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2025 DIGILAW 877 (TS)

Raghava Rao v. Rana Sudarshan

2025-06-10

K.SUJANA

body2025
JUDGMENT : 1. This appeal is filed by the appellants aggrieved by the judgment and decree dated 16.08.2001 in O.S.No.952 of 1997 on the file of Principal Senior Civil Judge, Ranga Reddy District. 2. The facts of the case are that the plaintiff and 2nd defendant are siblings, the 1st defendant is the brother-in-law of plaintiff and husband of his sister. The plaintiff purchased a house plot No.153 admeasuring 400 Sq yards being part and parcel of S.No.48/12 of Katedan village, Rajendranagar Mandal, Ranga Reddy District under a registered sale deed dated 29.10.1983 for a valid sale consideration from its pattedar Sri B.Ushaiah, represented by his GPA holder Sri G.Pandurangam. The plaintiff was inducted in physical possession of the suit plot by his vendor. 3. The plaintiff and defendants had an understanding regarding the suit plot. The plaintiff agreed to spare the suit plot for the defendants in exchange for another plot in the same locality. However, the defendants failed to provide an alternative plot as agreed upon. As a result, the plaintiff remained the absolute owner and in possession of the suit plot. The plaintiff decided to construct a house on the suit plot and stored granite stones there. Despite efforts, the plaintiff couldn't obtain necessary construction permission from the authorities. Meanwhile, the defendants attempted to construct a shed on the plot, leading to a dispute. The plaintiff prevented the defendants from entering the plot with the help of friends and neighbors. When the defendants showed hostility, the plaintiff approached the local police for assistance but received no help. Consequently, the plaintiff filed a suit for perpetual injunction against the defendants. 4. The trial court granted an interim injunction in favor of the plaintiff. However, due to a typographical error in the plaint mentioning an incorrect Sy.No.40/12 instead of 48/12, the defendants prevented service of injunction order. The plaintiff then filed an application to correct the survey number, which was allowed by the court. After the correction, the interim injunction was served to the defendants. Taking advantage of the delay, the defendants constructed temporary rooms on the suit plot with an intention of frustrating the plaintiff's rights. Despite these actions, the plaintiff remained the lawful owner and possessor of the suit plot. The plaintiff later got the suit reliefs amended, seeking a mandatory injunction against the defendants. The defendants continued to add more structures to the plot. 5. Despite these actions, the plaintiff remained the lawful owner and possessor of the suit plot. The plaintiff later got the suit reliefs amended, seeking a mandatory injunction against the defendants. The defendants continued to add more structures to the plot. 5. The plaintiff claims that the defendants have contested the suit with false allegations, stating that the suit plot is jointly owned by the plaintiff and his senior brother, R. Prabhakar. However, the plaintiff asserts that his brother, who worked as Karobar of Khatedan Gram Panchayat, later became an employee of Rajendranagar Municipality, has been in collusion with the defendants. The brother is believed to have helped the defendants with forged documents to show that they have constructed rooms on the plot with municipal permission. The defendants also claim that there was a partition between the plaintiff and his brother, relying on a document written by the plaintiff stating that he would transfer the suit plot in exchange for another plot. Nevertheless, neither the brother nor the defendants have provided an alternative plot to the plaintiff. 6. The court found that the plaintiff is the lawful owner of the suit plot. However, the court determined that the defendants have permissive possession, primarily due to their custody of the title deeds. The court ruled that the plaintiff is not entitled to a perpetual injunction but may seek recovery of possession from the defendants. The plaintiff alleges that the defendants have unlawfully occupied the suit plot, constructed unauthorized rooms, and are liable for mesne profits. The suit seeks recovery of possession and mesne profits against the defendants. 