Telangana High Court
Ramavarapu Deepk Goud And Another vs Ramavarapu Venkatesh Goud And 10 Others on 14 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUIT No. 163 OF 2007
AND
APPEAL SUIT No. 451 OF 2008
COMMON JUDGMENT:
These Appeals arise out of the common judgment passed by the II Additional District Judge, Ranga Reddy in O.S.Nos.36 and 166 of 1999, dated 18.07.2006. The suit schedule property is in an extent of Acs.7-39 guntas in Survey No.412 (Part) of Nagaram Village.
2. As per the plaint in OS No.166 of 1999, the suit property is under joint possession and enjoyment of defendants 1, 2, 3 and 4. Defendant No.3 expired and so Defendants 6 to 11 came on record as legal representatives of defendant No.3. Defendants 1, 2, and 4 and Defendants 6 to 11 (as legal representatives of D3) are in possession and enjoyment of the suit property as of today. Defendant No.4 is father of the plaintiffs. Plaintiffs are minors and they are represented by their mother. The suit was filed seeking to divide the share of plaintiffs from the 1/3rd share entitled to by defendant No.4 from the suit property and to allot 1/3rd share each to plaintiffs out of the 1/3rd share of defendant No.4.
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3. While so, Defendant No.4 obtained Encumbrance Certificate of the suit property. It revealed that father of defendants 1 and 2 sold the suit schedule property to one V.Hanumantha Rao (Defendant No.5) in 1967. It is alleged that father of defendants 1 and 2, without having any manner of right or title over the shares of defendants 3 and 4, sold the property to Defendant No.5. Alleging that father of Defendant Nos.1 and 2 (who is the alleged vendor to Defendant No.5) never disclosed any such alleged sale transaction with Defendant No.5 and contending that any sort of alienation by way of transfer, sale or gift by one of the Coparceners is null and void, plaintiffs filed OS No.166 of 1999 to divide the share of plaintiffs from the 1/3rd share entitled to by defendant No.4 from the suit property and to allot 1/3rd share each to plaintiffs out of the 1/3rd share of defendant No.4. A parallel suit, OS No.36 of 1999 is filed by Defendant No.5 contending that he purchased the suit property i.e. Ac.7-39 guntas in Survey No.412 (part) from out of Ac.14-13 guntas in Survey No.412 of Nagaram Village in 1967 from father of Defendants 1 and 2 i.e. R. Narsaiah.
4. The trial Court clubbed both the suits; and upon considering the oral evidence of PWs.1 to 4 and documentary evidence vide Exhibits A1 to A11 adduced on behalf of the plaintiffs; and the oral evidence of DWs.1 to 3 and documentary 3 evidence vide Exhibits B1 to B54 adduced on behalf of defendants, passed a Common Judgment dismissing the suit OS No.166 of 1999 and decreeing the suit OS No.36 of 1999. Aggrieved by the same, these appeals are filed.
5. Heard learned Senior Counsel Sri A. Venkatesh, appearing on behalf of Vadeendra Joshi, learned counsel for Appellants and learned Senior Counsel Sri. M. Surender Rao appearing on behalf of Mr. Sahith G.V., learned counsel for Respondent No. 14, Sri. J.C. Francis, learned counsel on behalf of Respondent No. 13, Sri M. Sharath Kumar, learned counsel appearing on behalf of Respondents 12 and 5 and Sri Pushkar Jaiswal, learned counsel appearing on behalf of Respondent No.
15. Learned counsel for appellants relied on the judgments of the Hon'ble Supreme Court in Arshnoor Singh v. Harpal Kaur 1, Vasantha v. Rajalakshmi 2, K.C. Laxmana v. K.C. Chandrappa Gowda 3 and that of High Court of Maharashtra in Baburao v. Surendra 4. They are not applicable to the facts of the present case.
