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2010 DIGILAW 1175 (AP)

N. Madhava Rao v. T. Ramalingeswara Rao

2010-11-23

R.KANTHA RAO

body2010
Judgment : 1. This second appeal is filed against the judgment dated 07.11.2005 passed in A.S.No.151 of 2002 by the IX Additional District Judge (Fast Track Court), Visakhapatnam. 2. The appellants filed the suit for permanent injunction against the respondents/defendants in respect of 560 sq. yards of land before the Principal Junior Civil Judge, Visakhapatnam in O.S.No.976 of 1998. The said suit after full trial was dismissed by the learned trial Court by its decree and judgment dated 20.08.2001. In the appeal A.S.No.151 of 2002 preferred by them, the learned IX Additional District Judge (Fast Track Court), Visakhapatnam confirming the finding of the trial Court, dismissed the appeal. Feeling aggrieved, the appellants/plaintiffs preferred the present appeal. 3. I have heard the learned counsel appearing for the appellants and the respondents. 4. At the time of admitting the second appeal, though the following substantial question oflaw has been formulated i.e. whether the sale by one co-sharer of a joint family property alone without the approval of all the other co-sharers would be valid in the eye of law and is such a transaction binding on all the other co-sharers, the other substantial question of law arises for consideration is whether the findings recorded by the learned first appellate Court are contrary to the evidence on record and perverse and also contrary to the settled principles of law in the matter of burden of proof in civil cases. 5. For the sake of convenience, the parties will be referred to as ‘plaintiffs and defendants’ i.e. as they were arrayed in the trial Court. 6. The brief facts which are necessary for considering the present appeal are that the plaintiffs filed the suit in respect of an extent of 560 sq. yards of vacant land in Survey No.47 of Madhavadhara Village, which is said to be part of an extent of Ac.3.00 of land. The plaintiffs are said to be the sons of the defendant No.7, who is the son of Poornnaiah, the original owner. According to the plaintiffs, all of them are in joint possession and enjoyment of the property which fell to the share of Poornaiah under partition and the property was in joint enjoyment of all the co-sharers. According to them, they filed the suit when the defendants tried to evict them from the schedule mentioned property by force without having any right. According to them, they filed the suit when the defendants tried to evict them from the schedule mentioned property by force without having any right. The defendants claimed title in the schedule mentioned property under a registered sale deed executed by the defendant No.4, who is said to be the owner and sharer separated from the plaintiffs and the said sale deed is attested by the defendant No.7. 7. Apart from filing the said sale deed-Ex.B.1, the defendants filed Exs.B.2 to 4photographs. The first plaintiff was examined as PW.1 besides examining one more witness as PW-2 and no documents were marked. In support of the case of the defendants 1 to 3, 2nd defendant was examined as DW1 besides examining one more witness as DW-2 and marked Exs.B.1 to B.3. No oral or documentary evidence is adduced by the defendants 3 to 8. 8. Basing on the rival contentions, the trial Court settled the following issues: 1) Whether the plaintiffs are in exclusive possession and enjoyment of the schedule property? 2) Whether the plaintiffs are entitled for permanent injunction as prayed for? 3) To what relief? 9. The learned trial Court on considering the fact that admittedly the schedule mentioned property is part of the ancestral property of the plaintiffs and as there was no partition among the co-sharers, defendant No.4 cannot convey the valid title in favour of the defendant No.1 and more particularly, noticing the fact that the survey numbers were mentioned as 47 and 48 in Ex.B.1 sale deed, which was said to have been executed in favour of the defendant No.1. But subsequently, it was found that Survey No.48 was included in the schedule of the sale deed by interpolation. The learned trial Court after perusing the registration extract of Ex.B.1 sale deed filed by the defendants found that there is only one survey No.47 in the sale deed, but there was no reference to Survey No.48. Considering all these facts, the learned trial Court dismissed the suit. The learned first appellate Court noticing all these facts accepted that the defendants have tampered with Ex.B.1 sale deed, gave a positive finding that defendants 1 and 2 had tampered with the Survey No.48 in Ex.B.1 sale deed. However, held that since the plaintiffs have not filed any document to prove their possession, they are not entitled for injunction. The learned first appellate Court noticing all these facts accepted that the defendants have tampered with Ex.B.1 sale deed, gave a positive finding that defendants 1 and 2 had tampered with the Survey No.48 in Ex.B.1 sale deed. However, held that since the plaintiffs have not filed any document to prove their possession, they are not entitled for injunction. The learned first appellate Court also further held that if the defendants had filed the suit instead of plaintiffs, definitely the defendants would have failed by reason of tampering of Survey No.48 in Ex.B.1. The entire reasoning adopted by the learned Appellate Court is totally perverse and not based on the pleadings and evidence before it. In fact, PW.1 one of the plaintiffs and PW.2 spoke about the title and possession of the plaintiffs in respect of the schedule mentioned property. Admittedly, the title of the property vested with the plaintiffs and the case of the defendants is that the defendant No.4 became entitled to the property under the sale deed executed by the defendant No.2, in which defendant No.7 signed as attesting witness. The very sale deed was found to be fabricated with regard to the Survey No.48, as per the findings arrived at by both the Courts below. Exs.B2 to B.4-photographs in the absence of any other evidence, it cannot be said that the photographs related to the schedule mentioned land. Though Ex.B.1 was executed on 06.07.1983, no other documentary evidence showing their possession was produced by the documents. The civil court has to arrive at a decision basing on preponderance of probabilities. The learned first appellate Court gave a finding which is highly perverse and contrary to the pleadings and evidence ofthe parties. The said finding being perverse and not based on evidence raises a substantial question of law requiring interference in the second appeal. The said finding therefore, shall be set aside in the appeal. 10. In the result, the decree and judgment passed in IX Additional District Judge (Fast Track Court), Visakhapatnam in A.S.No.151 of 2002 confirming those of the Principal Junior Civil Judge, Visakhapatnam in O.S.No.976 of 1998 are set aside. The suit filed by the appellants is decreed as prayed for. The second appeal therefore succeeds and the same is allowed. There will be no order as to costs.