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2025 DIGILAW 131 (AP)

B. Subba Reddy v. Velaga Rama

2025-01-22

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. This second appeal is filed aggrieved against the Judgment and decree dated 18-7-2022 in A.S.No.9 of 2016 on the file of the XIII Additional District Judge, Gajuwaka, Visakhapatnam District, in confirming the Judgment and decree dated 03-02-2016 in O.S.No.56 of 2011 on the file of the Principal Senior Civil Judge, Gajuwaka. 2. The appellant herein is defendant and the respondent is plaintiff in O.S.No.56 of 2011 on the file of Principal Senior Civil Judge’s Court, Gajuwaka. 3. The plaintiff initiated action in O.S.No.56 of 2011 on the file of Principal Senior Civil Judge’s Court, Gajuwaka, with a prayer for permanent injunction restraining the defendant, his kith and kin, agents, servants and all his men from in any way, interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff and for costs of the suit. 4. The learned Principal Senior Civil Judge, Gajuwaka, decreed the suit with costs by granting a permanent injunction against the defendant and his men not to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned XIII Additional District Judge, Gajuwaka, 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 second 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.56 of 2011, is as follows: It is pleaded that the plaintiff purchased the plaint schedule property to an extent of 482 square yards of house site plot Nos.222B & 15 in Survey Nos.64/4 & 64/8 situated at Vadlapudi village under a registered sale deed dated 19-12-2003 for a valid consideration from one Gudibandi Srinivas Reddy and another. The vendors purchased the said property under registered sale deeds dated 29-12-1989 and 05-8-1988. The plaintiff has been in possession and enjoyment of the plaint schedule property since the date of purchase. She incurred huge amount for construction of foundation towards south-west corner of the plaint schedule property and cement poles with barbed wire were erected. The vendors purchased the said property under registered sale deeds dated 29-12-1989 and 05-8-1988. The plaintiff has been in possession and enjoyment of the plaint schedule property since the date of purchase. She incurred huge amount for construction of foundation towards south-west corner of the plaint schedule property and cement poles with barbed wire were erected. The defendant is a stranger to the plaint schedule property. On 26-02-2011, he tried to trespass into the plaint schedule property and that the suit was filed for perpetual injunction restraining the defendant from interfering with the possession and enjoyment of the plaintiff over the plaint schedule property. 7. The defendant filed a written statement denying the contents of plaint averments and he further contended as follows: It is contended that the suit is filed to grab the property of Raghu Ram and Kiran, who are the lawful owners in physical possession and enjoyment of an extent of 874 square yards of site in Survey No.61/9 of Vadlapudi village. The plaint schedule property does not exist and the plaintiff gave wrong schedule with an ulterior motive. There are no plot Nos.222B & 15 in Survey Nos.64/4 & 64/8 of Vadlapudi village comprising the plaint schedule extent. No layout has been filed by the plaintiff. The sale deeds under which the plaintiff claimed to have purchased the plaint schedule property are invalid and sham documents, devoid of title or possession. The plaintiff did not make any construction and did not erect cement poles. In fact, at the instance of Raghu Ram and Kiran, the defendant laid foundation for compound wall in a part of the property and constructed about 3 feet height compound wall and a shed on the south-west corner of that property. A caution board was also put up on the site. The defendant never tried to occupy the plaint schedule property on 26-02-2011 as alleged by the plaintiff. The defendant is a permanent resident of Kollipara village, near Tenali in Guntur district. He had property in Desapatrunipalem, Paravada mandal and in that connection, he often visits Visakhapatnam. He is incidentally taking care of the property of Raghu Ram and Kiran, which is not a part of layout No.23/1996. The defendant got that property surveyed through a mandal surveyor and obtained a sketch demarcating the property. Cause of action is created and the suit is bad for mis-joinder of parties. He is incidentally taking care of the property of Raghu Ram and Kiran, which is not a part of layout No.23/1996. The defendant got that property surveyed through a mandal surveyor and obtained a sketch demarcating the property. Cause of action is created and the suit is bad for mis-joinder of parties. Therefore, it is prayed that the suit may be dismissed. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Gajuwaka, framed the following issues for trial: (1) Whether the suit schedule given in the plaint is correct and is existing on ground ? (2) Whether the plaintiff is in possession of the schedule property as on the date of filing of the suit ? (3) Whether the plaintiff is entitled for permanent injunction as prayed for ? and (4) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Ex.B-1 to B-7 were marked. 10. The learned Principal Senior Civil Judge, Gajuwaka, 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.9 of 2016 before XIII Additional District Court, Gajuwaka, wherein the following points came up for consideration: (1) Whether plaintiff could establish by evidence her possession over the plaint schedule property as on the date of the institution of the suit or not? (2) Whether the evidence of P.W.1 can be taken into consideration or not, because it is alleged that he is not the plaintiff and hence his evidence cannot therefore be relied upon ? and (3) Whether the plaint schedule property is in existence on the ground or not ? 11. The learned XIII Additional District Judge, Gajuwaka, 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.56 of 2011 filed the present second appeal before this Court. 12. 11. The learned XIII Additional District Judge, Gajuwaka, 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.56 of 2011 filed the present second appeal before this Court. 12. On 27-9-2022, this Court framed the following substantial questions of law at the time of admitting the second appeal: (1) Whether the judgments and decrees of the Courts below are vitiated in ignoring to consider that in a suit for injunction, plaintiff has to plead and prove his possession over the plaint schedule property on the day of filing of the suit ? and (2) Whether the judgments and decrees of the Courts below are vitiated in ignoring to consider the admissions made by P.W.1 ? 13. Heard Sri K. Rama Koteswara Rao, learned counsel for the appellant/defendant and Sri G. Venkata Subba Raju, learned counsel for the respondent/plaintiff. 