7. The defendants filed their written statement stating that the allegations in the plaint are false except the relationship. The defendants are the owners of suit plot which fact was agreed and consented by the plaintiff, permission was granted to build residential house in the suit plot after verification of record and consent letter given by the plaintiff, by the Gram Panchayat as early as in the year 1985 and after the Gram Panchayat merged into Rajendranagar Municipality, the Municipal authorities have also renewed the permission granted in favour of 2 nd defendant in the year 1987 and from the date of purchase the defendants are in possession of the suit plot and after obtaining permission they constructed a small house in the said plot and are living there. The allegations made in the plaint that the defendants are threatening the plaintiff is only created for the purpose of filing suit and in the earlier suit, the Court observed that plaintiff was never in possession of the suit land and mere observations and findings does not entitle the plaintiff to file the present suit. It is also stated that the brother of plaintiff Sri Prabhakar was terminated from service in the year 1983 as Gram Panchayat Karobar, as such, Prabhakar helping the defendants is nothing but false. The defendants are in physical possession of the property and they perfected their title by way of adverse possession since they have been in possession from 1983, taken permission from the municipal authorities to construct house and paying municipal taxes from time to time. As such, plaintiff is not entitled for any relief and prayed the trial Court to dismiss the suit. 8. Basing on the above pleadings, the trial Court framed two issues. On behalf of plaintiff, he himself was examined as Pw.1 and Exs.A.1 to A.5 are marked. On behalf of the defendants, except filing written statement, they neither cross-examined Pw.1 nor any witness was examined on their behalf and basing on the evidence of Pw.1 and the documents, the trial Court decreed the suit and directed the defendants to hand over vacant possession of the suit property to the plaintiff within one month and the prayer for mesne profits was dismissed observing that no evidence was adduced to prove the same. Aggrieved by the said judgment, the present appeal is filed by the defendants. 9. Heard Sri Resu Mahender Reddy, learned counsel for the appellants and Sri P. Pratap Reddy, learned counsel for the respondent. 10. Aggrieved by the said judgment, the present appeal is filed by the defendants. 9. Heard Sri Resu Mahender Reddy, learned counsel for the appellants and Sri P. Pratap Reddy, learned counsel for the respondent. 10. The contention of learned counsel for the appellants herein is that the trial Court failed to see that the suit is filed for recovery of possession by the respondent with an intention to take fraudulent decree behind the back of appellants herein in collusion with their previous counsel, that the trial Court failed to see that issuance of summons in O.S.No.952 of 1997 is not proper as the signature appearing on the reverse of the suit summons does not belong to 2 nd appellant and the trial Court failed to see that signature on vakalat with that of signature on the back of summons alleged to be the signature of 2 nd appellant Aruna, are different and that can be proved by technical examination as both the signatures are not of one person and the trial Court failed to see the presence of appellants in O.S.No.952 of 1987 through their counsel to adduce evidence and the said counsel never informed about the said suit even though they are in touch with him, which itself clearly infers that the respondent herein played fraud on the appellants in colluding with their previous counsel. The trial Court failed to see that the judgment in O.S.No.441 of 1991 filed by the respondent herein was dismissed with costs; the trial Court also failed to see the contents settled in the written statement dated 12.08.1998 in O.S.No.952 of 1997 are not binding on the appellants and the record pertaining to the above proceedings was obtained by certified copies, the trial Court ought to have seen that the ex parte evidence in O.S.No.952 of 1987 is very much apparent that the suit is almost decided ex parte as appellants have no opportunity to contest the frivolous claim of the respondent. The appellants came to know about the decree only on 28.06.2002 when the respondent through the Court bailiff visited the suit schedule property to take permission from the appellants. The appellants came to know about the decree only on 28.06.2002 when the respondent through the Court bailiff visited the suit schedule property to take permission from the appellants. Till such date the appellants are unaware of the impugned judgment as well as execution petition in E.P.No.95 of 2002, and hence approached the trial Court and obtained certified copies of entire record of O.S.No.952 of 1987, that the appellants came to know about the judgment and decree only on 28.06.2002, made application for certified copies on 03.07.2002 and the copies were delivered on 04.07.2002. As such, the appeal is within the limitation and prayed to set aside the impugned judgment. 