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Andhra High Court · body

2008 DIGILAW 627 (AP)

Narayanappa v. Madepalli Anjanappa

2008-08-11

P.S.NARAYANA

body2008
JUDGMENT Though the matter is appearing under the caption of interlocutory, the counsel on record made elaborate submission; with a further request for final disposal of the second appeal itself. 2. Sri K. Srinivasa Rao, representing Sri P. Sri Raghuram, learned counsel representing appellants in the second appeal had taken this Court through the respective pleadings of the parties and the evidence available on record and would maintain that in the facts and circumstances of the case the reliefs granted being beyond the pleadings of the parties and the reliefs prayed for in the suit, such reliefs cannot be sustained. The learned counsel also pointed out that the present suit is hit by Order II Rule 2 of the Code of Civil Procedure. The learned counsel also would maintain that in the light of the facts and circumstances the findings recorded by the appellate court on the question of res judicata also cannot be sustained. The counsel also relied on certain decisions. 3. On the contrary, Sri Upendra Rao, learned counsel representing Sri E.V. Bhagiratha Rao, had taken this Court through the findings recorded by the court of first instance and also the appellate court and would maintain that in the facts and circumstances of the case, no substantial question of law as such would arise for consideration in this second appeal. The counsel also pointed out that the decisions relied upon by the other side have no relevance to the facts of the case. Even otherwise these questions were not shown as substantial questions of law in the memorandum of grounds of second appeal and, hence, viewed from any angle the second appeal deserves a dismissal. 4. Heard the counsel. 5. The following substantial questions of law had been formulated in ground NO.13 and the said questions read as hereunder. (1) Whether plaintiff would succeed in a partition suit without filing his title deed? (2) Whether the courts below correctly construed theS.A.No.1164/80 on a respective way? (3) Whether the Regd. Sale deed said to have executed by Sanjeevappa in favour of 2nd respondent by Anjanappa is valid and binding on appellants? (4) Whether 2nd respondent is entitled to mesne profits more than 3 years preceding to institution of suit? 6. (2) Whether the courts below correctly construed theS.A.No.1164/80 on a respective way? (3) Whether the Regd. Sale deed said to have executed by Sanjeevappa in favour of 2nd respondent by Anjanappa is valid and binding on appellants? (4) Whether 2nd respondent is entitled to mesne profits more than 3 years preceding to institution of suit? 6. The unsuccessful defendants in O.S.No.17 of 1996 on the file of the Senior Civil Judge, Hindupur, and appellants in A.S.No.60 of 1997 on the file of the Additional District Judge, Hindupur, are the present appellants. Respondent as plaintiff instituted the suit O.S.No.17 of 1996 on the file of the Subordinate Judge, Hindupur, praying for the relief of partition and separate possession of half share of plaintiff in the plaint schedule properties; for delivery of possession of the same and for grant of Rs.15,000/- towards past mesne profits and to grant future mesne profits with costs relating to the suit schedule property. 7. Before the court of first instance, in the light of the respective pleadings of the parties, having settled the issues, the evidence of P.Ws.1 to 3, D.Ws.1 and 2 had been recorded, Exs.A-1 to A-7, Exs.B-1 and B-2 had been marked and on appreciation of evidence, the court of first instance made a preliminary decree with costs directing division of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff and the plaintiff is entitled to mesne profits at the rate of RS.750/- per year for half share in the suit schedule property from 1974 till the plaintiff is put in possession and enjoyment of his half share in the suit schedule property. Aggrieved by the same, the matter was carried by way of appeal A.S.No.60 of 1997 on the file of the learned Additional District Judge, Hindupur, and the appellate court also came to the conclusion that the plain It schedule property to be divided into two equal shares and one such share to be allotted to the respondent-plaintiff by metes and bounds keeping in view the good and bad qualities of the soil and nearness to the road or village and accordingly dismissed the appeal with costs. Aggrieved by the same, the second appeal had been preferred. 8. Aggrieved by the same, the second appeal had been preferred. 8. The substantial questions of law formulated in the grounds of memorandun of second appeal which had been pointed out by the counsel representing appellants already had been specified supra. On 06.6.2002 this Court made the following order. "Having regard to the substantial question of law as to wh9ther a suit for partition would lie against a third party without proving law and any such claim is sustainable without proving the title, admit." Though certain other substantial questions of law raised in the grounds of memorandum of second appeal had been pointed out while admitting the second appeal, the said substantial questions of law had not been referred to at all. However, Sri K. Srinivasa Rao, the learned counsel representing the appellants, strongly relied on Section 100 (5) proviso of the Code of Civil Procedure and would maintain that in the light of the decisions placed before this Court the other substantial questions of law not having been formulated by this Court at the stage of admission may be formulated and a further request had been made to advance submissions in relation thereto. The counsel pointed out the following substantial questions of law: (1) Whether the relief not specifically prayed for by the parties can be granted by the Court? (2) Whether the present suit is hit by Order II Rule 2 of the Code of Civil Procedure? 