Andhra Pradesh High Court - Amravati
Mykanna, vs Nagendrappa, on 26 October, 2024
1
APHC010246552005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
SATURDAY, THE TWENTY-SIXTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO
SECOND APPEAL NO: 186/2005
Between:
Mykanna, ...APPELLANT
AND
Nagendrappa and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. P V RAGHU RAM Counsel for the Respondent(S):
1. T P ACHARYA The Court made the following JUDGMENT:
1. The Appellant/4th Defendant filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against the Judgment and decree, dated 01.11.2004 passed in A.S. No.09 of 2002 on the file of Senior Civil Judge, Hindupur (for short, 'the 1st Appellate Court') reversing the Judgment and decree, dated 22.01.2002 passed in O.S. No.141 of 1984 on the file of Junior Civil Judge, Madakasira (for short „the trial Court‟).
2. The 1st Respondent/2nd Plaintiff, the L.R. of the 1st Plaintiff, filed the suit in O.S. No.141 of 1984 for permanent injunction, restraining the Defendants 2 and their men from interfering with the peaceful possession and enjoyment of the Plaintiffs over the suit schedule property.
3. It is expedient to refer to the parties as they are initially arrayed in the suit in O.S. No.141 of 1984 to mitigate potential confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:
(a) The 1st Plaintiff's husband, Bheemanna, and the 1st Defendant are sons of Obulesappa. On 27.09.1949, they jointly purchased the suit property from Boya Kariyappa for Rs.100/-. Since the purchase, both brothers have been in possession and enjoyment of the property. Hanumanthappa, the eldest brother, acted as the manager of the Hindu joint family, and the property was registered in his name. Bheemanna, who had no children, lived jointly with Hanumanthappa for approximately 15 years. While Bheemanna was still alive, the brothers separated, dividing the property into two shares, with the northern share allocated to Bheemanna.
(b) Following Bheemanna's death, the Plaintiff leased her share of the property on a Koru basis to tenants and has been living off the income generated from the land. The Plaintiff has consistently paid land revenue to the 1st Defendant. It is alleged that all the Defendants conspired to create fraudulent documents in an attempt to deprive the Plaintiff of her rightful share of the property, and they are actively trying to dispossess her from the suit property.
5. During the course of the trial, the 1st Plaintiff/Kalamma died, and Nagendrappa was added as a party to the suit as per the orders dated 3 21.02.1992 in I.A. No.15/92. Myakanna was added as 4th Defendant as per the orders dated 29.08.1986 in I.A. No.65/1985.
6. On the other hand, the 2nd Defendant filed a written statement. Additionally, Defendants 3 and 4 filed a memo adopting the written statement of the 2nd Defendant. The 1st Defendant remained ex-parte. The 2nd defendant refuting the allegations in the plaint, asserting that the suit schedule property, Survey No.161-2, covering an area of 5.72 acres, is the self-acquired property of the 1st Defendant. The 1st Plaintiff's husband has no right or title to the land and was never in possession or enjoyment of it. The 1st Defendant purchased the land with his own funds from Boya Kariyappa on 22.09.1945 and has since maintained exclusive possession and enjoyment. On 02.09.1981, the 1st Defendant sold the entire property, Survey No.161-2, to Myakanna (the 3rd Defendant), son of Kari Badappa, through a registered Sale Deed for ₹10,000/-, delivering possession at that time. Since the sale, Myakanna has been in exclusive possession and enjoyment of the property. The Plaintiff is fully aware of this sale and Myakanna's possession. Following the purchase, Plaintiff and others threatened Myakanna with dispossession, leading him to file a suit (O.S. No.119 of 1981) seeking a declaration and injunction regarding the property, which is still pending. The Plaintiff has deliberately omitted Myakanna as a Defendant, instead naming this Defendant and others who have no connection to the suit schedule property.
7. Based on the above pleadings in O.S. No.141 of 1984, the trial Court framed the following issues:
1) Whether the partition pleaded by the Plaintiff is true?
2) Whether the suit schedule property is not the self-acquired property of Hanumanthappa?
3) Whether the Defendants 1 to 3 are necessary parties to the suit?
4) Whether the Plaintiff is entitled to permanent injunction as prayed for?4
5) Whether the 4th Defendant is the owner of the suit schedule property?
