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2024 DIGILAW 677 (TS)

D. Ramaiah died v. Gutta Radhamma

2024-09-06

NAGESH BHEEMAPAKA

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JUDGMENT : Nagesh Bheemapaka, J. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Senior Civil Judge, Khammam in O.S.No.28 of 1989, dated 31.03.2000, defendants in the suit preferred the present Appeal. 2. Appellants are defendants in the suit and respondent is plaintiff, who filed the suit on the basis of agreement dated 14.02.1979, for rectification of the agreement by inserting Survey No. 258 instead of Survey No.291 and for perpetual injunction to restrain the defendants from interfering in suit property. 3. For the sake of convenience, array of parties is made as was done in the trial Court. 4. It is the case of plaintiff that she is the youngest daughter of the 1st defendant and sister of defendants 2 and 3 and her marriage was performed in 1978 as per Hindu Customs. Defendants gave Acs. 7.12 gts. situated at Lalapuram Village, Konijarla Mandal, Khammam District towards Pasupu Kumkuma (Gift) at the time of her marriage and executed an agreement dated 14.02.1979 and delivered possession thereof and since then, she has been in peaceful possession and enjoyment over the subject land and the revenue authorities mutated her name in revenue records in respect of the subject land. Her matrimonial house is at Hasangurti village, which is at distance of 20 kilometers from the subject land, hence, she entrusted the subject land to defendants for cultivation, on condition to pay Rs.3,000/- per year towards lease and accordingly, defendants are paying. It is the case of plaintiff that after death of her mother in 1988, defendants developed greedy eye over the subject land due to surge in land rates and had taken ‘U’ turn and declined to pay the lease amount. In view of the obstructions made by defendants, she filed the suit for rectification of wrong survey number and to restrain defendants from interfering in suit schedule property. 5. In the suit, defendants filed written statement denying the averments made in plaint and possession of plaintiff over the suit schedule land, however, admitted the relationship and execution of the agreement in her favour. They further contended that they performed the marriage of plaintiff and agreed to pay dowry of Rs.30,000/- to her husband, but due to financial problems, they could not pay the same. Subsequently on the pressure of plaintiff‘s husband, they executed agreement towards security to pay the balance amount of Rs.25,000/-. They further contended that they performed the marriage of plaintiff and agreed to pay dowry of Rs.30,000/- to her husband, but due to financial problems, they could not pay the same. Subsequently on the pressure of plaintiff‘s husband, they executed agreement towards security to pay the balance amount of Rs.25,000/-. It is the case of defendants that subsequently, they paid the due amount of Rs.25,000/- to plaintiff’s husband, but the latter did not return the agreement saying that it was destroyed by white ants. 6. Defendant No.3 had taken out I.A. No.1005 of 1994 seeking compromise with plaintiff on 02.12.1994, during pendency suit, duly admitting execution of agreement dated 14.02.1979 and delivery of suit property in favour of plaintiff. 7. Plaintiff got examined PWs.1 to 3 on her behalf and marked Exs. A1 to A4 to substantiate her case. Plaintiff as PW1 reiterated the averments made in the plaint; PW2, attestor of Ex.A1-agreement, deposed in favour of plaintiff as to the execution of Ex.A1 by defendants 1 to 3 and delivery of the subject land in favour of the plaintiff. Defendants did not dispute the evidence of PW2 and attestation of Ex A1. PW3, who is none other than own sister of plaintiff and defendants 2 and 3, deposed that subject property was given to plaintiff by defendants at the time of her marriage. Defendant No. 3 - brother of plaintiff filed sworn affidavit admitting execution of Ex. A1 and delivery of possession of subject land in favour of plaintiff. Village pahanies marked as Exs. A3 and Ex A4 reflect the name of plaintiff in respect of subject land. On behalf of defendants, DWs.1 to 8 were examined and Ex.B1 promissory note was marked. DW5 former patwari of the village deposed that on the request of the 1st defendant, he scribed Ex.A1 and delivered physical possession of subject land in favour of plaintiff. 8. The stand taken by defendants is that Ex.A1 was executed only towards security of dowry amount of Rs.25,000/- payable to the husband of plaintiff and later, paid the said amount to the husband of plaintiff, but PW1 did not return the same. The trial court held that, DW1 deposed in his evidence that on the demand of plaintiff’s husband, they executed Ex. A1 agreement, whereas in the written statement, defendants stated that agreement was executed for the land in Survey Nos. The trial court held that, DW1 deposed in his evidence that on the demand of plaintiff’s husband, they executed Ex. A1 agreement, whereas in the written statement, defendants stated that agreement was executed for the land in Survey Nos. 260 and 261 on the demand of plaintiff, the evidence of defendants are inconsistent and not reliable. 9. Learned counsel for appellants Sri Jiteder Rao Veeramalla submits vehemently that the learned trail Court ought not to have decreed the suit. On the other hand, learned counsel appearing for the respondent Sri Kadaru Prabhakar Rao submits that there is no ground to interfere with the impugned decree and judgment, hence, appeal may be dismissed. 10. In view of the material on record and having heard learned counsel on either side, the following points are formulated for determination in this appeal. (1) Whether trial Court was right in passing decree and Judgment relying on Ex.A1 agreement? (2) Whether the trial court was right in correcting the Sy.No.258 in the place of Sy.No.291 for the subject land ? (3) Whether plaintiff satisfied essential ingredients to grant perpetual injunction? 