Dasari Narsimha Died Per L. Rs. v. Nagula-pati Ramulu
2022-04-22
P.SREE SUDHA
body2022
DigiLaw.ai
JUDGMENT : 1. This appeal is directed against judgment and decree dated 11.09.2012 in A.S.No.57 of 2010 on the file of the learned Additional District Judge-cum-Special Sessions Judge, Nalgonda, allowing the appeal by setting aside the judgment and decree dated 28.07.2010 in O.S.No.89 of 2007 on the file of the learned Junior Civil Judge at Nakrekal. 2. The suit O.S.No.89 of 2007 was filed by the plaintiff-N.Ramulu against the defendants-Dasari Narsaiah and Nagulapati Bixam seeking permanent injunction by restraining the defendants from not to interfere with the possession over the property of an extent of Ac.2.25 guntas out of Sy.No.902 situated at Eduloor Village, Kattangur Mandal (hereinafter referred to as ‘suit schedule property’). In support of his contentions, the plaintiff got examined himself as P.W.1 and P.Ws.2 to 5 and marked Exs.A.1 to A.18. The first defendant examined himself as D.W.1 and D.Ws.2 and 3 and marked Exs.B.1 to B.9. After considering the oral and documentary evidence adduced by both the parties, the trial Court dismissed the suit filed by the plaintiff. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal in A.S.No.57 of 2010 and the appellate Court by its judgment and decree dated 11.09.2012 allowed the appeal by setting aside the judgment and decree dated 28.07.2010 in O.S.No.89 of 2007. Dissatisfied with the judgment and decree passed by the appellate Court, the defendants preferred this second appeal. 3. The brief facts before the trial Court are that the plaintiff is the absolute owner and exclusive possessor of the suit schedule property. One Nagulapati Pedda Pitchaiah is paternal senior uncle purchased Ac.5.11 guntas in the above survey number from Narla Narsaiah in partition, the suit land fell to his father’s share, out of Ac.5.11 guntas Nagulapati Pedda Pitchaiah sold Ac.2.26 guntas to Nimmagoti Sathaiah, but at the time of mutation, the suit schedule property was wrongly mutated in the name of Narla Meenaiah. As such, his paternal senior uncle gave an application to the Revenue Officers on 02.03.2007 seeking rectification of wrong entries and accordingly, they rectified the wrong entries by proceedings No.B/1349/2007 dated 30.04.2007 and also issued pattadar pass book in his favour. The plaintiff would state that the defendants without having any manner of right interfered with his possession on 26.10.2007 and hence, he filed the suit. 4.
The plaintiff would state that the defendants without having any manner of right interfered with his possession on 26.10.2007 and hence, he filed the suit. 4. In the written statement filed by the defendants, it was asserted that one Narla Meenaiah was the absolute owner of the land to an extent of Ac.5.11 guntas out of Sy.No.902, which was acquired in a partition with his brothers viz., Narla Narsaiah, Papaiah and Thirupathaiah. Out of the said extent, he sold some portion to one A.Pedda Veeraiah through an unregistered sale deed about 40 years back and the remaining land of an extent of Ac.2.12 guntas (suit schedule property) to the first defendant through registered sale deed dated 03.10.2007. From then onwards the first defendant was in possession and enjoyment of the suit schedule property. They would further assert that the Order in B/3473/2007 is a collusive one, for which they preferred an appeal before the Revenue Divisional Officer, Nalgonda, and it is stated to be pending for consideration. 5. For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit. 6. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 7. Learned counsel for the appellants would assert that the basis of the plaintiff is Ex.A.1 which was issued without notice to the vendor of the defendant Meenaiah and it is in violation of A.P. Rights in Land and Pattadar Pass Books Act, 1971, and as such the same is illegal. He would further contend that the plaintiff manipulated the mutation proceedings under Exs.A2 and A3, for which a statutory appeal was preferred before the Revenue Divisional Officer and obtained stay of operation of the mutation proceedings of Tahsildar, Kattangur, dated 30.04.2007 and it is still pending. He would also assert that the first defendant is a bona fide purchaser under registered sale deed-Ex.B1 coupled with Ex.B4 pahani for the year 2004-05, Ex.B5 pahani for the year 2003-04 and Ex.B6 chowfesla for the year 1972-73 and in spite of the above documents the appellate Court ignored all the documents and only relied upon the mutation entries of Tahsildar.
