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2024 DIGILAW 655 (AP)

N. Subrahmanyam Reddy v. V. Chellappa Reddy

2024-06-19

V.SRINIVAS

body2024
JUDGMENT : V. Srinivas, J. 1. This second appeal under Section 100 Code of Civil Procedure is directed against the decree and judgment in A.S. No.48 of 2013 dated 15.03.2019 on the file of the Court of learned IV Additional District Judge, Tirupati. 2. The appellants herein instituted the suit in O.S. No.744 of 2005 before the Court of learned I Additional Junior Civil Judge at Tirupati for permanent injunction restraining the defendant and his men, agents, followers or anyone claiming under him from anyway interfering with the plaintiffs' peaceful possession and enjoyment of the plaint schedule property. 3. The respondent herein is the defendant before the trial Court. 4. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings. 5. The case of the plaintiffs/appellants in brief in the plaint was as follows: 1st plaintiff is the elder brother of the 2nd plaintiff and they are the absolute owners of the plaint schedule property having purchased the same under two registered sale deeds dated 22.10.1992 from one V.Kannemma for valid consideration. From the date of purchase the plaintiffs are in exclusive possession of the said properties as absolute owners. The defendant, who has no manner of right, title or interest over the said properties, is trying to dispossess them. Hence, the suit. 6. The defendant/respondent denying all the allegations in the plaint and contending in the written statement as follows: He is the absolute owner of the plaint schedule properties. The Inam Deputy Tahsildar after due enquiry granted Ryotwari Patta for the suit lands in the name of the defendant's father and the said Patta was also mutated in the village accounts. Defendant's father died intestate in the year 1995, consequently, he is in absolute possession and enjoyment of the same till today. Either the plaintiffs or their vendor have no right or interest or possession or title whatsoever over the suit lands. Plaintiffs have not come to the Court with clean hands and they are not entitled for equitable remedy of injunction as the sale deeds mentioned in the plaint are fabricated documents to knock away the suit property, which has absolutely belonged to the defendant. Hence, prays to dismiss the suit with costs. 7. Plaintiffs have not come to the Court with clean hands and they are not entitled for equitable remedy of injunction as the sale deeds mentioned in the plaint are fabricated documents to knock away the suit property, which has absolutely belonged to the defendant. Hence, prays to dismiss the suit with costs. 7. On these pleadings, the trial Court settled the following issues for trial: "1.Whether the plaintiff is in possession of plaint schedule property? 2. Whether plaintiff is entitled for permanent injunction or not? and 3. To what relief?" 8. At the trial, on behalf of the plaintiffs/appellants, P.Ws.1 to 4 were examined while relying on Exs.A.1 and A.2 in support of their contentions. On behalf of the respondent/defendant, D.Ws.1 and 2 were examined and Exs.B.1 to B.5 were exhibited. 9. Basing on the material and evidence, trial Court came to conclusion that plaintiffs are in possession and enjoyment over the plaint schedule properties and they are entitled for permanent injunction as prayed for, thus, decreed the suit with costs, vide judgment dated 21.01.2013. 10. It is against this decree and judgment, the respondent/defendant preferred an appeal before the Court of learned IV Additional District Judge, Tirupati, vide A.S. No.48 of 2013 and the said appeal was allowed, vide judgment dated 15.03.2019, by setting aside the decree and judgment passed by the trial Court. 11. Aggrieved by the same, the appellants/plaintiffs preferred the present Second Appeal. This Court admitted the present appeal on 18.08.2020 by framing the following substantial questions of law: "i).Whether the 1st Appellate Court is justified in reversing the judgment and decree of the trial Court upon proper appreciation of evidence, when a discretionary relief was granted in favour of the appellants? and ii).Whether refusal of the Appellate Court to consider the additional evidence sought to be adduced by the appellants in the circumstances is justified?" 12. Heard Sri V.Eswaraiah Chowdary, learned counsel for the appellants/plaintiffs and Sri Ch.Venkata Raman, learned counsel for the respondent/defendant. 13. and ii).Whether refusal of the Appellate Court to consider the additional evidence sought to be adduced by the appellants in the circumstances is justified?" 