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2023 DIGILAW 175 (AP)

Valeepu Juvvalamma v. Mamidi Manikyam

2023-01-23

BANDARU SYAMSUNDER

body2023
JUDGMENT : BANDARU SYAMSUNDER, J. 1. The 2nd defendant in O.S. No. 145 of 1996 on the file of District Munsif, Kothavalasa is the appellant. The respondent is the plaintiff in the suit. Originally, the suit was filed by the respondent against the appellant and her husband (1st defendant) seeking relief of declaration of his title and consequential relief of permanent injunction, in respect of plaint schedule property, which is a vacant site to an extent of 4 yards x 2 yards with specific boundaries. 2. The appellant and the respondent herein after referred to as 2nd defendant and plaintiff as arrayed before the trial Court. 3. The plaintiff instituted the suit against the defendants 1 and 2, seeking relief of declaration and permanent injunction, in respect of plaint schedule vacant site, which is to an extent of 4 yards x 2 yards with specific boundaries. The plaint schedule is extracted here under: PLAINT SCHEDULE District : Vizianagaram Mandal: Kottavalasa Village: Tummikapalli Class of Land: Vacant site Back yard of plaintiff’s house. Extent: 4 yards x 2 yards = 8 sq. yards. East: House and site of Mamidi Jaggarao. South: Plaintiff’s house. West: House and site of Valeepu Appalanaidu. North: Public Rasta of 4 feet. 4. It is the contention of the plaintiff that the vacant site described in the plaint schedule and marked as red in colour in the plaint plan attached to the plaint and the site to its south upto ‘Rajaveedhi’ originally belongs to one Vallepu Ramana Rao, who sold the said site including plaint schedule site to one Bobbari Lakshminarayana Rao under registered sale deed, dated 12.12.1983 (Ex.A2) and then said Bobbari Lakshminarayana Rao sold the entire site including plaint schedule site, under registered sale deed, dated 04.10.1989 (Ex.A1) to the plaintiff and delivered possession of the same. The plaintiff submits that he constructed house in the remaining site to the south of the plaint schedule site, as shown in the plaint plan and kept plaint schedule site vacant for the purpose of using it as back yard to his building and using the same by keeping his fire-wood and for bathing purpose. The plaintiff submits that he constructed house in the remaining site to the south of the plaint schedule site, as shown in the plaint plan and kept plaint schedule site vacant for the purpose of using it as back yard to his building and using the same by keeping his fire-wood and for bathing purpose. It is also the contention of the plaintiff that there is a public ‘Rasta’ of about 4 feet width, which runs from east to west to the north of the plaint schedule site and further north of the said public ‘Rasta’ and opposite to the plaintiff’s house and site, there is a house of one Pilla Ammanna and to the east of the house of Pilla Ammanna and to the north of the said ‘Rasta’ the defendants are having a site, in which they laid round hut. The plaintiff submits that the site of the defendants is not abutting the plaint schedule site, which is separated by a public ‘Rasta’ of 4 feet, which is also not opposite to the plaint schedule site, but the defendants are since some time proclaiming that they would trespass into the plaint schedule site though they are not having any manner of right. Therefore, the plaintiff filed suit for declaration and injunction, in respect of plaint schedule site. 5. The defendants resisted the claim of the plaintiff, by filing written statement, stating that the plaintiff is having his house towards north to ‘Rajaveedhi’ who constructed his house in the entire site, purchased by him from B. Lakshminarayana Rao, without leaving anything as a vacant site, due to that the plaintiff intentionally failed to mention in his plaint how much site he purchased from B. Lakshminarayana Rao and the plinth area with measurements of the house he constructed in such site, though the plaintiff is claiming that while constructing the house, he left vacant space of 12 feet east to west and 6 feet north to south. The specific contention of the defendants is that the plaintiff not left any site to the north of his house and made constructions in the entire site and there is no ‘Rasta’ on the north of the plaint schedule site. The specific contention of the defendants is that the plaintiff not left any site to the north of his house and made constructions in the entire site and there is no ‘Rasta’ on the north of the plaint schedule site. It is the contention of the defendants that to the north of site purchased by the plaintiff, there is a vacant site and ancestral house of the 1st defendant and to the north of 1st defendant’s ancestral site and house, there is a site and house of Chikkala Mutyalu, who sold the house and site to the 1st defendant for a consideration of Rs. 2,000/- under registered sale deed, dated 06.02.1985 (Ex.B1) and ever since the date of said sale, the 1st defendant is in possession and enjoyment of the property and he is enjoying the same along with his own site, situated towards south of the property, purchased from Mutyalu. The defendants are claiming that the 1st defendant site extends upto the northern wall of the plaintiff and northern wall of the house of Mr. M. Jaggarao, due to that the plaintiff is not entitled to the vacant site, which is to the north of his house, as it belongs to them. They further submit that the eastern boundary of the suit site is shown as site