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2022 DIGILAW 1319 (AP)

Billa Chennaiah v. Bathula Venkata Nageswara Rao

2022-11-18

V.R.K.KRUPA SAGAR

body2022
JUDGMENT : 1. Defendants in the suit filed this second appeal under Section 100 C.P.C. Respondent herein is the plaintiff in the suit. The property in dispute between the parties is described in the plaint schedule as 1,000 square foot of vacant site with a thatched hut in it situate in Survey No.3 of Daravari Thota in Ongole of Prakasam District. Plaintiff filed O.S.No.889 of 2005 seeking for permanent injunction as against the defendants. After due trial, the suit was dismissed. Aggrieved of it, plaintiff preferred A.S.No.129 of 2013 and the learned VII Additional District Judge, Ongole allowed the appeal and decreed the suit and thus, it granted permanent injunction in favour of the plaintiff and against the defendants. Aggrieved by it, the defendants in the suit preferred this second appeal. 2. A learned judge of this Court on 01.05.2015 admitted this second appeal on the following substantial questions of law. “1. Whether the lower Appellate Court failed to appreciate that the respondent herein suppressed the fact of vacating the order of status quo passed in W.P.No.8697 of 2012 on 27.09.2013 itself and the revenue authorities have put the appellants in possession of the plaint schedule land vide proceedings No.Rc.B/1212/2005, dt. 28.11.2013? 2. Whether the lower appellate Court was right in disposing of the appeal without formulating relevant questions for adjudication and whether the impugned judgment of the first appellate Court is perverse?” 3. The above questions have arisen in the context of the following facts: In the plaint, it is stated that plaintiff is a landless poor and he is engaged in hill stone cutting and he occupied the suit schedule site and raised a hut and this property originally belonged to the Government. After thorough enquiry, Mandal Revenue Officer, Ongole granted D.K.Patta in D.K.No.117/99 on 06.05.1990. Accordingly, plaintiff has been residing in the thatched hut peacefully. Plaintiff has no other properties. Defendant Nos.1 and 2 are spouses and defendant No.3 is mother of defendant No.2. They are natives of Madanur and have got their own properties there. In a rented house defendant Nos.1 and 2 are living towards northern side of the suit schedule property. These defendants developed evil eye and without any right or possession they have been making efforts to dispossess the plaintiff out of the suit schedule property and they wanted to occupy it illegally. In these circumstances, plaintiff had to sue them. In a rented house defendant Nos.1 and 2 are living towards northern side of the suit schedule property. These defendants developed evil eye and without any right or possession they have been making efforts to dispossess the plaintiff out of the suit schedule property and they wanted to occupy it illegally. In these circumstances, plaintiff had to sue them. The prayer made in the suit is to grant permanent injunction restraining the defendants and their men from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property. As against that, the defendants in their written statement apart from denying the plaint mentioned allegations specifically pleaded that the patta alleged in the plaint is fake and the suit schedule property has been in possession and enjoyment of 2nd defendant for a long time and the plaintiff is not in possession and enjoyment of it. Revenue authorities enquired and found the patta alleged by the plaintiff is a forged document and he is not in possession and enjoyment of the property. They further stated that revenue authorities found the plaintiff as a land grabber and has been in the habit of creating fabricated documents such as patta. Plaintiff filed photographs along with the plaint and such photographs cannot sustain the claim and the photographs do not belong to suit property. Written statement further mentions about various properties owned and possessed by plaintiff and his family members and as to how they used to obtain assignments and dispose of those properties etc. It is then stated that plaintiff has neither title nor possession over the property. Plaintiff also filed C.D.313 of 2005 before the Consumer Forum and thereafter, not pressed it since revenue authorities contested it. It is then stated that about Plot Nos.38-A and 37-A in Survey No.3 of Annavarappadu defendant Nos.2 and 3 filed O.S.No.849 of 2005 against father of the plaintiff and they were granted an injunction as against father of the plaintiff. It is in those circumstances this plaintiff and his father hatched a plan and filed the suit. All the facts that are pleaded by the defendants are there in the other suit in O.S.No.849 of 2005 and they are known to the plaintiff. For these reasons, they sought for dismissal of the suit. At the trial, plaintiff testified as PW.1 and got examined three more witnesses as PWs.2 to 4. All the facts that are pleaded by the defendants are there in the other suit in O.S.No.849 of 2005 and they are known to the plaintiff. For these reasons, they sought for dismissal of the suit. At the trial, plaintiff testified as PW.1 and got examined three more witnesses as PWs.2 to 4. He got exhibited the patta as per Ex.A.1 and photographs with negatives and CD as per Exs.A.2 to A.6 and filed electricity bills 21 in number as per Ex.A.7 and copy of voters list of the year 2009 as per Ex.A.8 and proceedings of the Tahsildar as per Ex.A.9. As against that, 1st defendant gave evidence as DW.1 and got marked Exs.B.1 to B.29 out of which Ex.B.1 is D.K.Patta dated 18.04.2005 in favour of 2nd defendant. Learned trial Court for its consideration framed the following issues: 1. Whether the plaintiff is in possession and enjoyment over the suit schedule property? 