Andhra Pradesh High Court - Amravati
T.Venkata Ravamma vs Karnati Lakshmamma on 23 June, 2022
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
APPEAL SUIT No.406 OF 2014
JUDGMENT :
The Appeal Suit, under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC'), is filed by the appellants/plaintiffs aggrieved by the judgment and decree dated 21.02.2014 passed in Original Suit No.52 of 2010 on the file of the XII Additional District Judge, Krishna at Vijayawada.
2. The appellants herein are the plaintiffs, and the respondents herein are the defendants, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as arrayed before the trial Court.
3. The plaintiffs filed the aforesaid suit seeking declaration of their title over the suit schedule property and for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property in any manner over the suit schedule property. The averments in the plaint, in brief, may be stated as follows.
1st plaintiff is the wife, 2nd plaintiff is the son, and plaintiffs 3 and 4 are the daughters, of one Pandu Ranga Rao, who purchased the suit schedule property from 2nd defendant society, being member of the society, under a 2 registered sale deed dated 29.02.1996, and during his life time, he enjoyed the property as the absolute owner and died on 04.06.2001 intestate leaving the plaintiffs as his legal representatives. From the date of his death, plaintiffs have been in possession and enjoyment of the said property. While things stood thus, 1st defendant filed Original Suit No.1994 of 2007 on the file of the I Additional Junior Civil Judge, Vijayawada against 2nd plaintiff and others, who are strangers to the suit schedule property, for simple injunction, and the said suit was decreed. 1st defendant put up false claims and is claiming title by relying on some documents. Hence, to clear the cloud over their title, plaintiffs filed the present seeking declaration and permanent injunction.
4. 1st defendant filed written statement denying the averments in the plaint and stating that she purchased the plaint schedule property on 30.01.1982 from her vendors for a valuable consideration and has been enjoying the same as the absolute owner without any interference since the date of her purchase and paying taxes to the authorities concerned; that as members of 2nd defendant society tried to interfere with her possession and enjoyment over the suit schedule property, she filed Original Suit No.171 of 1996 against 2nd defendant for permanent injunction and the said suit was decreed ex parte on 3 30.07.1998; that subsequently, as 2nd plaintiff and some others, who are claiming as owners of neighbouring plots, tried to interfere with her possession and enjoyment over suit schedule property, she filed Original Suit No.1994 of 2007 against them for permanent injunction and the same was decreed; that she is the absolute owner of the suit schedule property and the same is in her possession and enjoyment, and hence, the plaintiffs are not entitled to any relief in the present suit.
5. 2nd defendant filed written statement stating inter alia as follows.
It is a registered society and represented by its Secretary. Suit filed by the plaintiffs showing representation of 2nd defendant through President, is not maintainable, and 2nd defendant is neither a necessary party nor a proper party to the suit proceedings and therefore suit is bad for mis-joinder of parties. 2nd defendant is a society and the same was formed and registered on 30.07.1981 with total 421 members, and the late Pandu Ranga Rao was one of the members of 2nd defendant society. The District Collector, Krishna, at request of 2nd defendant, acquired Ac.14.12 cents of property at Bhavanipuram and handed over to it, and the plaint schedule property is part of the said land. The Writ 4 Petitions filed by 12 persons at that time, questioning the acquisition proceedings, were dismissed and an Award No.20 of 1985 was passed on 11.06.1985 and Ac.13.51 cents of land was handed over to 2nd defendant on 04.09.1985. Subsequently, lay out plan was approved by VGT UDA under LP No.4 of 1995 and as per instructions of LAO, 12 members, who filed Writ Petitions, were admitted as members in the society and the entire land was divided into 214 plots and distributed among members under lottery system, and out of 12 objectors, who filed Writ Petitions, 1st defendant and one Kandukuri Padmavathi did not take plots on lottery basis and as such in the first instance, sale deeds were not registered in their respective names. Subsequently, Kandukuri Padmavati approached 2nd defendant and obtained registered sale deed in her favour. Plot No.126 was allotted to late Pandu Ranga Rao and registered sale deed dated 29.02.1996 was executed in his name and vacant possession was delivered to him on the same day. 2nd defendant did not execute any document in the name of 1st defendant. Plaintiffs, without knowing true facts, filed the suit against 2nd defendant unnecessarily and hence it is prayed to dismiss the suit.
6. Basing on the above pleadings, the trial Court framed the following issues.
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1) Whether the plaintiffs are entitled for the relief of declaration as prayed for ?
2) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for ?
3) To what relief ?
7. During course of trial, 1st plaintiff was examined as P.W.1 and 4th plaintiff was examined as P.W.2, and Exs.A1 to A6 were got marked through them. Plaintiffs examined the Special Tahsildar, Land Acquisition, as P.W.3 and Exs.X1 and X2 were got marked through P.W.3. On behalf of 1st defendant, she examined herself as D.W.1 and marked Exs.B1 to B23. No oral or documentary evidence was adduced on behalf of 2nd defendant.
