HONOURABLE Dr. JUSTICE
B.SIVA SANKARA RAO
APPEAL
SUIT No.47 of 1998
JUDGMENT:
The unsuccessful plaintiff (Banda
Pulla Reddy S/o Chandra Reddy of Garidepalli village) in O.S.No.66 of 1994 on
the file of Senior Civil Judge’s Court, Miryalaguda is the appellant
herein. The suit was filed by him against
Banda Lakshmamma, Banda Pulla reddy, Banda Srinivasa Reddy and Banda Sudhakar
Reddy, wife and sons of late Banda Chinna Sathyanarayana Reddy respectively),
for the reliefs originally sought for permanent injunction later, after written
statement, amended for recovery of possession of the plaint schedule
property viz., 1820 sq. yards house site
in Sy.No.834/AA in panchyat ward No.1 of Garidepali village and to declare the
registered sale deeds executed by Banda Pedda Sathyanarayana Reddy, the
pattadar of said land(vendor of the plaintiff), are valid and binding on
everybody and for perpetual injunction against the defendants supra and their
men etc., from interfering with the possession, constructions and enjoyment of
plaintiff over the suit site, costs and such other just reliefs. The ASCMP
No.2566 of 2011 and ASCMP No.909 of 2013 filed, one is to amend the plaint
prayer and the other to amend the grounds of appeal as part of the events
subsequent to the suit filed and also pending appeal regarding alienation to 5th
respondent (since impleaded as per orders in ASCMP No.2565 of 2011 dated
04.11.2013) by name Smt. R.Sailaja and the constructions made by her also with
claim as all hit by section 52 of the Transfer of Property Act as lis pendence. If such is the case, the Court can take note
of to mould the relief including within its power under Order XLI Rule 23,24
and 33 of C.P.C. without need of permitting the amendment as it is not mere
amendment of grounds of appeal, but also of plaint and once considered, it
gives further life to the litigation by need of giving of opportunity for any
additional written statement and from any say of permitting further evidence
and any say of remand for that purpose vide decision in Atma S.Barar Vs.Mukhtiar Singh[1], and in P.P.Reddy
Vs.Pratap Steels[2].
2.
Coming to the background of the lis, the plaintiff’s vendor B.Sathyanarayana
Reddy@B.Pedda Sathyanarayana Reddy S/o Narsi Reddy was no other than plaintiff
in O.S.No.123 of 1993 on the file of District Munsif, Huzurabad, subsequently
transferred to dispose off along with this suit to the Senior Civil Judge’s
Court, Miryalaguda and renumbered as O.S.No.89 of 1995 covered by the common
judgment dt.13.08.1997 (impugned in the present appeal). That suit was filed by Banda Sathyanarayana
Reddy @ Pedda Sathyanarayana Reddy for permanent injunction restraining the
defendants therein who are no other than the defendants herein as well as Banda
Chinna Sathyanarayana Reddy-husband and father of the defendants, relating to
the house site in an extent of Ac.0-14 guntas in S.No.833/AA and an extent of Ac.0.18
guntas in Sy.No.834/AA (in this Sy.No.834/AA, the plaint schedule in O.S.66 of
1994 of 1820 sq.yards = Ac.0.15 guntas is the subject matter of the appeal of
Garidepali village. Said Chinna Sathyanarayana Reddy S/o Pulla Reddy, and Pedda
Sathyanarayana Reddy S/o Narsi Reddy are cousins. Leave it as it is.
3.
The averments in support of the plaint ( as well as the amended plaint after
written statement of 1st defendant adopted by others) in O.S.66 of
1994 in nut shell are that, due to political rivalry between the plaintiff(Banda
Pulla Reddy s/o Chandra Reddy) and 1st
defendant (Banda Lakshmamma) and her sons-defendants 2 to 4, they gave false
complaint as if the plaintiff kidnapped husband of 1st defendant
(Banda Chinna Sathyanarayana Reddy) and also cause published in newspaper
Andhrajyothi Telugu Daily (Ex.A.20) alleging that the plaintiff is intended to
knock away their property by the kidnap and in course of investigation of the
crime registered by police, said Chinna Sathyanarayana Reddy(since died)
allegedly kidnapped was traced and gave statement before Magistrate under
Section 164 of Cr.P.C.(Ex.A.21) that he was not kidnapped by the plaintiff-Pulla
Reddy or any others and the 1st defendant one way or the other is aiming to hunt the plaintiff and involve
in cases. It is further averred that plaintiff purchased from Banda Pedda Sathyanarayana
Reddy S/o Narsi Reddy under three sale deeds (Exs.A.1 to A.3 and the
rectification deeds(Exs.A.4 to A.6 respectively) of Ac.805 sq. yards + 805 sq. yards
+ another 210 sq. yards in S.No.834/AA total 1820 sq.yards (out of Ac.0.18 gts
of S.No.834/AA) of Garidepalli village which is the suit site covered by plaint
schedule, that pattadar passbook (Ex.A.23) also was issued for the Sy.No.834/AA
in favour of the plaintiff for the purchased extent of Ac.0.15 guntas and
plaintiff with a view to construct compound wall around the suit site obtained
panchayat proceedings with a plan (map) dated 22.09.1994 (Exs.A.18 and A.19)
showing the land in Sy.No.834/AA of ward No.1 of Garidepalli village, that
while the plaintiff was getting filled pits in suit land with gravel on
25.09.1994, the defendants threatened to stop work, that to avoid any fight and
threat of criminal implication, even the plaintiff’s vendor was having
possession prior to sale to plaintiff of the suit site; that even the
defendants have no right over the same and from their proclamation of they are
not allowing plaintiff to enjoy the property and the defendants after disposal
of C.M.A.No.44 of 1994 on the file of the District Judge, Nalgonda constructed
a wall around the place which is part of suit site and the plaintiff is thus constrained
to file the suit for above reliefs.
4.
The Written statement filed by 1st defendant Banda Lakshmamma was by
contending that, plaintiff’s so called vendor Banda Pedda Sathyanarayana Reddy
S/o Narsi Reddy has no concern with the suit schedule site (S.No.834/AA) and
hence the sale deeds executed by him alienating in favour of the plaintiff did
not confer any title in his favour and even plaintiff’s vendor also not in
possession either by the date of respective sale deeds (Exs. A.1 to A.3 =
Exs.A.4 to A.6) or earlier to it. It is further contended that said plaintiff’s
vendor Banda Pedda Sathyanarayana Reddy filed O.S.No.123 of 1993 on the file of
District Munsif, Huzurabad against same defendants in respect of the schedule
land for permanent injunction from interference with his possession and
enjoyment over the same alleging that the defendants caused interference on
20.11.1993 when he was fencing compound around suit land and he obtained ex parte
temporary injunction in the suit in I.A.No.247 of 1993 and later on contest by
the defendants was vacated on 20.01.1994 (Ex.B.23) by the District Munsif,
Huzurnagar. It is clear that the plaintiff herein was not put in possession by
his vendor (Plaintiff in O.S.No.123 of 1993) of the suit site for his no even
possession. By circumventing and non-disclosing the facts of the suit filed by
his vendor, plaintiff filed this suit(O.S.No.66 of 1994) with false allegations
by showing wrong boundaries and managed to obtain ex parte injunction
order and also police aid under the guise of said orders, tried vainly to
occupy suit schedule site which is in possession of the defendants and the
plaintiff even managed to obtain permission from grampanchayat to construct
compound wall which even does not confer any right or title over suit site in
his favour from such panchayat proceedings (Exs.A.18 and 19) and he did not
construct any wall pursuant to the possession nor with possession of the house site
which is not an agricultural land to issue any pattadar passbook (Ex.A.23) said
to have been obtained and the same is contrary to law, that the Revenue
Divisional Officer, Miryalaguda also
cancelled said pattadar passbook (Ex.B.21) and title deed by order dated
27.12.1995 and the plaintiff and his vendor (plaintiff in O.S.No.123 of 1993)
filed self-same pahanies. It is also
contended that the suit is over-valued (in the additional written statement
stated as undervalued) to bring it in Senior Civil Judge’s Court instead filing
in Munsif Court to get ex parte orders if possible and by not disclosing
earlier suit proceedings of Munsif Court filed by the plaintiff’s vendor and
the plaintiff thereby not come to Court with clean hands having suppressed and
misrepresented the facts and the ex parte order of injunction even made
absolute in the Senior Civil Judge’s Court, the District Court in C.M.A.No.44
of 1994, set aside on 04.06.1996. It is
further contended that, the complaint made by 1st defendant in
respect of kidnap of her husband by plaintiff herein and the paper statement
(Ex.A.20) in Andhrajyothi are correct, that her husband was a little mentally
retorted and was kidnapped by plaintiff and got the G.P.A. dated 30.12.1993
(Ex.A.24) executed in his favour by him and his sisters for suit schedule site
and other lands to knock away the same but could not succeed as said G.P.A. was
cancelled on 16.03.1994 (Ex.B.22) and the Section 164 Cr.P.C. statement (Ex.A.21)
of her husband was also obtained under pressure and influence of plaintiff
herein and the suit filed is to grab the available property if possible with
false and baseless averments concocted for the suit purpose; though it is the
defendants in possession of the suit schedule site and hence to dismiss the
suit claim by saying the suit claim of the plaintiff is also barred by
limitation. It is further averred that the defendants erected hut in the
schedule site even prior to filing of the suit and the same was leased out to
Congress party on monthly rent of Rs.200/- and later to Mandal Congress party
office which also establish that the plaintiff is not in possession of suit
site and not entitled to the reliefs against the defendants, that the
defendants have six wooden boxes on eastern side of the site and leased out that
the suit without declaration is not maintainable and hence to dismiss the same.
5.
Additional written statement after amendment of the plaint of bare injunction
suit to one for possession (with declaration of the sale deeds as valid and
binding and for injunction) is with the contest further that, defendants in the
written statement supra categorically denied possession of plaint schedule
property besides existence of suit land within the boundaries mentioned (not
disputed existence of suit site, but for claimed as the defendants in
possession), that plaintiff in the amended plaint claimed that defendants after
order in C.M.A.No.44 of 1994 vacating the injunction, constructed a wall around
the place in a part of suit site existing with wooden boxes like stalls and
obtained electricity connection to said stalls which are already constructed by
the plaintiff to keep cement bags and the wall constructed was by Rajireddy
Venkatalakshmi with panchayat permission prior to disposal of C.M.A. is incorrect for the fact that the
defendants are in continuous possession and enjoyment of the site, shown in red
colour in the plan (Ex.B.2) annexed to the additional written statement, for
more than 30 years. It is further
averred that husband of 1st defendant Chinna Sathyanarayana Reddy, out
of the lands fell to his share in Sy.No.833/A and 834/A in partition between
himself and B. Ranga Reddy, alienated 200 yards to one Kusuma Narayana Reddy under
sale deed dated 04.05.1989, 200 yards to K.Narsi Reddy under sale deed dated
04.05.1987, 400 yards to K.Narayana Reddy under sale deed dated 02.09.1989, 400
yards to K.Narayana Reddy under sale deed dated 29.03.1989, 400 yards under
sale deed of even date to one Anantalakshmi, another 200 yards to B.Chandra
Reddy under sale deed of 1987 and
another 200 yards to Sri Bontha Chandra Reddy under sale deed of 1987 and after
said alienations, the area measuring about 14 guntas as per site plan annexed
to the written statement is in possession and enjoyment of defendants and
plaintiff and his vendor never in possession of said land. It is further averred that the plaintiff is
one of the attesting witnesses of Ex.B.1 agreement of sale in favour of Sarva
Reddy dated 24.06.1985 executed by B.Chinna Sathyanarayana Reddy, and the suit
claim for possession of non-existing site which cannot be located to identify within
the boundaries given by plaintiff is liable to be dismissed, besides with no
cause of action to sustain that plaint can be taken as undervalued from P.W.1
deposed in his chief-examination as its worth is about Rs.4,00,000/-and the
suit claim is barred by limitation besides suit for mere possession without
declaration is not maintainable on the fact that defendants are from the
beginning denying title and hence to dismiss the suit. The other defendants
adopted the written statement and additional written statement of 1st
defendant supra.