6) Whether there is any cause of action against the D.1 to D.3?
7) To what relief?
The trial Court also framed the following Additional Issues:
1) Whether the 2nd Plaintiff is entitled to an injunction as prayed for?
2) To what relief?
8. During the trial, PWs.1 to 5 were examined on behalf of the Plaintiffs and marked Exs.A.1 to A.69. Conversely, on behalf of the Defendants, DWs.1 to 4 were examined and marked Exs.B.1 to B.13.
9. After the trial concluded and both sides presented their arguments, the learned trial Court dismissed the suit with costs in its Judgment dated 22.01.2002.
10. Aggrieved by the said Judgment and decree in O.S. No.141 of 1984, the 2nd Plaintiff preferred an appeal in A.S. No.09 of 2002 on the file of the 1st Appellate Court. The 1st Appellate Court, being the final fact-finding Court, framed the following points for consideration:
1) Whether D.1 and Bhemanna, the husband of the 1st Plaintiff, constituted a Hindu Joint Family, and the entire extent of Ac.5.72 cents in suit S.No.161-2 was purchased with the joint family funds?
2) Whether in the partition of the joint family, the suit property, which is on the Northern side, fell to the share of Bheemanna and the 1st Plaintiff?
3) Whether the 1st Plaintiff succeeded to the suit property on the death of her husband and after she succeeded by the second Plaintiff and he is in exclusive possession and enjoyment of the suit property?
4) Whether D.1 to D.3 are proper and necessary parties to the suit?5
11. The 1st Appellate Court, on scrutiny of oral and documentary evidence adduced on behalf of both sides, had allowed the Appeal with costs by its Judgment, dt.01.11.2004. Aggrieved by the 1st Appellate Court's Judgment passed in A.S. No.09 of 2002, the Appellant/4th Defendant preferred the present Second Appeal.
12. I heard Sri P.V. Raghu Ram, learned Counsel representing the Appellant/4th Defendant, and Sri T.P.Acharya, learned Counsel for the Respondent Nos.1, 9 to 12 /Plaintiffs.
13. The learned Counsel for the appellant/4th Defendant argued that the 1st Appellate Court erred in concluding that the Plaintiff failed to prove that the suit schedule property is the self-acquired property of Hanumanthappa. The Appellate Court exceeded the parties' pleadings and was unable to consider the principles underlying the Benami Transactions (Prohibition) Act of 1988, which prohibits claims of benami purchases. This oversight constitutes a significant error in the Judgment. The first Appellate Court incorrectly stated that Hanumanthappa purchased Exhibit A1 as the manager of a joint Hindu family and mistakenly affirmed that the first Respondent had the suit property. Furthermore, the Court erroneously accepted the Plaintiff's version of events and rendered a judgment that reversed the trial Court's decision.
14. Per contra, learned Counsel for the Respondent Nos.1, 9 to 12/Plaintiffs put forth an argument that the 1st Appellate Court correctly appreciated the facts of the case and reached a correct conclusion. The reasons given by the 1st Appellate Court do not require any modifications.
15. According to the Order dated 09.06.2009, Respondent Nos.9 to 12 have been impleaded as the Legal Representatives of the deceased 1st Respondent vide SACMP.No.1032 of 2009.
16. Based on the Appellant‟s contentions, the following substantial questions of law are involved in this Second Appeal:
6a) Whether the 1st Appellate Court holding that Ex.A1 was purchased by Hanumanthappa as Manager of the joint family?
b) Whether the 1st Appellate Court is correct in holding that the suit property was divided between Hanumanthappa and his brother as pleaded in plaint?
c) Whether the 1st Appellate Court is right in believing oral evidence as against documentary evidence covered by Ex.A1 and Ex.B2?
d) Whether the 1st Appellate Court is correct in allowing the suit of Plaintiff discarding overwhelming documentary evidence?
e) Whether the 1st Appellate Court committed a grave error in law in decreeing the suit of Plaintiff?
f) Whether the 1st Appellate Court went wrong in placing burden of proof on 4th Defendant, when the Plaintiff challenges the nature and character of suit property?
17. With the assistance of the learned Counsel for the respective parties, I have reviewed the Judgments, pleadings, and evidence on record.