8. After hearing both the parties, the trial Court recasted the issues as under, at the time of preparation of judgment.
1) Whether the plaintiffs are in possession of suit schedule property ? if not.
2) Whether the property in possession of 1st defendant was acquired by Government to give the same to 2nd defendant ?
3) Whether the plaintiffs are entitled for permanent injunction, as prayed for ?6
4) Whether the suit of plaintiffs for declaration of title is maintainable without seeking the relief of possession of suit schedule property ?
5) Whether the plaintiffs are entitled for the relief of declaration of their title as prayed for ?
6) To what relief ?
9. The trial Court, vide the impugned judgment and decree, dismissed the suit holding that the plaintiffs are not in possession of the suit schedule property and 1st defendant is in possession of the property; that the property now in possession of 1st defendant is not acquired by Government under Ex.X1-Award; that without seeking relief of possession of the suit schedule property, suit of the plaintiffs for declaration of their title and for permanent injunction is not maintainable, and hence, the plaintiffs are not entitled for declaration of title and permanent injunction as prayed for. Aggrieved by the said judgment and decree, the present appeal came to be filed by the plaintiffs.
10. Heard Sri S.Sreeramachandra Murthy, learned counsel for the appellants and Sri M.L.Ali, learned counsel for 1st respondent, and perused the evidence available on record.7
11. It is the contention of the learned counsel for the appellants that late Pandu Ranga Rao, who is husband of 1st plaintiff and father of plaintiffs 2 to 4, is a member of 2nd defendant society, and he purchased the suit schedule plot for a valuable consideration under a registered sale deed dated 29.02.1996 from 2nd defendant society. It is his further contention that after reserving the suit for judgment, the trial Court re-casted the issues, and though some of the re-casted issues casts burden on the plaintiffs to prove the same, no opportunity was given to the plaintiffs to adduce necessary evidence. It is his further contention that on 07.08.2015, this Court allowed I.A. No.1490 of 2014 (I.A.No.1 of 2014) which was filed by the appellants/plaintiffs to amend the suit prayer by adding consequential relief of recovery of possession of suit schedule property, and I.A. No.1491 of 2014 (I.A.No.2 of 2014) filed by the appellants/plaintiffs, under Order XLI Rule 27 CPC praying to receive certified copy of L.P. No.4 of 1995 as additional evidence and mark it as Ex.A7, is pending adjudication before this Court, and the said document goes to the root of the case. It is his further submission that the findings recorded by the trial Court run contrary to the plan, and in the absence of the said plan in the record as exhibit, the lis in the suit cannot be adjudicated effectively. It is his further submission that 8 the trial Court went beyond the scope of the lis involved in the suit and the reasoning given by the trial Court for arriving at the conclusions is perverse. Hence, he prays to remand the matter to the trial Court by providing liberty to the appellants/plaintiffs to produce necessary additional evidence on their behalf for proper adjudication of the matter.
12. On the other hand, learned counsel for 1st respondent/1st defendant contended that the trial Court, upon proper appreciation of the evidence on record, dismissed the suit holding that the appellants/plaintiffs are not in possession of the suit schedule property and 1st respondent/1st defendant is in possession of the said property, and the plaintiffs failed to establish their title over the suit schedule property, and the same is based on the evidence on record. It is his further submission that the evidence adduced by the parties is sufficient to adjudicate the recasted issues and there was no need to provide an opportunity to any party to adduce any further evidence, and the appeal is devoid of merits and is liable to be dismissed.
13. Now, the point that arises for consideration in the present appeal is whether the appellants/plaintiffs are entitled for declaration of their title over the suit schedule 9 property and permanent injunction restraining the defendants from interfering with their possession and enjoyment over the said property, and whether the findings recorded by the trial Court are based on proper appreciation of the evidence on record ?
14. The suit was filed for declaration of title and permanent injunction. Plaintiffs are claiming title through Ex.A1-registered sale deed dated 29.02.1996 executed by 2nd defendant society in favour of late Pandu Ranga Rao, who is husband of 1st plaintiff and father of plaintiffs 2 to 4.
According to the plaintiffs, suit schedule property is plot No.126 admeasuring 183.75 square yards of vacant site situated in R.S.No.35/2A, 36/2B, 37/1B, 37/2, 37/5, 37/6, 38/2B, 38/3B2, 38/4B2, 39/1C1 and 39/3C2 of Bhavanipuram, Vijayawada under Award No.20/85 and L.P. No.4/95. 1st defendant is claiming the said property by virtue of Ex.B1-registered sale deed dated 30.01.1982 obtained by her from one Jasti Krishna Murthy, who purchased it under Ex.B2-registered sale deed dated 30.12.1980. According to 1st defendant, her vendor purchased an extent of Ac.0.25 cents of land in R.S. No.36/2 under Ex.B2 and sold 273 square yards, out of the said property, to her under Ex.B1.