6.
Therefrom the trial Court originally framed issues viz., whether the plaintiff
is entitled to permanent injunction over the plaint schedule property as prayed
for, the additional issues are whether the plaintiff is entitled for recovery
of possession of suit schedule land and whether the suit claim for recovery of
possession is barred by limitation. It
is therefrom ultimately the trial Court by common judgment dated 13.08.1997 of
both the suits (O.S.No.89 of 1995 which is originally O.S.No.123 of 1993) filed
by the plaintiff’s vendor B.Pedda Sathyanarayana Reddy S/o Narsi Reddy, against
the defendants and the suit filed by the plaintiff (O.S.No.66 of 1994) against
the defendants dismissed with no costs.
7.
Before the trial Court there was separate trial of both suits O.S.No.89 of 1995
and O.S.No.66 of 1994, however, disposed of by common judgment as per the orders
of this High Court in C.M.P.No.80 of 1995 dated 01.09.1995. The evidence let in the suit 66 of 1994 before
the trial Court was that of B.Pulla Reddy (plaintiff) as P.W.1 and Yedla Anjan
Reddy, Banda Randa Reddy and Linga Ramulu(P.Ws.2 to 4) besides Exs.A.1 to A.29
placed reliance upon by the plaintiff and on behalf of 1st defendant,
B.Lakshmamma as D.W.1,besides Kusma Sarva Reddy, Bontha Chandra Reddy,
Ragireddy Venkatalaxmi, Ullendula Srinivas and B. Ram Reddy (D.Ws.2 to 6) and
defendants relied upon Exs.B.1 to B.31 and Exs. X.1 to X.14 were also marked.
8.
The judgment of the trial Court regarding entitlement of possession and
enjoyment which are the core issues is with findings that the boundary
description is not tallying when compared with Ex.B.2 rough sketch filed by the
1st defendant and in O.S.No.89 of 1995, commissioner was appointed
as per order in I.A.No.352 of 1996 to
measure the land with the assistance of mandal surveyor and report filed
showing the suit land in red colour and measurement which is found as of extent
of 14 guntas that lying in triangular shape with boundaries East: Miryalaguda-Huzurnagar
road, North: Housing colony road, South: land of B.Chandra Reddy and Anthi
Reddy, and West: Cinema theatre, that as per plaintiff’s vendor (plaintiff in
O.S.No.89 of 1995)herein, the entire land in S.No.833/AA of 14 guntas,
S.No.834/AA Ac.0.18 guntas is single plot and the plaintiff in O.S.No.66 of
1994 claims the land purchased by him from the plaintiff in O.S.No.89 of 1995
out of Sy.No.834/AA of 1820 sq.yards and the defendants claiming the suit site
belongs to them (as if in Sy.No.833/A and 834/A) and thereby the fate of the
case in O.SNo.89 of 1995 from establishment of title for the entire 32 guntas
in S.No.833/AA and 834/AA within the boundaries described as single plot, that
in O.S.No.89 of 1995 the eastern boundary: Miryalaguda to Huzurnagar road
tallies so also northern boundary: police quarters but the western and southern
boundaries described as land of the defendants whereas in the present suit O.S.No.66 of 1994 western
boundary and southern boundary shown as shops and place of Banda Pedda
Sathyanarayna Reddy(Plaintiff in O.S.No.89 of 1995) and thereby boundaries are not
tallying on close examination with reference to the commissioner’s report
described supra and with reference to the Ex.B.2 rough sketch filed by the
defendants and that the plaintiff failed to give sufficient description to
identify the suit schedule site (there is no identity dispute as per original
written statement of 1st defendant supra) and such decree granted
being unworkable in such case was the expression of Tripura High Court in Heirs of Charanpai riang and smt.Sambati
riang Vs. Sri Deenbandhudas[3] placed reliance by the defendants, that it
shows description given by the plaintiff is without knowing exactly to which
land he claims and thereby the plaintiff in O.S.No.89 of 1995 as well as the
plaintiff herein (O.S.No.66 of 1994) miserably failed to establish the identity
of the property and its location and extent.
9. It is by impugning legality and correctness
of said findings of the trial Court dismissing the plaintiff’s suit for
possession with consequential declaration and injunction respectively, the
appeal is filed with the contentions in the grounds of appeal that said decree
and judgment of the trial Court is contrary to law, evidence and probabilities
of the case, that the trial Court was erred in clubbing both the suits for
common judgment though the prayer is different with distinct claims that there
was no issue framed by the trial Court regarding declaration of registered sale
deeds executed by Banda Pedda Sathyanarayana Reddy in favour of the plaintiff
for the suit site of 1820 sq.yards that the trial Court also failed to
appreciate the documentary evidence produced by the plaintiff including the
panchayat permission with map, memo (Ex.A.22) filed by the husband of 1st
defendant in I.A.No.247 of 1993 in O.S.No.123 of 1993 and the pattadar passbook
and other revenue records(Exs.A.7 to 17 and 23) and the evidence of P.Ws. 1 to 4 on record even clearly speak the
existence and identity of the property besides sketch filed by the commissioner
with report, that trial court went wrong in believing the evidence of D.W.1
regarding her alleged possession by construction of wooden boxes in part of the
suit site and the trial Court also went wrong in not properly appreciating as
to identity and existence of property is not in dispute, that trial Court
should have decreed both the suits and hence to set aside the dismissal
judgment of the trial Court and allow
the appeal decreeing the plaintiff suit in O.S.No.66 of 1994 and to pass such
other appropriate orders.
10.
Heard Sri N.V.Suryanarayana Murthy, learned Senior Counsel for Sri T.Ravi Kumar
and Sri G.Sashikala Murthy, counsel for the appellant and Sri A.Pulla Reddy learned counsel representing the learned
counsel for the respondents/defendants Sri Abhishek Reddy.
11.
Perused the written arguments and decisions placed reliance by both sides in the
course of hearing arguments of the appeal and the written arguments of
respondents covering some aspects as reply to the written argument of the
appellant. Instead reproducing the same to make the judgment bulky,
contextually it is being discussed to the extent of relevancy for convenient
sake of convenience and clarity.
11-A. Before coming to the factual
matrix, it is the settled proposition of law that, trial is a voyage in which
trust is the quest. Truth alone triumphs; not falsehood. Truth alone has to be
the foundation of justice. The entire judicial system has been created only to
discover and find not the real truth. Thus, the court will not only examine the
oral testimony but also the surrounding circumstances and probabilities of the
case to decide credibility of a witness and as to, from said evidence any fact
is proved or not proved or disproved. It is because evidence is to be judged by
test of human probabilities vide decisions reported in Ramchandra Rambux Vs.Champabai[4], Debi Prasad
Vs. Tribeni devi[5]; Commissioner of Income Tax, West Bengal, Calcutta Vs.
Durgaprasad more[6] and Maria M.S.Fernandes Vs. Erasno J.De Sequerie[7].
11-B. It
was also laid down in this regard that, it is the duty of the Judge to consider
the evidence objectively and dispassionately to examine it in the light of
probabilities and decide in which was the truth lies. The appreciation of
evidence is no doubt from experience and knowledge of human affairs depending
upon facts and circumstances of each case and regard had to the credibility of
the witness, probative value of the documents, lapse of time if any in proof of
the events and occurrence for drawing inferences, from consistency to the
material on record to draw wherever required the necessary inferences and
conclusions from the broad probabilities and from preponderance from the
overall view of entire case to judge as to any fact is proved or not proved or
disproved vide decision in Chaturbhuj
Pande Vs. Collector[8] and Ishwari
Prasad Misra Vs.Md.Isa[9].
11-C. Further, it is the settled
law in dealing for appreciation of the evidence by the appellate Courts that,
the 1st appellate Court must re-appreciate (appreciate afresh) the
entire evidence in giving findings supported by reasons as to decide the lis
and therefrom to find how far the decision of the trial court on any of its
findings and conclusions are correct or incorrect, including for confirmation
or reversal of said findings of the trial Court vide decision reported in - AIR-2001-SC-965
in Santhosh Hazaria’s case. In
coming to the appreciation of the evidence concerned, as laid down in Madan Lal Vs., Yoga Bai[10], in Civil appeals, particularly
in first appeal, the appreciation of evidence is at large like appreciation of
evidence in a suit, more particularly from Order 41, Rule 33 and 24 C.P.C.
Coming to the powers of the 1st appellate Court in this regard
concerned, more particularly from Order 41, Rule 33 and 24 C.P.C. and from
several expressions of the Apex Court including Koksingh Vs. Deokabai[11] Giani Ram Vs. Ramjilal[12]; Jagdev singh sidhanji Vs. Pratap singh Daulta[13] in Banarasi Vs.Ramphal[14] and Madan Lal (supra), that the 1st appellate
court is competent to grant relief if finds appropriate on any facts though
they were not granted by the trial Court in rendering complete justice and
prevent to the extent possible scope for further litigation in order to give
finality to the lis. The provision is
one of the main objects to avoid a situation of conflicting decrees coming into
existence in same suit. The power conferred is of widest amplitude and
unfettered. No doubt the power is subject to three limitations viz.,1) must not
to prejudice of persons not parties(R.24); 2) If party given up the claim, not
to revive and 3) if party of decree not appelled and made find, cannot grant
relief on unappellated portion. It is in spite of non-filing of appeal or
cross-objections with any specific plea, besides O.XVI Rule 22 permits any
finding to attack and Section 105 C.P.C. permits any interim order made final
to attack for granting such relief it is within the power of the Court (no
doubt subject to above limitations) vide decisions reported in The Revenue Divisional Officer-cum- Land
Acquisition Officer,Chittoor Vs. P.G.Krishna Swami Naidu[15], Mahani Dhangir Vs.Shrimadan Mohan[16]; and K.Muthuswami
Gounder Vs.N.Palaniappa Gounder[17] and Madan Lal(supra).
