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2023 DIGILAW 1253 (AP)

Pascham Holdings Pvt. Ltd. v. Burra Kondala Rao, S/o Venkata Rao

2023-08-31

K.MANMADHA RAO

body2023
JUDGMENT : As the issue involved in these three second appeals is one and the same, these matters are taken up together for disposal by this Common Judgment. 2. The facts in these appeals are similar and identical, therefore S.A.No.198 of 2011 is taken as lead case, and the facts therein are referred to for convenience. 3. The plaintiffs preferred suits in O.S No.49 of 1994, 39 of 1997, 40of 1997 and 43 of 1997 before the Senior Civil Judge, Pithapuram (For short “the trial Court”). In those suits, O.S.No.40 of 1994 was partly decreed and the plaintiffs therein were declared as owners of items 1 to 5 and 7 of the plaint schedule properties and they were also entitled for recovery of those lands after evicting the defendants No.1 and 2 from the suit schedule properties. Further, it was held that the future profits shall be determined on a separate application. The remaining suit claim in respect of itemNo.6 of plaint schedule property was dismissed. Another O.S No.39 of 1997 was decreed by the trial Court and holding that the defendants are restrained from ever interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule properties. Remaining O.S No.40, 42 and 43 of 1997 were dismissed. The facts of the case in the O.S No.42 of 1997 are as follows: 4. The plaintiff purchased item No.1 of plaint schedule property along with some other properties from Gundugogula Appa Rao and others under a registered sale deed dated 12.11.1990 for Rs.1,73,400/- and also purchased item No.2 to 7 form different owners and obtained possession of the properties and has been in possession and enjoyment of the same by paying land revenue to the Government. The 1st defendant is the son of the 2nd defendant and both of them got lands on East, South and North-East of schedule properties. Due to disputes between the parties, the plaintiff filed O.S No.87 of 1992 against the 1st defendant for grant of permanent injunction. 5. The 1st defendant filed written statement contending that the suit is not maintainable. The item No.1 of the plaint schedule property is a part of properties belonging to the defendants and none else have got any right over the same. The plaintiff is put to strict proof that it is a private limited company registered under the Companies Act and V. Appalaraju is the GPA of it. The item No.1 of the plaint schedule property is a part of properties belonging to the defendants and none else have got any right over the same. The plaintiff is put to strict proof that it is a private limited company registered under the Companies Act and V. Appalaraju is the GPA of it. It is further contended that Devana Ramalingeswar Rao is not in possession of item No.7 and he could not convey any title to the plaintiff. Al the lands referred to in the schedule belongs to late Burra Venkata Rao. It is false to state that the plaintiff is in possession of schedule properties. The GPA holder of the plaintiff has fabricated all these documents in the name of the plaintiff and made attempts to interpolate the revenue records. Burra Venkata Rao died in 1991 and after his death the defendants came in possession of the said properties. Therefore, prayed to dismiss the suit. 6. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for the relief of injunction as prayed for? 2. Whether the plaintiff is a private limited company and whether the GPA is still subsisting? 3. Whether the Court fee paid is not correct? 4. Whether the Court has no jurisdiction to try the suit? 5. To what relief? 7. During the course of trail, on behalf of the plaintiffs PW.1 to PW.7 were examined and Exs.A1 to Ex.A40 were marked and on behalf of the defendants, DW.1 to DW.8 were examined and Ex.B1 to Ex.B25 were marked, and Ex.X1 and Ex.C1 and Ex.C2 were also marked. The trail Court on considering the oral and documentary evidence dismissed the suit. Aggrieved by the same, the plaintiffs in O.S No.40 of 1994, 40, 42 and 43 of 1997 have preferred Appeal Suits vide A.S No.283, 284, 285 and 286 of 2006 before the VII Additional District Judge, Kakinada (for short “the first appellate Court”) . After hearing the both sides, the first appellate Court in A.S. No.284 of 2006 has framed the following points for consideration as under: i) Whether Burra Kondaiah and his sons partitioned