belongs to Mr. M. Jaggarao, who is also not having any site beyond his house towards south, which can be reflected on the ground and site towards west of suit site in fact belongs to Pilla Ammanna and northern boundary of the site is the remaining site of the 1st defendant and there is no ‘Rasta’ towards north of the suit site abutting it. The defendants also claimed that the plaintiff never enjoyed the suit site by keeping fire-wood and for bathing purpose and there are small plants in the suit site, which planted by them. The defendants also claimed that the plaintiff nor his predecessors-in-interest never enjoyed the site at any time 12 years prior to the suit, and they are enjoying the same along with their other property as part of it, since the time of their ancestors and they also perfected title by adverse possession. They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues and additional issues for trial: 1. They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues and additional issues for trial: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? 7. The issues have been re-casted and following issues framed for trial: 1. Whether the plaintiff is entitled for declaration as prayed for? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief? 8. The parties went to trial. On behalf of the plaintiff, he himself examined as PW-1 and examined PW-2, PW-3 and got marked Exs.A1 to A4. On behalf of the defendants, DWs. 1 to 4 were examined. Exs.B1, B2 were marked. 9. On the material and evidence, the trial Court held that the plaintiff is not entitled to seek declaration and permanent injunction, in respect of plaint schedule property, and dismissed the suit. 10. Against the Judgment and Decree passed by the trial Court, the plaintiff presented A.S. No. 34 of 1997 on the file of District Judge, Vizianagaram, which was allowed by the first appellate Court, decreed the suit filed by the plaintiff. 11. In these circumstances, the present Second Appeal is filed by the 2nd defendant, as 1st defendant died during the pendency of the first appeal and the appeal against him was abated on 21.06.2000. 12. I have heard learned counsel for the appellant Mr. K. Subrahmanyam. None appeared for the respondent. 13. The learned counsel for the appellant would submit that the trial Court after considering the boundaries mentioned in Exs.B1, B2 and recitals in Exs.A1, A2 title deeds, rightly dismissed the suit of the plaintiff, which erroneously decreed by the first appellate Court. He would further submit that the first appellate Court relied on contents of the Advocate-Commissioner’s report and plan, though the Advocate-Commissioner is not examined as a witness by the plaintiff, due to that the Advocate-Commissioner’s report and plan cannot be taken into consideration, while considering the case of the plaintiff. He argued that during the pendency of the first appeal, the 1st defendant died, due to that the appeal against him was abated, thereby the entire appeal shall be abated, which failed to consider by the learned appellate Judge. He argued that during the pendency of the first appeal, the 1st defendant died, due to that the appeal against him was abated, thereby the entire appeal shall be abated, which failed to consider by the learned appellate Judge. He relied on the following precedent law: (1) Harihar Prasad Singh and Others vs. Balmiki Prasad Singh and Others, AIR 1975 SC 733 , wherein explained abatement of the appeal due to the death of one of the party. (2) Mohd. Safdar Shareef (Died) Per LRs. and Others vs. Mohammed Ali (Died) Per LRs. 1993 (1) ALT 522 (DB), wherein also explained scope of Order 22, Rule 4 of CPC and held that the decree against dead person is nullity. (3) Mohammed Jaffer Abdul Qadeer Qureshi vs. Aziz-ur-Rehman Qureshi and Others in CRP No. 1414 of 2014, dated 22.02.2016 of Andhra Pradesh High Court, wherein it is explained with regard to appointment of Advocate-Commissioner when suit is pending. (4) Durga Kala Mandir vs. S. Pulla Rao in S.A. No. 288 of 2004, dated 27.10.2014, wherein it is explained scope of recital of document produced by the parties. (5) Municipal Council, Bawal and Another vs. Babu Lal and Others, (2018) 4 SCC 369 , wherein it is explained demarcation of the land by the Tahsildar, who was appointed as Local Commissioner, who carried out in accordance with law in the presence of Municipal Council. He prays to allow the Second Appeal and dismiss the suit. 14. This Second Appeal was admitted on the following substantial question of law, which is raised in the Ground No. 11 of memorandum of grounds of appeal, which reads as under: “(A) Whether the District Judge, Vizianagaram adopted different standards in applying the principle that boundary recitals in sale deed are inadmissible in evidence against the 3rd parties to the document unless the parties to the document are examined? (B) Whether the appreciation of evidence by the learned District Judge, Vizianagaram is perverse? (C) Whether the appeal suit in AS No. 34/1997 abated on the death of the 1st respondent in A.S. as the cause of action does not survive as the relief of declaration and injunction are prayed in the suit? (D) Whether the appeal suit in AS No. 34/1997 survives on the death of 1st respondent, against the appellant herein? (C) Whether the appeal suit in AS No. 34/1997 abated on the death of the 1st respondent in A.S. as the cause of action does not survive as the relief of declaration and injunction are prayed in the suit? (D) Whether the appeal