11-D. No doubt, the burden of
showing that the judgment or even a finding therein under a challenge in appeal
is wrong or incorrect either wholly or in part lies on the appellant and same
is also the proposition in the course of the cross-objections as the
cross-objectors are at par with appellants so far as their contentions in the
cross-objections concerned, in the course of the cross-objections in shifting
the burden on them, from hearing the main appeal.
11-E. It
is also the well-settled proposition of law that, though generally no plea, no
evidence can be looked into and for no issue, no finding can be given, it is
not always the static principle from the fact that even a plea not made
specifically if covered by implication and evidence let in and parties got
knowledge, and parties got knowledge, it can be looked into and even to give
finding no issue framed is of no bar to formulate a point and decide. Burden of
proof pales significance as what is necessary is party shall aware of the
pleadings and evidence for the Court to give finding from the hearing covering
the lis but not outside the scope vide decision reported in Bhagwati Prasad Vs.Shri Chandramahll[18] of the constitution Bench. It was also held therein that even
alternative remedy not pleaded if entitled, Court can grant it where it is
appropriate to do so. In Balasankar Vs. Charity Commissioner[19], Gujarat at
para-19-it was held that, burden of proof pales significance when both parties
adduced evidence and it is the duty of the court to appreciate the entire
evidence adduced by both sides in deciding the lis. So also on the aspect as to party proved in
possession of best evidence is bound to produce the same to throw light on the
lis and to unfold any truth and thereby cannot take shelter on the abstract
doctrine of burden of proof saying burden not on him to prove by filing the
same, as laid down in para-10 in NIC vs.
Jugal Kishore[20], and Lakhan Sao Vs. Dharam Chowdhary[21].
11-F. Coming
to the proof of facts out of the facts in issue to the extent of relevant facts
concerned, the above expression discussed what is meant by proved, not proved
or disproved with reference to Section 3 of the Evidence Act. In N.K.Somani
Vs., Punam Somani[22], the scope and the difference between proved, not
proved and disproved in a civil matter was discussed. In Premlata Vs.Arhant Kumar Jain[23] (three judge Bench) in para-2 that where both parties
have adduced evidence, the question of burden of proof loses its importance. It
is the duty of the Court to appreciate from entire evidence on record;
irrespective of who let in what evidence.
11-G. In
RVEE Gounder Vs., RVS Temple[24] case at 196 and at paras 25-28,
the Apex Court discussed that, in civil cases the proof is by preponderance of
the probabilities including in suits relating to ejectment or declaration of
title or for possession; and the onus shifts from initial burden on the
plaintiffs if able to establish from preponderance of probabilities the
entitlement, on the defendant to rebut the same including with specific claim
on their part if any. It is in explaining
the earlier propositions of law that, in a suit for ejectment, plaintiff shall
win or lose his case only on his own strength principle, since it does not mean
the onus of proof is statically always on the plaintiff or it shall never
shifts on the defendant even if the plaintiff is able to establish his case
from preponderance of the probability as to what is meant by proved, not proved
or disproved required for the above expressions with reference to Section 3 of
Evidence Act without going into the other components of “may presume, shall
presume and conclusive proof”, from the very definition, proved and disproved
to say not proved is when it is neither proved nor disproved, it requires
considering the matters before the Court on any fact for either believes it to
exist or does not exist (which is by direct evidence), or considers its
existence so probable that a prudent man ought, under the circumstance of a
particular case to act upon supposition that it exists or it does not exist(
which is by circumstantial evidence).
The Apex Court clearly held that in a suit for ejectment once plaintiff
has been able to create a high degree of probability so as to shift the onus on
the defendant, it is for the defendant to discharge his onus and in the absence
there of, the burden of proof lies on the plaintiff shall be held to have been
discharged so as to prove the plaintiff’s title.
11-H. Before coming to decide how
far the trial Court was correct or not in arriving at the findings impugned in
the appeal concerned, the basic principle of law that also to be kept in mind
by the appellate Court is that, where trial Court rely on facts and
probabilities basing on credibility also with opportunity to observe the
demeanor of the witnesses, the findings of the trial Court when based on
reasons and by consideration of the contents of the documents and oral evidence
and on all facts and relevant circumstances, merely because some other view is
also possible, the appellate Court shall not ordinarily or casually interfere
with and reverse in Mohammad
Salamatullah Vs.Government of A.P.[25], Narbada Prasad Vs.Chhaganlal[26] at paras 10 & 11 and Sann Madho Das Vs.Mukand Ram[27]and Sarju Pershad Ramdeo Sahu Vs.Jwaleshwari Pratap Narajusingh[28].
11-I. In case the appellate Court
desires to reverse the judgment and decree of the lower Court, it should
discuss the findings and set aside the same, which are contrary to law or
weight of evidence or probabilities of the case or perverse, arbitrary or
superficial or capricious or unsustainable either on fact or on law. Same are
also the expressions in Veerayee Ammal
Vs.Seeni Ammal[29] at para-14; Sarju pershad Ramdeo Sahu(supra) para-(b), State of
Rajasthan Vs.Harphool Singh[30] para(b) and Ishwar
Dass Jain(dead) through L.Rs. Vs.Sohan lal(dead) through L.Rs.[31] at 437-k.
11-J.
Coming to adverse possession, plea and proof concerned, the classical
requirement is that the possession should be 'NEC VI NEC CLAM NEC PRECARIO'. Adverse possession in one sense is based on the
theory or presumption that the owner has abandoned the property to the adverse
possessor on the acquiescence of the owner to the hostile acts and claims of
the person in possession. It follows that sound qualities of a typical adverse
possession lie in it being open, continuous and hostile.
“An
owner would be deemed to be in possession of a property so long as there is no
intrusion. Non-use of the property by the owner even for a long time won’t
affect his title. But the position will be altered when another person takes
possession of the property and asserts rights over it and the person having
title omits or neglects to take legal action against such person for years
together (emphasis supplied). “The process of acquisition of title by adverse
possession springs into action essentially by default or inaction of the
owner”.
In Amrendra
Pratap Singh vs. Tej Bahadur Prajapati[32]-it was held that
the essential requisites to establish adverse possession are that the
possession of the adverse possessor must be neither by force nor by stealth nor
under the license of the owner. It must be adequate in continuity, in publicity
and in extent to show that the possession is adverse to the paper owner.
11-K. Mahendra
C Mehata Vs. M/s.KCPHS Ltd.,
Hyderabad[33] at para 15-Limitation Act,1963;
Article 65-Adverse possession: Person claiming adverse possession must know
that someone else was the real owner of the property in his possession and that
he is holding it adverse to him – Possession however long without the said
animus does not amount to adverse possession. Article 65 is enacted in the
Limitation Act,1963 in respect of the suits based on title. Therefore, when the
suit is based on title, the plaintiff need not prove that he was in possession
of the land sought to be recovered within 12 years of the suit. Suits falling
under Article 64 of the Limitation Act,1963 are based purely on previous
possession of the plaintiff and therefore is not covered by Art.65, because he
is not claiming recovery of possession basing on his title. Therefore, if the
appellants establish their title to the suit land, the burden of proof would be
on respondents to establish that they have perfected their title to the suit
land by adverse possession, and appellants need not establish that they were in
possession of the suit land within 12 years from the date of the suit. In a
suit falling under Art.65, the defendant, who wants to defeat rights of the
plaintiff, has to establish his adverse possession which has the effect of
extinguishing the title of the owner by operation of Sec.27 of Limitation
Act,1963 and if he fails to do so plaintiff cannot be non-suited merely because
he was not able to prove possession within 12 years.
11-L.
Article 65 as well as Article 64 shall be read with Section 27 which bears the
heading – “Extinguishment of right to property”.
11-M. In
Indira v. Arnnigani[34],
it was held that where title is established, defendant has to prove adverse
possession.
11-N. As held in P.
Periasami v. P. Periathambi -(1995) 6 SCC 523), wherein it is held that “Whenever the plea of adverse
possession is projected, it is inherent in the plea that someone else was the
owner of the property.”
11-O. It is well established principle of
law that adverse possession is a question of fact which must be specifically
pleaded and proved.
Where plea of adverse possession was not raised in the pleadings, no amount of
proof can substitute pleadings in Abubakar Abdul Inamdar v. Harun Abdul
Inantdar[35].
11-P. Doctrine of
tacking is one relating to computation of period of adverse possession. Where a
person has been in possession without title short of statutory period and
another person succeeds such person and completes the rest of the period, such
person is entitled to compute the whole period for invoking the concept of
adverse possession. This principle cannot be extended in case of independent
trespassers.
12.
From the above prepositions, coming to the scope of appeal lis, now the points
that arise for consideration in deciding the appeal are:-
1)
Whether the plaint schedule property of nearly Ac.0.15 gts =
1820sq.yards out of Ac.0.18 gts. in Sy.No.834/AA is in existence and if so
whether the plaintiff vendor got any title over the same to convey in favour of
the plaintiff under the Ex.A.1 to 3=A.4 to 6 sale deeds?
2)
Whether the defendants proved got any right over the property
as their own or otherwise of perfected title by adverse possession to non-suit
the plaintiff?
3)
Whether the appeal claim for the suit reliefs of declaration of
title pursuant to the sale deeds to bind on one and all and for possession is
barred by res-judicata for no appeal preferred against another suit for bare
injunction discussed in O.S.No.89 of 1995 (O.S.No.123 of 1993) which suit filed
by the vendor of the plaintiff (appellant) in O.S.No.66 of 1994 and to which
this plaintiff(appellant) in O.S.No.66 of 1994 not a party(but for both suits
decided from separate evidence only by common judgment)?
4)
To what relief?
Points-1 to 3:
13. As points 1 to 3 are inter-related
not only on existence of property but also who got title over the same in
deciding the entitlement of the plaintiff claimed for possession with
declaration of title as per purchase to bind all including defendants and
consequence of appeal filed only against O.S.No.66 of 1994 common Judgment without
filing any appeal against O.S.No.89 of 1995(O.S.No.123 of 1993), all the three
points are taken up together. The fact that Sy.No.834/A and 834/AA are in
existence in the village of Garidepali is practically not in dispute. The
written arguments contention of respondents at para 7(ii) page 5 as if
plaintiff’s claim is for S.No.834/A is not at all correct. In this regard, it is important to note that
as per the plaint averments supra, what the plaintiff claimed purchased from B.Pedda
Sathyanarayana Reddy S/o Narsi Reddy under the three sale deeds, the Exs.A.1 to
A.3 of 1993 covered by rectification deeds i.e. Exs.A.4 to A.6 of 1994 is of 1820
sq.yards in total (805+805+210) which approximately comes to Ac.0.15 guntas out
of the extent of Ac.0.18 guntas in Sy.No.834/AA. It is no doubt the case of the plaintiff as
well as his vendor in the connected suit O.S.No.89 of 1995, that he got land of
about 32 guntas i.e. Ac.0.18 guntas and Ac.0.14 guntas respectively in
S.No.834/AA and also 833/AA is a contiguous extent as single plot. Thus, even
no appeal filed against O.S.No.89 of 1995 (suit for bare injunction for Ac.0.18
guntas in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA by that plaintiff
(vendor of present appellant-unsuccessful plaintiff in O.S.No.66 of 1994 for
declaration and possession and also injunction reliefs for Ac.0.15 guntas (1820
sq.yards) in S.No.834/AA); there is no res-judicata or obitor or estoppel or
waiver, so far as present claim of Ac.0.15 gts.(1820 sq.yards) out of Ac.0.18
gts. in S.No.834/AA, but for to other portion out of the suit claim in
O.S.No.89 of 1995 i.e. Ac.0.14 guntas in S.No.833/AA and Ac.0.03 guntas out of
Ac.0.18 guntas, save the portion covered by subject matter of the appeal of
Ac.0.15 gts.(1820 sq.yards) in S.No.834/AA. Thus, said contention in the
written arguments of respondents of non-filing of appeal against O.S.No.89 of
1995(O.S.No.123 of 1993) operates as res judicata to the suit claim in
O.S.No.66 of 1994 and the present appeal won’t lie is untenable.