18. Before delving into the matter, since the Appeal is filed under Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.
19. Considerations in Section 100 of C.P.C. arise only when there is a substantial question of law and not mere such questions of law or one based on facts. However, it has to be borne in mind that in case of misapplication of law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in 2nd Appeal to consider such questions which are substantial in nature in terms of law.
20. In Mallanaguoda v. Ninganagouda1, the Hon‟ble Supreme Court held that:
1(2021) 16 SCC 367 7
10. The first Appellate Court is the final Court on facts. It has been repeatedly held by this Court that the Judgment of the first Appellate Court should not be interfered with by the High Court in the exercise of its jurisdiction under Section 100CPC unless there is a substantial question of law. The High Court committed an error in setting aside the Judgment of the first Appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the first Appellate Court.......
21. In K.N. Nagarajappa v. H. Narasimha Reddy2, the Hon‟ble Supreme Court held that:
14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first Appellate Court are final.
However, the rule that sans a substantial question of law, the High Courts cannot interfere with the findings of the lower Court or concurrent findings of fact is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the Court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103CPC.
15. Section 103CPC reads as follows:
"103. Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the Appeal--
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court or
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."
16. In the Judgment in Municipal Committee, Hoshiarpur v. Punjab S.E.B. [Municipal Committee, Hoshiarpur v. Punjab S.E.B., (2010) 13 SCC 216 :
(2010) 4 S.C.C. (Civ) 861], this Court held as follows : (S.C.C. pp. 228-29, paras 26-28) "26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC, nor is it meant to supplant it; rather, it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power because it found that the finding(s) of fact recorded by the Court (s) below stood vitiated because of perversity. More so, such power can be exercised only in 2 (2021) 18 SCC 263 8 exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the Court (s) below.
27. There is no prohibition on entertaining a second appeal, even on a question of fact, provided the Court is satisfied that the findings of fact recorded by the Courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter, i.e. that the findings of fact are found to be perverse. However, the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower Courts. (Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : (2010) 4 S.C.C. (Civ) 738] .)
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence that is thoroughly unreliable or that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further, if the findings are either ipse dixit of the Court or based on conjecture and surmises, the Judgment suffers from the additional infirmity of non-application of mind and, thus, stands vitiated. (Vide BharathaMatha v. R. VijayaRenganathan [BharathaMatha v. R. VijayaRenganathan, (2010) 11 SCC 483 : (2010) 4 S.C.C. (Civ) 498] .)"
(emphasis supplied)
17. In a recent judgment of this Court, Narayan Sitaramji Badwaik v. Bisaram [Narayan Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234], this Court observed as follows, in the context of the High Courts' jurisdiction to appreciate factual issues under Section 103IPC : (S.C.C. p. 238, para 11) "11. A bare perusal of Section 103CPC clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the Appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court (s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure."9
22. In Balasubramanian v. M. Arockiasamy3, the Hon‟ble Supreme Court held that:
14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial Court and the first Appellate Court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts, the High Court has breached the said settled position........................
15.................... When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code, though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two Courts which were at variance with each other and one of the views taken by the Courts below was required to be approved.
23. This Second Appeal has been heard on the aforesaid substantial questions of law given the said finding of the learned 1st Appellate Court.
24. The Plaintiff testified as P.W.1 and supported her claim with documents marked as Exs.A1 to A69. She also got examined by P.Ws. 2 to 5 in support of her case. On behalf of the Defendants, the 4th Defendant was examined as D.W.1 and presented D.Ws.2 to 4 in support of his position. The record reveals another suit, O.S.No.119 of 1981, filed by Myakanna, who is the 4th Defendant in this case, seeking a declaration of his rights and title over the plaint schedule property, which comprises Ac.5.72 cents in Survey No. 161-2. This suit pertains specifically to Ac.2.86 cents of land within that survey number, and the plaint schedule is part of the property involved in O.S.No.119 of 1981. The 4th Defendant claims to have purchased the schedule property under Ex.B2, which is the registered Sale Deed dated 02.03.1981, from Hanumanthappa. He asserts that his vendor, Hanumanthappa, acquired the property from Kariyappa through a registered Sale Deed dated 27.09.1945 (Ex.B1/Ex.A1). It is undisputed that the 1st Plaintiff is the wife of Bheemanna, who is the brother of Hanumanthappa. The 1st Plaintiff contends that her 3 (2021) 12 SCC 529 10 husband, Bheemanna, acquired the property covered by Ex.A1/Ex.B1 using proceeds from the sale of sheep, sheep manure, and wool, ultimately securing a registered sale deed in Hanumanthappa's name. Notably, both parties agree that the property originally belonged to Kariyappa.