suit in AS No. 34/1997 survives on the death of 1st respondent, against the appellant herein? (E) Whether Ex.A1 is inadmissible in evidence as not proved under Section 57 of the Indian Evidence Act? (F) Whether in a suit for declaration and injunction the burden is on the plaintiff to prove his title or not? (G) Whether the District Judge, Vizianagaram erred in disagreeing District Munsif, Kothavalasa with regard to the Advocate-Commissioner’s report? (H) Whether the District Judge, Vizianagaram is justified in considering the Commissioner’s report without examining the learned Commissioner by either party, in the light of objections filed by both parties and the evidence of witnesses of both sides? (I) Whether the District Judge, Vizianagaram is justified in coming to a different conclusion from that of the trial Court and reverse the findings of the trial Court?” 15. While considering the Second Appeal in terms of Section 100 CPC, this Court can only consider when there is substantial question of law and no more such question of law or one based on facts. The Hon'ble Apex Court in Narayan Sitaramji Badwaik (Dead) through LRs. vs. Bisaram and Others, AIR 2021 SC 2438 wherein it is held at Para 10, which reads as under: “10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [Refer: Santhosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. (2001) 3 SCC 179 ]. However, this does not mean that the high court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code for Civil Procedure explicitly provides for circumstances under which the High Court may do so. (2001) 3 SCC 179 ]. However, this does not mean that the high court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code for Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as follows: Section 103: Power of High Court to Determine Issue of Fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal: (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court. (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.” 16. The Hon'ble Apex Court in recent Judgment in Chandrabhan (Deceased) through LRs. and Others vs. Saraswati and Others in Civil Appeal No. NIL of 2022 and S.L.P. (C) No. 8736 of 2016 Judgment dated 22.09.2022, held at Para-33 of the Judgment, which reads as under: “33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence” it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 17. The suit is filed by the plaintiff against the defendants 1 and 2, who are husband and wife for declaration of his title and consequential relief of permanent injunction, in respect of plaint schedule property, which is vacant site, which referred above. It is not in dispute that during pendency of the appeal filed by the plaintiff before the first appellate Court, the 1st defendant, who is the husband of the 2nd defendant died and the appeal against him is abated. The learned first appellate Judge also considered the same and held that as the 2nd defendant is no other than the wife of the 1st defendant, there is proper representation of the estate of the deceased-1st defendant in the appeal, due to that there will not be any abatement of the entire appeal due to the death of the 1st defendant. 18. 18. The Hon’ble Apex Court in Delhi Development Authority vs. Diwan Chand Anand and Another in Civil Appeal No. 2397 of 2022 and Civil Appeal No. 2398 of 2022, dated 11.07.2022, explained scope of Order XXII, Rule 4 of CPC and held at Para 9.1, which reads as under: “9.1 After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba and Others, (2003) 3 SCC 272 , it is observed by this Court that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court which passed it. Thus, as observed and held by the Court: (i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. (ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2). (iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant. Where within the time limited by law no application is made under sub-rule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant. (iv) the provision of Order 22 shall also apply to the appeal proceedings also.” 19. In the present case, there is no dispute that the 2nd defendant is no other than the wife of the 1st defendant and it is not the contention of the 2nd defendant that she has not succeeded to the properties of the 1st defendant being a wife. Further, the Judgment of the appellate Court not shows that the 2nd defendant who represented by an Advocate complied the provisions of Order XXII, Rule 10A of CPC by furnishing the details of legal representatives of the deceased-1st defendant. In those circumstances, as rightly held by the learned first appellate Judge that when the estate of the 1st defendant is represented by the 2nd defendant, being his wife, right to sue survives and entire appeal will not abate. 20. The plaintiff is relying on Exs.A1, A2 to prove his title and possession over the plaint schedule property. The defendants are not disputing purchase of property by the plaintiff under Ex.A1 and they also not denied Ex.A2, which is sale deed of vendor of the plaintiff. On perusing the contents of Exs.A1, A2 and boundaries shown thereon, the first appellate Court after considering Ex.A3 approved building plan, submitted by the plaintiff came to the conclusion that the plaintiff able to prove that he left plaint schedule site to the north of the site purchased by him under Ex.A1 while constructing his house. It is no doubt true that though the Advocate-Commissioner has been appointed at the instance of the plaintiff, who visited plaint schedule site noted physical features and prepared a rough plan, the plaintiff has not chosen to examine the Advocate-Commissioner to mark the document. Though, the Advocate-Commissioner is not examined, when he visited the suit locality and prepared plan, whose report and plan are available on record, which formed part and parcel of the record, which the first appellate Court rightly perused while considering the other documents, which cannot be find fault on the ground that the Advocate-Commissioner is not examined as there is no dispute about visit of the Advocate-Commissioner and preparing a rough plan in the presence of both sides. 