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2024 DIGILAW 1522 (AP)

Jannada Ramanayya v. Bobbadi Govindarao

2024-11-04

VENUTHURUMALLI GOPALA KRISHNA RAO

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JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal is filed aggrieved against the Judgment and decree dated 31.10.2022 in A.S. No. 80 of 2018, on the file of the Judge, Family Court-cum-III Additional District Judge, Srikakulam, confirming the Judgment and decree, dated 25.06.2018 in O.S. No. 553 of 2014, on the file of the Principal Senior Civil Judge, Srikakulam. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S. No. 553 of 2014, on the file of the Principal Senior Civil Judge, Srikakulam. 3. The plaintiff initiated action in O.S. No. 553 of 2014, on the file of the Principal Senior Civil Judge, Srikakulam, with a prayer to evict the defendant and deliver vacant possession of plaint schedule property to him and in the event of default, to do so, evict the defendant and put the plaintiff in peaceful possession through process of law and direct the defendant to pay an amount of Rs.50,000/- per year from the date of suit to till the date of delivery of possession and for costs of the suit. 4. The learned the learned Principal Senior Civil Judge, Srikakulam, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed A.S. No. 80 of 2018, on the file of the Judge, Family Court-cum-III Additional District Judge, Srikakulam. The learned Judge, Family Court-cum-III Additional District Judge, Srikakulam, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S. No. 553 of 2014, is as follows: (i) The plaintiff purchased item No. 1 of plaint schedule property under a registered sale deed from Karapati Yerrayya of Marripadu colony, originally residing at Moola Showlapuram village, which was registered at Sub-Registrar Office, Amadalavalasa and got physical possession and enjoyment since the date of purchase. The item No. 2 of plaint schedule property is absolute ancestral property of plaintiff derived on the plaintiff in oral family partition. The item No. 2 of plaint schedule property is absolute ancestral property of plaintiff derived on the plaintiff in oral family partition. The Government issued pattadar passbook and title deed books relating to plaint schedule property in favour of plaintiff and also collecting revenue from the plaintiff. (ii) The defendant is no other than the son-in-law of brother of plaintiff viz. Bobbadi Suryanarayana, thus the defendant is relative to the plaintiff. The defendant approached the plaintiff in the year 2002 and requested to give the plant schedule property for cultivation. The plaintiff agreed for the same taking consideration into the relationship. Accordingly, the plaintiff executed a written document for Bogabanda in favour of defendant in the year 2002 and given the plaint schedule property for cultivation to the defendant only for a period of three years, on that terms the defendant has to raise crops and enjoy the produce for which the defendant has to pay Rs.1,30,000/- to the plaintiff which is returnable without any interest to defendant in the month of March, 2005 for which the defendant agreed. The defendant deposited Rs.1,30,000/- with plaintiff on the date of execution of said Bogabanda document and accordingly the defendant used to raise crops on the plaint schedule land and enjoyed the produce. (iii) In the month of March, 2005 the plaintiff paid the said amount of Rs.1,30,000/- to the defendant and the defendant delivered possession of the plaint schedule property to plaintiff. Again in the year 2009 the defendant approached the plaintiff at Naira village and requested him to give the plaint schedule property for cultivation as Bogabanda on the same conditions stated above, for which the plaintiff agreed and in the presence of M.V. Ramadas, both plaintiff and defendant entered into oral terms of koul for a period of four years commencing from March, 2009 to March, 2013. (iv) In the month of February, 2013 the plaintiff approached the defendant and offered Rs.1,30,000/- to the defendant and demanded him to handover the plaint schedule land to him. On that the defendant requested the plaintiff to allow him to raise crops and enjoy the produce till January, 2014 in the presence of M.V. Ramadas and to keep the said amount with the plaintiff. Accordingly, the plaintiff agreed for the same and the defendant raised crops and enjoyed the produce till January, 2014. On that the defendant requested the plaintiff to allow him to raise crops and enjoy the produce till January, 2014 in the presence of M.V. Ramadas and to keep the said amount with the plaintiff. Accordingly, the plaintiff agreed for the same and the defendant raised crops and enjoyed the produce till January, 2014. In the 2nd week of February, 2014, the plaintiff offered Rs.1,30,000/- cash to defendant in the presence of M.V. Ramadas, Bobbadi Ammadu, Satyam and others at Moola Showlapuram village and demanded the defendant to receive the said cash and handover possession of plaint schedule property for cist for the year 2014-15, for which the plaintiff refused and the defendant refused to receive the said amount of Rs.1,30,000/- offered by the plaintiff. (v) So, the plaintiff raised dispute for about two times before the above said elders, in spite of advice given by the elders to receive Rs.1,30,000/- and handover the possession of the plaint schedule property to plaintiff, the defendant postponed the same on one pretext or the other. (vi) The plaintiff got issued legal notice on 10.032014 to the defendant and the defendant received the notice and got issued reply notice. Hence, the plaintiff constrained to file the suit. 7. The defendant filed written statement before the trial Court denying the contents of plaint averments and further contended as follows: (i) The