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? 3. To what relief? Considering the evidence on record and the rival submissions, it observed that Ex.A.1 patta produced by plaintiff does not contain the door number and the extent that is mentioned therein differs from the extent that is mentioned in the plaint schedule and the boundaries mentioned therein are also not proved properly by the plaintiff. It observed that as per the evidence in O.S.No.849 of 2005 the patta produced in Ex.A.1 by the plaintiff was found to be false. It then stated that photos filed by the plaintiff cannot be used for proving the plaintiff’s possession and on the electricity bills produced by the plaintiff in Ex.A.7 it stated that they do not contain the door number or plot number and they all pertain to a period that is subsequent to filing of the suit and therefore they are not useful to prove possession as on the date of suit. On Ex.A.8-voters list it stated that the suit was filed in the year 2005, but the voters list was obtained in the year 2009 and being subsequent to the suit it does not help the plaintiff. It further stated that there is an advocate commissioner’s report with reference to the physical features of the property, but that cannot be used to prove possession of the plaintiff as advocate commissioner is not competent to decide possession. It further stated that there is an advocate commissioner’s report with reference to the physical features of the property, but that cannot be used to prove possession of the plaintiff as advocate commissioner is not competent to decide possession. With such reasons, learned trial Court held all the issues against the plaintiff and dismissed the suit. As against that, when the matter was carried to first appellate Court, the learned VII Additional District Judge, Ongole framed the following point for consideration: “Whether the judgment in O.S.No.889/2005, dated 29.07.2013 on the file of the learned Prl. Junior Civil Judge, Ongole, is liable to be set aside or not?” Learned first appellate Court considered the very same evidence and then stated that as per Ex.A.1 plot No.38-A in Survey No.3 patta was granted to plaintiff on 06.05.1990. It then stated that there is advocate commissioner’s report showing that the plaintiff is in possession of the suit schedule property. That had to be considered since the defendants did not file any objections against that advocate commissioner’s report. It further stated that report of the advocate commissioner is a good piece of evidence to decide the matter. It then stated that the tax receipts and electricity bills produced by the plaintiff/appellant therein are also pieces of evidence to decide the equitable relief of injunction. It made a mention about certain writ petitions pending before this Court where status quo orders were granted and stated that title of both parties is in question in those writ petitions. It is with these reasons, it set aside the lower Court’s judgment, allowed the appeal, decreed the suit and granted perpetual injunction in favour of the plaintiff and against the defendants. It is in the above context, the earlier mentioned substantial questions of law fell for consideration in this second appeal. 4. Learned counsel on both sides submitted their arguments. 5. Learned counsel for respondent/plaintiff submits that writ petitions are still pending. It is further submitted that based on the material on record, the first appellate Court granted the decree of injunction and that need not be disturbed. As against that, the submissions of the learned counsel for appellants/defendants is that learned trial Court was accurate in deciding the facts and law and dismissed the suit and the entire approach of the first appellate Court is erroneous and is against law and cannot be sustained. As against that, the submissions of the learned counsel for appellants/defendants is that learned trial Court was accurate in deciding the facts and law and dismissed the suit and the entire approach of the first appellate Court is erroneous and is against law and cannot be sustained. Learned counsel submits that the judgment of the first appellate Court, which is impugned in this second appeal, is perverse and is against law. Considering these rival submissions, the decision in this appeal has to be taken. 