9. Section 100 of the Code of Civil Procedure deals with second appeal. Subsection (5) specifies the appeal shall be heard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. 10. The only substantial question of law on the strength of which the second appeal had been admitted already had been specified above and the further substantial questions of law specifically pointed out by 1I'le learned counsel representing the appellants also had been specified supra. No d0ubt the proviso to sub-section (5) of Section 100 of the Code of Civil Procedure SD8cifies "provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question." 11. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others1 the Apex Court at para 3 observed as hereunder. "After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantiate question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuing that no justice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence." In Late Kamlabai through L.Rs. and others v. Rajesh Kalal and another the learned Judge of Indore Bench observed that the substantial question of law formulated at the time of admission of the second appeal can be modified in order to bring out the controversy on forefront. However, the Apex Court in Kashmir Singh v. Harnam Singh and anothef3 observed at para 9 as hereunder. "It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing the notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right. it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second 80neal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by tile High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., ( AIR 1962 SC 1314 ) held that" the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Councilor by the Federal Court or is not free from difficulty or calls for discussion by alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 12. Sri K. Srinivasa Rao, the learned counsel representing appellants had taken this Court through the relief portion of the plaint and further placed strong reliance on the decision of this Court in Law Sri Krishna Rao and others v. Dr. Sri K. Srinivasa Rao, the learned counsel representing appellants had taken this Court through the relief portion of the plaint and further placed strong reliance on the decision of this Court in Law Sri Krishna Rao and others v. Dr. Moturi Nagendra Rad wherein it was observed by the learned judge of this Court that the Court cannot travel beyond the pleadings, issues and evidence on record and grant a totally different relief not asked for by either party and Court cannot make out a totally new case which is not the case of either party and when a larger relief is prayed for but claim for same is not duly established and evidence justifies grant of smaller relief, granting of such smaliAr relief, permissible under Order 7 Rule 7 of the Code of Civil Procedure. Further strong reliance was placed on the decision in Kunjan Nair Sivaraman Nair v. Narayanan Nair and others" wherein the Apex Court explain6d the requirements to attract the provisions of Order II Rule 2 of the Code of Civil Procedure. 13. For the purpose of convenience, the parties hereinafter would be referred to as shown in the court of first instance, the learned Subordinate Judge, Hindupur. 14. The plaintiff instituted the suit O.S. No.55 of 1988 on the file the Additional District Judge, Hindupur, praying for partition and separate possession, mesne profits and further appropriate reliefs. The said suit was transferred and re-numbered as O.S. No.17 of 1996 on the file of the Subordinate Judge, Hindupur. It is averred in the plaint as hereunder. Defendants 1 to 3 were the plaintiffs and the plaintiff herein was the first dofendant in a.S.No.568 of 1974 on the file of the District Munsif Court, Hindupur. Third defendant was the second wife of Thimme.iahgari Thimmaiah and the first defendant was her son. Second defendant was the son of Thimmaiahgari Thimmaiah through his second wife Thippamma. The defendants herein, who were plaintiffs in the suit a.S.No.568 of 1974, filed the said suit against the plaintiff for declaration of title and for permanent injunction over the schedule mentioned property. The subject matter of the present suit and the suit a.S.No.568 of 1974 were one and the same. an contest, the said suit was dismissed. Aggrieved by the same, the defendant carried the matter by way of appeal A.S. No.291 of 1977 and the said appeal was allowed. The subject matter of the present suit and the suit a.S.No.568 of 1974 were one and the same. an contest, the said suit was dismissed. Aggrieved by the same, the defendant carried the matter by way of appeal A.S. No.291 of 1977 and the said appeal was allowed. Against that judgment and decree, the plaintiff had preferred second appeal to the High Court of A.P. in SANo.1164 of 1980. The said appeal was allowed holding that the plaintiff was entitled to half share and defendants 1 to 3 together were entitled to half share in the suit property and the said judgment had attained finality, since the defendants had not preferred any appeal. It is further stated that at the time of filing of the suit a.S.No.568 of 1974 the defendants had obtained temporary injunction against the plaintiff and, thus, the defendants were in wrongful possession of the suit property. Since the