Andhra HC (Pre-Telangana)
Bandaru Satyanarayana vs Ganji Suryanarayana Murthy And Rs. on 7 January, 2003
Equivalent citations: 2003(4)ALT596
JUDGMENT Dubagunta Subrahmanyam, J.
1. This appeal is filed against the Judgment and Decree dated 16-1-1998 in A.S.No. 45 of 1992 on the file of the Senior Civil Judge at Narsapur confirming the Judgment and Decree dated 15-7-1992 in O.S.No. 364 of 1989 on the file of the Principal District Munsif, Narsapur. The 1st defendant in the suit is the appellant.
2. Ac. 0-98 cents of land situated in R.S.Nos. 217/5, 217/6, 217/7 and 224 in Kontheru village is plaint 'A' schedule property. The total extent in R.S.No. 217/5 is Ac. 0-16 cents. Plaint 'B' schedule property forms part of plaint 'A' schedule property. Ac. 0-08 cents of land in R.S.No. 217/5 is plaint 'B' schedule property. There is a thatched house bearing assessment No. 87 and door No. 3-87 in 'B' schedule property. Originally Ganji Ganga Raju and Nalam Subba Rao are the joint owners of plaint 'A' schedule property. Ganji Ganga Raju died. After his death, Nalam Subba Rao filed a suit in O.S.No. 102 of 1953 against the legal heirs of G. Ganga Raju for partition of plaint 'A' schedule property into equal shares and for allotment of half a share to him. A preliminary decree for partition was granted in favour of Nalam Subba Rao. However, no petition for final decree was filed by any of the parties to the partition suit. Therefore, there was no division of plaint 'A' schedule property between the two families of Ganga Raju and Nalam Subba Rao by meets and bounds. These are all undisputed and admitted facts. There is also no dispute that after the death of Nalam Subba Rao, his son Nalam Papa Rao sold his undivided half share in plaint 'A' schedule property to P. Rama Murthy under a registered sale deed dated 16-3-1966. According to the plaintiff in O.S.No. 364 of 1989, as the 1st defendant-appellant was related to Ganga Raju, in or about 1979-80, he was permitted to reside in plaint 'B' schedule property. It is also their case that they constructed a thatched house in plaint 'B' schedule property and in that thatched house the 1st defendant was permitted to reside. They contend that plaintiff and defendants 2 to 6 wanted to effect a partition of plaint 'A' schedule property and asked the 1st defendant-appellant to vacate and deliver vacant possession of plaint 'B' schedule property but the 1st defendant-appellant did not oblige and vacate the same. The suit was filed for declaration, that the plaintiffs 1 to 5 and defendants 2 to 6 are the absolute owners of plaint 'B' schedule property and also for possession of plaint 'B' schedule property after evicting the 1st defendant. For the sake of convenience in the course of this judgment, reference to plaintiffs 1 to 5 as well as defendants 2 to 6 will be made as plaintiffs. The plaintiffs further pleaded that they have perfected their title to the suit property by adverse possession. The 1st defendant contested the suit taking various pleas. He did not dispute that G. Ganga Raju and Nalam Subba Rao were the original joint owners of entire plaint 'A' schedule property. During the course of the trial, he admitted that a preliminary decree for partition was passed in O.S.No. 102 of 1953 instituted by Nalam Subba Rao. He also admits that on 16-3-1996 Nalam Papa Rao sold his undivided half share in plaint 'A' schedule property to P. Rama Murthy. It is his plea that P. Rama Murthy and himself jointly purchased undivided half share in plaint 'A' schedule property from Nalam Papa Rao and however, the registered sale deed dated 16-3-1966 was obtained in the name of P. Rama Murthy alone. It is also his contention that himself as well as P. Rama Murthy paid separately sale consideration amount to N. Papa Rao under the registered sale deed dated 16-3-1966. He pleaded that during the year 1966 itself, there was a partition and in that partition eastern half of plaint 'A' schedule property fell to the share of the sons of G. Ganga Raju and western half fell to the share of himself and P. Rama Murthy. It is also his further plea that after the said division, the western half was again divided between himself and P. Rama Murthy and about Ac. 0-10 cents of land on the north-east corner including plaint 'B' schedule property fell to his share. According to him Ac. 0-39 cents of land was taken by P. Rama Murthy and he took only Ac. 0-10 cents of land. He also pleaded that after the said division he constructed a thatched house and is residing in the thatched house in his own right from the year 1966 onwards. He denied that the plaintiff perfected the title to plaint 'B' schedule property. He denied that he was in permissive possession of plaint 'B' schedule property. He also pleaded that he perfected his title to plaint 'B' schedule property by adverse possession also. He did not take a specific plea in his written statement, that the suit is bad for non-joinder of necessary parties namely the legal heirs of Nalam Subba Rao without taking such a plea he contended before the trial court that the suit is bad for non-joinder of legal heirs of Nalam Subba Rao. Both parties adduced oral and documentary evidence before the trial Court. On a consideration of the entire evidence adduced before him, the learned District Munsif disbelieved the version of the plaintiffs, that the 1st defendant was inducted into possession of the entire plaint 'B' schedule property. He also disbelieved the version of the 1st defendant about the plea of partition set up by him. He held that the legal heirs of Nalam Subba Rao are necessary parties to the suit and therefore, their non-joinder is fatal to the case of the plaintiffs. He disbelieved the plea of the plaintiffs that they perfected by adverse possession their title to the suit property. Simultaneously, the trial Court