13-A.
The boundary description to the property is on East: Miryalaguda to Huzurnagar R&B road and on
North: police housing colony and the way to it also not in dispute but for if
at all the western and southern boundaries. If that is the case, the plaint
schedule site of Ac.0.15 gts.(1820sq.yards) is the eastern portion out of the
plaintiff’s vendor’s Ac.0.32 guntas. As
per the order VII Rule 3 where the subject matter of the suit is immovable
property, the plaint shall contain a description of the property sufficient to
identify it, and in case as the property can be identified by boundaries or
numbers only as per record as settlement or survey, the plaint shall specify
such boundaries or numbers. Thus it is to be seen as per the provision, if the
description of the property is sufficient to identify; given either by
boundaries or by numbers, it is suffice.
The Apex Court in Sheodhyan Singh Vs.MCT. Sanchara Kour[36] held that in case identity of property was
established, even the mistaken mention of plot number if any only be regarded
as mis-description which does not effect the identity. Thus identity is the
criteria rather than manner in which it was described. In the Ex.A.7 relied upon by the plaintiff
which is the Khasarpahani of the year 1954-55(Which is a permanent revenue
record of great value), it is mentioned that Sy.No.834/A is an extent of Ac.0.33guntas
that belongs to one Banda Narasaiah and in the cultivation and enjoyment of
Banda Pullaiah as Khariddar. Further, Sy.No.834/AA Ac.0.18 guntas which also
belong to Banda Narsaiah and he is shown as a person in occupation and
enjoyment as pattadar, not to mention S.No.834 in an extent of Ac.1-13
guntas. These are the patta lands of said Banda Narsaiah as pattadar and
enjoyer as per colomn Nos.1,3,6 to 8,13 and 15 respectively. Thus, from this
also besides, the existence of Sy.No.834/A of Ac.0.33 gts., as a separate item,
the existence of Sy.No.834/AA of total Ac.0.18 guntas of land in the village is
established to say the description for the same with that as survey number to
identify given by the plaintiff is suffice as per Order VII Rule 3 of CPC
described supra so also from above proposition of the Apex Court in Sheodhyan
Singh (supra).
3-B.
In fact, the boundary description is
given by the plaintiff in the plaint schedule for the identity. This clears any
cloud or confusion on the total extent of S.No.834; the separate extents in
S.No.834/A and 834/AA respectively out of it. The plaint schedule speaks for
the 1820 sq.yards which is nearly Ac.0.15 gts., out of total Ac.0.18 gts., of
S.No.834/AA only and not for S.No.834/A.
The plaint schedule eastern boundary is Miryalaguda to Huzurngar road
not in dispute and on north, way leading to police quarters also is not in
dispute. Thus, if at all to dispute is, what described of the western and
southern boundary of plaint schedule as site and shops belongs to said B.Pedda
Sathyanarayana Reddy (plaintiff’s vendor). In fact that also even disputed
cannot be given credence if the remaining portion of S.No.834/AA Ac.0.03 guntas
and S.No.833/AA Ac.0.14 guntas are the plaintiff’s suit schedule-western and
southern boundaries. From the above, it is to consider the contention of the
defendants. In the written statement
filed by the defendants detailed supra, there is no dispute on the identity and
existence of the plaint schedule property from what 1st defendant
mentioned that was adopted by other defendants, from the 3rd line onwards
is “The true facts are vendor of the plaintiff has no concern with the suit
schedule land”. Hence, the sale deeds
executed by the vendor in favour of the plaintiff alienating for the suit
schedule land do not confer any title on him. The vendor of the plaintiff was
also not in possession of the suit schedule lands either on the dates of
execution of sale deeds or earlier to that. The vendor of the plaintiff filed
O.S.No.123 of 1993 on the file of the District Munsif, Huzurnagar against the
defendants herein in respect of the suit schedule land for issue of perpetual
injunction order restraining them from causing interference with his possession
and enjoyment of the same.” There is no single sentence even thereafter in
the written statement disputing the identity and existence of the plaint
schedule property. Said written statement filed was on 04.09.1996 which was
nearly two years after the suit filed on 29.09.1994(and three years after other
injunction O.S.No.123 of 1993). The evidence of the plaintiff as P.W.1 was
commenced on 17.01.1997 and the cross-examination of P.W.1 started on
14.02.1997 and completed on 26.02.1997. It was thereafter the additional
written statement was filed by 1st defendant adopted by other
defendants and therein also it was contended that the area measuring about
Ac.0.14 guntas covered by the suit site as per plan annexed to the written
statement (Ex.A.22) is in possession and enjoyment of the defendants and the
plaintiff and his vendor (plaintiff in O.S.No.123 of 1993) never in possession
of said land.
13-C.
In the P.W.1’s evidence in chief, he deposed that he purchased the plaint
schedule property in three occasions total 1820 sq.yards (Exs.A.1 to A.3=A.4 to
A.6) from his vendor, while he was in possession and enjoyment of the same and
obtained possession pursuant to the sale and applied for permission to the grampanchayat
to construct compound wall and raised temporary hut and when the defendants
being opponents politically interfered and objected for his working in suit
land; he filed the suit originally for permanent injunction. It was at the
P.W.1’s cross examination brought on record that one Banda Sarva Reddy’s two
sons were Pulla Reddy(father of Chinna Sathyanarayana Reddy i.e. father in law
of 1st defendant) and Kanna Reddy(father of Ranga Reddy-P.W.3) and
they partitioned in equal shares. Even from P.W.1’s further cross-examination,
there is nothing to say said Pulla Reddy and Kanna Reddy got any lands or site
in S.No.833/AA and 834/AA; but for in S.No.833, S.No.833/A and 834 and 834/A;
in which S.No.833/AA and 834/AA not at all part. Same is also clear from Ex.A.7
and A.14 and from Ex.A.17 and 17. The Ex.A.7 =A.14 kasrapahani of the year
1954-55 also contains the name of the father of the plaintiff’s vendor, Banda
Narsaiah and it also speaks said Narasiaiah (Narasireddy) referred as pattadar
and in possession and enjoyment particularly those lands in Sy.No.834/AA total Ac.0.18
guntas is established. The Kasrapahani is in fact a document of title as held
by a Division Bench of this court in Joint Collector, Rangareddy District
Vs. Syed Ahmed Hussain[37] observing that at para-14 that it is the
settled proposition of law that kasrapahani is
a record of rights and entries therein shall be presumed to be correct
unless contrary is shown as laid down by the Apex Court in Shikhar chand
jain Vs.digamber jain prabhand karini[38].
It is further observed that the kasrapahani once prepared is a record of
title and the same cannot be altered without there proceedings being issued by
the competent authority for the correction.
It was also held that subsequent to the Kasrapahani prepared, any
revenue record amended without amending kasrapahani cannot be to the advantage
of the person. It was also observed that
correction of kasrapahani of the year 1954-55 without there being order passed
to the said effect cannot be given any credence.
13-D.
Coming to the boundary description in the O.S.No.66 of 1994, it is only for
Ac.0.15 guntas (1820sq.yards) out of Ac.0.18 guntas in S.No.834/AA and whereas
the boundary description in O.S.No.89 of 1995(O.S.123 of1999) is for Ac.0.32
guntas in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA together) a single
plot. Thus those will not tally on all four sides. Ac.0.15 guntas in
S.No.834/AA for subject matter of O.S.No.66 of 1994 which is only part of
subject matter in O.S.No.123 of 1993(O.S.No.89 of 1995) of Ac.0.18 guntas in
S.No.834/AA and Ac.0.14 guntas in S.No.833/AA.
The fact that the eastern and northern boundaries admittedly tallying
and not in dispute of Miryalaguda-Huzurnagar road and way leading to police
quarters. The western and southern boundary described in O.S.No.66 of 1994 is
remaining land of plaintiff’s vendor i.e. out of Ac.0.32 guntas, the remaining
extent of about Ac.0.17 guntas (Ac.0.32 guntas-(minus Ac.0.15 guntas=1820
sq.yards). Even the western side of it, there is a Sarveswara theatre that is
the site sold by defendants and there is a suggestion to D.W.1 also by
plaintiff herein of in between there is site of the plaintiff’s vendor
remaining. The trial Court failed to notice these aspects in mentioning of the
suit schedule western and southern boundary as site with shops of the
plaintiff’s vendor; that no way shows any discrepancy. In the cross-examination
of P.W.1 by the defendants, he denied the suggestion of the defendants are in
possession of the suit property being titleholders or plaintiff’s vendor has no
title and possession over the property and he has thereby no possession or
title over the property and the additional written statement version was also
in turn to it. It is in fact while
admitting existence and identity of suit property by the defendants, said
cross-examination was made by claiming they got title over the property. Later,
the Ex.A.25 certified copy of GPA executed by father of defendants 2 to 4 was confronted
to the P.W.1, the contents of which even no where show any land owned in
S.No.833/AA and 834/AA; but for S.No.833/A and 834/A. To say the defendants 2
to 4 filed in Mandal Revenue Officer’s office, Garidepalli dated 03.08.1994 that
their father late Chinna Sathyanaryana Reddy is owner and possessor jointly
with their mother Lakshmama(D.1) for several survey numbers which include Sy.No.833/A
to the extent of Ac.0.13 guntas and Sy.No.834/A to the extent of Ac.0.17 guntas and they have no objection to
transfer the land of their father in the name of their mother Lakshmamma to
issue pattadar passbook. It is based on
that also the defendants lay a claim to the suit property in S.No.834/AA;
though it nowhere speaks any extent in Sy.No.834/AA. Even in their cross-examination they
confronted the P.W.1 with Ex.A.24 registered G.P.A. executed in his favour by their
father Chinna Sathyanararyana Reddy and his sister wherein the lands referred
in schedule were Sy.No.834/A2 to the extent of Ac.0.17 Cents and Sy.No. 833/A2
to the extent of Ac.0.13 cents but not for 834/AA (O.S.66 of 1994 (suit)
property) and 833/AA (both are subject
matter of O.S.No.89 of 1995(O.S.No.123 of 1993). The Ex.B.22 cancellation of the GPA by them
also speaks same survey numbers of said (Ex.A.24) GPA and not reflecting
834/AA(suit property in O.S.No.66 of 1994). Same is also the case with regard
to Ex.A.26 Form-IA claim that only referring S.No.834/A of Ac.0.17 cents and Sy.No.833/A
of Ac.0.14 cents, so also from Ex.A.27 Form-I, Sy.No.834/A.2, 834/A3, 834/A4 and
833/A3 and 833/A.4 and not for S.No.834/AA.(S.No. 834/AA shows name of
plaintiff for Ac.015 guntas of suit property).