plaintiff himself executed a possessory agreement of sale in favour of the defendant on 14.05.2002 for Rs.70,000/- towards advance amount and the plaintiff has to execute a registered sale deed in favour of defendant at the end of June, 2002 as and when the defendant agreed to obtain registered sale deed, but the plaintiff did not come forward to execute the registered sale deed. (ii) The item No. 2 of schedule property locally called as Godilivaripolam for an extent of Ac.0-47 cents, on 14.05.2002 the plaintiff executed a possessory agreement of sale in respect of said land at Rs.1,050/- per cent and paid entire consideration of Rs.49,300/- by the defendant to the plaintiff, it was agreed as and when the defendant demands the plaintiff to register item No. 1 and 2 of schedule properties, he has to register the same but the plaintiff did not come forward to register the documents. Now as the value of the lands is high rate, the plaintiff with a malafide intention and in order to create trouble to the defendant, got filed the suit. The defendant is in possession and enjoyment of the plaint schedule property from 2002. Hence, the defendant prays to dismiss the suit with costs. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Srikakulam, framed the following issues for trial: (1) Whether the defendant is in possession and enjoyment of the suit schedule properties item Nos.1 and 2 from the year 2002 onwards by virtue of two possessory agreement of sale, dated 14.05.2002? (2) Whether the plaintiff is entitled for eviction and recovery of possession of plaint schedule property from the defendant as prayed for? (3) Whether the plaintiff is entitled for damages @ Rs.50,000/- per year as prayed for? (4) Whether the suit is within time? (5) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, PW-1 to PW-4 were examined and Exs.A-1 to A-13 were marked. On behalf of the defendant, DW-1 and DW-2 were examined and no documents were marked. 10. The learned Principal Senior Civil Judge, Srikakulam, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S. No. 80 of 2018, on the file of the Judge, Family Court-cum-III Additional District Judge, Srikakulam, wherein, the following points came up for consideration: (1) Whether the plaintiff is entitled for recovery of possession of the plaint schedule property from the defendant? (2) Whether the plaintiff is entitled for damages as prayed for? (3) Whether the suit is within time? (4) Whether the decree and judgment, dated 25.06.2018 in O.S. No. 553 of 2014, on the file of Principal Senior Civil Judge, Srikakulam needs any interference of this Court (5) To what relief? 11. The learned Judge, Family Court-cum-III Additional District Judge, Srikakulam i.e. the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S. No. 553 of 2014 filed the present second appeal before this Court. 12. Felt aggrieved of the same, the unsuccessful defendant in O.S. No. 553 of 2014 filed the present second appeal before this Court. 12. Heard Sri V. Sudhakar Reddy, learned counsel for the appellant and Sri Saripalli Subrahmanyam, learned counsel for the respondent. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of CPC could be admitted only when the appellant satisfies this Court that the substantial questions of law between the parties arise in this case. A proper test for determining whether a questions of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In a case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 the Apex Court held that: “it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial questions of law in second appeal. The mere appreciation of facts, the documentary evidence and the contents of the documents cannot be held to be raising substantial questions of law.” 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial questions of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellants have shown any substantial questions of law. The contention of the appellants is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. At the outset, it has to be noted that the questions are raised on the grounds of appeal as a substantial questions of law is as follows: (a) Whether the courts below failed to consider the fact that the simple suit for eviction is not maintainable when the defendant is in possession of the property on Bogabanda-Usufructuary mortgage? (b) Whether the courts below are right in decreeing the suit when the plaintiff admittedly not repaid mortgage-money or deposit the same in the court at the time of filing the suit? (c) When it is the case of the plaintiff that the suit schedule properties are mortgaged to the defendant on deposit of Rs.1,30,000/- with a condition to enjoy the usufruct of the same whether the simple suit for eviction is maintainable or the plaintiff has to file a mortgage suit for redemption of the mortgage property? (d) Whether the judgments of courts below directing the appellant-defendant to vacate and deliver the vacant possession of plaint schedule property to the plaintiff without directing the respondent-plaintiff to repay the mortgage money to the appellant-defendant are sustainable? 17. The material on record reveals that the plaintiff has given the plaint schedule item Nos. 1 and 2 of landed property to the defendant for cultivation by receiving an amount of Rs.1,30,000/- towards lease amount and the defendant has to raise the crops and enjoy the produce and it was renewed from time to time till 2014. 