6. In a suit for permanent injunction the material fact for determination is to see whether the plaintiff has been in settled possession and whether it is equitable to grant a protective relief of a permanent injunction to him or not? 7. In every suit the burden lies on the plaintiff to sustain his contentions. The entire case is about a plot of land granted by the Government in the form of a D.K.Patta. Respondent/ plaintiff filed the plaint on 25.10.2005. Therefore, it is for him to establish his possession and enjoyment of the suit schedule property. In proof of his allegations, he basically relied on Ex.A.1 patta. Ex.A.1-D.K.Patta is in favour of the plaintiff and it refers to allotment of Plot No.38-A to the plaintiff. It mentions that 2,000 square foot of site is allotted to plaintiff by that patta. Boundaries on four sides are mentioned there. These aspects are significant. The plaint schedule has not mentioned the plot number and has not mentioned the door number. Plaint schedule refers to only 1,000 square foot. Boundaries mentioned therein are reproduction of boundaries mentioned in Ex.A.1 patta. If the patta granted 2,000 square foot and if the plaint refers only to 1,000 square foot, the remaining 1,000 square foot must be on one side of the boundary for the plaint schedule, but that is not how it is available on record. This was pointed out by the learned trial Court saying that the patta and the schedule of the plaint do not match properly. As against such finding, the first appellate Court paid no attention at all. During trial, through DW.1 Ex.B.1 patta was exhibited. This was pointed out by the learned trial Court saying that the patta and the schedule of the plaint do not match properly. As against such finding, the first appellate Court paid no attention at all. During trial, through DW.1 Ex.B.1 patta was exhibited. Ex.B.1 is D.K. Patta No.78/1414 for this very plot No.38-A granted on 18.04.2005 standing in the name of Smt. Billa Vijaya Nirmala W/o. Chennaiah, who is the 2nd appellant herein and in other words she is the 2nd defendant in the suit. Thus, Exs.A.1 and B.1 pattas are the pattas that were given to parties prior to the filing of the suit. When Ex.B.1 patta was granted whether the Government cancelled Ex.A.1 patta or not and whether the patta could be granted to a person without cancelling the earlier patta or not are not the facts that are borne by pleadings and are not facts against which any particular relief was claimed in the suit. It is stated by learned counsel on both sides that writ petitions pertain to illegality of issuance of such pattas. Therefore, this Court need not delve into those aspects. However, as the things stand Ex.B.1 is now latest patta indicating possession of plaint schedule property by defendant No.2. Learned first appellate Court did not pay any attention and did not make any finding as to how and why that document should be discarded. 8. The first appellate Court framed only one point for its consideration, which is once again extracted here: “Whether the judgment in O.S.No.889/2005, dated 29.07.2013 on the file of the learned Prl. Junior Civil Judge, Ongole, is liable to be set aside or not?” 9. The appellants very seriously challenged the illegality of that approach of the first appellate Court stating that it is against Order XLI Rule 31 C.P.C. This Court notices Karamalakunta Kadiramma v. Karamalakunta Dasappa, [ 1999 (2) ALT 256 ]. That was a suit for permanent injunction and the trial Court dismissed it. When the first appeal came, the only point that was framed for consideration was “Whether the judgment and decree of the trial Court is liable to be set aside?” Learned first appellate Court dismissed the appeal. In the second appeal before this Court plaintiffs sought Order XLI Rule 31 C.P.C. and questioned the approach of the first appellate Court. When the first appeal came, the only point that was framed for consideration was “Whether the judgment and decree of the trial Court is liable to be set aside?” Learned first appellate Court dismissed the appeal. In the second appeal before this Court plaintiffs sought Order XLI Rule 31 C.P.C. and questioned the approach of the first appellate Court. Agreeing with the submission, this Court had stated that such type of framing the point for consideration is absolutely of no use in deciding the real dispute between the parties. Stating so, it set aside the judgment of the first appellate Court and remanded the appeal to be disposed of afresh in accordance with law. Thus, this Court had ruled that the real dispute between the parties should form part of point for consideration in case where first appeal was heard by the Courts. This Court also notices Ali Mohamood v. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, [ 2000 (4) ALT 673 (D.B.) (AP)]. There also Order XLI Rule 31 C.P.C. fell for consideration. On analysis of the facts available on record, learned Division Bench of this Court held that under Order XLI Rule 31 C.P.C. law contemplates that both parties should have an understanding as to what are the points that fall for consideration before the appellate Court and that the judgment of the appellate Court should indicate that it applied its mind to the evidence available on record and stated that simply because there is failure to frame the points for consideration by the first appellate Court itself cannot make the judgment invalid as long as the judgment of the appellate Court indicates full consideration of facts and law on its part. Thus, this Court ruled that it is not mere technical compliance of Order XLI Rule 31 C.P.C. that is required but the Courts are to comply with its spirit. Thus, it is clear that against the mandate of law, the first appellate Court went ahead in disposing of the first appeal and such dispensation of justice cannot be approved by this Court. 