13-E.
Ex.A.23 is the pattadar passbook in favour of the plaintiff issued on
01.07.1994 for the extents viz., Ac.0.06 cents in Sy.No.715 and Ac.0.15cents (suit
property) in Sy.No.834/AA and the alignment of Sy.No.834 is also shown therein
which reflects immediately to the South of Sy.No.834, Sy.No.833 is lying and
immediately to the North, Sy.No.835 is lying and the alignment also shows the
entire Sy.No.834 is in uneven manner. No doubt the suit schedule property of
Ac.15 guntas in S.No.834/AA out of Ac.0.18 guntas in S.No.834/AA is not
specifically indicated therein out of Sy.No.834, but for mentioned underneath
to say as part of it. The extent of S.No. 834, as per Ex.A.7 is more than an
acre and Sy.No.834/A, 834/AA are even not part of it as detailed supra. Of
which S.No.834/A is Ac.0.35 guntas and in sub division therein as A2 is among
it and so far as Sy.No.834/AA, it is 18 guntas as referred supra, it is
standing in the name of plaintiff’s vendor’s father Narsimhulu @ Narsi Reddy. Apart
from, it the plaintiff placed reliance upon Ex.A.8 to A.1—and A.15 revenue adangals.
13-F.
In Ex.A.8, it is mentioned that Sy.No.833/A is an extent of Ac.0.26 guntas, Sy.No.833/AA
Ac.0.14 guntas, Sy.No.834/A an extent of Ac.0.35 guntas. It is specifically
noted the Sy.No.834/AA Ac.0.18 guntas in
the name of B.Pedda Sathyanarayana Reddy (which the plaintiff claims his vendor’s).
So far as Sy.No.833/A, 834/A showing the names of B.Sathyanarayana Reddy, Buchamma
etc., concerned, they are as per Ex.A.24 GPA, the 1st defendant’s
husband and sisters-in-law. Even that is taken into consideration, it discloses
Sy.No.833/A is different to Sy.No.833/AA and S.No.834/A is different from Sy.No.834/AA
as those are different extents in different persons’ names. The same is also the position with Exs.A.9
and Ex.A.10 adangals. Even from Ex.A.11 adangal for Sy.No.834/AA extent of
Ac.0.18 guntas in the name of plaintiff’s vendor B.Pedda Sathyanarayana Reddy s/o
Narsi Reddy; so also from Ex.A.12 the name of plaintiff’s vendor B.Sathyanarayana
Reddy S/o Narsi Reddy for Sy.No.833/AA an extent of Ac.0.14 guntas. The Sy.No.834/AA is
in an extent of Ac.0.18 guntas is also clear from Ex.A.13. Ex.A.14 Kasrapahani which
is equal to Ex.A.7 also showing the plaintiff’s vendor’s father B.Narsi Reddy
as B.Narsaiah (pattadar) for item No.3 and so far as item No.2 Sy.No.834/A an
extent of Ac.0.35 guntas noted B. Narsaiah original pattadar and B.Pullaiah
person in occupation.
13-G.
The 1st defendant’s husband is by name Chinna Sathyanarayana Reddy S/o
Pulla Reddy. It is to say at the cost of repetition that from Ex.A.7=A.14
kasrapahani entries 834/A is in the name of 1st defendant’s husband’s
father Pulla Reddy and one B.Kanna Reddy
as enjoyer who purchased from original person Banda Narsaiah. The Sy.No.834/AA of
Ac.0.18 cents stands in plaintiff’s vendor’s father’s name as pattadar as well
as person in possession. Even from Ex.A.16 B.Sathyanarayana Reddy S/o Pulla Reddy
was shown along with Kannaiah, Lachamma,
Buchamma, Chandramma and Alivelamma etc., for Sy.No.833/A and 834/A only and
not for S.No.833/AA or S.No.834/AA and from the resettlement register. Even Ex.A.17 adangal shows 834/AA in the name
of plaintiff’s vendor B. Sathyanarayana Reddy and 834/A in the name of B.Ranga
Reddy, B.Sathyanarayana Reddy s/o Pulla Reddy,
B.Lakshmamma W/o B.Chinna Sathyanarayana Reddy and there is also mention at
colomn No.13 that there is a cinema talkies in the Sy.No.834/A. If we refer this entry with Ex.B.2 and with
reference to Ex.A.23 pattadar passbook of the P.W.1-plaintiff B.Pulla Reddy s/o
Chandra Reddy wherein alignment of Sy.No.834 shown if correlated to Ex.B.2 with
Ex.A.17 Sy.No.834/A and 834/AA respectively, the cinema talkies is showing
lying in part of Sy.No834/A and not in any extent of S.No. 834/AA. It is to say,
S.No.834/AA is north-east of total Sy.No.834 and S.No.834/A and that is also
correlating with plaint schedule northern and eastern boundary descriptions
which are not in dispute even by the defendants. The trial Court’s judgment
referring to the commissioner’s plan also speaks correctness of the northern and
eastern boundaries which are East: Miryalaguda-Huzurnagar R& B road, North:
police quarters and it further correlates to say Sy.No.833 is to the South of Sy.No.834.
13-H.
From this background, if we peruse the Ex.A.22 memo filed by the 1st
defendant’s husband late Banda Chinna Sathyanarayana Reddy, in the suit filed
by the plaintiff’s vendor B. Pedda Sathyanarayana Reddy, in I.A.No.247 of 1993 in
O.S.No.123 of 1993 by clearly mentioning that he has nothing to do with the
suit claim for Sy.No.834/AA, 833/AA is correct and the same is also substantiating
his version from Section 164 of Cr.P.C. statement recorded by Magistrate in the
crime regarding his alleged kidnap attributed against the plaintiff, however,
that he was not kidnapped by the plaintiff but for staying at his sister’s house
by name Kotha Buchamma of Ganugabanda, a different village. He stated further that
he was apprehending danger to his life from his wife and sons who are the
defendants to the suit. No doubt it cannot be taken as outright admission to
bind against the defendants herein, but for appreciating as to in what
circumstances he was to so state and at what influence. To say therefrom of the
so called kidnap by the plaintiff might not be true and in that angle, his
memo of he has nothing to do with the property covered in O.S.No.89 of 1995(123
of 1993) in Sy.No.833/AA, 834/AA has to be given credence as additional piece
of evidence as an independent corroboration to the plaintiff’s proved case. In that view of the matter by filing Ex.B.2 plan
without correlation of the entire Sy.No.834, and 834/A ,833/A sub divisions
land; neither it destroys the plaintiff’s case nor improves the defendants
contest so far as the plaint schedule in O.S.No.89 of 1995(123 of 1993) wherein
the suit schedule in O.S.No.66 of 1994 is part that is to say Sy.No.834/AA an
extent of Ac.0.15 guntas out of Ac.0.18 guntas not to mention S.No.833/AA
Ac.0.14 guntas = Ac.0.32 guntas in total.
Even coming to the Ex.B.3 relied on by the defendants of the so called
ROR extract, it speaks Ac.0.14 guntas and 0.18 guntas in the name of Banda
Sathyamaiah (it reflects for Sy.No.833/AA and 834/AA respectively) and the
other extents Ac.0.35 guntas and Ac.0.26 guntas concerned (it reflects Sy.No.834/A
and 833/A respectively). Thus, Sy.No.834/A of Ac.0.35 guntas and S.No.834/AA
of Ac.0.18 guntas are separate and independent is also crystal clear from the Kasrapahani
Ex.A.7=Ex.A.14 and with Ex.A.15 chowfasla.
13-I.
The value of kasrapahani as it already detailed above as document of title. Thus, it proves the title
of plaintiff’s vendor and in turn of plaintiff under Ex.A.1 to A.3=A.4 to A.6
read with A.7=A.14 and Ex.A.15 the names Chandramma, Lakshmamma, Sathyamaiah,
kannaiah reflects the 1st defendant’s husband and sisters-in-law for Sy.No.833/A
and Sy.No.834/A and the other name
reflects plaintiff’s vendor from combined reading of Ex.B.3 with A.7 as
detailed supra. So also from the Ex.B.4 so far as Sy.No.833/AA an extent of Ac.0.14
guntas and 834/AA an extent of Ac.0.18 guntas
stand in the name of B.Sathyanarayana Reddy (plaintiff’s vendor) as owner. No doubt, S.No.833/A and S.No.834/A show B.Ranga
Reddy for half in occupation and B.Sathyanarayana Reddy for half in occupation.
Even it is not correlating to the defendant much less 1st
defendant’s husband Chinna Sathyanarayana Reddy S/o Pulla Reddy, to claim
anything by them therefrom.
13-J.
Even coming to any attempt of the defendants to correlate with the additional
written statement plea of there was a partition between 1st
defendant’s husband Chinna Sathyanarayana Reddy, S/o Pulla Reddy, and one Ranga
Reddy S/o.Kanna Reddy. It was specifically pleaded that her husband got only Sy.No.833/A
and 834/A. It is not even the case of
the defendants in either claiming through the plaintiff or from any other
person for S.No.834/AA and 833/AA.
13-K.
Even from the Ex.B.8 Pahani filed by the defendants, it is correlating to
Ex.A.7 to say Sy.No.833/A is Ac.0.26 guntas and Sy.No.834/A is 0.35guntas stand
in the name of Banda Pulla Reddy. If it is Pulla Reddy, father of 1st
defendant’s husband Chinna Sathyanarayana Reddy, then even the defendants can
claim only Sy.Nos.833/A and Sy.No.834/A and not for Sy.Nos.833/AA and 834/AA,
since those extents as items 2 to 4 of Ex.B.4 for Ac.0.14 guntas and Ac.0.18 guntas
respectively (total of plaint schedule in O.S.No.123 of 1993) stand in the name
of B.Pedda Sathyanarayana Reddy i.e. plaintiff’s vendor. Same is also the
position from Exs.B.6 to B.9. Even coming to the name mentioned Kannaiah @ B.Kannareddy
S/o Sarva Reddy in Ex.B.10 that Kannaiah is reflected in Exs.B.8 and B.9 as in
cultivation concerned, it is Chinna Sathyanarayana Reddy’s father’s brother. Exs.B.10
and B.11 are also supporting the case of the plaintiff, so also, from Exs.B.12
to 14,16 to B.18.
13-L.