their properties orally among themselves and subsequently the same was reduced in writing as family arrangement on 21.7.1970? After hearing the both sides, the first appellate Court in A.S. No.284 of 2006 has framed the following points for consideration as under: i) Whether Burra Kondaiah and his sons partitioned their properties orally among themselves and subsequently the same was reduced in writing as family arrangement on 21.7.1970? ii) Whether the Will executed by T. Narasamma dated 7.9.1978 in favour of Burra Venkata Rao is true, valid and binding on the defendants? iii) Whether the affirmation deed dated 5.8.1987 executed by Burra Bullammai is true, valid and binding on the defendants? iv) Whether the suit is bad for non-joinder of necessary parties? v) Whether plaintiffs got title to suit schedule properties? vi) Whether the plaintiffs are entitled to the relief of possession of suit schedule properties as prayed for? vii) Whether the plaintiffs are entitled to future profits from the date of suit till the date of recovery of possession of suit schedule properties? 8. During pendency of the above Appeal Suits before the first appellate Court, the respondents preferred Cross Objections in A.S N.284 of 2006 with delay condonation petition vide I.A No.1 of 2013 regarding item No.6 of schedule property claiming that the item No.6 is also part of Ac 18.31 cents of land of Ex.A1 purchased from Kautarapu Sooramma. The lower first appellate Court neither discussed nor referred to the various contentions raised by the cross-objectors and the same amounts to sufficient compliance of Order 41 Rule 31 of CPC. The lower court ought to have been held that the appellants trespassed into the entire extent and suit in OS No.25/1993 was filed only to the extent of land trespassed by that date and the subject matter is not covered in O.S No.80/1993 but the lower court erroneously held that plaintiffs did not explain as to how they got excess land when they purchased Ac 18.31 cents under Ex.A1 but later it was found as Ac. 21.77 cents . 21.77 cents . It is further claiming that basing on Ex.A34 and A35 the lands in S.No.77/5, 78/5, 79/1, 80/1 total Ac.17.48 cents were in the name of Patharapu Suranna but in 1396 fasali, the name of Pattadar was mentioned as Burra Venkata Rao and trespasser B. Ramalingeswara Rao at the instance of DW.1 and the lower court observed that the plaintiffs did not prove the survey No.81 in their name but in the cultivation account, the name of Burra Venkata Rao who is husband of 1st plaintiff and 2nd plaintiffs. So the finding of the lower court is not correct. 9. Basing on the facts and circumstances of the case, the first appellate Court has dismissed all the Appeal Suits holding that there are no merits in the appeals. Although the cross objections are filed regarding item No.6, the evidence before court is not sufficient to accept the cross objections and the cross objections cannot be accepted. Thus, all the appeal Suits and cross objections were dismissed confirming the judgment of the lower court and also held that there is no need to interfere with the observations of the lower court. Challenging the same, the present second appeals came to be filed. 10. This Court vide order, dated 01.03.2011, while granting Leave petition, ADMITTED the appeals by considering the following substantial questions of law. a) Whether Courts below are justified in decreed O.S No.40 of 1994 for declaration of title and recovery of possession without nullifying sale deeds stood in favour of defendant No.1 which are validly executed by its vendors. b) Whether approach of the Courts below in decreeing O.S No.49 of 1994 is proper when both the courts disbelieved and held not proved Exs.A2, A.3 and A.26. c) Whether the non-joinder of necessary parties in O.S No.40 of 1994 is fatal to decreeing the suit, if answer is yes, judgment and decree in O.S No.90 of 1994 is liable to be set aside. d) Whether the trial Court is correct to give credence to revenue records for the purpose of possession of plaintiff when they miserably fallen to establish their right, title over the land in question and decreeing the suit is totally unjustified. It is settled principle of law that revenue records confer no title. Both the courts below failed to appreciate this approved principle appellate Court failed to appreciate the same. It is settled principle of law that revenue records confer no title. Both the courts below failed to appreciate this approved principle appellate Court failed to appreciate the same. (Extracted the questions of law made in S.A.No.198 of 2011) 11. Heard Sri V.S.R. Anjaneyulu, learned Senior Counsel representing Smt. V. Sailaja and Sri E. Sambasiva Pratap, learned counsels appearing for the appellants and Sri Bala Subrahmanyam, learned counsel appearing for the respondents. 