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2023 DIGILAW 889 (AP)

Paniki Leela Kumari v. B. Bala Bahadur

2023-06-16

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : 1. Appellant in the Second Appeal is plaintiff in the trial Court and respondents herein are the defendants before the trial Court. 2. Property in dispute between the parties is a house bearing Door No.26/1-812 with RCC construction and vacant site situated in Kondayapalem area of Nellore Municipal Corporation limits. It is in Survey No.440, Plot No.26 in D-Block of Bhakthavatsala Nagar, N.G.O Colony, Nellore. The woman by name Gaju Gullamma alias Garbani Juli married to a man and gave birth to a daughter by name Paniki Leela Kumari. The husband of the above referred woman by name Juli died and thereafter she married defendant No.1/Sri B. BalaBahadur in the year 2002. After the death of Smt.Juli, defendant No.1 B.BalaBahadur married defendant No.2 Smt.B. Rajamma. Thereafter Paniki Leela Kumari filed O.S..No.252 of 2018 as against her step father and wife of step father showing them as defendant Nos.1 and 2 in her suit. She prayed for declaration of a title over the plaint schedule property and for a direction to the defendants to deliver vacant possession of a part of the plaint schedule property namely Bedroom on Northern Side and asbestos room on western side and also sought for a permanent injunction restraining the defendants from interfering with possession and enjoyment of the plaint schedule property and for costs and such other reliefs. Both the defendants together filed written statement resisting the prayer. After due trial, learned I Additional Senior Civil Judge, Nellore by a judgment dated 19.07.2010 decreed the suit in part and dismissed the suit in part. Learned trial Court refused to grant the declaration of title and the recovery of possession that was sought for. However, it decreed the suit granting permanent injunction. It also declared that the plaintiff in the suit has got half share in the suit schedule property and the injunction that granted survives till an amicable partition takes place between the plaintiff and the defendants. 3. Plaintiff did not prefer any appeal in challenge to the judgment and decree of the trial Court. However, defendants were aggrieved and they preferred A.S.No.143 of 2010. After due hearing, learned Additional District Judge, Nellore by a judgment dated 08.03.2013 allowed the appeal and set aside the judgement of the trial Court. As a result, the entire suit with all multiple reliefs claimed by the plaintiff stood dismissed. However, defendants were aggrieved and they preferred A.S.No.143 of 2010. After due hearing, learned Additional District Judge, Nellore by a judgment dated 08.03.2013 allowed the appeal and set aside the judgement of the trial Court. As a result, the entire suit with all multiple reliefs claimed by the plaintiff stood dismissed. It is against that judgment of the learned first appellate Court, plaintiff has preferred this Second Appeal under section 100 CPC. 4. A learned judge of this Court on 26.04.2013 admitted this Second Appeal on the following substantial question of law: “Whether the lower appellate Court was justified in disallowing the relief of permanent injunction to the appellant in spite of finding that appellant is in possession of portion of the schedule property?” Notices were taken out to respondents/defendants and they made their appearance. 5. Subsequently, by virtue of I.A.No.1 of 2022 after due hearing on both sides on 02.01.2023, the following additional substantial questions of law were also formulated: 1. Whether the judgment of the learned first appellate Court is vitiated for failure to advert to the application pending before it for production of additional evidence and thereby the judgment is perverse? 2. Whether the judgment of the first appellate Court could not be sustained for its perversity when it failed to appreciate Ex.A10 against Ex.B1? 6. The appellant, during the pendency of the Second Appeal, filed I.A.No.2 of 2022 under Order XLI Rule 27(b) and Section 151 CPC for producing additional evidence and to get certain documents exhibited on plaintiff’s side as Exs.A5 and A6. She intended to have two documents on record namely proceedings issued by Tahsildar vide LPRB No.9072 of 2017 dated 30.11.2017 and an endorsement dated 23.01.2021 issued by the Public Information Officer under the provisions of Right to Information Act,2005. 7. Learned counsel on both sides submitted arguments on the substantial questions of law and additional substantial questions of law involved in this Second Appeal and also the application for additional evidence. 8. To appreciate the merits of the matter, the following facts and circumstances that transpired before the Courts below require a brief narration here: Plaint was presented on 31.12.2007 before the trial Court. 