Coming to Ex.B.19 pattadar passbook in favour of 2nd defendant
B.Pulla Reddy S/o B.Chinna Sathyanarayana Reddy, it was at the 1st
page end shows the year 2010-2011,however, for colomn No.7 1st page
shown issued as if on 01.07.1994 and the internal page shows only 833/A ,834/A
of Ac.0.5cents and Ac.0.10cents and not for any extent in Sy.No.833/AA and Sy.No.834/AA
relating to the plaint schedule. So also from Ex.B.20 revenue title deed in the
name of 2nd defendant. Under
Ex.B.21 corresponding under ROR Act, the extent in Sy.No.834/AA Ac.0.15guntas
of Garidepalli passbook issued in favour of plaintiff (Ex.A.23) in 1994, they
claim that one Bonda Kannareddy and the appellant
are equal owners of Sy.No.834 and Sy.No.833 to patta for Ac.0.15 guntas in Sy.No.834/AA standing in the name of Bonda
pedda Sathyanarayana Reddy (plaintiff’s vendor) even the appellant is in
possession for past 30 years and Banda Pedda Sathyanarayana Reddy (vendor of
the plaintiff) has no concern with 833/AA and 834/AA in his filing the suit
O.S.No.123 of 1993 and the temporary injunction granted was vacated in appeal
and they wrongly obtained the entry in the pattadar passbook and in the counter
filed by B.Pulla Reddy S/o Chandra Reddy and B.Pedda Sathayanarayana Reddy (the
plaintiff’s vendor) in opposing the same saying B.Narsi Reddy F/o plaintiff’s
vendor is the owner and in possession for 834/AA an extent of Ac.0.18 guntas
and sold to the plaintiff out of it Ac.0.15 guntas and for the balance Ac.0.03 guntas
remained with him and they were issued accordingly pattadar passbooks when the
suit O.S.No.123 of 1993 pending. It was
therefrom the Revenue Divisional Officer, in his order stated that, for Sy.No.834/AA
an extent Ac.0.18 guntas, the pattadar Banda Sathyanarayana Reddy S/o Narsi Reddy
(vendor of plaintiff in O.S.No.66 of 1994=plaintiff in O.S. No.89 of
1995(O.S.No.123 of 1993)). When there is an objection filed by the appellants
regarding the dispute of the suit land and the suit land is not the
agricultural land but house site and the pattadar passbook issued for the house
site other than agricultural land is irregular, hence set aside by directing
the Mandal Revenue Officer, to conduct fresh enquiry. Even there is no finding that they are not
the titleholders in setting aside the pattadar passbook but for saying as it is
housesite in use and not continued as agricultural land and thus pattadar
passbook issued is wrong. In the observation of revenue entry is wrong he did
not refer any permanent revenue record or chowpalla or kasra pahani or sethwar
in making any observation therefrom. Thus, document no way improves the case of
the defendants to claim title, much less
disproved the title of the plaintiff and his vendor for the suit
schedule site of Sy.No.834/AA concerned.
13-M.
It is the settled law that an interim order of injunction pending suit, whether
modified or confirmed even in appeal against it is only to protect the
subject matter of the lis and co-terminus with the main lis but for to take any
assistance of any observations to substantiate any fact from the material on
record, those are of no independent value either to bind the trial Court in
final disposal or of this Court while sitting in appeal against said decree and
judgment of the suit, even entire matter is at large. So Ex.B.23 can no way
help the defendants.
13-N.
Even coming to Exs.B.24 to 31, the land revenue receipts in Ex.B.24 of the year
1977-78 only for Sy.No.833 and 834 as referred and not for Sy.No.833/AA and
834/AA. It is necessary to mention that, Sy.No.834/AA and 833/AA were even
there as per the kasrapahani of the year 1954-55 as discussed supra from Ex.A.7
and A.14 and when such is the case, the Ex.B.24 cannot reflect the property
covered by the plaint schedule in O.S.No.66 of 1994 and O.S.No.89 of 1995(123
of 1993) respectively; so also from Ex.B.25 tax receipt dated 25.06.1977,
Ex.B.26 tax receipt dated 19.06.1979, Ex.B.27 tax receipt dated
26.01.1981,Ex.B.28 tax receipt, dated 26.01.1982, Ex.B.29 tax receipt dated
01.06.1984, Ex.B.30 tax receipt dated 24.06.1980 and Ex.B.31 tax receipt dated
30.12.1985. Coming to Ex.X.1 and X.2=Ex.B.19,B.20 respectively, a close perusal
of Ex.X.1 when compared to Ex.B.19 reflects that out of 8 items, item Nos. 7
and 8 of Ex.B.19 passbook shown in Ex.X.1 passbook as item Nos. 4 and 5 and it
is not same but similar passbook in the name of P.W.3 B.Ranga Reddy S/o Kanna Reddy and it shows the item No.5 for Sy.No.834
tampered by correction as AA with different ink and overwriting. However, coming to the title deed Ex.X.2 also
there is overwriting after 834 as A only that is to say in Ex.X.1 ‘AA’ was
overwritten and in Ex.X.2 ‘A’ was overwritten after original writing of Sy.No.834. Whereas, coming to Ex.X.3, it no way reflects
Sy.Nos.834/AA and 833/AA but for S.Nos.833/A and 834/A an extent of Ac.026guntas
and Ac.035guntas respectively in the
name of Banda Pullaiah might be 1st defendant’s husband’s father B.Pulla
Reddy and when the plaintiff has no
claim in Sy.Nos.833A or 834/A, so also his vendor and the present O.S.No.66 of
1994 claim is not for S.No.833/A and
834/A; but for proof of S.No.834/AA apart from Sy.No.833/AA is also subject
matter of suit O.S.No.No.89 of 1995(O.S.No.123 of 1993) of said vendor of the
plaintiff. Thus, the Ex.X.3 also of no relevancy to oppose the suit claims. Ex.X.4
is also same to Ex.X.3 for the name mentioned B.Sathyamaiah S/o Pullaiah to say
1st defendant’s husband and the other names mentioned in the remarks
colomn B.Kannaiah, Sathyamaiah, Lachamma, Buchamma, Chandramma and Alivelamma
respectively of 1st defendant’s husband, sisters and brothers or
cousins if any including P.W.3’s father Kanna Reddy. Even coming to Ex.X.5, it
does not include Sy.No. 833/AA or Sy.No.834/AA but for the extent mentioned of for
Sy.No.833/A of Ac.013 guntas and Sy.No.834 at one place as Ac.0.18 guntas and
the other place as Ac.0.15 guntas without consistency. Thus, from said documents
relied upon by the defendants even, there is nothing to show Sy.No.833/AA Ac.0.14
guntas, 834/AA Ac.0.18 guntas subject matter of O.S.No.89 of 1995 (O.S.No.123
of 1993) of which in Sy.No.834/AA Ac.0.18 guntas is subject matter of the
present suit (O.S.No.66 of 1994) claim covered by Exs.A.1 to A.3=A.4 to A.6
supported by Ex.A.7=A.14 apart from other entries in the revenue records.
13-O.
Coming to Ex.B.1 sale agreement executed by 1st defendant’s husband
dated 24.06.1985 in favour of one Kusuma Serva Reddy, there is attestation of
B.Pulla Reddy among another and the schedule covered was only for Sy.Nos. 833/A
and 834/A and not for S.Nos.833/AA and 834/AA even to say the plaintiff (B.Pulla
Reddy) herein attested said agreement, it is apart from the fact that mere
attestation cannot be suffice to attribute knowledge of the contents but for
proof of attestation regarding admission of execution and signing before the
person as per Sec.3 of the Transfer of Property Act. Even taken for arguments
sake, said attestation was with knowledge of contents, when it is not relating
to S.Nos.833/AA and 833/AA it has no
bearing to oppose the plaintiff’s suit claim by the defendants much less to say
the same operates as estoppel in any manner against the plaintiff’s suit claim through
his vendor with right over the suit property. The fact that the agreement is in
1985 and the plaintiff’s title for the suit property covered by Ex.A.1 to A.3
are of 1993 also no way disentitle much less to contend as if no title passed to plaintiff therefrom. However,
when it is not for Sy.No.833/AA much less 834/AA of the suit schedule, it is
not even sufficient for the defendants to contend therefrom that they are in
possession of any part of S.Nos.834/AA and 833/AA or to say that establishes
any concept of adverse possession so to claim. Even coming to Ex.X.6 sale
deed (dated 04.05.1987) a perusal of the schedule speaks the housesite is in Sy.Nos.833
and 834 part of the extents shown and not any extent in Sy.Nos.833/AA and 834/AA
so also from Ex.X.7 sale deed (dated 04.05.1987) schedule; so also from Ex.X.8
sale deed (dated 29.03.1989) schedule, so also from Ex.X.9 sale deed (dated
29.03.1989) schedule and another sale deed of even date Ex.X.10 schedule or
Ex.X.11 sale deed (dated 04.05.1987) schedule besides nothing is legible
therefrom but for Sy.Nos.833 and 834 specifically mentioned including in words
on close reading without any sub division; so also from Ex.X.12 sale deed (dated
04.05.1987) schedule and also from Ex.X.13 sale deed (dated 04.05.1987)
schedule. Even coming to Ex.X.14 plan of 1987 which reflects only Sy.Nos.833
and 834 and not for Sy.Nos.834/AA and 834/AA.
Even coming to further cross-examination of P.W.1, no doubt it is
deposed that the suit schedule land is triangular bit, bounded by Miryalaguda
to Huzurnagar road on east and police quarters on north. He no doubt deposed that
on western side there is cinema theatre. If it is to say there is cinema
theatre, westwards it is correct. If it is to say the western boundary is
cinema theatre that is not correct as plaintiff has no land upto cinema theatre
but his western boundary site is the vendor’s remaining site of Ac.0.03 guntas
out of the Ac.0.18 guntas in Sy.No.834/AA
since what he purchased from his vendor under the Exs.A.1 to A.3 was Ac.0.15
guntas and the southern boundary mentioned by him are shops of Banda Chandra Reddy
and B.Amruthareddy.
13-P.
It is also reflecting from Exs.A.1 to A.3 sale deeds rectified by Exs.A.4 to
A.6 are the vendor’s remaining land to say the vendor’s land in Sy.No.833/AA(Ac.0.14
guntas) to correlate the same from the alignment of Sy.No.834 with land to its
south Sy.No.833 and land to its north Sy.No.835 as per Ex.A.23 pattadar
passbook enclosed plan in favour of plaintiff that reflects the combined sketch
for Sy.Nos.833,834 and 835 of
Garidepalli village. Even for arguments sake as discussed including from the
commissioner’s plan by the trial Court, the southern boundary is taken not
correlated, it no way belie for the existence of the plaint schedule and the
identity of the schedule property of plaintiff and his vendor in Sy.No.834/AA
not to mention 833/AA as the plaintiff’s vendor’s site is contiguous to its
south and west. It is to say P.W.1
deposed in the further cross-examination that, the cinema theatre land is
partly in 1st defendant’s husband’s extent of about 8 to 10 guntas.
It is also as discussed supra that, it is only out of the land in Sy.Nos.834/A
and 833/A of the defendants’ sold to their vendee, there is cinema theatre, so
also noted as part in one of the revenue adangals i.e. Ex.A.17 item No.1, Sy.No.834/A
out of Ac.0.35 guntas, dry, housesite in the name the defendants and their
vendee as per column No.12 and in column No.13 reference is there of the cinema
theatre therein. It is thus clear
that the theatre is only in Sy.No.834/A which is to the west of 834/AA of the
plaintiff and his vendor.