12. On hearing, Sri V.S.R. Anjaneyulu, learned Senior counsel appearing for the appellants while reiterating the contents made in the grounds of appeals submits that the first appellate Court failed to understand the Sale deeds Ex.B2, B.6 to B.12, the 1st defendant purchased from the Gundupogula family wherein their vendor’s particulars and their source of title also mentioned, but observed that they did not say how they got the title to the property. The link documents Ex.B16 to Ex.B20 clearly show the source of title to the property, therefore finding of the courts below are erroneous, contrary to the record and liable to be set aside. He further contended that the courts below having observed that Burra Venkata Rao died intestate and all his properties devolve on his legal heirs, therefore three daughters of Venkat Rao re also legal heirs and they were not impleaded as parties to the suit in O.S No.40 of 1994 and the Courts below erred in giving finding that the daughters did not come forward by filing Implead Petition under Order I Rule 10 CPC, they need not be parties to the suit. It is essential that the parties having interest in the properties must be impleaded as parties to the suit by the plaintiffs for complete and proper adjudication of dispute when the suit is for declaration title, but the courts below erred in giving a finding that non-joinder of proper parties is not fatal to the plaintiffs’ case. He further submits that he Courts blow ought not to have relied on entries in Revenue records as they do not and shall not be taken into consideration in declaring title to the suit schedule properties therefore the findings of the courts below are erroneous and liable to be set aside. He further submits that he Courts blow ought not to have relied on entries in Revenue records as they do not and shall not be taken into consideration in declaring title to the suit schedule properties therefore the findings of the courts below are erroneous and liable to be set aside. He also submits that the courts below having observed that the plaintiffs failed to file Pattadar pass books and title deeds in their name or in the name of their late father as supporting documents to prove their possession, ought to have rejected the claim of the plaintiffs and also ought to have rejected the claim of the plaintiffs and possession and enjoyment of the plaint schedule properties as the fair Adangals are in the name of Suramma who already sold away the property through Ex.A1. The reasonings and conclusions arrived at by the Courts below that the vendor of the 1st defendant has got no right to sell the properties are unjust, incorrect and liable to be rejected. 13. To support his contentions, learned Senior Counsel has placed reliance on a catena of decisions reported in (i) Chakicherla Audilakshmamma v. Atmakuru Ramarao and others, AIR 1973 ANDHRA PRADESH 149, wherein the Andhra Pradesh High Court held that : “In a suit for ejectment the plaintiff is liable to be nonsuited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not. nature of the present suit is one of in ejectment and it is well settled that he can succeed only on the strength of his own title. It is not obligatory on the defendants to plead and prove all the possible defects in the plaintiff's title. In Moran Mar Bassellios Chatholicos v. Most Rev. Mar Poulese Athnasius. ( AIR 1954 SC 526 ), what has already been well settled has been reiterated by the Supreme Court wherein they had observed that the plaintiff in an ejectment suit must succeed on the strength of his own title and that could be done by adducing sufficient evidence to discharge the onus which is on him, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited. Even if the title set up by the defendants is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited. (ii) In a case of Vinod Kumar versus Gangadhar, (2015) 1 Supreme Court Cases 391, wherein the Hon’ble supreme Court held that : The powers of the first appellate court while deciding the first appeal under Section 96 read with Order 41 Rule 31 of the Code of Civil Procedure, 1908 are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” (iii) In a case of C. Venkata Swamy versus HN.Shivnna (Dead) by Legal Representative and another, (2018) 1 Supreme Court Cases 604, wherein the Hon’ble Supreme Court held that : It is the duty of first appellate court to appreciate entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmation or difference – Similarly, powers of first appellate Court while deciding first appeal are indeed well defined by various judicial pronouncements of Supreme Court and are, therefore, no more res integra. 