He would further argue that the appellate Court while reversing the judgment of the trial Court, in the absence of any fresh evidence, passed an unreasoned order and as such the judgment of the appellate Court is cryptic, contrary to the procedure established by law and is liable to be set aside. 8. In the judgment the trial Court observed that the plaintiff admitted in the cross-examination that he did not file any application for mutation of the land belonging to his father. On his name, his senior paternal uncle Peda Pitchaiah filed an application for mutation of the land in an extent of Ac.2.25 guntas, which was recorded in the name of Narla Meenaiah. He also admitted that he has not given any application even after the application given by his senior paternal uncle. Ex.A2 is the order passed in favour of Peda Pitchaiah and Ex.A3 is the order passed in favour of the plaintiff without any application and both the orders are in the same proceedings B/1349/2007 dated 30.04.2007. Ex.A1 is basing on Exs.A2 and A3 and hence it is void and against the rules of ROR Act. Therefore, the plaintiff failed to prove possession. The trial Court also pointed out that Ex.A7 is the certified copy of the pahani for the year 2003-04 and when the order was passed by the Mandal Revenue Officer in the year 2007 how the rectification entries were made earlier is not explained. The plaintiff admitted in his cross-examination that he did not mention about Exs.A4, A15 to A18 in the plaint or in his chief-examination and that the land in the said exhibits and the suit schedule property is not one and the same including the boundaries. He also filed an affidavit of Narla Meenaiah prior to filing of his chief-examination in which the existence of Exs.A14 to A18 is not mentioned. Exs.A14 to A18 are the certified copies and are required to be proved by adducing evidence, but the plaintiff failed to do so and as such the said exhibits have no evidentiary value and cannot be looked into. The evidence of P.Ws.2 to 4 is not helpful to the case of the plaintiff. P.W.2 stated that he is not aware of the particulars of the suit schedule property and he is the relative of plaintiff.
The evidence of P.Ws.2 to 4 is not helpful to the case of the plaintiff. P.W.2 stated that he is not aware of the particulars of the suit schedule property and he is the relative of plaintiff. P.W.4 stated that he is residing in Hyderabad and do not know who are the possessors of the suit schedule property and that his chief-examination was drafted by the plaintiff and hence, their evidence is of no avail and not helpful to the case of the plaintiff to prove his title or possession over the suit schedule property. Defendants examined D.Ws.2 and 3 on their behalf. Ex.B1 is the sale deed, Ex.B2 is the certificate issued by the Village Revenue Officer stating that the pahanies for the year 2005-06 and 2006-07 are not prepared. Ex.B3 is the attested copy of the application of Peda Pitchaiah, senior paternal uncle of the plaintiff, to restore the land to an extent of Ac.2.12 guntas in which it was not mentioned that it was wrongly mutated in the name of Narla Meenaiah and to delete his name. Exs.B4 and B5 are the certified copies of pahanies showing the title and possession of Narla Meenaiah, the vendor of the first defendant, to an extent of Ac.2.12 guntas in Sy.No.902. As per Ex.B6 Narla Meenaiah is the owner of an extent of Ac.5.12 guntas in Sy.No.902. As per Ex.B7 khasra of the year 1954-55, Narla Venkaiah, the father of Narla Meenaiah, is the owner of the land in an extent of Ac.16.31 guntas in Sy.No.902. Ex.B8 is the notarized affidavit of Narla Meenaiah in which it is stated that he sold three acres of land in Sy.No.902 to Allam Peda Veeraiah about forty years back and the remaining land of Ac.2.12 guntas sold to the first defendant. Ex.B9 is the notarized affidavit of A.Anjaiah stating that his father A.Peda Veeraiah purchased the land to an extent of Ac.3.00 guntas in Sy.No.902 about forty years back and it was allotted to his brother Allam Lingaiah. There is no dispute with regard to Exs.B8 and B9 and no questions were put to D.Ws.1 to 3 to disprove the same by the plaintiff.
