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2013 DIGILAW 1161 (AP)

Nandyala Koti Reddy v. Bheemavarapu Rama Krishna

2013-12-13

M.S.RAMACHANDRA RAO

body2013
JUDGMENT This second appeal is filed challenging the judgment and decree dated 14.8.2013 in AS No. 6 of 2011 of the II-Additional District Judge, Nalgonda at Suryapet reversing the judgment and decree dated 24.2.2011 in OS No. 314 of 2005 of the Junior Civil Judge, Kodad, Nalgonda District. 2. The appellant herein is second defendant in the above suit. The first respondent/plaintiff had filed the suit OS No. 314 of 2004 for perpetual injunction restraining the appellant and the second respondent/first defendant from interfering with his possession and enjoyment of the plaint schedule property. The plaint schedule property is an extent of Acs.3-00 gts in Sy.No.10/AA [10/D] of Syed Mazavarpeta Revenue Village of Munagala Mandal, Nalgonda District. 3. The plaintiff contended that he purchased the plaint schedule property from the first defendant under Ex.A1 sale deed dated 29.4.1986 and that after its purchase he is in continuous possession and enjoyment of the plaint schedule property. He contended that he was issued pattedar passbook and title deed and had also raised loans from the Primary Agriculture Co-operative Society, Thadwai Village on the basis of the said documents. He contended that defendants colluded together and created false documents in respect of the plaint schedule property and they tried to interfere with his possession and enjoyment of the plaint schedule property on 22.7.2005. He contended that he had leased out the land to one Gannavarapu Veera Reddy in 2005 and that he had raised groundnut and green gram crops in the plaint schedule property and in order to protect the possession of himself and the lessee, he had filed the suit. 4. The first defendant remand ex parte. 5. The second defendant/appellant herein filed a written statement admitting the possession of the plaintiff over the plaint schedule property till 1994 but contended that subsequently, plaintiff had executed an agreement of sale dated 15.4.1994 in his favour to sell away the plaint schedule property for Rs. 15,000/- per acre and received Rs. 20,000/- as advance. He also contended that the entire sale consideration was paid later and he was also delivered possession on 12.3.1995 by plaintiff, that revenue authorities issued pattedar passbook and title deed in his favour and mutated his name in the pahani for the year 1994-95. He therefore prayed that the suit be dismissed. 6. 20,000/- as advance. He also contended that the entire sale consideration was paid later and he was also delivered possession on 12.3.1995 by plaintiff, that revenue authorities issued pattedar passbook and title deed in his favour and mutated his name in the pahani for the year 1994-95. He therefore prayed that the suit be dismissed. 6. The trial Court framed the following issues : (i) Whether the plaintiff is entitled for permanent injunction as prayed for? (ii) To what relief? 7. The plaintiff examined himself as PW 1 and also three more witnesses as PWs. 2 to 4 and marked Exs.A1 to A8. The second defendant examined himself as DW 1 and four other witnesses as DWs. 2 to 5 and marked Exs.B1 to B28. 8. By judgment and decree dated 24.2.2011, the trial Court dismissed the suit. It held that Exs.A1 to A8 are all prior to the suit and therefore they cannot be relied upon by the plaintiff to show that he is in possession over the plaint schedule property as on the date of filing of the suit. It held that Exs.B1 to B28 would show that the second defendant is in possession over the plaint schedule property after 1995. It held that the plaintiff was residing in Suryapet since 1991 and therefore he could not have raised any crops in the property from 2004-06 and therefore the evidence of PWs. 2 and 3 in that regard cannot be believed. It also held that the alleged lessee Gannavarapu Veera Reddy was not examined by the plaintiff and that DWs. 2 to 4, who were neighbouring landowners, were examined by the second defendant to show possession of the second defendant. It also held that plaintiff got mutated name of second defendant in revenue records through the first defendant and therefore the second defendant became the owner and possessor of the plaint schedule property. 9. Aggrieved thereby, the plaintiff filed AS No. 6 of 2011. 10. In appeal IA No. 1274 of 2012 was filed by the plaintiff to receive the pahani for the year 2004-05 as additional evidence in the appeal. The lower appellate Court rejected it by order dated 3.1.12013. Challenging the same CRP No. 927 of 2010 was filed in this Court. Aggrieved thereby, the plaintiff filed AS No. 6 of 2011. 