12. Heard Sri V.Eswaraiah Chowdary, learned counsel for the appellants/plaintiffs and Sri Ch.Venkata Raman, learned counsel for the respondent/defendant. 13. Sri V.Eswaraiah Chowdary, learned counsel for the appellants/plaintiffs submits that first Appellate Court failed to appreciate the material placed on record in proper perspective; that the respondent/defendant has failed to prove his title and possession over the suit schedule properties; that the contention of the defendant that his father obtained Ryothwari Patta by Inam Deputy Tahsildhar has no legs to stand; that Exs.A.1 and A.2 categorically proved the title and possession of the appellants/plaintiffs over the suit schedule properties; that the first Appellate Court failed to consider the additional documents i.e., proceedings of the Tahsildhar, which clearly shows that the suit schedule properties stands in the name of plaintiffs, which are sufficient to grant relief to the appellants; that the findings of the trial Court clearly established that the appellants are the owners and they are in possession over the suit schedule properties; that the first Appellate Court without considering the additional documents produced by the appellants erroneously interfere with the findings of the trial Court and thereby prays to allow the present appeal. 14. In support of his contentions, he relied upon a judgment of the Madras High Court in Padmavathi v. Chelathai S.A. No.487 of 2011 decided on 02.11.2011, wherein it was held that "Not to put too fair a print on it, a fortiori, that the first appellate Court on considering that the defendants/appellants should be given opportunity to adduce evidence, should have simply allowed the I.A. and called upon the appellants/defendant to produce witness to mark the documents. But that was not done so and even opportunity was not given to the plaintiff to adduce rebuttal evidence." 15. But that was not done so and even opportunity was not given to the plaintiff to adduce rebuttal evidence." 15. Sri Ch.Venkata Raman, learned counsel for the respondent/defendant submits that the concerned Tahsildhar conducted detailed enquiry and issued Ryothwari Patta in favour of father of the respondent, which shows the right of the respondent over the suit schedule properties; that even the plaintiffs failed to produce their vendor's sale deed to show the title over the schedule properties to sell the same to the plaintiffs; that the plaintiffs did not produce any piece of paper except Exs.A.1 and A.2 to prove their possession and enjoyment over the suit schedule properties, as such, they are not entitled to get any relief; that the additional evidence produce before the first Appellate Court is a fabricated one, without any pleadings or evidence before the trial Court, thereby, the first Appellate Court rightly rejected to receive the same; that the trial Court without considering the above aspects erroneously decreed the suit; the first Appellate Court after considering the material available on record rightly dismissed the suit and there are no tenable grounds to interfere with the said judgment, thereby, prays to dismiss the present appeal with costs. 16. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court. 17. To decide the present appeal, this Court of the considered view that it is enough to answer the above substantial questions of law by evaluating the material available on record. 18. POINT No. 2: It is not in dispute that while pending the first appeal i.e., A.S. No.48 of 2013, which was filed by the defendant, plaintiffs filed an application under Order 41 Rule 27 C.P.C., vide I.A. No.498 of 2018, to receive certain documents as additional evidence and the same was disallowed by the first Appellate Court. 19. Now, it is relevant to make note of a pronouncement of Hon'ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand 2022 INSC 293 : (2022) 7 SCC 247 , which is also referred and relied upon by the learned counsel for the plaintiffs, wherein at paragraph Nos. 7 and 8 held as follows: "7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. 7 and 8 held as follows: "7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. 8. As observed and held by this Court in A.Andisamy Chettiar v. A.Subburaj Chettiar, 2015 INSC 900 : (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore, is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." 20. In view of the above legal possession, the first Appellate Court had right to permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. In view of the above legal possession, the first Appellate Court had right to permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. 