8. To appreciate the merits of the matter, the following facts and circumstances that transpired before the Courts below require a brief narration here: Plaint was presented on 31.12.2007 before the trial Court. Pleaded case of the plaintiff indicates that by the time the suit was filed, she was in possession of some part of the plaint schedule property and the defendants were in possession of some part of the plaint schedule property. The further pleaded case of the plaintiff indicates at Paragraph No.4 of the plaint that the plaintiff and the defendants have been jointly utilising the hall and kitchen. The written statement admits the usage of plaint schedule property by the defendants as well as by the plaintiff. Thus, it is an admitted case that both parties who are fighting before the Courts have been residing in one and the same property and fighting from there. 9. The substance of the plaint is that the plaintiff looked after her mother juli and was with her, living in this plaint schedule property and out of that love and affection she had executed an unregistered will dated 31.12.1998 in favour of the plaintiff and she died in the year 2002. Therefore, plaintiff became title holder of the plaint schedule property. It is also stated that even otherwise by way of natural succession, plaintiff became title holder of the property. It is stated that a notice dated 17.01.2007 was sent by the defendants to the plaintiff claiming title over the property and they questioned possession of the plaintiff stating that it was permissible in nature and they raised a demand to vacate the property. Plaintiff got issued a suitable reply dated 31.1.2007. Without specifying date, month and year plaintiff claimed that defendant recently came and forcibly occupied certain portions of the plaint schedule property and threatened her with dire consequences. Plaintiff got issued a suitable reply dated 31.1.2007. Without specifying date, month and year plaintiff claimed that defendant recently came and forcibly occupied certain portions of the plaint schedule property and threatened her with dire consequences. As to how plaintiff’s mother juli got the property in the very words of the plaintiff as contained in Paragraph No.3 of the plaint is required to be extracted here: “The plaintiff humbly submits that her mother by name Gaju Gullamma alias Garbani Juli alias B. Sarojanamma is the absolute owner of the Plaint schedule property whose name was entered in municipal records and in other records as full owner thereof.” The primary relief of declaration of title as made in the plaint is “plaintiff is the absolute owner of the plaint schedule property by virtue of the will executed by the plaintiff’s mother in favour of the plaintiff on 31.12.1998 and by way of natural succession.” 10. The substance in the written statement of the defendants is that the plaint schedule property belongs to defendant No.1 as he paid market value under a challan dated 14.04.1985. The Mandal Revenue Officer in Rc.B.No.1336/85 granted house site patta on 15.04.1985. Thereafter, defendant No.1 constructed a house and it is that house and the site which is the plaint schedule property which is owned by defendant No.1. On the death of his first wife, he married defendant No.2 and he executed a registered settlement deed dated 15.10.2006 giving away his property to living wife/defendant No.2 and gave symbolic possession of the property to her. Now, he and his wife have been living in this house. The plaint mentioned allegations are incorrect. The will propounded is forged. Plaintiff is in occupation of a part of the property under the permission granted by the defendants. The name of defendant No.1 was entered in the municipal records, though his first wife paid electricity charges and municipal taxes earlier it is defendant No.1 who has been now paying these taxes and charges. For all these reasons, they claim for dismissal of the suit. 11. On these rival pleadings, learned trial Court settled the issues for trial: 1. Whether the will dated 31.12.1998 is true? 2. Whether plaintiff is entitled to declaration of her title to the schedule property and for recovery of possession of part of plaint schedule property? 3. For all these reasons, they claim for dismissal of the suit. 11. On these rival pleadings, learned trial Court settled the issues for trial: 1. Whether the will dated 31.12.1998 is true? 2. Whether plaintiff is entitled to declaration of her title to the schedule property and for recovery of possession of part of plaint schedule property? 3. Whether plaintiff is entitled to the relief of injunction as praying for? 4. To what relief? In proof of their respective versions, plaintiff testified as PW.1 and her husband as PW.2 and to prove the will, they got examined attestors as PW.3 and 4 and Exs.A1 to A10 were marked. Defendant No.1 testified as DW.1 and got examined another witness to show that the house in the plaint schedule property was constructed by defendant No.1 and this witness was DW.2. On behalf of the defendants Exs.B1 to B3 were exhibited. 12. Principle contentions revolved around Ex.A1 will propound by plaintiff and Ex.B1 patta propounded by defendants. There is another document which has some importance and it is Ex.A10 endorsement of Tahsildar dated 07.08.2009. The original settlement deed executed by defendant No.1 in favour of defendant No.2 was not exhibited by defendants but a registration extract of it was exhibited by plaintiff as Ex.A9. 