defendants enjoyed the share of the plaintiff unlawfully, they are bound to account for mesne profits. It is also averred that the suit land was a wet and fertile and end the defendants had been raising crops like Sugarcane, Paddy and Ragi and getting a net income of Rs,3,000/- per annum. Thus, the plaintiff was entitled to half share in the said amount Le., RS.1 ,500/per annum. The defendants were in possession of the suit property from 1974 till now. As the defendants did not come forward for amicable partition and separate possession of his share, the plaintiff got issued a notice on 09.11.1985 to defendants 1 and 2. The defendants received the notices and did not come forward and they did not choose to give any reply. Hence, the suit. 15. The second defendant filed written statement with the following averments. The second defendant was the son of Thimmaiahgari Thimmaiah through his first wife Thippamma, but not through his second wife Gangamma. The said Gangamma and Thippamma were sisters and daughters of one Gaddam Mallaiah and the said Thippamma is no more. The father of the defendants 1 and 2 was the illitom son-in-law of said Gaddam Mallaiah and the said Thimmaiah had a son by name Sanjeevappa. The said Sanjeevappa died about 26 years ago and the father of the said Sanjeevappa died prior to 1944. The said Gaddam Mallaiah said two sons namely Chikkanna and Kengerappa. The father of the defendants 1 and 2 was the illitom son-in-law of said Gaddam Mallaiah and the said Thimmaiah had a son by name Sanjeevappa. The said Sanjeevappa died about 26 years ago and the father of the said Sanjeevappa died prior to 1944. The said Gaddam Mallaiah said two sons namely Chikkanna and Kengerappa. Chikkanna died in tile year 1962 leaving behind his two sons namely Hanumanthappa and Siddappa and thr daughters namely Naga!akshmamma, wife of Thippanna of Mothukapalli; Thimmakka,' wife of Narayanappa of Sasannakota and Sanna Lakshmamma, wife of Muddu Mallappa of Mothukapalli as his heirs. The wife of said Chikkanna predeceased him and Siddappa died about 26 years back leaving behind his wife Ademma, his son Mallaiah, his daughters LakshmJdevamma, wife of Sreeramulu of Hindupur and Nanjamma, wife of Anjinappa of Kodigenahalli, Hindupur taluk as his heirs. Kengarappa, another son of Gaddam Mallaiah died in the year 1946 leaving behind his wife Sank3mma and his son Ramalingappa as his heirs. It is also stated that the father of defendants 1 and 2 namely Thimmaiahgari Thimmaiah and Sanjeevappa, who was the younger brother of Gaddam Mallaiah, had entered into a settlement deed duly registered dated 08.4.1944 agreeing to take 1/41h right in all the family properties considering the services rendered by the father of defendants 1 and 2 and others. Subsequently, on 02.01.1945, Sanjeevappa had executed a registered relinquishment deed in favour of the father of defendants 1 and 2 namely Thimmaiahaari Thimmaiah and his cousin brothers Chikkanna and Kengerappa by taking 'A' schedule properties as mentioned in the said relinquishment deed, while leaving the rest of the properties to the father of defendants 1 and 2. In the said relinquishment deed the suit survey number, by mistake, was not mentioned in the 'B' schedule of the said relinquishment deed belonging to other three sharers. It is also further stated that the defendants claimed the suit schedule property as the property belonging to them, while the plaintiff claimed the suit property as his property, being the purchaser of the same from Sanjeevappa under a registered sale deed dated 08.4.1964. The plaintiff was not put in possession of the suit property or any other properties covered under the alleged sale deed dated 08.4.1964 and his vendor was also not in possession of the property earlier since 1945. The plaintiff was not put in possession of the suit property or any other properties covered under the alleged sale deed dated 08.4.1964 and his vendor was also not in possession of the property earlier since 1945. The defendants and their predecessors-in-title had enjoyed the suit property from 02.01.1945 onwards in their own right, to the exclusion of one and all. Thus, the defendants had perfected their title to the suit property even by adverse possession over a statutory period. The plaintiff will not get AC.0-41 cents in view of the aoreemont dated 08.4.1944 referred to above, since the plaintiff's vendor Sanjeevappa was having only 1/4th right in the suit property even if the suit property was treated as one belonging to all. As per the said agreement Chikkanna and Kengerappa each were having 1f41h right in the suit property and as such all the heirs of the said Chikkanna, Kengerappa and Siddappa were all necessary parties to the suit and the suit was bad for non-joinder of necessary parties. The suit land was not a fertile land. Only in the year 1988 Kodigenahalli tank received water. In the suit land, Sugarcane crop was not at all raised by the defendants at any time. Only Ragi, Jonna and Paddy crops were raised considering the water position. The second defendant denied that they had been getting an income of Rs.3,000/- per annum after meeting all the expenses. The plaintiff was not entitled to claim any mesne profits. As the plaintiff claimed full rights and possession in the suit property, he cannot maintain the present suit for partition and he was not entitled for any of the reliefs as prayed for. 16. The first defendant filed a memo of adoption adopting the written statement of the second defendant. 