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2022 DIGILAW 110 (AP)

Bondada Purushotham v. Satta Dandasi

2022-01-27

M.VENKATA RAMANA

body2022
JUDGMENT : Heard Sri Venkateswarlu Kolla, learned counsel for the appellant. 2. The second plaintiff has come up with this second appeal against the concurrent judgments of the trial Court and the appellate Court. 3. The Plaintiff Nos.1 and 2 laid the suit for perpetual injunction against the sole defendant who is the 1st respondent herein. Their entire claim is based on two (2) unregistered sale deeds marked Ex A1 and Ex A16 at the trial. They further claimed that they are in possession of the property in dispute by virtue of sale deeds and to support such version they also relied on land revenue receipts, notices issued for land acquisition purposes and rough patta, at the trial. 4. The disputed lands are in survey No.224/12 each of Ac 0.60 cents in all Ac 1.20 cents located in different survey numbers, which are described in the plaint schedule. The grievance of the plaintiffs, who are the appellant and the 9th respondent against the sole defendant/1st respondent is that there was attempted interference with their possession and enjoyment without any manner or right and therefore they requested to grant relief against them. 5. The sole defendant/1st respondent resisted the claim of the plaintiffs mainly on the ground that the property in dispute was owned by Sri Billa Narsimhulu who is his maternal grand father and upon his death, his mother being only daughter got the same, which was being managed by his father Sri Chinni Krishna. He further contended that upon death of his mother being the only son and legal heir continued to enjoy this land. Thus the 9th respondent asserted his right, title as well as possession to this property. 6. Upon settling appropriate issues and considering his evidence let in by the parties, the trial Court dismissed the suit. 7. In the appeal presented by the plaintiffs, the findings of the trial Court in its judgment were confirmed and ultimately leading to dismissal. 8. These are the circumstances under which the second appeal is filed. 9. Learned counsel for the appellant/2nd plaintiff strenuously contended that both the Courts below did not consider the lawful possession of the plaint schedule lands though they relied on unregistered sale deeds and in view of Section 53-A of the Transfer of Property Act, their possession stood protected. 10. These are the circumstances under which the second appeal is filed. 9. Learned counsel for the appellant/2nd plaintiff strenuously contended that both the Courts below did not consider the lawful possession of the plaint schedule lands though they relied on unregistered sale deeds and in view of Section 53-A of the Transfer of Property Act, their possession stood protected. 10. Learned counsel for the appellant further contended that when possession of the property is established which is the requirement of law in a suit for perpetual injunction, both the Courts below are not justified in rejecting his claim mainly on the ground that the documents under which they are claiming this property are unregistered and for want of title. 11. It is also contended by the learned counsel for the appellant that the appellate Court which is the last Court of fact did not independently assess the evidence on record and merely followed the version of the trial Court, which is against the law. It is also contended by the learned counsel for the appellant that the respondent Nos.2 to 8 were impleaded as parties to the appeal and that their request for remand of the matter was not considered. These instances according to the learned counsel for the appellant called for reconsideration of the matter by this Court in the Second Appeal. 12. Learned counsel further pointed out that I.A.No.268 of 2015 was filed for adducing additional evidence in terms of Order 41 Rule 27 C.P.C. and that it was not considered by the appellate Court at appropriate stage. It is also the contention of the learned counsel for the appellant that since the above petition which was considered along with the appeal was dismissed, prejudice is caused to the appellant since no opportunity was given to substantiate his claim or file a Civil Revision Petition questioning the order therein. 13. When the nature of the claim and its basis are considered, being a suit for perpetual injunction both the Courts rightly held against the appellant relying on the fact situation. There is no reason assigned by the appellant and the 9th respondent who was the 1st plaintiff in the suit explaining why they did not obtain Registered sale deeds in respect of the plaint schedule properties from their vendors. There is no reason assigned by the appellant and the 9th respondent who was the 1st plaintiff in the suit explaining why they did not obtain Registered sale deeds in respect of the plaint schedule properties from their vendors. One of the contentions of the appellant is that, one of the vendors and son-in-law of the vendor were examined at trial who supported their claim. At the same time it is also contended that the original vendors died and now their legal representatives are available. These circumstances point out that there was every opportunity for the appellant and the 9th respondent to get transfer of title in their favour as per law in respect of the plaint schedule lands if at all their claim is true and correct. 14. This is a strong circumstance that stands against them. From this perspective when the reasons assigned by both the Courts below with reference to these documents namely Ex A1 to Ex A16 are considered, they are correct and proper. 15. The question of possession is purely based on fact and the sole defendant/1st respondent raised a serious dispute in respect thereof. Thus it is clear that this case did not involve any questions of law muchless substantial questions. 16. Further contention for the appellant is that these documents could have been considered to make out possession of the 9th appellant and the respondent for collateral purpose. The attempt of learned counsel for the appellant to rely on Section 53-A of the Transfer of Property Act for this purpose has no basis. The very claim of the plaintiff and the 9th respondent to establish their right and interest to the plaint schedule lands is based on these two (2) documents. Apparently, title did not transfer in their favour. 17. The possession of these lands claimed under these two (2) documents cannot be differentiated or dissociated with the right and interest sought to be made out by the appellant to these lands. The possession itself is an integral part which necessarily calls for consideration of these two (2) documents and to hold that it did make out main purpose in getting these documents. Being an integral part of the transaction covered by Ex A1 and Ex A16 whereby the appellant claimed sale of these lands in their favour, it cannot be dissected and considered de’hors right and interest to this property. Being an integral part of the transaction covered by Ex A1 and Ex A16 whereby the appellant claimed sale of these lands in their favour, it cannot be dissected and considered de’hors right and interest to this property. Therefore possession claimed under Ex A1 and Ex A16 cannot be deemed as a collateral factor which shields these transactions from application of bar under Section 49 of Indian Registration Act. Needless to say that Ex A1 and Ex A16 are clearly inadmissible in evidence in terms of Section 17(1) of the Indian Registration Act. 18. The complaint that the appellate Court did not afford an opportunity to the appellant, while considering the application under Order 41 Rule 27 of C.P.C. also has no basis. The appellant cannot claim a right to adduce additional evidence in the appeal without satisfying the required parameters under Order 41 Rule 27 of C.P.C. and cannot now profess that the appellate Court did not afford an opportunity in this regard. Even Section 107 C.P.C. did not contemplate such a situation. The appellate Court is right in considering such application along with the appeal and the procedure that was followed cannot be found fault with, in any manner. 19. Apparently a stale claim is being pursued right from the year 1991 till now. In this process, attempt was also made to rope in respondent Nos.2 to 8 who did not appear and participate at the trial stage and an attempt was also made to seek remand of the matter. They are stated to be the subsequent purchasers and their position did not stand differently. 20. Upon consideration of the matter in this backdrop when the entire case is based on facts, it is not necessary that the same be considered in terms of Section 100 C.P.C. Finding no merit in the second appeal, it has to be dismissed at the stage of admission. 21. In the result, the second appeal is dismissed at the admission stage. No costs. Miscellaneous applications pending, if any, in this case stand closed.