21. But, in the present case on hand, as per the case of the plaintiffs and on perusal of the proceedings, the Inam Deputy Tahsildhar by conducing enquiry, issued Ryothwari Patta on 31.12.2012 in favour of plaintiffs under survey No. 398/12P. Thus, it goes to show that after filing of the suit only, that too after the matter came to the stage of end like arguments before the trial, the so called Ryothwari patta said to be issued in favour of the plaintiffs. Whereas, defendant contention is that the so called document in question is created, he has no knowledge and it is a fabricated document. As such, the document was available with the plaintiffs even prior to the date of judgment of the trial Court i.e., on 21.01.2013, but the same was not produced before the trial Court by filing relevant application, for the reasons best known to them. 22. On the other hand, for the first time, it had come into light before the first Appellate Court without any pleadings or evidence. It is also not in dispute that the schedule property is concerned with survey No. 398/12, but the property covered under the alleged pattas is concerned with survey No. 398/12P. It should not be allowed the plaintiffs to come up with altogether a new case, in particularly at the appellate stage. Even it is the specific contention of the defendant that the Inam Deputy Tahsildhar after conducting enquiry granted Ryothwari Patta in favour of his father V.Venkatesu Reddy and after his death, he became absolute owner, possession and enjoyment of the same. But no such document is produced before the trial Court. Even it is the specific contention of the defendant that the Inam Deputy Tahsildhar after conducting enquiry granted Ryothwari Patta in favour of his father V.Venkatesu Reddy and after his death, he became absolute owner, possession and enjoyment of the same. But no such document is produced before the trial Court. However, as discussed supra, the plaintiffs had an opportunity for adducing such evidence at an earlier stage before the trial Court, but they did not avail the same nor pleaded that there is some pending enquiry regarding the patta before Inam Tahsildar and came before the first Appellate Court without any material. Furthermore, it is the foremost contention of the defendant that the plaintiff has no manner of right or title under Exs.A.1 and A.2 over the suit schedule properties and there is a cloud over the plaintiff's right on the said properties. Same is pleaded in the written statement itself. 23. Having regard to the above discussion, this Court is of the considered opinion that the first Appellate Court has rightly discarded to receive the additional evidence, which is not relevant, under Order 41 Rule 27 CPC and there are no grounds to interfere with such findings. Thus, this point is answered accordingly. 24. POINT No. 1: Coming to the entitlement of plaintiffs to get relief of permanent injunction over the suit schedule properties, it is settled law that in a suit for injunction factum of possession of suit property as on the date of filing of the suit is relevant for consideration. Reference to title is only to ensure whether the plaintiffs are having a semblance of right over the same and not an encroacher or trespasser. When the plaintiffs come to the Court for permanent injunction, the entire burden lies on them to prove the prima facie case, balance of convenience, irreparable loss and hardship. The weakness in the testimony of defendant is of no avail to claim an order of injunction. Normally, in a suit for injunction, the issue of title will not be directly and substantially in question. However, in cases where de jure possession must be established based on property title. 25. The weakness in the testimony of defendant is of no avail to claim an order of injunction. Normally, in a suit for injunction, the issue of title will not be directly and substantially in question. However, in cases where de jure possession must be established based on property title. 25. Now, it is relevant to refer a judgment of the Hon'ble Supreme Court in Anathula Sudhakar v. P.Buchi Reddy 2008 INSC 395 : AIR 2008 SC 2033 , wherein it was observed that: "Clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or possession with injunction as consequential relief, which is reproduced as under: 11.1-When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2-Where the title of the Plaintiff is not disputed, but he is not in possession his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of his possession cannot seek the relief of injunction simpliciter, without claiming the relief for possession. 11.3-Where the plaintiff is in possession but his title to the property is dispute, or under a cloud, or where the defendant asserts title thereto and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. 