17. The material on record reveals that the plaintiff has given the plaint schedule item Nos. 1 and 2 of landed property to the defendant for cultivation by receiving an amount of Rs.1,30,000/- towards lease amount and the defendant has to raise the crops and enjoy the produce and it was renewed from time to time till 2014. The material on record also further reveals that in the 2nd week of February, 2014, the plaintiff offered Rs.1,30,000/- cash to the defendant in the presence of M.V. Ramadas, Bobbadi Ammadu, Satyam and others and demanded the defendant to receive the cash and deliver the possession of the plaint schedule landed property for which the defendant requested the plaintiff to give the plaint schedule property for lease for the year 2014-15 for which the plaintiff refused to give the land and the defendant also refused to receive the amount of Rs.1,30,000/- as offered by the plaintiff, the same is also well supported by PW-2 to PW-4. The evidence of PW-2 to PW-4 goes to show that in their presence the plaintiff offered to refund Rs.1,30,000/- to the defendant, but the defendant refused to receive the said amount and insisted the plaintiff to extend the lease period for the year 2014-15. It is not at all in dispute that the plaintiff is owner of the plaint schedule landed property. The material on record also reveals that the plaintiff is owner of the suit schedule property, the same is well supported by documentary evidence. In order to prove the same, the plaintiff also relied on the registration extracts of the sale deeds. The ownership of the plaintiff in the schedule property is not at all disputed by the defendant. The case of the defendant is also that the plaintiff is original owner of the plaint schedule property. The defendant pleaded in the written statement that the plaintiff executed possessory agreement of sale in favour of him on 14.05.2002 for Rs.70,000/- toward advance amount and the plaintiff has to execute a registered sale deed in favour of the defendant at the end of June, 2002. For the reasons best known to the defendant, he failed to produce the alleged possessory agreement of sale or sale deed either before the trial Court or before the first appellate Court, the same is not at all proved by the defendant. 18. For the reasons best known to the defendant, he failed to produce the alleged possessory agreement of sale or sale deed either before the trial Court or before the first appellate Court, the same is not at all proved by the defendant. 18. The learned counsel for the appellant/defendant would contend that the plaintiff is enjoying the money of Rs.1,30,000/- which is kept with him and the plaintiff before seeking recovery of possession, he has to deposit the said amount before the trial Court or it has to be refunded to the defendant prior to the institution of the suit. As stated supra, the witnesses of the plaintiff also clearly supports the contention of the plaintiff that when he offered to refund Rs.1,30,000/- to the appellant, the appellant refused to receive the same and insisted the plaintiff to extend the lease for one more year and the same is refused by the plaintiff. Furthermore, the above plea is not at all raised by the defendant either before the trial Court or before the first appellate Court. Furthermore, there is no pleading in the written statement to that effect. No counter claim is filed by the defendant in the same suit before the trial Court by paying the Court fees. In the case of Bachhaj Nahar vs. Nilima Mandal and another, (2008) 17 SCC 491 wherein the Apex Court held as follows: “The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.” In the case of Ram Sarup Gupta (dead) by LRs. vs. Bishun Narain Inter College and others, (1987) 2 SCC 555 wherein the Apex Court held as follows: “The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet.” In the case on hand, as stated supra, the defendant has not raised any plea in the written statement that the plaintiff is enjoying money which is kept with him and he has not deposited the said amount in the trial Court or he did not refund the money to the defendant before institution of the suit. As stated supra, no counter claim is filed by the defendant before the trial Court for claiming the amount of Rs.1,30,000/- from the plaintiff by paying the Court Fees for refund of money. 19. The learned counsel for the appellant/defendant placed reliance in the case of Sajana Granites, Madras and another vs. Manduva Srinivasa Rao and others, 2002 (2) ALD 436 (DB) wherein the Division Bench of the composite High Court of Andhra Pradesh held as follows: “The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot except relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.” In the case of hand, the ownership of the plaintiff is not at all disputed by the plaintiff and the same is well supported by Ex.A.1 to Ex.A.13 documentary evidence. The first appellate Court having thus examined the facts and evidence in proper perspective and also correctness of the judgment of the trial Court, agreed with the finding of the trial Court and dismissed the appeal. Viewed thus, this Court finds that the questions being sought to be raised are not substantial questions of law and that the said questions are not even pure questions of law, but, are either only mixed questions of fact and law or pure questions of fact. This Court further finds that no questions of law much less the substantial questions of law are involved requiring interference with the impugned decree and judgment. Accordingly, this Court holds that there is no substance in the questions being sought to be raised. The law is well settled that a second appeal shall not be admitted, if no substantial questions of law aroses for consideration and when no substantial questions of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki, AIR 2006 SC 1975 . In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial questions of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code. 20. In the result, the second appeal is dismissed at the stage of admission, confirming the judgment and decree of both the trial Court as well as the first appellant Court. There is no order as to costs. 21. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.