6. In view of commonality of the facts, parties and subject matter, this Court is inclined to dispose of both the Appeal 1 (2020) 14 SCC 436 2 (2024) 5 SCC 282 3 2022 SCC Online SC 471 4 4 suits by way of this common judgement. For the sake of convenience, parties to these Appeals are being referred to as arrayed in O.S. No. 166 of 1999, i.e. Appellants 1 and 2 as 'Plaintiffs' and Respondents as 'Defendants'.
7. Inter se relationship between the parties is not in dispute including their residential status at Dammaiguda Village, Keesara Mandal, Ranga Reddy District as well suit schedule property situated at the road side of Dammaiguda Village.
8. Plaintiffs are unsuccessful in O.S. No. 166 of 1999 filed by them seeking partition of suit schedule property and also unsuccessful in O.S. No. 36 of 1999 filed by Sri Vengala Hanumantha Rao seeking declaration of title and grant of perpetual injunction in respect of suit schedule property i.e. Acs. 7-39 Guntas in Survey No. 412 situated at Nagaram Village, Keesara Mandal, Ranga Reddy District. The bone of contention of Appellants, briefly stated, is the mother of minor Plaintiffs filed the suit for the relief of partition on the pretext that father of the minors i.e. Defendant No. 4 - Ramavarapu Yadaiah Goud in O.S. No. 166 of 1999 did not cooperate for partition of properties. Inter alia, it is canvassed that originally, suit schedule property belongs to one R. Venkaiah and under Ex. A-1 Patta was granted by the then Nizam Government to the lands in various survey numbers in 5 1943 (12th Khudrad 1352 Fasli). After the death of R. Venkaiah in 1955, there was partition between his two sons and sons of Ramaswamy predeceased to his father of the entire property in three equal shares and enjoying the same. Late Ramaswamy was blessed with three sons R. Narsaiah (Vendor of D5), R. Eswaraiah (D3) and R. Yadaiah (D4). It is also the pleadings that R. Narsaiah being the eldest son of Ramaswamy his name was recorded as the Kartha of joint family property pertaining to the share of Ramaswamy in Survey No. 412 to an extent of Acs. 7-39 Guntas (suit schedule property). After the death of R. Venkaiah in 1955, sons of Ramaswamy were in joint possession and enjoyment of the land.
9. Before the trial Court, P.Ws.1 to 4 and D.Ws.1 to 3 were examined and Exs.A1 to A11 and Exs.B1 to B54 were marked.
10. At the outset, it is evident from the material available on record that the pleadings on behalf of the Appellants/Plaintiffs is silent as regards the date of alleged partition among the sons of R. Venkaiah, details of share of lands allotted and total extent of lands and its survey numbers. It is needless to say that partition suit was instituted only to the suit schedule property covered by Survey No. 412 and pleadings are silent with regard to details of 6 other properties in the same survey number, properties covered by other survey numbers. It is also the evidence adduced by plaintiffs in the Trial Court that total extent of land in Survey No. 412 is Acs. 14-13 Guntas, whereas the 5th defendant purchased the suit schedule property namely Acs. 7-39 Guntas in 1967. It is also an admitted fact that remaining land in suit survey number was sold to one Subba Rao who is in possession and enjoyment of the same. For the reasons best known to plaintiffs, they have only selected to challenge the registered Sale Deed in favour of the 5th defendant only, that they have not challenged the sale deed in favour of Subba Rao who also purchased rest of the land in suit survey number. Thus, the Trial Court rightly observed and recorded finding that suit for partition is bad for non-joinder of necessary parties including K. Subba Rao who had purchased Acs. 6-14 Guntas in Survey No. 412 and Acs. 1-25 Guntas in Survey No.
415. In addition to that, there are two more purchasers along with the 5th defendant i.e. Satyanarayana who purchased Acs 4-00 Guntas in Survey No. 415 and P. N. Mohan Raj Acs. 3-39 Guntas in Survey No. 415 as covered by Exhibit B-3 which is Government of Andhra Pradesh proceedings according permission to the vendor of the 5th defendant granting permission to transfer the said lands as contemplated under Sections 47 and 48 of the A.P. (Telangana 7 Area) Tenancy and Agricultural lands Act, 1950 and also bad for non-joinder of all the properties owned by the ancestors; the documents exhibited by the 5th defendant reveal that vendor and his brothers got vast lands in other survey numbers as exhibited under Ex. B-6, etcetera.