13. The learned trial court considered the oral testimony of all the witnesses and considered the documents adduced on both sides. Coming to Ex.A1 will, it stated various reasons and analysed the oral evidence of PW.1 to 4 and found that will was shrouded in suspicion and the suspicious circumstances were not explained and the evidence was discrepant and finally it held that will was not proved. It then stated that even according to the evidence of PWs.1 and 2 their right over the property is claimed only through plaintiff’s mother juli and since title declaration is sought for, the plaintiff was obliged to show the title of her mother Juli and as per the evidence of PWs.1 and 2 themselves there has been no document showing that juli either purchased plaint schedule property or that she obtained any patta or other document from the Government giving her the house site. It was in those facts and circumstances, the learned trial Court held that plaintiff failed to prove the title of her mother and as a consequence, neither under the will nor by natural succession, she could become owner of the property. It was in those circumstances, it refused to grant title declaration. On the same token, it refused to grant the relief of recovery of possession since plaintiff was not the title holder of the property. Coming to the ownership claim of defendants, it stated that Ex.B1 Patta propounded by defendants was not proved since defendant did not examine any revenue officer in proof of that document. It said that Ex.A10 letter addressed by tahsildar indicates that no patta was granted in favour of defendant No.1 concerning plaint schedule property. It said that even that Ex.A10 was not proved because plaintiff did not choose to examine any revenue officer. It is in those circumstances, it said that the title of defendant No.1 was not proved and as a consequence it held that passing of title by defendant No.1 in favour of defendant No.2 under the registered sale deed does not arose. 14. On analysis of the evidence, learned trial Court recorded that for decades Smt. Juli was found in possession of the property and she was paying electricity charges and municipal taxes and plaintiff was with her and on the death of juli, the possessor right alone was succeeded by plaintiff. It also said that defendant also has been in possession of the property. In the context of the fact that neither side proved any title and as according to both parties the property belonged to the Government it held that only possessory right is there with both sides and on death of juli each of them succeeded to that right and they are entitled for half share each. It is on that premise, it declared that the plaintiff had half share in the property and till an amicable partition takes place, defendants were directed not to interfere with possession and enjoyment of that part of plaint schedule property by the plaintiff. 15. As said earlier, plaintiff did not go any appeal but the defendants went in first appeal. It is to be stated that no cross appeal or cross objections were there on the part of the plaintiff. 15. As said earlier, plaintiff did not go any appeal but the defendants went in first appeal. It is to be stated that no cross appeal or cross objections were there on the part of the plaintiff. Learned first appellate judge on considering the entire material on record came to conclude that when a party is in possession of only a part of the plaint schedule property, questions of granting injunction as against the other party who is also in possession of the property does not arise. It also stated that the prayer for injunction was neither there in the pleadings nor it was there in the relief portion of the plaint. It is for these reasons, it held that a relief beyond the prayer could not be granted. It is for that reason, it upset the judgment of the trial Court and negatived the injunctive relief also. Coming to the declaration of half share for plaintiff and half share for defendant No.1 granted by the trial Court, the first appellate Court stated that tax receipts do not establish title. When the plaintiff was found not having any title and is found having only a share in it and when the plaint did not seek a prayer for partition granting partition by the trial Court is incorrect. It is for these reasons, it set aside the plaintiff’s case totally and allowed the appeal and dismissed the entire suit. 16. It is in the context of above facts, evidence and the findings of the Courts below, the substantial questions of law raised in this Second Appeal are to be decided. One of the questions debated before this Court is about failure of first appellate Court in its consideration of Ex.A10 as against Ex.B1. Ex.B1 is patta dated 15.04.1985 granted by the Government in favour of defendant No.1 where under a house site was given to him on payment of consideration. It is based on this respondent No.1/defendant No.1 argued before the Courts below that the plaint schedule property has been owned by him. Ex.A10 is an endorsement deed dated 07.08.2009 issued by the tahsildar. This was obtained subsequent to the institution of the suit in the year 2008. This endorsement indicates that the tahsildar’s office has informed the plaintiff/appellant that in Rc.B.No.1336 of 1985 dated 15.04.1985, they did not grant any house patta to anyone. Ex.A10 is