of declaration of his title over the suit land sought by him, on the ground of limitation. 14 Reverting to the evidence on record, as it is well known that in a suit for declaration of title the plaintiff can succeed only on the strength of his case and evidence, but not on the weakness of the case of the defendant. 14 Reverting to the evidence on record, as it is well known that in a suit for declaration of title the plaintiff can succeed only on the strength of his case and evidence, but not on the weakness of the case of the defendant. As the plea of the 1st defendant in this case is that the plaintiff in collusion with defendants 2 and 3 and P.W.4 their brother filed the suit either to cause inconvenience to him or for some other reasons, it has to be seen as to how far the plaintiff is able to establish that his father was allotted the suit land in the family partition. 15 That the suit land was the ancestral property of the family of plaintiff and defendants 2 and 3 and that there was a partition among their ancestors is an admitted fact. The case of the plaintiff is that the suit land was allotted to the share of his father whereas it is the case of the 1st defendant that the suit land was allotted to the share of the father of defendants 2 and 3 and P.W.4. The specific case of the plaintiff is that during the partition between his father, himself and his brothers the suit land was allotted to the share of his father with an agreement that it should be taken by the son who maintains their father during his life, and as it is he that maintained his father during the lifetime, he became entitled to the suit land. Plaintiff did not adduce any reliable documentary evidence to show that his father was in possession of the suit land during his lifetime. In fact both the courts below did not place reliance on the cist receipts and revenue records produced by the plaintiff as there is confusion with regard to the names of the persons mentioned in the revenue records, as many of the members in their family have the same name. The admitted fact is Peda Ramappa @ Ramudu the common ancestor of plaintiff and defendants 2 to 6, had 3 sons viz., Peda Muneppa, China Muneppa whose branch is not involved in this litigation, and Kodiginti Muneppa @ Gantla Muneppa. Ramayya @ Kodiginti Ramayya who is the father of the plaintiff and defendants 4 to 6 is the son of Kodiginti Muneppa @ Gantla Muneppa. Ramayya @ Kodiginti Ramayya who is the father of the plaintiff and defendants 4 to 6 is the son of Kodiginti Muneppa @ Gantla Muneppa. Peda Muneppa had a son by name Patel Muneppa, who begot four sons i.e. Ramayya (P.W.4), Venkatappa i.e. the husband of Akkamma one of the executants of Ex.A.19 and defendants 2 and 3. Which of the sons or grand sons of Pedda Ramappa @ Ramudu was allotted what land is not borne out by any documentary evidence. But Ex.B.1, which is of the year 1951 the original of which is more than 30 years prior to the suit, shows that the father of P.W.4 and defendants 2 and 3 mortgaged the suit land and Ac.0-99 cents in S.No.718/1 to Appireddi Kuppareddi son of Narayana Reddy on 22.02.1951. Significantly, P.W.4, who is the brother of defendants 2 and 3 stated that it is he that is in actual possession of land Ac.0-99 cents in S.No.718/1. This gains significance because in Ex.A.14 notice, got issued by the father of the plaintiff, he claimed that the suit land and AC.0-99 cents in S.No.718/1 belongs to him. Significantly plaintiff is not disputing the statement of P.W.4 that Ac.0-99 cents in S.No.718/1 belongs to him, but nobody else. If that statement of P.W.4 is not true and if what is alleged in Ex.A.14 is true plaintiff would have filed the suit for Ac.0-99 cents in S.No.718/1 also, but not merely in respect of the suit land only. Here it is also significant to note that plaintiff as P.W.1, admitted that land in S.No.718/1 is not in his possession but is in possession of Ramappa i.e. P.W.4. As the evidence of P.W.4 shows that he is in possession of Ac.0-99 cents in S.No.718/1 and as the father of P.W.4 and defendants 2 and 3 mortgaged the suit land, and ac.0-99 cents in S.No.718/1 as owner of those lands it is easy to see that Ac.0-99 cents in S.No.718/1 and the suit land were in fact allotted to the share of the father of the defendants 2 and 3 and P.W.4 but not to the father of the plaintiff. Thus the plaintiff failed to establish, even prima facie, his title to or possession over the suit land. Thus the plaintiff failed to establish, even prima facie, his title to or possession over the suit land. 16 First defendant admittedly purchased the suit land in 1966 under Ex.A.19, but seem to have failed to take steps to get his name mutated in the revenue records. It is well known that mere failure to get ones name mutated in the revenue records is not of any consequence. Admittedly Kondamma, a close relative of the plaintiff (P.W.6 being her grand son) sold her land situated to the north of the suit land to Kristappa. In the schedule of the property mentioned in the sale deed executed by her, the southern boundary of the land sold by her is shown as the land belonging to the 1st defendant, which is the suit land. Even P.W.6 admitted that his grand mother sold the land belonging to her about 5 or 6 years back, mentioning that the lands situated to the north and south of her land in S.No.718/1 are in possession of 1st defendant. First defendant after purchasing the suit land under Ex.A.19, mortgaged it to Peda Venkatappa as on 19.01.1974 as seen from Ex.A.20 which establishes that the 1st defendant was treating the suit land as his own right from 1966 onwards. In view thereof and as the plaintiff failed to adduce reliable evidence with regard to the arrangement between him and his father and his brothers relating to the suit land being allotted to his father during partition between them with a condition that it should go to the son who would look after their father during his lifetime, the first appellate court did not commit any error in disbelieving that theory because mediation spoken to by P.W.1 during his evidence, is not even whispered either in the plaint or in the rejoinder and as it is well known that no amount of evidence can be looked into on pleas which are not taken in the pleadings. In order to explain the possession of Exs.A.19 and A.20 only plaintiff seems to have pitched upon a theory of mediation whereat those documents are allegedly handed over by the 1st defendant to the plaintiff. In fact no document is produced to establish that any mediation, as spoken to by P.W.1, took place. In order to explain the possession of Exs.A.19 and A.20 only plaintiff seems to have pitched upon a theory of mediation whereat those documents are allegedly handed over by the 1st defendant to the plaintiff. In fact no document is produced to establish that any mediation, as spoken to by P.W.1, took place. So the explanation given by the 1st defendant that at the time of taking loan from a relative of the plaintiff he kept his original title deeds Exs.A.19 and A.20 with him and when he discharged the said loan after the death of the creditor the children of that relative creditor of the plaintiff stated that his documents were misplaced, and later they in connivance with the plaintiff must have handed over those documents to the plaintiff to enable him to produce them in the court appears to be probable. 17 When the plaintiff failed to establish his title or possession over the suit land, merely because 1st defendant took a plea that he perfected his title to the suit land by adverse possession also and failed to adduce evidence with regard thereto, plaintiff cannot be granted any of the reliefs sought by him. When the plaintiff himself admitted the recitals in a document question of proving those recitals by the 1st defendant by examining the executant of the document does not arise. 18 As no question of law much less substantial question of law arises for consideration and as the first appellate Court did not commit any error in reversing the finding of the trial Court, I find no merits in this second appeal and hence this second appeal is dismissed. However, parties are directed to bear their own costs in this second appeal.