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2023 DIGILAW 1356 (AP)

Arshutunnisa v. Mohammed Kasim

2023-09-29

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : 1. This Second Appeal is filed under Sec. 100 of the Code of Civil Procedure, 1908, by the unsuccessful appellants/plaintiffs assailing the decree and judgment, dtd. 9/11/2006, of the learned VII Addl.District Judge (Fast Track Court), Vijayawada, passed in A.S.No.289 of 2005. 2. By the said decree and judgment, the learned VII Addl. District Judge (Fast Track Court), Vijayawada, dismissed the first appeal with costs, and had confirmed the decree and judgment, dtd. 27/8/2003 of the learned II Addl. Junior Civil Judge, Vijayawada, passed in O.S.No.1070 of 1990. 3. I heard the submissions of Sri T.B.L.Murthy, learned counsel appearing for the Appellants/plaintiffs ('plaintiffs', for brevity) and Learned Senior Counsel Sri V S R Anjaneyulu for the respondents/defendants, and perused the material record. 4. The appeal is coming up for consideration/judgment on the following limited aspects: - 'Whether the questions, which are raised in the memorandum of grounds of appeal or any other substantial questions of law are involved in this appeal? 5. The appellants are the plaintiffs. The respondents 1 to 9 are the defendants. The parties in this second appeal shall hereinafter be referred to as arrayed in the original suit, for convenience and clarity. 6. To begin with, it is necessary to take note of the respective pleadings/cases of the parties and the events that led to the filing of this second appeal. 7. The case of the plaintiffs as is borne out by the material on record, in brief, is that the plaintiffs filed the suit against the defendants for perpetual injunction restraining the defendants, their men etc., from interfering with the plaintiff's possession and enjoyment of the plaint schedule land; The plaintiffs are the sisters and are the daughters of Late Syed Galab, who was the original owner of schedule property, which is an extent of Ac.0.03 cents of vacant land situated in Bhavanipuram village in assessment No.30562; The said Syed Galab had gifted the plaint schedule property to his wife Doula Bi being the mother of plaintiffs about 30 years back. Ever since the said Doula Bi had been in exclusive possession and enjoyment of the schedule property till her death on 29/6/1988; The said Doula Bi died leaving behind the plaintiffs as her legal heirs; So, after the death of Doula Bi, the plaintiffs are in possession and enjoyment of the schedule property. Ever since the said Doula Bi had been in exclusive possession and enjoyment of the schedule property till her death on 29/6/1988; The said Doula Bi died leaving behind the plaintiffs as her legal heirs; So, after the death of Doula Bi, the plaintiffs are in possession and enjoyment of the schedule property. It is further contended that the 1st plaintiff used to live in the said house along with her mother during her lifetime; The 1st defendant, who is the younger brother of Doula Bi, all sudden, without the consent and knowledge of the plaintiffs, began to dig the foundations on 12/11/1990 in the schedule property, but the same was stopped by the interference of the elders; The 1st defendant died and as such, the defendants 2 to 6 being the legal heirs of the 1st defendant were brought on record as defendants. 8. The case of the defendants that the plaint schedule is neither true nor correct in its details; The plaintiffs are guilty of suppression of facts and suggestions of falsehoods; Though the properties of Syed Galib were gifted to his wife in the year 1960 under the gift deed dtd. 21/9/1960, she did not enjoy the said property with exclusive possession of the property till her death on 29/6/1988; The said Doula Bi executed a gift deed in favour of 1st defendant on 21/8/1961 under registered document No.3270/1961 in Sub Registrar Office, Vijayawada, and on the same day delivered possession to the 1st defendant; In furtherance of said gift deed, the 1st defendant acquired title to three items of property and out of the said three items, an extent of Ac.1-87 cents in R.S.No.5/2 of Edupugallu Village was periodically gifted by the 1st defendant to the plaintiffs under different gift deeds commencing from 6/5/1954 till 25/4/2022, when the marriage of the plaintiffs were performed; The plaintiffs are fully aware of the original gift made by Doula Bi in favour of the 1st defendant and estopped from questioning or disputing the title of the 1st defendant in the schedule property. So, the plaintiffs' mother or the plaintiffs are never in possession and enjoyment of the suit schedule property; Hence, the suit is liable to be dismissed; The suit for bare injunction without the main relief of declaration is bad for law; The defendants got possession and enjoyment of the schedule property being lawful owners; The suit is bad for non-joinder of necessary parties. Hence, the suit is liable to be dismissed. 9. Taking into consideration the above pleadings, the trial Court framed the following issues initially: 1. Whether the plaint schedule is correct? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief? Later, in the judgement re-framed the issues as follows: 1. Whether the plaintiffs are in possession and enjoyment of the schedule property? 2. Whether the suit for bare injunction without main relief of declaration is maintainable? 3. Whether the plaintiff is entitled for permanent injunction as prayed for? 4. To what relief. 10. At trial, on behalf of plaintiffs, P. Ws-1 to 3 were examined and Exs.A-1 to A-8 were marked. On behalf of the defendant, D.W-1 was examined and Exs.B-1 to B-13 were marked. 11. On appreciation of pleadings and the oral and documentary evidence, the trial Court dismissed the suit with costs. The appeal preferred by the defendants against the said decree and judgment was also dismissed by the First Appellate Court, by the decree a n d judgment impugned, and the decree and judgment of the trial Court was confirmed. Aggrieved thereof, the unsuccessful defendants have preferred this Second Appeal. 