25. The record indicates that during the pendency of the suit, the 1st Plaintiff passed away, necessitating the inclusion of the 2nd Plaintiff, her brother's son, as her legal representative. The 2nd Plaintiff claims that Ex.A13, a registered Will 24.02.1983, was executed in his favour, bequeathing the suit land comprising Ac.5.72 cents. At this juncture, it is pertinent to refer to the stand taken by the Plaintiff in the suit. She contended that Hanumanthappa and her husband, Bheemanna, had divided the Ac.5.72 acres of land, with Ac.2.86 cents falling to her husband's share. Despite this claim and the supporting evidence, she executed Ex.A13, which bequeaths the entire Ac.5.72 cents. The learned trial Court correctly observed that if the 1st Plaintiff held a half share in the property, she should have executed a Will specifically regarding the suit schedule property. Instead, knowing that she filed the suit only for her husband's Ac.2.86 cents and asserted that the remainder belonged to Hanumanthappa, who had children, it is unfair on her part to have executed a Will covering the entire Ac.5.72 cents.
26. Plaintiff asserts that her husband, Bheemanna, lacked worldly knowledge and worked hard while Hanumanthappa served as the family manager; thus, the Sale Deed was executed in Hanumanthappa's name. On the other hand, the Defendant examined D.W.2-Kristappa, D.W.3-Chittappa and D.W.4-Chikkanna. To prove the Ex.B2 sale transaction, they supported the D.W.1's version by deposing that Hanumanthappa and others sold away the schedule property to D.W.1 under Ex.B2 and D.W.3 and D.W.4 attested it and Hanumanthappa and others put their thumb impression in Ex.B2 in their presence. D.W.2 testified that he drafted Ex.B2 and confirmed its execution by Hanumanthappa. D.Ws.2 to 4 corroborated D.W.1's testimony regarding the execution of the Sale Deed by Hanumanthappa, his son Marenna, and his 11 grandson Hanumantharayappa, son of Anjanappa. Additionally, the Defendants relied on Exs.B4 to B7, which are cist receipts issued in Hanumanthappa's name. The evidence presented, including Ex.B2 and D.W.1's testimony, demonstrates that possession of the schedule property was duly delivered to D.W.1, with the involvement of both Hanumanthappa's son and grandson in executing the sale deed.
27. Although Hanumanthappa sold the schedule property to D.W.1, his son P.W.4 supports the Plaintiff's position by testifying that, in a partition, his father received half of the share while his junior paternal uncle received the other half. They further divided their father's share, with P.W.4 obtaining Ac: 0.95 cents, his elder brother acquiring Ac.0.92 cents, and another brother receiving Ac.1.06 cents. The Plaintiff's property was subsequently transferred to the 2nd Plaintiff through a Will. The revenue officials issued pattadar passbooks, confirming their possession and enjoyment of the schedule property. They relied on Exs.A11 and A36 to A69 to support their claims.
28. Ex.A11 is the Ryot passbook the Mandal Revenue Officer issued on 22.07.1980 in favour of Kalamma. Ex.A36 is a certified copy of the pattadar passbook issued by the M.R.O. in favour of Nagendrappa, while Ex.A37 is a certified copy issued to Hanumanthappa for Ac.0.92 cents. Ex.A38 is a certified copy issued to Ramappa for Ac.1.01 cents in Survey No.161-02. The Plaintiff relies on these pattadar passbooks to support her claim that the schedule property belongs to Hanumanthappa and Bheemanna and to substantiate the division of the properties, as she has contended.
29. Ex.B8 is a notice issued by Hanumanthappa, D.2 and D.3 to the 4th Defendant. In this notice, Hanumanthappa stated that he felt neglected by his sons and, therefore, approached the father of the 4th Defendant, a gentleman who advised him to teach his sons a lesson by executing a nominal sale deed regarding the suit property in favour of the 4th Defendant. Consequently, Hanumanthappa executed Ex.B2, which he described as a nominal document.