There is no dispute with regard to Exs.B8 and B9 and no questions were put to D.Ws.1 to 3 to disprove the same by the plaintiff. D.W.2 is the son of vendor of the first defendant and deposed that his father sold Ac.3.00 guntas to Allam Peda Veeraiah about forty years back and the remaining land to the first defendant and as such the plaintiff has no title and possession over the suit schedule property. Whereas the first defendant acquired the said land through Ex.B1 sale deed and perfected his title and possession as per the Transfer of Property Act coupled with the evidence of D.Ws.2 and 3 and Exs.B2 to B9 and accordingly the suit filed for injunction by the plaintiff was dismissed. 9. Aggrieved by the said judgment and decree the plaintiff preferred an appeal. The appellate Court held that under Ex.A2 Narla Meenaiah stated before the Tahsildar, Kattangur, that he has no land in suit Sy.No.902 as he already sold but he got only Ac.0.02 guntas of land. Ex.B8 is the notarized affidavit of Narla Meenaiah dated 10.02.2008, but the written statement was filed on 13.02.2007 and that as on that date Ex.B8 is not in existence and it cannot authenticate Ex.B1. The appellate Court also observed that Ex.B1 sale deed was executed on 03.10.2007 and the suit was filed on 06.11.2007 by the plaintiff immediately after losing the ancestral land. The learned appellate Judge further observed that the witnesses of both the parties are related to each other and their evidence is like oath against oath and finally held that plaintiff is the pattadar of suit schedule property and still in possession of the same as on the date of filing the suit and accordingly allowed the appeal by setting aside the judgment and decree of the trial Court. As per the report of the Tahsildar dated 10.05.2013, Narla Meenaiah out of Ac.5.11 guntas, executed Ac.3.00 guntas in favour of Allam Lingaiah and Ac.2.10 guntas in favour of Allam Anjaiah on 26.04.1985 and having the remaining land of Ac.0.02 guntas in his name as per record, but the same was not properly appreciated by the appellate Court. 10. Admittedly, the suit is filed only for perpetual injunction and thus, the possession of the plaintiff is to be established.
10. Admittedly, the suit is filed only for perpetual injunction and thus, the possession of the plaintiff is to be established. The trial Court in a well reasoned order clearly held that the plaintiff failed to prove title and possession over the suit schedule property. The application for mutating his name was given by his senior paternal uncle and not by him at any point of time and more over against the orders dated 30.04.2007 appeal was preferred and it is still pending for consideration. The said documents are collusive. It is also observed that Exs.A14 to A16 are not proved by adducing evidence and they cannot be looked into and further held that the first defendant who examined himself as D.W.1 by marking the relevant documents proved his title and possession over the suit schedule property as on the date of filing the suit. The plaintiff has to succeed his case with his own strength but not on the weaknesses of the opponent. As the plaintiff failed to establish his possession over the suit schedule property, he is not entitled for injunction. The reasoned order of the trail Court needs no interference. 11. In the result, the second appeal is allowed by setting aside the judgment and decree dated 11.09.2012 in A.S.No.57 of 2010 on the file of the learned Additional District Judge-cum-Special Sessions Judge, Nalgonda, and confirming the judgment of the trial Court dated 28.07.2010 in O.S.No.89 of 2007 on the file of the learned Junior Civil Judge at Nakrekal. No costs. 12. Pending miscellaneous petitions, if any, shall also stand closed in the light of this final judgment.