an endorsement deed dated 07.08.2009 issued by the tahsildar. This was obtained subsequent to the institution of the suit in the year 2008. This endorsement indicates that the tahsildar’s office has informed the plaintiff/appellant that in Rc.B.No.1336 of 1985 dated 15.04.1985, they did not grant any house patta to anyone. Both the Courts below stated that neither side examined anyone from the revenue department to prove the genuineness of Ex.B1 and the effect of Ex.A10 on Ex.B1. It was in those circumstances they found the title claimed by the defendant No.1 was also not proved through legal evidence. In the Second Appeal, the appellant intended to introduce additional evidence in the form of two documents. Those two documents are also to the effect that patta named under Ex.B1 was not granted by the Government. In the first appellate Court, the original plaintiff intended to disprove Ex.B1 and intended to introduce additional evidence and the learned first appellate Court did not consider the application. It is that flaw which is pointed out in this Second Appeal. Thus, both before the learned first appellate Court as well as here, the endevour of the appellant is to demolish the genuineness of Ex.B1. Having considered the submissions of learned counsel for appellant and on consideration of the material available on record, this Court finds that for giving a decision on the disputed facts raised at the trial, the additional evidence do not serve any purpose. It is to be seen that the suit was laid by the plaintiff/appellant seeking declaration of her title over the plaint schedule property. Be it noted that it is for the plaintiff to establish her title through appropriate evidence. Both the Courts below concurrently held that plaintiff failed to establish her title. Before the Courts below and here, there has been no counter claim from the defendants/respondents seeking declaration of their title over the subject matter property. Production of additional evidence is only to show that Ex.B1 was not a genuine document. This would not in any manner help the appellant/plaintiff in establishing her claim of declaration of title. Law is that unless proposed evidence is available if a decision could not be rendered only then an appellate Court should consider granting relief for production of additional evidence vide Andisamy chettiar V.Subbaraj chettiar, 2016(2) ALD 19 / AIR 2016 SC 79 . This would not in any manner help the appellant/plaintiff in establishing her claim of declaration of title. Law is that unless proposed evidence is available if a decision could not be rendered only then an appellate Court should consider granting relief for production of additional evidence vide Andisamy chettiar V.Subbaraj chettiar, 2016(2) ALD 19 / AIR 2016 SC 79 . In the case at hand, the finding of the trial Court that this appellant/plaintiff failed to establish her title was not even appealed for by the plaintiff. Thus, by virtue of the two judgments of the Courts below, the emerged position is that plaintiff/appellant is not the title holder of the plaint schedule property. That is the end of the matter so far as title declaration for plaintiff/appellant is concerned. There is no legal necessity and there is no legal possibility also to say further that the respondents/defendants also do not have title over the plaint schedule property. It is in these circumstances, this Court finds no merit in the application for additional evidence. Therefore, I.A.No.2 of 2022 has to be dismissed. Since before the first appellate Court also, the endevour of this appellant is only to demolish the case of defendants through production of additional evidence, the procedural lapse on part of the first appellate Court in not considering the application has not caused any particular prejudice to the appellant. Therefore, that failure of the first appellate Court does not help the appellant any further, while this Court considers the Second Appeal. This answers both the additional substantial questions of law as against this appellant. 17. This Court has gone through the entire evidence on record. Based on the pleadings on both sides and the evidence on both sides, concurrent findings have been recorded by both the Courts below to the effect that both the parties have been in possession of the plaint schedule property. It was in those circumstances, the learned trial Court thought it fit to say that it belongs to both of them as they succeeded this property from late juli and therefore half share of plaintiff was declared for the purpose of partition. The first appellate Court upset that finding also on the premise that there was no issue on that and both parties did not litigate before the Courts below for partition. The first appellate Court upset that finding also on the premise that there was no issue on that and both parties did not litigate before the Courts below for partition. Therefore, the learned first appellate Court refused to sustain the partition declaration of trial Court. That cannot be found fault with. One view of the matter is that cause of action for declaration of titles and permanent injunction differ from cause of action for partition and therefore there could be no legal justification to grant partition which was never claimed in a suit for declaration and injunction. The question that declaration of title is a larger relief and granting partition is a smaller relief is not available in the said circumstances and partition cannot be granted has been the law laid down by the Hon’ble Supreme Court of India in Kenchegowda V. Siddegowda alias Motegowda, (1994) (4 SCC) 294. 