11. The contention of the respondent herein is that there is no illegality in the judgment of trial Court. The respondent is a purchaser of the suit schedule property, though the appellants alleged that there is an understanding between the parties that the respondent has to part with the suit property and the appellants have to give another property in lieu of the same, but no property was given to the respondent, there is no reference of any purpose of payment of sale consideration by the 1 st appellant-brother-in-law of respondent herein, there was no pleading in the written statement that the suit for declaration has to be filed instead of possession. Admittedly, the sale deeds stand in the name of respondent and the question whether property is a joint family property and whether there was partition or not are beyond the scope of injunction suit and it is also held that any finding recorded by the learned Judge, shall not operate as res judicata, sofar as title or interest in the property is concerned. In the memorandum of appeal grounds, the allegations are against previous counsel and more reliance is placed on the grounds that when the appeal came up for hearing, it was argued on merits that the suit for declaration ought to have been filed as there was partition, and suit is barred by limitation. Hence, prayed this Court to dismiss this appeal. 12. Considering the submissions made by both the counsel and the material on record, admittedly suit is filed by the respondent herein for recovery of possession, though the appellants filed written statement, not cross-examined the plaintiff in the suit and no evidence was adduced. Hence, prayed this Court to dismiss this appeal. 12. Considering the submissions made by both the counsel and the material on record, admittedly suit is filed by the respondent herein for recovery of possession, though the appellants filed written statement, not cross-examined the plaintiff in the suit and no evidence was adduced. The contention of the appellants herein is that the previous counsel on record, played fraud on them, as such, they could not appear before the trial Court for cross-examination or for adducing evidence and the written statement is also not in accordance with their consent. The appellants are also disputing their signatures on vakalat as well as on the written statement in the earlier suit. 13. The respondent herein filed suit for injunction initially, later it was amended for mandatory injunction and their contention is that the trial Court as well as the appellate Court observed that the respondent has to seek necessary relief to get possession of the suit property, but not the relief of injunction. It was also observed by the trial Court that the contents of Ex.B.5 filed by the appellants herein shows that plaintiff and his brother partitioned their properties in the presence of their brother-in-law. In Ex.B.5 it is stated that the plot in the name of plaintiff belongs to 1 st defendant was agreed to be transferred by the plaintiff in the name of 1 st defendant or his successors and plot number was given as 153 in Sy.No.48/12 which is the suit property and the evidence of plaintiff is that he agreed to give the suit plot to the defendants in exchange, but he did not give as the defendants did not offer any other plot to him. The said observations of the trial court shows that there is a document of understanding between the appellants and respondent, as the appellants herein have not adduced any evidence and their contention is that the counsel on record played fraud which shows that suit decided by the trial Court is not on merits, but basing on the evidence of respondent and the written statement filed by the appellants and further the evidence of respondent is not tested by cross-examination by the appellants. Therefore, it cannot be said that the judgment of trial Court is on merits. Therefore, it cannot be said that the judgment of trial Court is on merits. Further contention of appellants herein is that they came to know about the decree passed by the trial Court only when the bailiff came to the suit property for execution of suit decree, as such, they immediately obtained certified copies and filed appeal, and that delay was already condoned by this Court. The record shows that the decree was passed basing on the uncontested evidence, therefore, it cannot be a contested judgment, though written statement is on record. As such, the decree is liable to be set aside by remanding back the matter to the trial Court. 14. IN THE RESULT, the Appeal suit is allowed. The judgment and decree of the trial court dated 16.08.2001 in O.S. No. 952 of 1997 is hereby set aside. The matter is remanded to the trial court with a direction to permit the appellants herein to cross- examine PW.1 and adduce evidence on their behalf. The trial court shall thereafter dispose of the suit afresh in accordance with law by giving opportunity to both parties for adducing evidence. There shall be no order as to costs. Miscellaneous petitions, pending, if any, shall stand closed.