11. It is also quite important to be recorded that both the Plaintiffs have born long after the registered Sale Deed dated 08.08.1967. By the date of the said registered Sale Deed, their father i.e. the 4th defendant was alive and residing under common roof along with his brother the 3rd respondent. For the reasons best known to both defendants 3 and 4 (father of Plaintiffs), who were living separately in separate houses at Dammaiguda Village itself, they never chosen to challenge the said registered sale deed in favour of the 5th defendant till the filing of O.S. No. 166 of 1999 and thereby, the Trial Court rightly recorded finding that the suit is barred by law of limitation under Article 126 of the Limitation Act (old) now Article 109 of the Limitation Act as it is beyond the period of 12 years since none of the coparceners i.e. defendants 1 and 2 who are not only the sons of R. Narsaiah but also the signatories to the registered Sale Deed in favour of the 5th defendant along with their father, D3, D4 who are natural brothers of R. Narsaiah and so they have no right to challenge the said 8 registered Sale Deed dated 08.08.1967 by the date of institution of partition suit.
12. The case of the contesting 5th respondent, shortly stated, is that he purchased the suit schedule property from R. Narsaiah under registered Sale Deed dated 08.08.1967 and ever since then, he was in exclusive possession and enjoyment continuously during his lifetime and after death his legal heirs. It is pertinent to mention that after purchase of suit schedule property, he caused mutation of his name in the revenue records and got constructed three rooms with zinc sheets, dug bore well, obtained electricity connection and telephone connection vide Exs. B-40 to 46 and they relied on Exs. B-1 to 54 in support of the relief of declaration of title and consequential perpetual injunction.
13. It is observed by the Trial Court that the Vendor R. Narsaiah sold the property both on his behalf and on behalf of his two sons under Ex. B-1. It is also rightly observed after mutation in Column No. 12 and 13 of the Pahanies, their names were shown as Pattadar and Possessor. The Vendor R. Narsaiah also obtained prior permission from the then Tahsildar as required under Sections 47 and 48 of A.P. (Telangana area) Tenancy and Agricultural Act, 1950 for the total extent of Acs. 23-37 Guntas covered by Survey Nos. 412 and 415 and the name of purchaser V. 9 Hanumanth Rao shown at Sl. No. 4 in respect of the suit schedule property as the said total land was purchased by four Vendees including V. Hanumanth Rao. Constantly and consistently the Pahanies covered by Exs. B-19 to 39 for 1968-69 to 1993-94 are indicating ownership, possession and enjoyment of suit schedule property by the 5th defendant being the bona fide purchaser for valuable consideration. Further, the 5th defendant was also issued Pattadar Passbook and Title Deed vide Exs. B-10 and 11 in respect of suit schedule property by the competent authority and the said documents also remained unchallenged.