14. The learned counsel for appellant would contend that the judgments and decrees of both the Courts below are liable to be set aside and he would further contend that both the Courts below failed to see that the evidence of P.W.1 did not establish the possession of the plaint schedule property and also transfer of the same in favour of his wife. He would further contend that both the Courts below failed to see that Ex.A-1 sale deed mentioned about the plot number specifically as 222B, 15, but the respondent/plaintiff did not file either approved or unapproved layout. He would further contend that the appeal may be allowed by setting aside the judgments and decrees passed by both the Courts below. 15. The learned counsel for respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit by granting permanent injunction in favour of the plaintiff and against the defendant and on re-appreciation of the entire evidence on record, the learned first appellate Judge has confirmed the said finding and the first appeal has been dismissed and he would further contend that the second appeal may be dismissed by confirming the judgments and decrees passed by both the Courts below. 16. 16. Normally a second appellate Court cannot substantiate its own opinion unless the findings of both the Courts below are manifestly perverse and contrary to the evidence on record, if the findings are based on inadmissible evidence or failure to consider relevant evidence, then only the High Court can interfere under Section 100 of the Code of Civil Procedure. The legal position in this regard is well settled that when a judgment of first appellate Court is based on misrepresentation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, the High Court in a second appeal is entitled to interfere with the judgment of first appellate Court. If the conclusions drawn by the first appellate Court were erroneous being contrary to the mandatory provisions of law, applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at by ignoring material evidence, then only the High Court in second appeal is entitled to interfere with the judgment of first appellate Court. 17. This Court has gone through the entire material on record. It has considered the submissions of both sides. 18. The plaintiff instituted the suit against the defendant for seeking the relief of permanent injunction against him and his men for ever interfering with the possession and enjoyment of the plaint schedule property. The law is well settled that in a suit for permanent injunction, the plaintiff has to prove that plaint schedule property is in his/her possession by the date of filing of the suit. On appreciation of the entire evidence on record, both the Courts below gave concurrent findings that the plaintiff is entitled to the relief of permanent injunction restraining the defendant and his men for ever interfering with the possession and enjoyment of the plaintiff over the plaint schedule property. Ex.A-1 registration extract of registered sale deed dated 19-12-2003 and Ex.A-2 certified copy of registered sale deed dated 19-12-2003 go to show that the plaint schedule property was purchased by the plaintiff and the material on record also reveals that the plaint schedule property was mortgaged to the State Bank of India by the plaintiff. Exs.A-1 and A-2 go to show that the plaintiff purchased the plaint schedule property under Exs.A-1 and A-2 registered sale deeds. The plaint schedule property is a vacant site, therefore, title follows possession. Exs.A-1 and A-2 go to show that the plaintiff purchased the plaint schedule property under Exs.A-1 and A-2 registered sale deeds. The plaint schedule property is a vacant site, therefore, title follows possession. It is also made clear that since the plaint schedule property was mortgaged to the State Bank of India, a nationalized bank, after physical verification by the bank authorities and also after obtaining legal opinion, the nationalized bank granted loan in favour of the plaintiff. The evidence of P.W.2 also goes to show that P.W.1 approached him to construct a boundary wall all along the plaint schedule property, but they could not procure sufficient money and hence they got cement poles with barbed wire fence erected. Admittedly, by the date of filing of the suit, the suit schedule property was a vacant site. The appellant herein was examined as D.W.1 before the Court below. As per his evidence, the plaintiff and another woman have been trying to occupy the plaint schedule property of an extent of 874 square yards in Survey No.61/9 which purchased by Raghuram and Kiran through their mother Lakshmikantham. As per the own admissions of D.W.1, the property purchased by the plaintiff is situated in Survey Nos.64/4 & 64/8. Another crucial admission made by D.W.1 is that he did not purchase the plaint schedule property. He further admits that the property purchased by Raghuram and Kiran is in Survey No.61/9 and not in the plaint schedule Survey number. 19. The appellant herein himself admitted that the suit schedule property is the property covered under Ex.A-1 and the boundaries mentioned in Ex.A-1 sale deed are still in existence on ground. The appellant relied on Ex.B-1 certified copy of sale deed in favour of Raghuram. Admittedly, the said Raghuram was not at all examined by the appellant. The adangal Ex.B-7 filed by the appellant goes to show that the land is a layout land. Another crucial admission made by the appellant in his evidence is that the boundaries mentioned in Ex.A-1 are all intact on ground and are one and the same. 20. The plaintiff by producing oral and documentary evidence proved her possession in the plaint schedule property. So far as the possession is concerned, the appellant relied on Ex.B-7 i.e. No.3 adangal and the same was obtained subsequent to the suit proceeding. 20. The plaintiff by producing oral and documentary evidence proved her possession in the plaint schedule property. So far as the possession is concerned, the appellant relied on Ex.B-7 i.e. No.3 adangal and the same was obtained subsequent to the suit proceeding. As stated supra, the appellant admits that the boundaries mentioned in Ex.A-1 are still in existence on the land and the same are tallied with the ground. As per the own admissions of appellant, Ex.A-1 property tallies with the suit schedule property on ground and the property purchased by Raghuram and Kiran is different to the suit schedule property. 21. On appreciation of the entire evidence on record, the learned trial Judge came to the conclusion that the plaintiff is in possession and enjoyment of the plaint schedule property and on re-appreciation of the entire evidence on record, the learned first appellate Judge also came to the same conclusion and dismissed the first appeal. Therefore, I do not find any illegality in the findings arrived by both the Courts below. 22. Resultantly, the second appeal is dismissed, confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.