disbelieved the version of the 1st defendant the he perfected his title to the suit property by adverse possession. According to the learned District Munsif, the plaintiffs are entitled for declaration of title regarding plaint 'B' schedule property excluding the thatched house situated in plaint 'B' schedule property. He accordingly, decreed the suit of the plaintiffs partially excluding the thatched house in plaint 'B' schedule property. Aggrieved by the said Judgment and Decree of the trial Court, the 1st defendant preferred an appeal before the Senior Civil Judge, Narsapur. The lower appellate Court concurred with all the findings given by the District Munsif. Accordingly, the learned Senior Civil Judge dismissed the appeal filed by the 1st defendant. Aggrieved by the Judgment and Decree of the lower appellate Court, the 1st defendant preferred the present appeal before this Court.
3. In the memorandum of grounds of appeal some grounds were raised by the appellant as substantial questions of law, which arise for determination in the present appeal. At the time of admission of this appeal, the learned admission Judge merely passed an order admitting the appeal. As required under Section 100 (4) C.P.C. no substantial question of law was formulated at the time of admission of this appeal. It is mandatory for the Court to formulate a substantial question of law in a second appeal and then decide the appeal. In my considered opinion, the following substantial question of law arises for consideration in the present appeal.
Whether in the circumstances and facts of the case whereunder the learned District Munsif gave conflicting findings of fact which were affirmed by the lower appellate Court without formulating necessary points for determination in the appeal, the judgments of the two Courts are liable to be set aside and the entire suit is liable to be remitted back to the trial Court for fresh disposal in accordance with law?
4. Both parties adduced oral and documentary evidence before the trial Court. A civil suit is to be disposed of by a Civil Court on the basis of preponderance of evidence and probabilities of the case. A Civil Court is not entitled to give conflicting findings of fact and then ultimately decree or dismiss the suit. A reading of the judgment of the learned District Munsif gives me the categorical impression that for some reason or other he is bent upon rejecting each and every contention advanced by both the parties to the suit.
5. According to the plaintiffs, the 1st defendant during the year 1979 or 1980 was inducted into possession of the suit property and the said permission amounts to a licence. According to the 1st defendant, he was in possession of the entire plaint 'B' schedule property in his own right and he even perfected his title by adverse possession to the plaint 'B' schedule property. Therefore, after both the parties adduced evidence as required by them before the trial Court, the learned District Munsif is bound to scrutinize and analyse the entire evidence and then give a finding as to whether the possession of the 1st defendant is permissive possession or the said possession is in his own right. He did not give any such finding on this crucial aspect. He disbelieved the version of the plaintiffs that the 1st defendant is in permissive possession of plaint 'B' schedule property. He also disbelieved the version of the 1st defendant that he is in possession of the suit property in his own right.
6. Regarding the pleas of adverse possession set up by both the parties, the learned District Munsif held that the plaintiff have not perfected their title to plaint 'B' schedule property by adverse possession. He also found that the 1st defendant also did not perfect his title to plaint 'B' schedule property by adverse possession. He rejected the version of the 1st defendant that he was paying land revenue for the land covered by plaint 'B' schedule property and he was also paying house tax for the thatched house situated in plaint 'B' schedule property. He had conveniently forgotten that the thatched house forms part of plaint 'B' schedule property. He did not give any credence to the land revenue receipts produced by the 1st defendant on the ground that according to the plaintiffs the 1st defendant-appellant was in permissive possession. When he made such an observation for not relying upon the land revenue receipts produced by the 1st defendant, he ought to have given a finding that the 1st defendant is in permissive possession of plaint 'B' schedule property. He accepted that the house tax receipts produced by the 1st defendant relate to thatched hut in plaint 'B' schedule. When he accepted those house tax receipts relate to plaint 'B' schedule hut, he should have made some more discussion and given a finding whether those tax receipts indicate that the 1st defendant was in possession of the thatched house in plaint 'B' schedule property in his own right or not. He did not give such a finding. At the time of passing the decree, ultimately he excluded the thatched house alone and then granted the relief of declaration of title for the vacant site in plaint 'B' schedule property, he overlooked crucial circumstance that the thatched house constructed either by the plaintiffs or the 1st defendant is in the vacant site covered by plaint 'B' schedule property. While refusing relief of declaration that the plaintiffs are the owners of the thatched house, he did not keep in mind the access to the 1st defendant to enter and enjoy the thatched house located in plaint 'B' schedule property. When entire vacant site surrounding the thatched hut was declared on belonging to the plaintiffs, 1st defendant would have no vacant site around the hut either to enter or exit from the hut. Giving hut alone to 1st defendant would serve no useful purpose.