14. On placing the above decisions, learned counsel for the appellants submitted that the first appeal is valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. Therefore, learned counsel requests this Court to allow these appeals by setting aside the impugned judgments of both the courts below. 15. Per contra, learned counsel for the respondents while denying the averments made in the grounds of appeals, submitted that the Ex.B3 to Ex.B5 documents would show that they were created by DW.1 from Kotipalli Manikyalu, the sister of Venkata Rao, from the wife, sons and daughters of burra Govinda Rao who is the brother of Venkata Rao and Peruru Venkataramanamma, daughter of Venakta Rao. In the schedules of Ex.B3, Ac.05 cents covered by S.No.80/2, in the schedule of Ex.B4, 3rd item is covered by S.No.80/2, of which ac 0.95 cents is mentioned and for 4th item, the boundary is mentioned of DW.4. In the schedule of Ex.B3 for 3rd item old patta No.7, new patta No.42, New S.No.80/2 out of Ac 3.80 cents Ac 0.95 cents is mentioned. In the schedule of Ex.B3 for 3rd item old patta No.7, new patta No.42, New S.No.80/2 out of Ac 3.80 cents Ac 0.95 cents is mentioned. So, these will show that Venkata Rao is having lands in S.No.80/1. He further submits that in the earlier period after estate abolition for S.No.80/1 Ac.9.60 cents in fair adangal the name of only Burra Venkata Rao who is husband of 1st plaintiff and father of 2nd plaintiff is mentioned. The name of Devana Ramalingeswara Rao is mentioned as Akramanadaru. So, they claims that the documents are fabricated by DW.1 and they cannot be basis for the finding as revenue records will not prove the title and relies upon decision reported in 1989 Allahabad, 130, 1988(1) L.S.Pg.315 and also relies on 1996 (2) L.S 569 and claims that the documents were not proved. Mere filing is not sufficient. He further submits that as per the evidence of DW.1 it is very clear that the boundaries were removed and it is not possible to identify the lands except by Survey. So, it is clear the acts of the removal of the boundaries clearly shows that they want to change the physical features basing on the documents created by them during pendency of the suit by obtaining injunctions clearly shows that they concocted evidence and they want to prove their possession by ringling the boundaries. If they are came to the court with clean hands, they would have been kept the lands intact. Therefore, the malafide intention on the part of the appellants can be seen and the appellant being a company and the individuals herein are farmers. He mainly submits that the competent authority for the company did not dealing with the lands and the evidences of DWs.1 to 8 is only basis on the record and not on the facts. Therefore, both courts below gave a correct finding and rightly dismissed the appeals and hence prayed to dismiss these appeals. 16. Now the points that arisen for consideration are : i) Whether A.S No.283 of 2006 to 286 of 2006 rare to be allowed or not? ii) Whether the suit in OS No.40 of 1994 is to be dismissed or not? iii) Whether the suit in OS No.40 of 1997, 42 of 1997 and 43 of 1997 are to be decreed or not? 17. ii) Whether the suit in OS No.40 of 1994 is to be dismissed or not? iii) Whether the suit in OS No.40 of 1997, 42 of 1997 and 43 of 1997 are to be decreed or not? 17. Admittedly, the suit in O.S No.25 of 1993 was first filed in District Munsiff Court, Pithapuram against 6th defendant Bullammai, P. Venakta Ramanamma, K. Lakshmiraju and Vegisina Appala Raju for grant of relief of injunction regarding Ac 12.94 cents which are items 1 to 5 and enjoyed the schedule properties in the suit. 18. On a perusal of the entire material available on record, this Court observed that the finding of the lower court regarding items 1 to 5 and 7 is correct and with regard to item No.6, the cross-objections were filed. This Court further observed that, it is admitted by both the counsels that originally the defendants 1 and 2 filed suits who are the appellants herein. The plaintiffs in all the suits and respondents in the cross objections in AS No.284 of 2006 filed suits regarding various lands covered in various extents. The plaintiffs and respondents filed the suit on the file of District Munisif Court, Pithapuram in OS No.25/1993 and the same was not pressed and a consolidated suit in OS No.40 of 1994 on which A.S No.284 of 2006 was filed by the respondents 1 and 2 for declaration and possession. 