12. The learned counsel for plaintiffs contended as follows: The trial Court erroneously and without properly appreciating the oral and documentary evidence dismissed the suit on 27/8/2003. The findings of the trial Court are perverse. The findings are given only on surmises and presumptions and without looking into the contents of the documents. The Appellate Court also without looking into the oral and documentary evidence erroneously dismissed the appeal on 9/11/2006. The Appellate Court simply confirmed the decree and judgment of the trial Court without adverting to the facts as well as law. The Appellants filed I.A.548/2005 to receive the property, tax receipts, voters list as additional evidence to establish their possession as those documents are obtained after the disposal of the suit. The Appellate Court erroneously and illegally dismissed the I.A.548/2005. The Appellants filed I.A.548/2005 to receive the property, tax receipts, voters list as additional evidence to establish their possession as those documents are obtained after the disposal of the suit. The Appellate Court erroneously and illegally dismissed the I.A.548/2005. The Appellants filed CRP 3522/2006 and the same was dismissed on 27/9/2006. Now the respondents are trying to dispossess the appellants and trying to alienate, encumber and change the nature of the suit schedule properties. 13. Having so contends, it is also submitted on behalf of the appellants/plaintiffs that the following substantial questions of law would arise in the Second Appeal: i) Whether the findings given by the Court below is not vitiated by error apparent on the face of record on the grounds of perversity? ii) Whether possession follows the title as Ex. B-1 is only a nominal and sham document and the appellants never parted with the possession at any time? iii) Whether for vacant land in the suit premises is not liable for non-agricultural assessment tax as collected by the authorities under Ex. A-7 and Ex.A-8 and whether those receipts can be discarded by the Courts below erroneously which clearly establish the possession? iv) The Court below recorded the findings without looking into the contents of Exs.A-2 to A-4. Such findings can be sustainable in law? v) Can the Courts below simply discard the evidence of P.W-3, who is tenant of the Appellants merely his name was not mentioned in the plaint? Whether the names of proposed witnesses and his evidence must be disclosed in the plaint contrary to Order VI of C.P.C.? vi) Whether the findings of the Court below are sustainable in law keeping the principles of Evidence Act as well as the provisions of Order VI of C.P.C.? vii) Can be Appellate Court rejects the additional evidence petition when the public documents are sought to be produced even though it is subsequent to the suit? 14. This Court on 8/6/2007 having regard to the substantial question of law mentioned in the appeal grounds, framed the following substantial questions of law: 1. Whether possession follows title as Ex.B-1 is only nominal and sham document? 2. Whether the findings of the Court below are sustainable in law keeping the principles of Evidence Act as well as the provisions of Order VI of Code of Civil Procedure? 15. Whether possession follows title as Ex.B-1 is only nominal and sham document? 2. Whether the findings of the Court below are sustainable in law keeping the principles of Evidence Act as well as the provisions of Order VI of Code of Civil Procedure? 15. POINTS No.1 and 2: The contention of the plaintiffs, who are the daughters of Late Syed Galib is that he was the original owner of the schedule property, which is located in Bhavanipuram, Vijayawada, in an extent of Ac.0.03 cents with assessment No.30562; the plaintiff contend that Syed Galab executed a gift deed in favour of his wife Doula Bi i.e., mother of the plaintiffs 30 years ago; and ever since she was in possession and enjoyment of the schedule property till her death on 29/6/1988; and later, the plaintiffs inherited the schedule property; and they are in possession and enjoyment of the schedule property. 16. The contention of the defendants is that the 1st defendant is the brother of Smt.Doula Bi i.e., mother of the plaintiffs and she executed a registered gift deed in favour of the 1st defendant on 21/8/1961 and delivered possession and therefore, he was in possession of the schedule property. The defendants also contended that later the 1st defendant bequeathed some of the properties covered under the said gift deed in favour of the plaintiffs at the time of their marriage, except the schedule property. 17. The learned trial Judge, on issue No.1 i.e., whether the plaintiffs are in possession and enjoyment of the schedule property, considered the documents filed by the plaintiffs under Exs.A-1 to A-8, and found that Ex.A-1 is a certified copy of gift deed executed by the father of the plaintiffs in favour of the mother of the plaintiffs, and it was not disputed by either of the parties; But the defendants contended that Smt.Doula Bi, who is the donee under Ex.A-1 gift deed bequeathed the said property in favour of the 1st defendant under ExB-1 registered gift deed dtd. 21/8/1961, and subsequently, the 1st defendant bequeathed some properties covered by Ex.B-1 gift deed, in favour of the plaintiffs, except the schedule property. 18. 21/8/1961, and subsequently, the 1st defendant bequeathed some properties covered by Ex.B-1 gift deed, in favour of the plaintiffs, except the schedule property. 18. The learned trial Judge on facts held that the plaintiffs did not plead anything about Ex.B-1 registered gift deed, except making a statement in their evidence (P.W-1 & P.W-2) that they do not know about Ex.B-1 registered gift deed, and that they also did not deny the fact that the 1st defendant had executed gift deeds in favour of the plaintiffs bequeathing the properties covered under Ex.A-1 gift deed as well as Ex.B-1 gift deed, at the time of their marriage. 