18. Thus, both the Courts have held that on facts they found both parties in possession of disputed subject matter property and they found that hall and kitchen have been used by both the parties jointly. Now the only question that remains is whether learned first appellate Court is right in negativing the injunction that was granted by the trial Court or not. On a proper reading of the plain averments and the relief claimed on those averments do not indicate that it is a case where plaintiff/appellant sought for injunction to the extent of that portion of the property in which she has been in possession. Exact portion of the property in which the she holds exclusive possession is not pleaded. Her prayer for injunction for the entire plaint schedule property cannot thus be maintained. When on facts it is found that she alone has not been in possession and the respondents/defendants have also been in possession and that possession has also been an established possession, it is difficult to see how an equitable relief of injunction could be granted. Section 41 of Specific Relief act, 1963 provides instances where a perpetual injunction cannot be granted by Courts. This provision does indicate an injunction could not be granted to prevent a continuing reach in which the plaintiff has acquiesced. Section 41 of Specific Relief act, 1963 provides instances where a perpetual injunction cannot be granted by Courts. This provision does indicate an injunction could not be granted to prevent a continuing reach in which the plaintiff has acquiesced. It is the evidence of appellant/PW.1 and her husband PW.2 that about a year prior to the institution of the suit, defendants gained entry to the house and soon thereafter plaintiff did not lodge any complaint to the police, did not initiate any criminal action, did not file any suit questioning the wrongful entry of defendants. The evidence of PWs.1 and 2 is to the affect that hall and kitchen are commonly used by both sides. Granting a perpetual injunction in such circumstances is impermissible because no one could ever monitor obedience to the injunction. Assuming for a while that the appellant’s right to possess property exclusively is violated by defendants, this violation has been acquiesced by the plaintiff for quite sometime and therefore such continuing breach on part of the defendants is one that could not be remedied by way of permanent injunction in terms of Section 41(g) of the Specific Relief act, 1963. Therefore, the learned first appellate Court though recognised that plaintiff/appellant has also been in possession of a part of the plaint schedule property, it refused to grant injunction stating that an injunction for one party as against another party where both parties are in possession are in possession of some part of the same property could not be granted cannot be said to be either against the evidence or against the equity or against the statute. It is true that the observations of the learned first appellate Court that the injunction as a relief was not a prayer made by the plaintiff is incorrect and apparently against the record. This Court has gone through the copy of the plaintiff presented through paper book by the appellant and it is clearly seen that Court fee is paid separately and permanent injunction as a separate relief was also sought for. Therefore, to that extent the observations of the learned first appellate Court are incorrect and they are to be set aside. 19. Therefore, to that extent the observations of the learned first appellate Court are incorrect and they are to be set aside. 19. Reminding the powers of the High Court while considering a Second Appeal that it could still appreciate facts and could take a different view than the view that was taken concurrently by both the Courts below, learned counsel for appellant cited D.R.Rathna murthy V. Ramappa, (2011) 1 SCC 158 . Arguing about principles on burden of proof, that when the entire evidence on both sides is on record, the entire evidence has to be considered and burden of proof ceased to exist any more, the learned counsel for appellant cited Lakhan Sao V. Dharamu Chaudhary, (1991) 3 SCC 331 . On these principles, there could be no controversy. However, these esteemed rulings do not have any particular relevance in considering this Second Appeal. This is not a case where core issue between the parties was left undecided by Courts below. Therefore, appellants cannot derive any strength from these rulings. This answers the first formulated substantial question of law. There is no merit in the substantial questions of law that are raised. In the result, this Second Appeal is dismissed by confirming the judgment dated 08.03.2013 of the Court of learned Additional District Judge-Cum-Family Court, Nellore in A.S.No.143 of 2010. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.