13-Q.
Thereby from this evidence including in Cross-examination of P.W.1 with
reference to the documents also, it substantiates the suit claim and it no way
to the advantage of defendants to make any claim over S.No.834/AA of plaintiff
and his vendor. The contention of suit for possession with declaration of the
sale deeds, as valid and binding won’t lie from denial of plaintiffs’ title and
of his vendor by the defendants to say cloud on title; without seeking
declaration of title to clear cloud; is untenable. Ther is no any cloud on the
title of plaintiff and his vendor over S.Nos.834/AA and 833/AA from what all
discussed supra elaborately that proved the title of plaintiffs. Thus, once
plaintiffs’ title claiming through his vendor is proved by preponderance of
probability, the burden shifts on the defendants to establish their right and
title or claim of adverse possession vide RVEE Gounder(supra). Further, there
is no proof of adverse possession against plaintiff and his vendor over suit
property from what is discussed above. In
fact, plaintiff as per above title when entitled to possession for no proof of
adverse possession and prescriptive right, the relief can be granted. In this
regard,P.W.1-plaintiff denied the suggestion of hut in the suit land laid by
the defendants, while reiterating he laid the hut, so also the wooden boxes and
denied the suggestion of the defendants erected the wooden boxes, not after
filing of the suit, but before filing of
the suit. The other suggestion is that plaintiff has given wrong boundaries.
From what is discussed supra there is no difficulty to identify the existence
of plaint schedule property in the north-east corner Ac.0.15 guntas out of
Ac.0.18cents in S.No.834/AA and Ac.0.14 guntas in S.No.833/AA. He also denied
the suggestions of the defendants are in
possession of the suit schedule property of Ac.Ac.0.15 guntas (1820 sq.yards)
and not plaintiff, much less the defendants dispossession of the plaintiff after
filing of the suit. It is even denied
the other specific suggestion of for last thirty years prior to the date of suit,
the defendants are in possession of the
suit site might be in their say for 30
years to make any claim of adverse possession.
For that even, there is no proof, as discussed supra, to establish any
possession of them in suit land of the plaintiff and his vendor at any point of
time, or to say to knock away the land of the defendants, the sale deeds Ex.A.1
to A.3 = A.4 to A.6 are created.
13-R.
P.W.2 Y.Anjan Reddy S/o Ranga Reddy also deposed that the suit land which is near to the police station of
Garidepalli village was in possession of plaintiff’s vendor earlier, since his age of description and the
defendants or their predecessors never in possession and after purchase by
plaintiff, plaintiff is in possession. He deposed that, only few months before
his giving evidence, the 1st defendant constructed portion of the
wall in a portion of the site and there are no other persons in possession of
the suit site and he knows the facts as suit land is 150 yards near to his
house in the same village. In the cross-examination, he deposed that the suit
land is in triangular shape almost and Sarveshwara theatre is towards west of
the suit land, one Ragi Reddy and Chinna Sathyanarayana Reddy are brothers by
courtesy and they got equal rights in their land and the land covered by the
theatre was sold by Chinna Sathyanarayana Reddy (husband of 1st
defendant) and the Malgies constructed by B.Chandra Reddy, Ragi Reddy and
Amrutha Reddy in the site sold by Chinna Sathyanarayana Reddy, (husband of 1st
defendant) and the land of Ragi Reddy was on the western side of Sarveshwara theatre. He denied the
suggestion of the suit schedule land is not that of B.Pedda Sathyanarayana
Reddy, and his vendee the plaintiff B.Pulla Reddy. He denied the suggestion of the hut and the six
wooden boxes in the suit schedule site belong to the defendants or the hut was
not raised by the plaintiff or the plaintiff and his vendor have no concern
over the plaint schedule land or he is giving evidence by taking amount
falsely. Even from this cross-examination,
it substantiates that the plaint schedule property belongs to the plaintiff and
it is out of total extent of his vendor Pedda Sathyanarayana Reddy on the
north-east portion near to the police station and the defendants’ land is only
westwards and further south-west if at all.
That finding correlates from what is discussed supra to say, not only
existence of the plaint schedule is not in dispute but also the identity
sufficiently of the plaint schedule and the title over the plaint schedule of
plaintiff and his vendor is proved.
13-S.
Coming to the evidence of P.W.3 B.Ranga Reddy S/o Kanna Reddy, he deposed that
himself and husband of 1st defendant
partitioned their ancestral properties and revenue records reflecting
their name and they got each Ac.10-00 and he gave 2 acres to his sister and
they obtained pattadar passbooks and he knows the total extent of Sy.No.834 as
Ac.1-13 guntas in which himself and Chinna Sathyanarayana Reddy were having two
shares and Pedda Sathyanarayana Reddy was having one share and their two portions
are on western side and land of Pedda Sathyanarayana is on eastern side, the
land fallen to the share of Chinna Sathyanarayana Reddy was sold for Sarveshwara
theatre and the said land is bounded by northern side passage leading to Kodandapuram
and in south Miryalguda road and on west Sarveshwara theatre supra and in on
eastern corner there is police station and he knows sale transaction between
the plaintiff and his vendor Pedda Sathyanarayana Reddy and plaintiff in
possession after his purchase and six months prior to his evidence, 1st
defendant by proclaiming as succeeded to the lands she got electrified to the
hut existing in the suit by constructing a corner wall. In his evidence, the
Exs.X.1 to X.5 are marked that are referred supra. In the cross-examination, P.W.3
deposed that, the partition between him and Chinna Sathyanarayana Reddy (husband
of 1st defendant) was in the presence of elders for Sy.No.833 and
834 and there was no survey taken place at that time and his father Kanna Reddy
also known as Kannaiah and Chinna Sathyanarayana Reddy as Sathyamaiah and for
the survey numbers 833 and 834 since 1968 name of his father and Chinna
Sathyanarayana Reddy noted and Sarveshwara theatre situated on the western side
of his share, that was sold to the theatre, by Chinna Sathyanarayana Reddy. On
the southern side of suit schedule land, there are Mulgies of B.Chandra Reddy
and Ragi Amrutha Reddy, and he does not know whether that site was sold to them
by Chinna Sathyanarayana Reddy and that he sold some extents of his land to
third parties. He denied the suggestion
of the plaintiff or his vendor Pedda Sathyanarayana Reddy have got no sort of
right over the plaint schedule property or in order to grab the same by them
and at their instance, he deposes falsehood. He also deposed that the suit
schedule property is triangular bit and denied the suggestion of P.W.1 was
never in possession of the suit schedule. He also denied the suggestion that,
the 1st defendant installed six wooden boxes in the plaint schedule
property prior to the suit and the northern side passage to the plaint schedule
leading to Kodandarampuram is known as Donka.
13-T.
Even the P.W.4 Lingam Ramulu of the village deposed about the suit schedule
property belongs to Pedda Sathyanarayana Reddy who sold it to the plaintiff and
to its north there is kodandarampuram village passage and on east there is road
leading to Huzurnagar and on south some part was bounded by shops and some part
was bounded by Miryalaguda road and on west there is cinema theatre and buses from
Huzurnagar to Miryalaguda station being stopped before the police station which
is near to the suit land, that used to be in possession of plaintiff’s vendor Pedda
Sathyanarayana Reddy, since his age of description and he is getting some work
in it and thereby he knows the facts. He
deposed that 3 months prior to his giving evidence, the 1st
defendant was proclaiming in the village that she won the case and got
electrified the hut existing in the suit site and also in the corner raised a
wall and raised some wooden bunks and the suit land does not belong to the defendants or their
predecessors and they were never in possession. In the cross-examination, he
denied the suggestion of neither plaintiff nor his vendor ever in possession,
but for 1st defendant’s husband to the suit land and he is deposing
falsely or the hut raised by the
defendants in the suit land and not by plaintiff or the six wooden shops were
there in the suit land even prior to the filing of the suit or the defendants
were letting out those shops even before
filing of the suit. He deposed that, the suit land is in triangular shape and
denied suggestion of the plaintiff and his predecessor Pedda Sathyanarayana
Reddy were never in possession or he is giving false evidence to support their
case. Even from his evidence, there is nothing to dispute identity and
existence of plaint schedule much less to discredit the evidence of P.Ws. 2 to
4 so far as the plaintiff’s possession and enjoyment since his predecessor over
the suit site concerned, but for any little inconsistency in describing the
western boundary as cinema theatre in stead of showing in between if at all
there is some other site of the plaintiff’s vendor might be inconsistency for
their not knowing only 15guntas out of 18 guntas in Sy.No.834/AA that was purchased
by the plaintiff from his vendor Pedda Sathyanarayana Reddy.
13-U.
In addition to what is discussed above even from the evidence of 1st
defendant as D.W.1, she deposed that the plaintiff and his vendor not concerned
with Sy.No.833 and 834 and therein her husband Chinna Sathyanarayana Reddy and
his cousin Ranga Reddy got each Ac.0.31 cents not by actual partition by
measuring but by assumption their partition in showing western half fell to the
share of Ranga Reddy, eastern half to
her husband Chinna Sathyanarayana Reddy and they sold their land to Kusuma
Sarva Reddy of extent of 1600 sq.yards and another 200 sq.yards to Banda Chandra
Reddy and another 200 sq.yards to R.Venkatalakshmi and there after there
remained about 13 to 14 guntas of land Sy.No.833 and 834 of them and she
constructed a hut and leased out to one Raju and also placed six wooden boxes
and leased out to Sreenu, Pichaiah and Mysaiah, about ten years back and for
the past thirty years they are in possession of the suit schedule land and the
plaintiff and his vendor Pedda Sathyana Reddy have no right over it and it is
her land and not that of them from boundary shown in the plaint schedule it is
not for the suit land. Exs.B.1 to B.31
already discussed supra which no way reflect much less relate to suit land of Sy.No.834/AA.
In the cross-examination, she deposed that she cannot say what were the
documents she filed before the RDO, Miryalaguda against the issue of the
pattadar passbook in favour of the plaintiff and she also filed a revision
before the Secretary, Panchayat Raj Department, against the permission for
construction of wall granted to the plaintiff in suit site with claim that they
are owners for 833 and 834 half share and for the remaining half B.Kanna Reddy is
owner and plaintiff has no concern. She
deposed that in the said grounds of appeal, there is no reference of Sy.No.834/AA
so also in the caveat petition she filed. She denied the suggestion of she is
not in possession of Sy.No.834/AA but for plaintiff. She deposed that in the
land sold by them a cinema hall constructed and she does not know whether any
land to the north of cinema hall is in the occupation of any purchasers to whom
they sold. She denied the suggestion of prior to the plaintiff’s purchase of
the suit land, plaintiff’s vendor was in possession and enjoyment being the
owner and after C.M.A. against the temporary injunction, she placed the wooden
bunks in the suit site pending suit. She
denied the suggestion that, the plaintiff laid the hut in the suit site even
before filing of the suit. She deposed that memo was filed by her husband in
O.S.No. 123 of 1993 (renumbered as O.S.No.89 of 1995) stating that the land in
Sy.No.834/AA and 833/AA belongs to Pedda Sathyanarayana Reddy. She added that it was obtained by coercion and
got filed in the Court. In fact, there was no such suggestion to the
plaintiff-P.W.1 even it is marked in his evidence in cross-examination and
having admitted the memo duly filed. Now after several years, she cannot say
that, it is obtained by coercion. That memo also clearly admits that, the
defendants have no claim over Sy.No.834/AA of Ac.0.18cents in which the plaint
schedule of Ac.0.15 guntas is part of that belongs to plaintiff’s vendor Pedda
Sathyanarayana Reddy from whom the plaintiff purchased as the memo was given in
favour of plaintiff’s vendor by the 1st defendant’s vendor in the
suit filed by the plaintiff’s vendor against them as she admitted supra. To say
that it was obtained by coercion, there is no basis. Thereby, it is a clear admission within the
purview of O. XII Rule 6 CPC that cannot be ignored being relevant and
admissible under Section 17 of the Indian Evidence Act in its substantiating the
suit claim of plaintiff and belying the contest of the defendants. She denied the suggestion of all their lands were sold by them and to
gain illegally over the suit property, she is deposing falsehood and even memo
given by her husband voluntarily she is deposing as if it was obtained by
coercion or threat.