10. In appeal IA No. 1274 of 2012 was filed by the plaintiff to receive the pahani for the year 2004-05 as additional evidence in the appeal. The lower appellate Court rejected it by order dated 3.1.12013. Challenging the same CRP No. 927 of 2010 was filed in this Court. This Court by order dated 17.6.2013 allowed the CRP stating that the application for additional evidence has to be decided alongwith the appeal and could not have been decided separately by the lower appellate Court. It set aside the order dated 3.1.2013 in IA No. 1274 of 2012 and directed the lower appellate Court to consider the same and then decide the appeal. 11. By judgment and decree dated 14.8.2013, the lower appellate Court allowed the appeal. The lower appellate Court held that by virtue of the order dated 17.6.2013 in CRP No. 927 of 2010, the plaintiff was entitled to produce additional evidence i.e., pahani for the year 2004-05 as additional evidence. It held that all the pahanies Exs. A5 to A8 as well as the pahani for the year 2004-05 would show the possession of the plaintiff over the plaint schedule property; that the agreement of sale dated 5.1.1994 pleaded by second defendant was not filed even in the Court by him; that second defendant gave evidence that he purchased the plaint schedule property from first defendant; after selling the plaint schedule property to the plaintiff under Ex.A1, the first defendant could not have executed any agreement of sale in favour of second defendant, as he no longer had right in the property; only on the basis of the alleged agreement executed by first defendant in his favour, second defendant had obtained 13-B patta certificate on 24.3.1995; on that basis only Ex.B4 pattedar passbook and Ex.B5 title deed book were issued to second defendant and he was able to raise loans under Ex.B9 bank passbook issued by PACs Thadvai; that such entries in the revenue record or title in favour of second defendant, without there being any conveyance in his favour from the first defendant or the plaintiff cannot be accepted. It also held that PWs. It also held that PWs. 2 to 4, who were agricultural labourers who assisted the plaintiff in agriculture during the years 2004-05 and 2004-06, were examined by plaintiff and that they assisted the plaintiff during the above years; but DWs. 2 to 4 who were examined by second defendant to speak about his possession were closely related to second defendant and their evidence cannot be believed. It therefore held that the plaintiff is the owner of the plaint schedule property and was in possession of the suit property as on the date of filing of the suit and is entitled to relief of perpetual injunction. 12. Challenging the same, this second appeal is filed. 13. The primary contention of the Counsel for the appellant/second defendant is that the application for additional evidence had not been decided by the lower appellate Court at all and it presumed that the application for additional evidence had been allowed by the High Court in the CRP and on that basis it had decreed the suit erroneously. He therefore contended that pahani for 2004-05 could not have been relied upon by lower appellate Court. He further contended that possession of the plaintiff on the date of filing of the suit cannot be said to have established, without this additional evidence and therefore the judgment and decree of the lower appellate Court is required to be set aside. He cited decision of the Division Bench of this Court in Durga Matha House Building Constructions Co-op. Housing Society Ltd. and others v. Sada Yellaiah and others, 2012 (3) ALD 633 (DB) = 2013 (5) ALT 442 (DB), in support of his plea. 14. The Counsel for the respondent/plaintiff however contended that reasons given by the lower appellate Court are valid, the findings of fact given by the lower appellate Court are based on correct appreciation of evidence and the said findings of fact are not liable to be disturbed by this Court in exercise of its limited jurisdiction under Section 100 of CPC. 15. I have noted the submissions of both sides. 16. The plaintiff has admittedly purchased the plaint schedule property from first defendant under Ex.A1 registered sale deed dated 29.4.1986. Although second defendant pleaded that he purchased the plaint schedule property from plaintiff under an agreement of sale dated 5.1.1994, he did not even file the alleged agreement of sale. 15. I have noted the submissions of both sides. 16. The plaintiff has admittedly purchased the plaint schedule property from first defendant under Ex.A1 registered sale deed dated 29.4.1986. Although second defendant pleaded that he purchased the plaint schedule property from plaintiff under an agreement of sale dated 5.1.1994, he did not even file the alleged agreement of sale. In any event, under Section 54 of the Transfer of Property Act, title to property cannot pass under an agreement of sale unless there is a registered sale deed executed by the plaintiff in favour of second defendant. The second defendant in his evidence also stated that first defendant had executed an agreement of sale in his favour but he did not choose to give the date of execution of the said agreement of sale. He also did not file it. Having sold the plaint schedule property to plaintiff under Ex.A1, the first defendant had no right, title or interest in the plaint schedule property which he could have conveyed under an agreement of sale to second defendant. Therefore, I hold that plaintiff has title to the plaint schedule property. 