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2011 DIGILAW 269 (AP)

Morampudi Pitchaiah v. Avalapati Ramchandra Rao

2011-03-24

R.KANTHA RAO

body2011
Judgment This second appeal is directed against the judgment and decree dated 16.09.1999 passed by the Senior Civil Judge, Nuzividu in A.S.No.38 of 1990 whereby and whereunder the learned Senior Civil Judge reversed the judgment and decree dated 04.10.1990 passed by the learned District Munsif, Tiruvuru in O.S.No.9 of 1988. I have heard the learned counsel appearing for the appellant. None appears for the respondents. For convenience sake, the parties will be referred as “the plaintiff and the defendants”. Plaintiff filed O.S.No.9 of 1988 on the file of the District Munsif, Tiruvuru for relief of permanent injunction against the defendants in respect of a hedge (Kattava) consisting of some palmyrah trees and some other trees. The land of the defendants is situate on the southern side of the land of the plaintiffs. The defendants admitted in their written statement that Venkamma, the mother of the plaintiff purchased an extent of Ac.3.00 ofland under an agreement of sale dated 18.04.1959 from Morampudi Ramaiah and that the land of the plaintiff is part of the said land. The only contention of the defendants is that the hedge consisting of palmyrah trees is on the southern side of their land and the plaintiff does not have any right in the said hedge. But, the version of the plaintiff is that their land extends to one yard beyond the hedge in respect of which injunction is claimed. Before the learned trial Court PWs.1 to 4 were examined and Exs.A-1 to A.9 were marked on behalf of the plaintiff. DWs.1 to 4 were examined, but no documents were marked on behalf of the defendants. Learned trial Court upon considering the evidence adduced on behalf of the plaintiff arrived at the conclusion that the hedge consisting of palmyrah trees and some other trees situate on the northern side of the plaintiff’s land belongs to them and they have been in possession and enjoyment of the same since the date of purchase of the land by their mother under an agreement of sale Ex.A-1 dated 18.04.1959 and accordingly granted permanent injunction in favour of the plaintiff and against the defendants. Learned trial Court took into consideration the oral evidence adduced on behalf of the plaintiff which is to the effect that the palmyrah trees were in existence even on the date of purchase of the land by the mother of the plaintiff and that the said entire hedge consisting of palmyrah trees on the northern side runs from east to west exclusively belongs to the plaintiffs and the defendants do not have any right over the same. The defendants did not dispute the title of the plaintiffs in respect of the land which is on the southern side of the defendants’ land. Their only contention is that the land is not an extent of Ac.2.55 cents as stated by the plaintiff but it is only Ac.2.50 cents and the edge belongs to the defendants. The admission made by DW-1 in his evidence which was considered to be crucial by the learned trial Court is that the plaintiff’s mother purchased Ac.3-00 of land under Ex.A-1 from M.Ramaiah and that V.Venkataramaiah purchased 25 cents of land from the plaintiff and on the northern edge of the said land purchased by V. Venkataramaiah there are 8 palmyrah tress which belong to him. It is also an admitted fact that the said trees are in line with the hedge consisting of 35 to 40 palmyrah trees, 3 tamarind trees and two other trees. At the instance of the plaintiffs, a commissioner was appointed by the trial Court and in his report, the commissioner stated about the existence of the above mentioned palmyrah trees in the hedge and that the said trees are in alignment with the palmyrah trees belonging to V. Venkataramaiah on his land. The evidence of DW-4 is also to the same effect. The learned trial Court also observed that since the land was purchased 30 years ago, there might be only small palmyrah plants and that was the reason for not mentioning about their existence in Ex.A-1 agreement of sale. Considering all these facts, the learned trial court gave a positive finding that the plaintiff’s hedge (Kattava) consisting of palmyrah trees is situate in the land of the plaintiff on the northern side and the defendants have no kind of right whatsoever over the same. The findings of the learned trial Court are based on evidence and reasoning. Considering all these facts, the learned trial court gave a positive finding that the plaintiff’s hedge (Kattava) consisting of palmyrah trees is situate in the land of the plaintiff on the northern side and the defendants have no kind of right whatsoever over the same. The findings of the learned trial Court are based on evidence and reasoning. The learned first appellate Court, however, did not assign any enough and cogent reasons for reversing the well reasoned judgment passed by the trial court. The judgment of the trial Court was reversed solely on the ground that on account of the dispute regarding the land on which the palmyrah trees situate, the plaintiff has to ask the relief of declaration of title to the property and in the absence of asking relief of declaration of title, he is not entitled for a decree in a suit for simple injunction. The view expressed by the learned first appellate court is perverse for the reason that the defendants have categorically admitted in their written statement and in their evidence that the plaintiff has title to the land which is situate on the southern side of the defendants and their only contention was that the extent of the said land is not Ac.2.55 cents as contended by the plaintiff, but it was only Ac.2.50 cents. Under these circumstances and in view of the fact that the defendants admitted the title in respect of the land of the plaintiff, it is not obligatory for him to seek the relief of declaration of title. The dispute is with regard to the hedge on the northern side of the plaintiff’s land consisting of palmyrah trees. He can therefore also ask the relief of simple injunction only in respect of the hedge but not the relief of declaration of title in respect of their land. It is true that the findings recorded by the first appellate Court insofar as the question of fact are concerned are final and they attain finality only when they were recorded after proper reappraisal of the evidence on record. If the first appellate Court by resorting to perverse reasoning reverses the well reasoned judgment of the trial Court, this Court in the second appeal can interfere with the said findings of fact and set aside them. If the first appellate Court by resorting to perverse reasoning reverses the well reasoned judgment of the trial Court, this Court in the second appeal can interfere with the said findings of fact and set aside them. In the instant case, the learned first appellate Court did not at all assign any reasons as to why it took a different view to that of the trial Court. The decree and judgment passed by the learned trial Court was reversed by the first appellate Court on the mere ground that the plaintiff has not asked the relief of declaration of title in respect of the entire land and thus he is not entitled for a decree of permanent injunction in a suit for injunction simplicitor which as I have already said is perverse. For the aforementioned reasons, the judgment and decree dated 16.09.1999 passed by the Senior Civil Judge, Nuzividu in A.S.No.38 of 1990 is set aside and the judgment and decree dated 04.10.1990 passed by the learned District Munsif, Tiruvuru in O.S.No.9 of 1988 is confirmed. The second appeal therefore succeeds and the same is allowed. There shall be no order as to costs.