21. 21. On perusal of boundaries shown in Exs.A1, A2, which shows that same boundaries and extent of site were reflected in both documents with specific measurements. The plaintiff purchased the site to an extent of 12 feet east to west and 38 feet north to south. In Exs.A1, A2 the northern boundary of the site purchased by the plaintiff is shown as Joint Rasta. The plaintiff who purchased site under Ex.A1, which is not in dispute also obtained plan to construct house, which also approved by the Gram Panchayat of the village and on perusal of Ex.A3 approved plan of the plaintiff, which clearly shows that the plaintiff proposed to make constructions in the site, measuring 12 x 32 feet, which shows that he left 6 feet site on the northern side of the site, purchased by him under Ex.A1. He has specifically shown northern side of his site as ‘Rasta’ and on perusal of contents of the plan, the Gram Panchayat approved the same, which also inconformity with the observation made by the Advocate-Commissioner in his report and plan, which rightly considered by the learned first appellate Judge, though failed to consider by the trial Court. 22. The plaintiff basing on Exs.A1, A2 coupled with Ex.A3 approved plan able to prove that he has left the site to the north of his site, purchased by him and the contention of the plaintiff also supported by report of the Advocate-Commissioner and plan, coupled with oral evidence. The claim of the plaintiff is based on Exs.A1, A2 registered sale deeds and boundaries shown thereon and when the claim is based on registered sale deed, there is a strong presumption in favour of the plaintiff, as held by the Hon’ble Apex Court in Jamila Begum (D) through LRs. vs. Shami Mohd. (D) through LRs. and Another in Civil Appeal No. 1007 of 2013, Judgment dated 14.12.2018 at Para 14, which reads as under: “14. Sale deed dated 21.12.1970 in favour of Jamila Begum is a registered document and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and Others vs. Birbal and Others, (2006) 5 SCC 353 , it was held as under: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” The above judgment in Prem Singh’s case has been referred to in Vishwanath Bapurao Sabale vs. Shalinibai Nagappa Sabale and Others, (2009) 12 SCC 101 .” 23. The defendants are also claiming the right over the plaint schedule property that it is not a ‘Rasta’ and it is their own site, which is situated on the south of site purchased by them and they also claimed adverse possession. When the defendants claimed title based on possession, which is amounts to admitting initial title of other side. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. The defendants in the present case, though claimed title to the plaint schedule property by adverse possession that it is their ancestral site, the burden is on them to prove the same, which they failed to prove and the contention of the plaintiff is supported by Exs.A1 to A3, and also physical features noted by the Advocate-Commissioner, who admittedly inspected the suit locality in the presence of both parties. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the defendants asserts possession adverse to the title of the other. When they claimed title based on possession, the onus is on the defendants to prove the same, which they failed to prove. 24. The learned appellate Judge after re-appreciating the evidence produced by both sides, came to right conclusion that the plaintiff is entitled to seek declaration of his title and consequential permanent injunction, decreed the suit. 25. When they claimed title based on possession, the onus is on the defendants to prove the same, which they failed to prove. 24. The learned appellate Judge after re-appreciating the evidence produced by both sides, came to right conclusion that the plaintiff is entitled to seek declaration of his title and consequential permanent injunction, decreed the suit. 25. The first appellate Court, basing on the material and evidence, rightly appreciated the evidence and decreed the suit filed by the plaintiff, by setting aside the Judgment and Decree passed by the trial Court. 26. In these circumstances, finding no such question that require consideration in this Second Appeal, much less substantial question of law, as pointed out by the appellant, this Second Appeal has to be dismissed. 27. This Court is satisfied that this is not an instance, where Section 100 CPC has to be applied nor interference is warranted with the Decree and Judgment of the appellate Court that setting aside the Decree and Judgment of the trial Court. 28. In the result, the Second Appeal is dismissed, confirming the Judgment of the appellate Court. In the circumstances of the case, there shall be no order as to costs. As a sequel, pending miscellaneous petitions if any, stand closed. Interim Orders granted if any, shall stand vacated.