11. From a perusal of the material on record, it is clear that plaintiff’s case is that pursuant to the agreement executed by defendants on 14.02.1979, she has been in continuous possession and enjoyment of the property. PW-2 – scribe of Ex.A1, P.W.3 – sister of PW-1 supported PW-1 version. D.W.5 - former patwari of Village, who is scribe of Ex-A1, admitted execution of Ex-A1. Thus, the evidence of PWs.1 to 3 and DW5 clearly supported the plaintiff’s case and Exs. A1 to 4 corroborated the said evidence. Defendants also admitted the very execution of Ex.A1 agreement, but took a plea in the written statement that it was done only towards security for dowry payable to plaintiff’s husband. However, no credible evidence was adduced in that regard, except marking one promissory note as Ex-B1, which does not concern to the facts of the case. Plaintiff also submitted a copy of FIR dated 21.06.2014 on the file of P.S. Konijerla registered for the offences under Sections 324, 294(b) and 506 read with Section 34 IPC against defendant - Appellant No.2, which clearly reveals their interference with peaceful possession of plaintiff over the subject land. 12. Plaintiff also submitted a copy of FIR dated 21.06.2014 on the file of P.S. Konijerla registered for the offences under Sections 324, 294(b) and 506 read with Section 34 IPC against defendant - Appellant No.2, which clearly reveals their interference with peaceful possession of plaintiff over the subject land. 12. Learned counsel for respondent - plaintiff submitted that during pendency of the Appeal, interim stay was granted on 11.02.2011 directing the appellants to deposit Rs.15,000/- per year towards lease amount for the subject land in favour of plaintiff, however, appellants failed to comply with the said direction and the said order was vacated by order dated 05.03.2014, directing the appellants to hand over possession of property to plaintiff. This Court in Contempt Case No. 1328 of 2014 vide order dated 26.02.2015, observed that appellant deliberately violated the order dated 05.03.2014 and sentenced to simple imprisonment for three months along with fine of Rs.2,000/-. The Divisional Bench in Contempt Appeal No. 3 of 2013, directed the appellants to handover possession of subject property to the plaintiff vide order dated 08.03.2021. In pursuance of the said direction, in E.P.No.85 of 2015, the trail Court directed to put the plaintiff in possession of subject land. Accordingly, physical possession of subject land was delivered to plaintiff vide panchanama dated 24.06.2015. 13. Ex.A1 recitals clearly disclose the specific boundaries of subject land and DW-5, former patwari of village, scribe of Ex-A1 categorically deposed that the relevant survey number is Survey No.258 for the subject land but it was wrongly entered as Survey No. 291 in Ex.A1. Learned counsel for the respondent submitted that in the event of boundaries established the correct survey number specified in the document, the relief sought for correction of wrong survey number is admissible. He placed reliance on the decisions of Hon’ble Supreme Court in Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879 held that where the boundaries as well as plot number were mentioned in sale certificate, but there was a mistake in mentioning the plot number, mistake must be treated as mere miss-description which does not affect the identity of the property sold. The same finding has been considered by the Hon’ble Apex Court in P. Udayani Devi v. V.V. Rajeswara Prasad Rao, (1995) 3 SCC 252 . The same finding has been considered by the Hon’ble Apex Court in P. Udayani Devi v. V.V. Rajeswara Prasad Rao, (1995) 3 SCC 252 . In Gurram Anantha Reddy v. Katla Sayanna, 2015 (4) ALD 716 , it was observed that in respect of property within the boundaries as mentioned in the suit agreement of sale and decree only and in the name of miss-description of one of the survey numbers, the legitimate right of the decree holder cannot be permitted to be frustrated. As such, the trial court rightly decreed the suit for rectification of Survey No. 258 for the subject land in the place of Survey No. 291 as entered in Ex.A1. 14. Further, the recitals of Ex. A1 clearly speak passing of title and possession of subject land in favour of plaintiff by the defendants without imposing any condition. Plaintiff apart from title, established prima facie lawful possession over the subject land on the date of filing of suit. The trial Court did not commit any illegality or impropriety and rightly passed the decree and judgment impugned restraining the defendants from interfering with the peaceful possession and enjoyment of plaintiff over the subject land and rectifying the wrong survey number. The trial court rightly observed that Ex.A1 is reliable document and the contention of defendants that they executed the same as security towards dowry amount, is highly unbelievable. Hence there is no ground to interfere with in the impugned judgment and decree. 15. The Appeal is accordingly, dismissed, confirming the judgment and decree passed by the learned Senior Civil Judge, Khammam in O.S.No.28 of 1989 dated 31.03.2000. 16. At this stage, learned counsel for plaintiff submitted that during pendency of the Appeal, Appellant No.2 created a fift deed dated 27.07.2011 in favour of his wife Smt. Dama Susheela in respect of subject land and filed an Application before the Tahsildar, Konijerla Mandal to issue pattadar passbook under ROR Act and the same was rejected vide order dated 30.04.2015. Questioning the rejection order, Appeal No.A3/7312 of 2015 was filed before the Revenue Divisional Officer, Khammam and the same was also dismissed vide order dated 26.03.2020. Therefore, respondent / plaintiff is at liberty to proceed for recovery of dues payable by defendants, pursuant to the interim orders of this Court duly following due process of law, without looking in to the limitation period. No costs. 17. Therefore, respondent / plaintiff is at liberty to proceed for recovery of dues payable by defendants, pursuant to the interim orders of this Court duly following due process of law, without looking in to the limitation period. No costs. 17. Consequently, the miscellaneous Applications, if any shall stand closed.