14. The Trial Court in the impugned judgment rightly relied on the following judgments:
In Kotha Seshamina v Pittala Venkavva 5, wherein it was held that:
" The right of the after-born son is not derived from the existence of co-parcener at the time of the alienation. An after-born son has an independent right to sue on the cause of action which arose when the alienee took possession under the father's invalid alienation and his son must be brought within 12 years under Article 126 unaffected by any extended period of limitation available under Sec. 6 of the Limitation Act to a co-parcener existing at the time of alienation"
In Sri Venugopalaswamy Varu Temple Rep. by its Trustees v. Visweswara Prasad 6, held that:
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AIR 1957 AP 386 6 1967 SCC Online AP 124 10 " The law is fairly settled that a son born to a joint Hindu family acquires by birth interest in ancestral property, but does not acquire any interest in any right to sue. The cause of action for setting aside his father's alienation accrues only on an alienation and only when the purchaser takes possession under the alienation. No now cause of action accrues upon the subsequent birth of a son in the family. Consequently, a fresh period of limitation does not start from the date of his birth. When he was not born on the day of the transfer, he could not be said to be suffering from any disability on that date and eventually cannot take any advantage of Sec. 6". (emphasis applied) In Mothika Mutyalu v. Mothika Appayyalingam 7, the Division Bench of this Court held that:
"The suit filed by the after born sons of the D2 on 11.7.1961 for a declaration that the alienation of the suit properties by the grand father the D1 for himself and on behalf of his then minor son the D2 in favour of the D3 who is found to have taken possession of the alienated property in the year 1948 is barred by the limitation as it is beyond the period of 12 years provided under Article 126 of the old Limitation Act (article 109 of the present Act). (emphasis applied)"
15. In these Appeal Suits, it is also relevant to mention that the Trial Court rightly recorded finding that Appellants are liable for suppression of material facts, material documents; they approached the Civil Court with unclean hands as they have chosen to file only Exs. A-3 to A-6 which are pahanies from 1958- 59 to 1965-66 and whereas the 5th defendant filed pahanies from 1967-68 till date continuously, which documents are in public domain recording his name in revenue records. It is a settled 7 1974 (2) APLJ 68 11 proposition of law that if the applicant does not disclose all the material, then Court has inherent power to reject the application. Suppression of material facts from the Court of law is nothing but playing fraud with the Court. The maxim supressio veri, expression faisi, i.e. 'suppression of truth is equivalent to expression of falsehood'. The Hon'ble Supreme Court in K.D. Sharma v. Steel Authority of India Limited 8 held as follows:
"39. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be falling in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."
[emphasis supplied]
16. Further, as rightly observed by the trial Court, suit schedule property was not having approach road to Samithi road which is the only road for ingress and egress to reach the village from the suit schedule property. Since the remaining land in the suit survey number was purchased by one K. Subba Rao and his wife Smt. Indira and the 5th defendant - V. Hanumanth Rao was using the said land with the consent of K. Subba Rao, ultimately, V. Hanumanth Rao, Subba Rao and his wife Smt. Indira agreed to 8 (2008) 12 SCC 481 12 exchange the part of the land and accordingly V. Hanumanth Rao parted Ac.0.27 Guntas of his land in suit Survey No. 412 for exchange of land and accepted Ac.0.20 Guntas of land in suit Survey No.412 from Subba Rao and his wife Smt. Indira under registered Exchange Deed bearing Document No. 87519 of 1991, dated 25.09.1991 i.e. Ex. B-9 (in the Trial Court judgement it was mentioned as 24 Guntas of land instead of 27 Guntas). Therefore, Exhibit B-9 is a lifeline document for the 5th defendant and leads the fact that the 5th defendant is the bona fide purchaser for valuable consideration and the suit schedule property was not the joint family property of the Plaintiffs/Appellants.
17. It is also not out of place and quite important to be mentioned that revenue authorities concerned in 1996-97 and 1997-98 have not shown the nature of land correctly. Therefore, the 5th defendant applied to the Mandal Revenue Officer on 28.09.1996 for correction of entry in respect of nature of land as it was mentioned as 'Plots'. After due procedure, the revenue authorities concerned conducted Panchnama (Ex. B-13) by the Mandal Revenue Officer, Medchal and accordingly, the nature of lands was corrected into agricultural lands. The said proceedings remained unchallenged and supporting the defence of the 5th defendant on material aspects including continuous, open, 13 uninterrupted possession and enjoyment of the 5th defendant. Adding to the above, electricity consumption charges, land revenue receipts, telephone receipts, etcetera as covered by Exs. B-40 to 54 including Exhibit B-47 Urban Land Ceiling Orders dated 07.08.1982 also rightly fortifies the contention of the 5th defendant in respect of possession and enjoyment. It is also recorded in the said revenue proceedings Ex. B-47 passed by the Special Officer and competent authority, Urban Land Ceiling, recording and recognizing the possession and enjoyment of the suit schedule property in favour of the 5gh defendant. The said urban land ceiling proceedings was passed on the strength of field verification report of the E.O. dated 14.11.1979 and the said proceedings were also not challenged either by any one of the coparceners or defendants 3 and 4, who are the natural brothers of vendor of the 5th defendant.