17. On the strength of these pleadings, the following issues were settled by the court of first instance. (1) Whether the defendants perfected their title over the suit property by adverse possession? (2) Whether the plaintiff is bound by the alleged agreement dated 8.4.1944? (3) Whether the decision in SANo.1164/80 is not binding upon the suit parties? (4) Whether the suit for partition is not maintainable? (5) Whether the suit as such framed is not maintainable? (6) Whether the plaintiff is entitled to half share in the suit property and possession of the same? (3) Whether the decision in SANo.1164/80 is not binding upon the suit parties? (4) Whether the suit for partition is not maintainable? (5) Whether the suit as such framed is not maintainable? (6) Whether the plaintiff is entitled to half share in the suit property and possession of the same? (7) Whether the plaintiff is entitled to mesne profits of Rs.15,000/- with interest? (8) Whether the plaintiff is entitled to future profits? (9) Whether the plaintiff is entitled to the preliminary decree prayed for? (10) To what relief? 18. On behalf of the plaintiff P.Ws.1 to 3 were examined, Exs.A-1 to A-7 were marked and on behalf of the defendants D.Ws.1 and 2 were examined, Ex. B-1 and Ex. B-2 were marked. 19. The court of first instance recorded reasons in detail on appreciation of the oral and documentary evidence available on record and came to the conclusion that the plaintiff was entitled to the preliminary decree for partition and separate possession of his share in the plaint schedule property and also for mesne profits. The defendants, aggrieved by the said decree and judgment, carried the matter by way of appeal A.S.No.60 of 1997 on the file of the Additional District Judge, Hindupur, and the appellate court at para 6 had formulated the following points for consideration in the appeal. (1) Whether the relinquishment deed dated 2.1.1945 excludes the right or title of the vendor of the plaintiff to any portion of the suit extent? (2) Whether the alleged agreement dt.8.4.1944 is true and binds the parties herein? (3) Whether the decision in SANo.1164 of 1980 operates as res judicata against defendants? (4) Whether the adverse possession pleaded by the defendants is proved and whether they have perfected their right over entire extent of 0.82 f cents in the suit survey number? (5) Whether the suit is bad for non-joinder of persons whose names are mentioned in paras 3 and 4 of the written statement? (6) Whether the plaintiff is entitled to mesne profits? If so at what rate? (7) Whether the plaintiff is entitled to partition and separate possession of his share? The appellate court recorded reasons in detail commencing from paras 7 to 12 and ultimately came to the conclusion that the decree and judgment made by the court of first instance to be confirmed. If so at what rate? (7) Whether the plaintiff is entitled to partition and separate possession of his share? The appellate court recorded reasons in detail commencing from paras 7 to 12 and ultimately came to the conclusion that the decree and judgment made by the court of first instance to be confirmed. No doubt, while answering point NO.7 at para 13 the appellate court directed division of the plaint schedule properties into two equal shares and allotment of one such share to the respondent-plaintiff keeping the good and bad qualities into consideration, but however, while confirming the decree and judgment of the court of first instance relating to mesne profits also no specific observation as such had been made. 20. It is needless to say that since the appellate court dismissed the appeal, it may have to be taken that not only the decree relating to partition but also the decree relating to the mesne profits also to be taken as having been confirmed by the appellate court. It is no doubt true that the court of first instance had not dealt with any specific issue relating to the aspect of res judicata in the context of the judgment in SANo.1164 of 1980. May be this being a question of law and no further evidence need be adduced in this regard, the appellate court had taken into consideration the relevant findings recorded by this Court in the second appeal and came to the conclusion that the questions which had been agitated in the prior litigation cannot be re-agitated again. 21. Apart from the evidence of P.W.1, P.Ws.2 and 3 also had been appreciated. On a careful analysis of the oral and documentary evidence on record both the court of first instance and also the appellate court recorded concurrent findings and came to the conclusion that the respondent is bound to succeed. In the light of the decisions placed before this Court and also the additional alleged substantial questions of law, which had been pointed out by the learned counsel representing appellants, this Court had given anxious consideration to the findings recorded by the court of first instance and also the appellate court. Except the aforesaid points, none other points had been urged by the counsel representing the parties. 22. Except the aforesaid points, none other points had been urged by the counsel representing the parties. 22. This Court is thoroughly satisfied that even if the substantial questions of law on the strength of which the second appeal had been admitted and those had been pointed out by K. Srinivasa Rao, learned counsel representing the appellants to be taken into consideration in the light of the concurrent factual findings coupled with the findings relating to the aspect of res judicata by the appellate court, this Court is thoroughly satisfied that no substantial question of law as such is involved in this second appeal and the second appeal being devoid of merit the same shall stand dismissed with costs.