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15. While dealing with recasted issue No.1 viz.
"Whether the plaintiffs are in possession of suit schedule property, if not", the trial Court observed that as per the recitals of Ex.A1-sale deed, Land Acquisition Authorities handed over Ac.14.12 cents of property to 2nd defendant on 11.12.1985 under Award No.20 of 1985 and 2nd defendant divided the said property into 215 plots and obtained approval of lay out from VGT VUDA and Municipal Commissioner of Vijayawada under L.P.No.4/95 on 25.10.1995 and the entire property got acquired by 2nd respondent is in R.S. Nos. 35/2A, 36/2B, 37/1B, 37/2, 37/5, 37/6, 38/2B, 38/3B2, 38/4B2, 39/1C1 and 39/3C2 of Bhavanipuram, Vijayawada.
16. The trial Court refers to the recitals in the written statement of 2nd defendant that Land Acquisition Authorities delivered Ac.13.51 cents of land only to 2nd defendant and total plots laid in that property is 214, and observes that there is no material on record to know whether 2nd defendant land 215 plots or 214 plots on ground and whether 2nd defendant laid out plots in Ac.14.12 cents or in Ac.13.51 cents, and arrives at the conclusion that the recitals in Ex.A1-sale deed are against the pleadings of 2nd defendant. In the considered opinion of this Court, the said finding is perverse. Though 2nd defendant filed written statement, no one was examined on 11 its behalf before the Court and no documents were got marked on its behalf. There is no evidence on oath on behalf of 2nd defendant to substantiate the said version nor any documents were got marked to substantiate the same. In the absence of the same, the said averment in the pleading of 2nd defendant cannot be a ground to come to such a conclusion.
17. While dealing with recasted issue No.2 viz. whether the property in possession of 1st defendant was acquired by Government to give the same to 2nd defendant ?, the Court below held that plaintiffs or 2nd defendant have not taken steps to produce layout plan No.4 of 1995 and the plaintiffs have not taken steps to identify plot No.126 which was purchased under Ex.A1 on ground nor taken any steps to prove that the property now in the possession of 1st defendant is in R.S. No.36/2B and not in R.S. No.36/2. Originally, the Court below framed 3 issues for consideration, as stated supra. After hearing both sides and before pronouncement of judgment, the Court below recasted the issues, framing as many as six issues. According to the plaintiffs, to substantiate the recasted issues, evidence has to be adduced by the plaintiffs and the plaintiffs were not given any opportunity to that effect. 12
18. Now that, I.A. No.1490 of 2014 (I.A.No.1 of 2014) filed by the appellants/plaintiffs to amend the suit prayer by adding consequential relief of recovery of possession of suit schedule property, was allowed by this Court on 07.08.2015. I.A. No.1491 of 2014 (I.A.No.2 of 2014) is also filed by the appellants/plaintiffs, under Order XLI Rule 27 CPC praying to receive certified copy of L.P. No.4 of 1995, as additional evidence and mark it as Ex.A7. The plan which has been filed in the appeal gives a totally diagonal picture of the contentions raised before the Court below. The said plan goes to the root of the case. Admittedly, the suit is filed for declaration of title. Substantial rights of the parties are involved in the matter. Therefore, this Court feels that it is a fit case to remand the matter to the trial Court with a direction to provide opportunity to the parties to adduce necessary evidence on the recasted issues and pass appropriate orders afresh in accordance with law.
19. Accordingly, the Appeal Suit is allowed, setting aside the judgment and decree dated 21.02.2014 passed in Original Suit No.52 of 2010 on the file of the XII Additional District Judge, Krishna at Vijayawada. The matter is remanded to the trial Court for disposal of the suit in accordance with law, by providing opportunity to the parties to adduce relevant evidence with regard to L.P. No.4 of 1995 and after hearing both the parties. The entire 13 exercise shall be completed within a period of six months from the date of receipt of a copy of this judgment. Both the parties shall co-operate for disposal of the suit.
A.S.M.P.No.1491 of 2014 (I.A.No.2 of 2014) is closed. Certified copy of L.P. No.4 of 1995 filed along with the said petition shall be returned to the appellants/plaintiffs after the same is substituted with photo copy.
There shall be no order as to costs of the Appeal Suit. Miscellaneous petitions pending, if any, in the Appeal Suit stand disposed of.
__________________________________ JUSTICE K.SREENIVASA REDDY 23.06.2022 DRK 14 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY APPEAL SUIT No.406 OF 2014 23.06.2022