10. One important point that was considered by the first appellate Court, which convinced it to upset the trial Court’s judgment, in allowing the appeal is about report of advocate commissioner. 10. One important point that was considered by the first appellate Court, which convinced it to upset the trial Court’s judgment, in allowing the appeal is about report of advocate commissioner. In many words, the first appellate Court stated that to prove possession over immovable property, advocate commissioner’s report is a very valuable piece of evidence. Such finding on part of the first appellate Court is totally untenable at law. It has been the law that in a suit for perpetual injunction the Court has to adjudicate as to who is in actual possession of the suit property as on the date of institution of the suit on the basis of oral and documentary evidence adduced by the parties. That essential function cannot be delegated to advocate commissioner and the report of the advocate commissioner cannot be used for deciding physical possession of immovable property vide B.Ramulu v. Gudur Narender Reddy, [1998 SCC Online AP 196/ 1998 (3) ALT 473 ], Penta Urmila v. Karukola, [ (2005) 2 ALD 130 ] and Parepally v. Vutukuri, [ (2008) 1 ALD 461 ]. Thus, the first appellate Court committed grave error in considering material that ought not to have been considered while deciding possession of a person over immovable property. Consideration of such extraneous material led to perverse judgment. 11. Ex.A.8 voters list was of the year 2009. Ex.A.7 electricity bills pertain to a period from the year 2006 to 2010. Learned trial Court stated that all of them were subsequent to filing of the suit in the year 2005 and that they do not contain the plot number or door number and therefore, no value would be granted to those documents while deciding as to whether plaintiff was in possession of the suit property as on the date of the suit. Learned first appellate Court did not meet those observations and simply stated that such documents are good pieces of evidence. This observation of the first appellate Court is unsustainable since the plaint and the evidence of PWs.1 to 4 do not even refer to the date on which they had applied for electricity service connection and the service connection number. It is unfortunate that the first appellate Court simply expressed its readiness to accept any document without any effort to find out whether such document pertains to the suit disputed property or not? It is unfortunate that the first appellate Court simply expressed its readiness to accept any document without any effort to find out whether such document pertains to the suit disputed property or not? The well considered observation of the trial Court were simply overlooked by the first appellate Court. One may also notice that the plaintiff as PW.1 in his cross-examination stated that his patta was cancelled. Learned first appellate Court did not choose to make any comment on such evidence that was available before it. Thus, the judgment of the first appellate Court failed to read the required evidence and considered evidence that ought not to have been a material to form a conclusion and thus, its judgment is against law and cannot be sustained. 12. During the course of hearing of this appeal, one more contention argued by the learned counsel for appellants/ defendants is that accepting their possession over this suit disputed property their suit in O.S.No.849 of 2005 was decreed and no appeal was preferred against it. Learned counsel for appellants also submits that on 27.09.2013 itself the status quo orders that were there in the writ petition were vacated, but that was not noticed by the lower Courts. The above aspects are not challenged by the learned counsel for respondent. In summation, it has to be stated that the trial Court properly considered the evidence on record about possession of property as on the date of institution of the suit and found that there was no reliable evidence proving possession of the plaintiff, but the first appellate Court without addressing itself properly went on to decide the appeal and got carried away by considering impermissible material such as advocate commissioner’s report for proving possession. Therefore, the judgment of the first appellate Court, which is impugned in this appeal, has to be set aside. There are merits in the grounds urged in this second appeal. Hence, the points are answered in favour of the appellants. 13. In the result, this Second Appeal is allowed setting aside the judgment dated 07.04.2015 of learned VII Additional District Judge, Ongole in A.S.No.129 of 2013. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.