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2013 DIGILAW 1119 (AP)

D. Venkatalakshmamma v. Veluru Rajeswaramma

2013-12-06

K.C.BHANU

body2013
Judgment : This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 03.08.2011, passed in A.S.No.3 of 2009 on the file of the Senior Civil Judge, Srikalahasti, whereunder and whereby, the judgment and decree, dated 08.04.2009, passed in Original Suit No.155 of 2005 on the file of the Principal Junior Civil Judge, Srikalahsti, were confirmed. 2. The appellants herein are the defendants, and the respondent herein is the plaintiff, in the trial Court. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court. 3. The plaintiff filed the suit stating as follows: Plaintiff purchased the plaint schedule property from one Moravaneni Ragappa Naidu on 17.12.1970 and was inducted into possession of the said property; that on 25.11.1987, when she raised paddy crop, husband of 1st defendant and her followers obstructed her, and so, she filed Original Suit No.383 of 1987 for permanent injunction against one Narasaiah and the said suit was decreed; that later husband of 1st defendant preferred Appeal Suit No.14 of 1995 against the said judgment, and the said appeal was allowed; that during pendency of the appeal, the said Narasaiah died and so, defendants were added as legal representatives of deceased Narasaiah; that after disposal of the said appeal, defendant Nos.1 to 5 approached her and held meditation and in the said meditation, defendants received an amount of Rs.15,000/- from her and to drop further litigation; that again the defendants demanded her to give more amount, but when she refused for it, the defendants caused obstruction to her on 15.09.2004 and dispossessed her from the plaint schedule property. Hence, the suit. 4. Defendant No.1 filed written statement, which was adopted by defendant Nos.2 to 5, denying the averments made in the plaint and stated that father of appellant Nos.2 to 5 and husband of appellant No.1 was in continuous, possession and enjoyment of plaint schedule property; that the defendants obtained Pattadar Pass Book and title deed in respect of the said property; that the plaintiff did not challenge the judgment in A.S.No.14 of 1995, and so, it became final; that the plaintiff never paid any amount to these defendants and hence, they pray to dismiss the suit. 5. 5. On the basis of above pleadings, the following issues have been settled by the trial court for trial: “1. Whether the plaintiff is entitled for declaration of her title to the plaint schedule property? 2. Whether the plaintiff is entitled for delivery of property as prayed for? 3. Whether the plaintiff is entitled for permanent injunction as prayed for? 4. Whether the cause of action is true? And 5. To what relief?” 6. During trial, on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A.1 to A.12 were got marked, and on behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.7 were got marked. 7. The trial Court after considering the evidence on record vide its judgment, dated 08.04.2009, decreed the suit. Aggrieved by the same, the appellants herein filed A.S.No.03 of 2009 and the same was dismissed vide impugned judgment, dated 03.08.2011, confirming the judgment and decree in O.S.No.155 of 2005. Challenging the same, the present Second Appeal is filed and is sought to be admitted on the following ground: “Whether the remedy to the plaintiff to get back the suit property and to declare the ownership over it, who sold the suit schedule property to late D.Narsaiah, the ancestor of the defendants through an agreement of sale letter, dated 15.04.1972 and who delivered the physical possession of the suit schedule property to the defendants after receiving the total sale consideration, is by way of filing a suit for declaration and recovery of possession or a suit for Specific Performance of the said agreement of sale ?” 8. Learned counsel appearing for the appellants/defendants contended that when the respondent herein filed a suit O.S.No.383 of 1987 for permanent injunction, the said suit was decreed and thereafter, father of defendant Nos.2 to 5 and husband of defendant No.1 filed appeal A.S.No.14 of 1995, whereunder decree and judgment of the trial Court in O.S.No.383 of 1987 were set aside holding that father of appellant Nos.2 to 5 and husband of appellant No.1 was in possession and enjoyment of the property and after his death, the appellants were in possession and enjoyment of the property right from the year 1972; that the appellants perfected their title by adverse possession; that having accepted the said finding, the respondent cannot file a suit for declaration of title contrary to the pleadings and hence, he prays to set aside the impugned judgment and decree. 9. On the other hand, learned counsel for the respondent/plaintiff contended that neither father of appellant Nos.2 to 5 nor the appellants have filed any suit for Specific Performance of Contract based on agreement of sale; that as the appellants dispossessed the respondent from the plaint schedule property, she filed a suit and basing on the evidence available on record, the trial Court decreed the suit; that even the said agreement of sale, dated 15.04.1972 has not been filed into the Court so as give a finding and hence, he prays to dismiss the appeal. 10. In view of amendment to Section 100 C.P.C, admitting of Second Appeal is not automatic or routine. It must be shown that the findings are perverse or that findings are not based upon admissible evidence or inadmissible evidence has been taken into consideration in arriving such findings. 11. Learned counsel for the appellants, relied on EX.A.4-judgment in A.S.No.14 of 1995, in earlier round of litigation. It is not in dispute that originally, the respondent herein filed a suit O.S.No.383 of 1987 for permanent injunction and the said suit was decreed. Father of appellant Nos.2 to 5 filed an appeal A.S.No.14 of 1995, whereunder certain observations are made by the first appellate Court that father of appellant Nos.2 to 5 has got right, title and interest over the schedule property. It is a perverse finding. That finding ought not have been given because such a finding is not warranted in a suit for permanent injunction. It is a perverse finding. That finding ought not have been given because such a finding is not warranted in a suit for permanent injunction. Therefore, any observation made in A.S.No.14 of 1995, does not confer any title to the appellants because the Original Suit therein is filed for declaration of title. On the other hand, in view of the fact that the respondent filed the suit for declaration of title and recovery of possession, the initial burden is on her to establish her title. To prove the title, the respondent filed Photostat copy of sale deed, dated 17.12.1970, which is not disputed. By virtue of said sale deed, the respondent has got right, title and interest. As seen from the record, the respondent has not transferred title in respect of immovable property to anybody. But, appellant Nos.2 to 5 are claiming that their father entered into an agreement of sale, dated 15.04.1972, and by virtue of the same, entire amount has been paid to the Vendee and Vendor inducted the Vendee into possession of the property. The said agreement of sale has not been marked so as to establish that father of appellant Nos.2 to 5 inducted into possession. Except filing Exs.B1 and B.2, which are revenue records, no title deed was filed by the appellants in the trial Court. There cannot be any dispute that the revenue records like Exs.B.1 and B.2, do not confer any title to the parties. In the absence of any title to the appellants, they cannot claim that they got right, title and interest by virtue of finding given by the competent Court in A.S.No.14 of 1995. When father of appellant Nos.2 to 5 claims that they are in possession and enjoyment of the property by virtue of the sale letter, dated 15.04.1972, the defendants cannot turn round and say that they have perfected their title by adverse possession. Therefore, the findings, if any, observed by the learned judge in A.S.No.14 of 1995, do not confer any title to the appellants. In the absence of any title to the appellants, both the Courts below rightly decreed the suit. None of the findings is shown to be perverse or contrary to law. In the absence of any perverse finding, admitting the Second Appeal does not arise. 12. Accordingly, the Second Appeal is dismissed at the stage of admission itself. In the absence of any title to the appellants, both the Courts below rightly decreed the suit. None of the findings is shown to be perverse or contrary to law. In the absence of any perverse finding, admitting the Second Appeal does not arise. 12. Accordingly, the Second Appeal is dismissed at the stage of admission itself. There shall be no order as to costs.