19. The learned trial Judge with respect to Exs.A-2 to A-4 found that those tax receipts pertain to assessment No.315, but not to the assessment No.30562, which relates to the schedule property, and they stands in the name of Syed Galab, and therefore, they relate to a different property. 20. The learned trial Jude on Ex.A-5 held that the ration card filed by the plaintiffs contain the names of three adults and two children, whereas Smt.Doula Bi had no sons, and the names referred in Ex.A-5 and door number mentioned therein were not found place in the evidence of the plaintiffs, and therefore, Ex.A-5 do not relate to the schedule property. 21. The learned trial Judge on Ex.A-6, found that it is another ration card stands in the name of Md.Vazir Ali, the husband of P.W-2 and that on careful examination of Ex.A-6, it indicates that the words "Ali" were added to the name of "Md.Wasir" at two places, and therefore, it creates a doubt about the genuineness of the document and hence, basing on Ex.A-5 and Ex.A-6, it cannot be held that the plaintiffs are in possession of the schedule property. 22. The learned trial Judge on Ex. A-7 and Ex. A-8, held that they are cist receipts, but the schedule property is a house property and therefore, the said documents which relates to S.No.1/279 and 495 respectively, do not relate to the schedule property. Therefore, the learned trial Judge on considering the evidence both oral and documentary held that the plaintiffs failed to establish their possession over the schedule property, and accordingly, dismissed the suit. 23. The learned I Appellate Judge also considered the oral as well as documentary evidence produced by the plaintiffs to establish their possession. Therefore, the learned trial Judge on considering the evidence both oral and documentary held that the plaintiffs failed to establish their possession over the schedule property, and accordingly, dismissed the suit. 23. The learned I Appellate Judge also considered the oral as well as documentary evidence produced by the plaintiffs to establish their possession. in detail and concurred with the findings of the learned trial Judge with respect to Exs.A-1 to A-8. In para-No.12 of his judgment, the I Appellate Judge considered the documents filed by the plaintiffs in detail and assigned reasons for not relying on them and held that the documents filed by the plaintiffs do not establish that they are in possession and enjoyment of the schedule property. 24. So far as the evidence of P.W-3, that he was a tenant in the schedule property was not believed either by the learned trial Judge or the I Appellate Judge on the ground that the plaintiffs, who were examined as P.Ws-1 and 2 respectively, in their evidence did not state that the schedule property was leased to P.W-3 from 1975 to 1988 and he was in possession of the property as tenant and there are no documents to establish the tenancy. Therefore, the learned trial Judge as well as I Appellate Judge doubted the credibility of the evidence of P.W-3 by giving reasons based on principles of Evidence. 25. In the above circumstances and facts, this Court do not see any grounds to held that the findings of the learned trial Judge or the I Appellate Judge are perverse and against the principles of evidence. 26. The plaintiffs filed the suit for prohibitory injunction simpliciter relating to an immovable property. The plaintiffs claimed title as well as possession over the schedule property. The defendants have taken a specific plea that the plaintiffs mother bequeathed the schedule property to the 1st defendant, who is none other than her brother, in the year 1961, and executed Ex.B-1 registered gift deed in his favour and delivered possession of all the properties mentioned in the gift deed which includes the schedule property, and that later, the 1st defendant bequeathed some properties in favour of the plaintiffs by executing registered gift deeds, at the time of their marriage. 27. In a suit for injunction simpliciter, the concern is only with possession. The burden of proof is on the plaintiff to establish possession. 27. In a suit for injunction simpliciter, the concern is only with possession. The burden of proof is on the plaintiff to establish possession. The suit for injunction will be decided with reference to the findings on possession. Generally, the question of title will not be a direct and substantial issue. But in cases where De Jure possession has to be established on the basis of title to the property, issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession, as laid down by the Hon'ble Apex Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs. and others., AIR 2008 SC 2033 28. In the case on hand, both the trial Court as well as I Appellate Court considered the question of possession of the schedule property basing on the oral and documentary evidence placed before trial Court, by the respective parties, and on facts concurrently held that the plaintiffs failed to establish possession of the schedule property and dismissed the suit for prohibitory injunction. 29. As discussed supra, both the Courts below i.e., trial Court as well as the I Appellate Court considered every document filed by the plaintiffs, with reference to proof of their contents and probative value and held that documents filed by the plaintiffs would not establish that the plaintiffs are in possession of the schedule property. The findings of both the Courts below are based on principles of appreciation of evidence relating to documents. 30. In that view of the matter and in the light of above facts and circumstances, this Court is of the considered opinion that Second Appeal is devoid of merits. Therefore, the Second Appeal is liable to be dismissed. 31. In the result, the Second Appeal is dismissed with costs.