19. This Court further observed that, it is proved through evidence of PWs.1 to 7 and Exs.A1, A2 and A4 and the fair adangals that the plaintiffs got title only to items 1 to 5 and 7. So far item no.6 is concerned the same was not shown in O.S.No.25 of 1993 which was filed by the plaintiffs against the defendants and some others, as per Ex.A20 and similarly in Ex.A4 which is extract of 1(B) Form register item No.6 was not shown. 20. It is the contention of the respondents that the 1st defendant purchased Ac 0.454 cents and Ac 0.55 cents in two items, in all making a total of Ac1.00 cents covered by Sy.No.79/2 of Aminabada village from the 6th defendant under a Registered Sale deed dated 15.6.1992 for a sum of Rs.30,000/-. The 1st defendant paid away the entire sale consideration under the said sale deed. The 1st defendant paid away the entire sale consideration under the said sale deed. Possession of the properties was delivered on the date of the sale deed itself and since then the 1st defendant alone has been in possession and enjoyment of the said properties. It is the further contention of the respondents that Burra Govinda Rao, Burra Venakta Rao and Burra Venkataswamy alias Venkata Rao along with Burra Narasamma wife of the said Kondayya purchased Ac 18.31 cents of land of Aminabada Village under Registered Sale deed dated 25.7.1958 from Kowtharapu Suranna and others and since then they were in possession and enjoyment of the said properties. Further, since the document dated 21.7.1970 is an improper, invalid and inadmissible document which does not convey or confer any title, the setting out of the various properties as having fallen to the shares of the respective sharers is equally invalid and ineffective besides being false and incorrect. Hence, it cannot be said that the respective sharers have got any valid title to those properties, in pursuance of the said document. 21. Having regard to the facts and circumstances of the case and on considering the submissions made by both the counsels, this Court is of the view that, the first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. Therefore, in view of the above salutary principles, on going through the impugned judgments, this Court feels that the first appellate Court has failed to discharge the obligation placed on it as a first appellate Court. 22. In view of the foregoing discussion, I have no option but to allow these appeals, set aside the impugned judgments and remand the cases to the first appellate Court for deciding the appeals afresh on merits in accordance with law. 23. 22. In view of the foregoing discussion, I have no option but to allow these appeals, set aside the impugned judgments and remand the cases to the first appellate Court for deciding the appeals afresh on merits in accordance with law. 23. Accordingly, all the Second Appeals are allowed and the impugned judgments in those cases are hereby set aside and remanded back the matters to the first appellate Court and directed to decide the appeals afresh by affording an elaborate personal hearing to both parties and pass appropriate orders strictly in accordance with law, as expeditiously, as possible, but not later than three (03) months from the date of receipt of a copy of this order. It is made clear that the first appellate Court, would, therefore, decide the appeals uninfluenced by any of the observations in accordance with law. 24. Since the appeals are allowed while remanding back the matters to the first appellate Court, the Cross objections filed by the respondents No.1 and 2 in S.A No.200 of 2011, have to be decided in the first appellate Court only. Hence, the respondents No.1 and 2 are directed to raise their objections before the first appellate Court. 25. As a sequel, miscellaneous applications pending, if any, shall also stand closed.