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2011 DIGILAW 1116 (AP)

Mettapalli Krishna Reddy v. Chemuru Raghava Reddy

2011-12-08

R.KANTHA RAO

body2011
: This second appeal is directed against the decree and judgment dated 15.04.2004 passed by the Senior Civil Judge, Srikalahasthi in A.S.No.8 of 2003. 2. The plaintiff filed the second appeal. 3. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 4. The plaintiff instituted the suit for injunction basing on a sale letter marked as Ex.A-28. He also filed several other documents showing that he is in possession of the schedule mentioned property. 5. The case of the plaintiff is that the first defendant agreed to sell the plaint schedule site for an amount of Rs.4,200/-, received the entire sale consideration and executed the sale letter in favour of the plaintiff. The plaintiff is no other than the brother-in-law of the defendants 1 and 2. The defendants also adduced some evidence showing that they are in possession of the property. The plaintiff apart from filing doucments showing his possession also examined the witnesses in proof of Ex.A-28 sale letter allegedly executed by the first defendant in his favour whereunder he wasput in possession of the suit schedule site wherein a thatched house was built. 6. Upon considering the entire evidence on record, the learned trial Court dismissed the suit filed by the plaintiff which is affirmed by the appellate Court by dismissing the appeal. Aggrieved by the same, the second appeal has been filed by the plaintiff. 7. The second appeal is admitted considering that the following substantial question of law is involved for consideration: “Whether it is legal to say that the possession in pursuance of sale agreement is only permissive and cannot be protected by way of injunction suit even if the sale deed is not executed?” 8. I have gone through the pleadings and evidence adduced by both parties, the judgments rendered by both the courts below, in the light of the submissions made by both the learned counsel. 9. One of the crucial aspects is that initially the plaintiff pleaded that he perfected title to the plaint schedule property by adverse possession and subsequently before the learned trial Court both parties by filing the memo under Order 14 Rule 2 of CPC abandoned the said issue and thereupon, the learned trial Court had struck down the pleadings in relation to the plea of adverse possession. For that reason, both the courts below did not consider the issue of adverse possession. However, both the courts below though recorded the concurrent findings, expressed the view that the plaintiff is in permissive possession of the property which is nobody’s case. The plaintiff’s case is that he was put in possession of the property under Ex.A-28 sale letter and his possession in respect of the schedule mentioned property is perfectly legal. The finding recorded by the first appellate Court that the plaintiff is in permissive possession of the property is not based on either pleadings of the parties or evidence forthcoming in the case. Both the courts below also have not given any specific finding as to the possession of the property in the light of the evidence adduced by both parties in respect of their possession. The learned first appellate Court also decided the legal issue which is in the nature of affecting the rights of the parties namely that the plaintiff’s remedy is only to file a suit for specific performance of contract embodied in Ex.A-28 sale letter and in the absence of filing suit for specific performance, he cannot file a suit for simple injunction basing on Ex.A-28 sale letter under which he claims to have been put in possession of the property. In SHRIMANTH SHAMRAO SURYAVANSHI AND ANOTHER v. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRs. AND OTHERS (2002) 3 SCC 676 ), the Supreme Court held that a person obtaining possession of the property in part-performance of an agreement of sale, held, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. 10. The law laid down by the Hon’ble Supreme Court on this aspect equally applies to a suit for injunction filed by the plaintiff basing on Ex.A-28 sale letter. The law is now well settled that having recourse to Section 53-A of the Transfer of Property Act a person who was put in possession of the property in part performance of the contract can protect his possession if the conditions embodied in the said provision are fulfilled. The law is now well settled that having recourse to Section 53-A of the Transfer of Property Act a person who was put in possession of the property in part performance of the contract can protect his possession if the conditions embodied in the said provision are fulfilled. These aspects have not at all been considered by both the courts below and were erroneously of the view that the plaintiff cannot file a suit for permanent injunction without asking for the relief of specific performance of contract. Thus, the entire findings recorded by the learned courts below are erroneous and they gave rise to the substantial questions of law which were referred to above and the findings recorded and confirmed are contrary to the pleadings, the evidence on record and the settled principles of law, they are, therefore, liable to be set aside in this second appeal. 11. Under these circumstances, to do complete justice between the parties , this Court is of the view that the matter has to be remitted back to the trial court for framing appropriate issues and give findings on each issue afresh. While remitting back the matter to the trial court, the following directions are issued to the trial court: i) The trial Court may in its discretion permit the parties to amend the pleadings in view of the improper findings rendered by both the Courts below on crucial issues; ii) The parties may be permitted to let in any additional evidence in support of their contentions; iii) The trial court has to dispose of the suit within six months from the date of receipt of a copy of the judgment and the records relating to the case. 12. In the result, the judgment and decree dated 15.04.2004 passed by the first appellate Court in A.S.No. 8 of 2003 confirming the judgment and decree dated 17.07.2003 passed by the Principal Junior Civil Judge, Srikalahasthi in O.S.No.93 of 1996 are hereby set aside. The matter is remitted back to the trial Court for fresh disposal, according to law, in the light of the aforesaid directions. The second appeal is allowed. There shall be no order as to costs.