7. Regarding the adverse possession claimed by the plaintiffs the lower Court should have kept in mind certain important aspects. The plaintiffs admit about the preliminary decree for partition in O.S. No. 102 of 1953. It is not even the case of the plaintiffs that subsequently even without the intervention of the Court there was a partition between the families of Ganga Raju and Nalam Subba Rao regarding plaint 'A' schedule property. According to the pleadings in the plaint, the plaintiffs have perfected their title to entire plaint 'A' schedule property. There is no plea that the legal heirs of Nalam Subba Rao were completely ousted from the possession of plaint 'A' schedule property at any time subsequent to passing of preliminary decree for partition in O.S.No. 102 of 1953. It is not even the case of the plaintiffs that there was any partition subsequently between two families and in that partition plaint 'B' schedule property fell to the share of the plaintiffs. Therefore, the learned District Munsif ought to have realized that the plea of adverse possession set up by the plaintiffs cannot be effectively and finally decided in the absence of legal heirs of Nalam Subba Rao and the subsequent purchaser P. Ramamurthy as defendants to the suit concerned. As he had ultimately held that the plaintiffs failed to prove the adverse possession set up by them, it did not adversely affect the rights of legal heirs of Nalam Subba Rao and P. Rama Murthy. If the learned District Munsif had accepted the case of the plaintiffs and held that the plaintiffs have perfected their title to the suit property, necessarily it would affect adversely the legitimate interests of the legal heirs of Nalam Subba Rao and P. Rama Murthy, who are having admittedly undivided half share in plaint 'A' schedule property. Similarly the learned District Munsif disbelieved the version of the 1st defendant that he and P. Rama Murthy jointly purchased plaint 'A' schedule property from Nalam Papa Rao. When such a crucial plea set up by the 1st defendant was disbelieved by the learned District Munsif, he ought to have further scrutinized the evidence and decided in what capacity the 1st defendant came into possession of the suit property including thatched hut. The learned District Munsif, in my considered opinion, gave divergent and conflicting findings in the course of his judgment, which are not reconcilable. Those findings indicate the lack of proper application of mind by the learned District Munsif. It is not as though the evidence on record is not sufficient to give proper findings of fact. The learned Subordinate Judge who decided the appeal did not frame necessary points for determination at the time of disposal of the appeal. He did not apply his mind. He also did not independently appreciate the evidence on record. He noticed certain observations made by the learned District Munsif in the course of his judgment and ultimately, upheld the judgment of the District Munsif without proper scrutiny of the material available before him. In view of these conflicting findings given by the trial Court and blindly affirmed by the lower Appellate Court, I have come to the conclusion that there is no other way, for this Court, except to set aside all the findings recorded by the trial Court and affirmed by the lower Appellate Court and remit back the entire suit to the trial Court for fresh disposal in accordance with law. I feel it just and necessary to permit both the parties, if, they so desire, to amend their pleadings and also join other persons as defendants for effective and final disposal of the disputes involved in the suit between the parties. I also think it just and necessary to permit both the parties to adduce further evidence, if any, in support of their respective pleas. However, the parties are at liberty to take appropriate steps to add new parties, or to amend their pleadings only within a period of two months from the first date of hearing fixed by the trial Court, after receiving the records from this Court. The trial Court need not entertain any application, if it is not filed within a period of two months as states supra. If no such petition is filed within a period of two months as stated supra, the trial Court after giving reasonable opportunity to both the parties to adduce further evidence if any, shall dispose of the suit on merits, unmindful of any of the findings already recorded by the trial Court and affirmed by the lower Appellate Court.
8. In the result, the appeal is allowed. The Judgments and Decrees in A.S. 45 of 1992 as well as O.S.No. 364 of 1989 are set aside O.S.No. 364 of 1989 is remitted back to the learned Principal District Munsif, Narsapur for fresh disposal in accordance with law, keeping in view the observations made by this Court in the course of this judgment. The trial Court is directed to dispose the suit as expeditiously as possible keeping in mind that it is an old suit and in preference to other suits pending before it. No costs.