17. Coming to the aspect of possession, it is true that the plaintiff in the trial Court did not file the pahani for the year 2004-05 in support of his plea that he was in possession of the plaint schedule property on the date of filing of the suit i.e., 27.7.2005. But he did file Exs.A5 to A8 pahanies for the years 1992-93, 1993-94, 2002-03, 2003-09. The plaintiff had also filed Ex.A2 pattedar passbook and Ex.A3 title deed issued in his favour by the revenue authorities. 18. It may be that the plaintiff could not file pahani for the year 2004-05 while filing the suit. Subsequently when the appeal was pending he did filed IA No. 1274 of 2012 to receive it as additional evidence. The lower appellate Court initially rejected it but the said order was set aside by this Court in CR No. 927 of 2013 and directed the lower appellate Court to consider the application afresh and then dispose of the appeal. It does not appear that any separate order has been passed in IA No. 1274 of 2012 by lower appellate Court. However, it accepted the same as additional evidence and relied on pahani for the year 2004-05 filed as additional evidence petition. It does not appear that any separate order has been passed in IA No. 1274 of 2012 by lower appellate Court. However, it accepted the same as additional evidence and relied on pahani for the year 2004-05 filed as additional evidence petition. In Durga Matha House Building Constructions Co-op. Housing Society Ltd. and others v. Sada Yellaiah and others (supra), a Division Bench of this Court held that if the application for additional evidence was not considered by the appellate Court and the appeals were dismissed without consideration, it is appropriate to set aside the order passed in the appeal in a review petition and then re-hear the matter. The principle laid down in the above case is unexceptionable but even de hors the additional evidence of pahani for the year 2004-05, I am satisfied (as explained below) that the plaintiff has established his possession over the plaint schedule property. 19. The second defendant had filed only pahani for the years 1994-95, 1995-96. Though he filed Exs.B4 and B5 pattedar passbook and title deed, he admitted in his evidence that they were issued on the basis of the alleged agreement of sale executed in his favour by first defendant. Therefore, Exs.B4 and B5 cannot be given any weight. By virtue of Ex.A8 pahani, the possession of the plaintiff in respect of the plaint schedule property has to be taken as proved for 2003-04. Under Section 114 of the Evidence Act, 1872, the Court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Illustration [d] to Section 114 of the Evidence Act direct that the Court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence. 20. Therefore, it has to be presumed that the state of things existing in 2003-04 also continue in 2004-05. Moreover the plaintiff has examined himself and PWs. 2 to 4 to establish his possession over the plaint schedule property on the date of filing of the suit. 20. Therefore, it has to be presumed that the state of things existing in 2003-04 also continue in 2004-05. Moreover the plaintiff has examined himself and PWs. 2 to 4 to establish his possession over the plaint schedule property on the date of filing of the suit. I also agree with the findings of the lower appellate Court that evidence adduced by second defendant as regards his possession through DWs.2 to 4 cannot be relied upon as DWs.2 to 4 are related to second defendant and their evidence is partisan. The second defendant had admittedly not filed any evidence of his possession after 1996 (pahanies for the years 1994-95, 1995-96) while the plaintiff had filed pahanies for the years 2002-03, 2003-04 which are later point of time. Therefore, by virtue of the presumption contained in Section 114 of the Evidence Act, it has to be held that the plaintiff is in possession of the plaint schedule property even in 2004-05 and on the date of filing of the suit. 21. Since the plaintiff has prima facie title and also possession over the plaint schedule property on the date of filing of the suit, the lower appellate Court had rightly considered the evidence on record and reversed the judgment of the trial Court. 22. I do not find any substantial question of law arising for consideration in the second appeal. Therefore, the second appeal fails and is accordingly dismissed at the admission stage. No costs.