13-V.
D.W.2 Kusuma Sarva Reddy deposed that ten years back he purchased the land Sy.Nos.833
and 834 in the presence of P.W.1 and others and plaintiff was one of the
attestors to the Ex.B.1 agreement which is for Ac.0.30 guntas in Sy.Nos.833 and
834 and on eastern side of the land Ac.0.01gunta of land remained for
defendants and he obtained registered sale deed for 1600 sq.yards in stead of
30 guntas in the name of his daughter and two sons viz., Kusuma Narayana Reddy,
Kusuma Narsi Reddy and Aananthalakshmi and the remaining 14 guntas is in
possession and enjoyment of defendants with some shops in possession of one
B.Chandra Reddy, R.Venkattalakshmi to whom the defendants sold and plaintiff or
his vendor Pedda Sathyanarayana Reddy have got no sort of right over the
remaining land. In the suit land there is a hut raised by defendants and there
are six wooden boxes laid by the defendants with which the plaintiff and his
vendor no way concerned. In the cross-examination, he deposed that the land
they purchased in all 1800 sq.yards wherein the cinema theatre and some mulgies
they constructed by left over some site in Sy.No.835 and 834 covered by Ex.X.6
to X.12 sale deeds executed by the 1st defendant’s husband and his
sons and daughter. He deposed that they did not leave any space on western side
of the cinema hall upto the site they purchased and constructed compound wall to
their site and details of boundaries he does not know and there is also no land
left on northern side of the cinema hall belongs to defendants and he cannot
say the measurements of the cinema hall within the compound or the length and
width upto road on south. He denied the suggestion that to help the defendants, he is giving false
evidence. Even taken from this evidence to say the defendants erected the
wooden boxes and raised hut he did not speak in which year they did and there
is no permission of the panchayat admittedly and there is no documentary
evidence to say the defendants’ possession over any extent in the suit land for
any length of period to claim any adverse possession against the plaintiff and
his vendor.
13-W.
D.w.3 B.Chandra Reddy deposed that he purchased 200 sq.yards from husband of D.W.1 under sale deed of 1987
and constructed shops which is bounded by east: the house of Ragireddi Amrutha
Reddy, West: opposite side of cinema hall of K.Sarva Reddy, south: road and
North: land of defendants. To say that
on the north there is any land of defendants, there is no basis. To say that
from the date of his purchase in the said land there were wooden boxes what he
purchased was in the year 1987 and his evidence was in the year 1997,and not
beyond 12 years even. By other breadth, he deposed that, those wooden boxes were constructed by defendants only 7 years
back. Even as per the defendants, it is subsequent to the sale deed only, the
wooden boxes were laid. Even from this,
there is no possession and enjoyment much less with animus to claim adverse
possession over statutory period. His
saying of the plaintiff has no land adjacent to the land of defendants or the
land is in possession and enjoyment of the defendants is only of 7 or 8 guntas,
the same is incorrect. The suit land is in fact, Ac.0.15 guntas out of Ac.0.18 guntas
in Sy.No.834/AA, apart from Ac.0.14 guntas another extent also covered in the
plaintiff’s vendor suit O.S.No.123 of 1993 and as such even from his say of
defendants in possession of 7 or 8 guntas, it is no way suffice to say their
possession is of the suit land. He
denied the suggestion of the wooden boxes are laid only 8 months back. He
denied the suggestion that he is speaking falsehood.
13-X.
Even coming to evidence of D.W.4 R.Venkatalakshmi who purchased 300 sq.yards
from the husband of D.W.1 but got registered only for 200 sq.yards; for saying on north-east to
it the defendants got land which is the suit land with wooden shops and hut for
the past ten years and neither the plaintiff nor his vendor Pedda
Sathyanarayana Reddy got any land there to her knowledge, that is not even
suffice to set up adverse possession. In the cross-examination, she deposed
that she and D.W.1 are friends and relatives. She denied the suggestion of she
is deposing falsehood despite the wooden shops laid by the defendants only 8
months back and the hut existing in the suit site constructed by the plaintiff
4 years ago, only to help the defendants. Even from her evidence to say the
defendants in possession with hut and bunks only for the past ten years to the
date of her evidence in 1997 and not before and when defendants have no title
for Sy.No.834/AA as discussed supra and no possession over the statutory period
they cannot claim any right much less to oppose the suit claim. Even coming to
the D.W.5’s evidence concerned; he deposed that in one of the wooden shops in
the suit site, he is running a barber shop that was erected by defendants 9 years
back apart from other adjoining 5 shops there and there is also a hut erected
about four or 5 years back and hence the disputed site is that of defendants. Even
from this evidence, the defendants have no possession much less over statutory
period and in the cross-examination, he denied the suggestion that he started
running Saloon shop in the wooden bunk only 4 or 5 months prior to his evidence.
He deposed that, he did not pay any professional tax but for only this year. He
denied the suggestion of as there was no bunk earlier, there was no
professional tax paid by him but for this year for the bunk there only for past
few months erected running. Thereby this
evidence also belie the defendants claim of the bunks constructed some time
prior to the filing of the suit by defendants. In fact, it supports the
plaintiff’s claim of the bunks forcibly erected by the defendants after filing
of the suit.
13-Y.
D.W.6 B.Ram Reddy deposed that he knows the disputed land that belongs to Chinna
Sathyanarayana Reddy and Ranga Reddy and not of plaintiff and his vendor Pedda
Sathyanarayana Reddy, in Sy.No.833 and 834. He deposed that the D.W.1 placed
wooden boxes and also the hut long back. However, he did not say how long back.
Even from this, it is D.W.1 and not her husband that erected in his lifetime
and husband of D.W.1 died only pending the suit O.S.No.89 of 1995(O.S.No.123 of
1993) in the year 1996, as can be seen from the memo filed and recorded of the
legal representatives also on record that also substantiates the plaintiff’s
claim and belies the defendants contention, apart from his cross-examination evidence is that he and
plaintiff worked as panchayat ward members, though denied the suggestion of
that they are rivals to plaintiff and out of that enmity, he is deposing
falsehood. He denied the suggestion of the wooden shops are placed only 4 or 5
months back in the suit site and the hut erected by the plaintiff was more than
2 ½ years prior to his evidence. Said
constructions even those made by D.W.1 in the plaint schedule property are thus
liable to be removed if the defendants want to take away the material, else for
no protection they are entitled under Section 51 of the Transfer of Property
Act for the same, the plaintiff can cause remove through Court of law and take
vacant possession, if not willing to take possession with the constructions as
form part of the land concerned. Same is also the position with regard to any
constructions made by the (5th defendant) 5th respondent
(Smt. R.Sailaja) who was implead on merits and contest by respondent Nos.1 to 3
of the appeal, as per orders in ASCMP No.2565 of 2011 dated 04.11.2013, from
her non-appearance despite notice served to have any say to the application.
Thus any alienation in her favour by other respondents for any part of the
plaint schedule property will not confer any rights being hit by Section 52 of
the T.P.Act. on the principle and doctrine of lis pendence. She also cannot claim any protection under
Section 52 of the T.P.Act or as bonafide purchaser.
14.
Therefrom, from the evidence let in by the defendants, it no way improves the
defendants case even taken for arguments sake the defendants are in possession
of the suit land, as the suit is for recovery of possession and plaintiff
established his title and of his vendor from the material on record as discussed
supra and the defendants could not establish that they and their predecessors
got any right or possession over the land in Sy.No.834/AA and 833/AA in which
the suit land is part and the suit land identity also cannot be disputed so
also its existence since proved and the plaintiff proved his title and
entitlement to possession, the trial Court went wrong in dismissing the plaintiff’s
suit in stead of decreeing having also held at page 73 of the Judgment about
the existence of the land in S.No.833/AA and S.No.834/AA. Accordingly, the
Points 1 to 3 are answered in favour of the appellant(plaintiff in O.S.No.66 of
1994) holding that:
a)
The plaint schedule property of (Ac.0.15 guntas=1820 sq.yards which is on
north-east out of the plaintiff’s vendor’s property of Ac.0.18 guntas in
S.No.834/AA and to its west S.No.833/AA and that is nothing to do with the
defendants extents in S.No.833/A and 834/A and thus the defendants have no
right over the plaint schedule property of plaintiff through his vendor in
S.No.834/AA and the defendants have no way proved any adverse possession over
it against the plaintiff and his vendor;
b)
The non-filing of appeal against O.S.No.89 of 1995(O.S.No.123 of 1993) by
plaintiff’s vendor no bar for maintainability of the suit claim under appeal
and its maintainability;
c)
The identity of plaint schedule property also proved by the plaintiff-appellant; and
d)
The plaintiff is entitled to eject all the defendants (respondents to the
appeal) from the plaint schedule property with any structures or constructions
of them therein by its removal.
15.
In the result, the appeal is allowed, however, with no costs by setting aside
the trial Court’s dismissal decree and judgment and by decreeing the
plaintiff’s suit claim declaring that the plaintiff got right and title with
entitlement to possession pursuant to
the Ex.A.1 to 3=A.4 to A.6 sale deeds (with reference to Exs. A.7 and A.14
Kasrapahanis also) over the plaint schedule property of Ac.0.15 guntas (1820
sq.yards) eastern towards north out of Ac.0.18 guntas in S.No.834/AA of
Garidepalli village and the suit as filed is maintainable and all the
defendants (all the respondents to the appeal) are liable to be evicted including
any persons claiming through them and bound by the decree and by directing the
defendants(respondents) to vacate the plaint schedule property within one month
from today and deliver vacant possession by removal of the constructions they
made failing which the plaintiff(appellant) is entitled to execute the decree
and recover possession through Court of law with costs against all the
defendants-respondents.
16.
Miscellaneous petitions, if any, in this appeal shall stand closed.
_________________________
Dr. B. SIVA
SANKARA RĀO, J
Date:
06-03-2014
VVR
Note: L.R. copy to be marked. Yes/No.