11.4-Where the title of the Plaintiffs is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession, and injunction. 26. It is also relevant to refer another judgment of Hon'ble Supreme Court in Rame Gowda v. M. Varadappa Naidu 2003 INSC 718 : (2004) 1 SCC 769 , wherein at paragraph Nos. 8 and 9 held that: "8. 26. It is also relevant to refer another judgment of Hon'ble Supreme Court in Rame Gowda v. M. Varadappa Naidu 2003 INSC 718 : (2004) 1 SCC 769 , wherein at paragraph Nos. 8 and 9 held that: "8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser just entered into would not be called as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [1967 INSC 278 : 1967 INSC 278 : AIR 1968 SC 702 ], Puran Singh v. State of Punjab [1975 INSC 108 : 1975 INSC 108 : (1975) 4 SCC 518 ] and Ram Rattan v. State of U.P. [1976 INSC 306 : (1977) 1 SCC 188 ]. The authorities need not be multiplied. In Munshi Ram case [1967 INSC 278 : 1967 INSC 278 : AIR 1968 SC 702 ] it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case [1975 INSC 108 : 1975 INSC 108 : (1975) 4 SCC 518 ] the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12): (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period. (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession." 27. In view of the above settled legal possession, in the present case on hand, admittedly, plaintiffs did not produce their vendor's sale deed nor examined her before the trial Court to prove the flow of title over the suit schedule properties. It is true in a suit for injunction, the title of the parties cannot be decided, however, the plaintiffs not even produced the originals of Exs.A.1 and A.2 and not explained any reason for non-production of the same before the trial Court. Thereby, except certified copies of Exs.A.1 and A.2, no piece of paper produced by the plaintiffs to prove their possession and enjoyment over the schedule properties. Thereby, except certified copies of Exs.A.1 and A.2, no piece of paper produced by the plaintiffs to prove their possession and enjoyment over the schedule properties. As such, it is settled law that, when there is a cloud on the title, or where the defendant claim title thereto and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. 28. Furthermore, as discussed supra, the property covered under the alleged pattas sought to be received is concerned with survey No. 398/12P, but not the suit schedule properties. On the other hand, it is the specific contention of the defendant that he has absolute title and possession over the suit schedule property. 29. At this juncture, it is to be noted that through Ex.B.3- 10(1) account for the fasli 1385, dated 30.10.1976 with regard to the lands in Survey Nos. 369-8, 388-2, 398-12, 400- 11 and 400-12 stands in the name of father of the defendant i.e., Venkatesu Reddy, defendant claims right over the suit schedule land. But, on the other hand, plaintiffs failed to produce any authenticated material to prove their right over the same to get the relief of permanent injunction against the defendant. 30. As stated supra, in a suit for permanent injunction, the entire burden lies on the plaintiffs to prove the prima facie case, balance of convenience, irreparable loss and hardship. But, in the present case on hand, the plaintiffs categorically failed to prove the prima facie case even, thereby, the first Appellate Court rightly appreciated the material placed on record and discarded the case of the plaintiffs in granting relief as sought for. Thus, this point is answered against the plaintiffs. 31. Having regard to the above discussion in Point Nos. 1 and 2, this Court after duly evaluating the facts and law, is of the considered opinion that there is no misreading of proposition of law or facts by the first Appellate Court in setting aside the judgment and decree of the trial Court. Thereby, this Court does not find any grounds to interfere with the well-articulated judgment and decree passed by the first Appellate Court. Therefore, there are no merits in this second appeal and as such the same is liable to be dismissed. 32. Thereby, this Court does not find any grounds to interfere with the well-articulated judgment and decree passed by the first Appellate Court. Therefore, there are no merits in this second appeal and as such the same is liable to be dismissed. 32. In the result, the second appeal is dismissed with costs by confirming the decree and judgment dated 15.03.2019 in A.S. No.48 of 2013 on the file of the Court of learned IV Additional District Judge at Tirupati. Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.