18. After careful evaluation of the evidence, the Trial Court also observed and recorded finding that PW-1, who is the natural guardian (mother) of Appellants, in her cross- examination categorically admitted and deposed that she married the 4th defendant in 1985 and Venkaiah died in year 1953. She simply pleaded ignorance and deposed that she does not know when the alleged partition was affected among the sons of Venkaiah and 14 between his grandsons. She only came to know about the said partition through her mother-in-law and so her cause of action based on hearsay evidence and thus the Appellants/Plaintiffs have no cause of action to institute the suit for partition of the suit schedule property and the said findings recorded by the Trial Court are on correct lines warranting no interference by this Court. Adding to the above, PWs 2 to 4, who are residents of Dammaiguda Village where the suit schedule property is situated, have clearly and fairly conceded the fact that they are not aware of partition of properties between the family members of R. Venkaiah. Therefore, the oral evidence adduced by the Appellants leading to no case made out for the relief of partition of the suit schedule property and cancellation of registered Sale Deed Ex. B-1; therefore, it is only a speculative litigation for extraneous consideration.
19. DW-1, who is the 6th defendant and DW-2, who is the 7th defendant in the suit who are sailing with Plaintiffs have supported the case of Plaintiffs and their evidence is hit by the doctrine of bias and interested witnesses, as rightly recorded by the Trial Court and it needs no interference. DW-3 is none other than contesting 5th defendant and whose evidence is replica of his pleadings and virtually nothing was elicited from his cross- 15 examination either to discredit his testimony or Exs. B-1 to 54 but several beneficial points have been elicited which are amply lending support to the bone of contention of the 5th defendant and the relief of declaration of title sought for by him apart from the relief of perpetual injunction.
20. Admittedly, by the date of Ex. B-1, these appellants were not born. The Trial Court also observed that if really the suit schedule property is Hindu undivided Joint Family property and the father of the Appellants - 4th defendant has got any share or right, he ought to have moved the Court challenging the said registered Sale Deed dated 08.08.1967, Exchange Deed dated 25.09.1990 for access road and other mutation entries. Thereby the suit of Appellants is also barred by law of limitation as stated supra. The law relied on by the 5th defendant and discussed by the Trial Court is on correct lines and by any stretch of imagination, no cause of action accrues to the Appellants subsequent to their birth in the family. Consequently a fresh period of limitation does not begin from the date of birth of the Appellants when his father being a coparcener forfeited his right to challenge the registered sale deed and it is legal that once period of limitation begins to run, nothing stops it as contemplated under Section 9 of the Limitation Act. The parents of Appellants as well as Appellants are 16 residents of Dammaiguda Village and suit schedule property is situated within the limits of Dammaiguda Village and therefore, the Trial Court rightly observed after marshalling the oral and documentary evidence available on record, that Appellants are estopped from taking a plea that they have no knowledge about the suit schedule property, its continuous, open, uninterrupted possession and enjoyment by Sri V. Hanumanth Rao and his legal heirs since 1967 and he perfected his title, right ever since the date of execution of Ex. B-1 dated 08.08.1967 which was purchased for a valuable sale consideration by way of a registered Sale Deed and long standing possession since 1967. It is settled proposition of law that where the title is on the strength of a registered document, in the case on hand, which is of more than 32 years old qualifying as ancient document, the doctrine of adverse possession has legs to stand and since Sri V. Hanumanth Rao and his legal heirs have perfected their rights and title by virtue of Exs. B-1 to 54 and following the legal principle 'title follows possession', the findings recorded by the Trial Court on all the issues are on correct lines warranting no interference by this Court in these appeal suits.
21. In the result, both the Appeals are dismissed. No costs.
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22. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 14th November 2024 ksld