1230. The 1st Appellate Court ascribed excessive weight to the contents on Ex.B8, a notice issued four years after the initiation of the suit by the Plaintiff's vendor. By relying on Ex.B8, the Appellate Court concluded that Ex.B2-Sale Deed was a nominal document, asserting that no title to the disputed property had been conferred upon the 4th Defendant. In reaching this conclusion, the Appellate Court failed to consider that Ex.B8 was issued during the pendency of the litigation. The claims made in Ex.B8 are questionable, particularly given that one of Hanumanthappa's sons and grandsons participated as executants in the transaction. Furthermore, the record shows that the 1st Plaintiff was aware of the sale, raising further doubts about why Hanumanthappa, the vendor of the 4th Defendant, would wait four years before issuing such a notice. The 1st Appellate Court should not have accepted the Plaintiff's claims based solely on this notice without providing sufficient justification for its findings.
31. It is indeed perplexing that the 1st Appellate Court placed significance on the contents of the notice while disregarding the essential recitals in the registered sale deed. This oversight undermines the binding nature of the sale deed and raises concerns about the Court's adherence to established legal principles. The registered sale deed should be the primary document for establishing rightful ownership and the parties' intentions rather than a legal notice issued four years after the suit was filed. The first Appellate Court overlooked foundational principles of property law by sidelining this crucial document in favour of a mere notice.
32. In light of the preceding considerations, this Court unequivocally holds that the 1st Appellate Court has egregiously erred in reaching its conclusions due to a misunderstanding of the evidence and documents presented. This necessitates a reappraisal of the case.
33. The evidence on record unequivocally demonstrates that the 4th Defendant has taken possession of the property under the registered sale 13 deed and has appropriately relied on the accompanying cist receipts. However, the 1st Appellate Court, in a misstep marked by the recording of erroneous justifications, has unjustly disregarded these receipts.
34. The learned Counsel for the Appellant argues that the 1st Appellate Court erred in classifying the sale deed (Ex.B2) in favour of the 4th Defendant as nominal. Furthermore, the Court should have considered the principles underlying the Benami Transactions (Prohibition) Act of 1988, which prohibits claims of Benami purchases.
35. For better appreciation, it is relevant to refer to the definition of benami transaction as per the Prohibition of Benami Property Transactions Act, 1988, as follows:
(9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) where a property is transferred to or is held by a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by--
(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family, and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;
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36. I have carefully reviewed the Defendants' stand in the suit to evaluate this submission. They assert that the property was purchased by Bheemanna in Hanumanthappa's name nominally, as Hanumanthappa, being the elder member, had no income. In contrast, the Appellant maintains that the property is self-acquired by Hanumanthappa. This Court finds that if the Respondents/Plaintiffs can sufficiently establish their case as presented, the 14 transaction in question may not fall under the definition of the Benami Transactions (Prohibition) Act.
37. By keeping the principles in the decision reported in Bathula Anasuya and Anr. Vs Bathula Rayudu and Ors.4, by composite High Court of Andhra Pradesh, this Court views that generally benami transactions are cases where property is purchased by a person in the name of another after paying consideration by himself. In the case of nominal transactions, no title is passed, and the title is never intended to be passed. The Court is always free to examine the attendant circumstances and find whether the title was intended to be passed under the transaction in question.
38. Furthermore, properties owned by a Hindu Undivided Family cannot be classified as benami transactions. As long as the transactions conducted by the Karta are for the benefit of the Hindu Undivided Family and not for personal gain, they do not fall under the definition of Benami. The karta acts on behalf of the family without personally benefiting from the assets, reinforcing that the Hindu Undivided family members are the true beneficiaries.
39. Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 have to be read and understood together. They are not disjunctive provisions in a comprehensive legislation intended to prohibit benami transactions. Sections 3 and 4 complement each other to achieve the same object. While Section 3 prohibits the creation of any "benami transaction", Section 4 prevents any suit, claim or action to enforce any right regarding any property "held benami". It is only when any right in respect of a property "held benami"
is sought to be enforced in any suit or claim that Section 4 is attracted.
40. After carefully examining the material on record, this Court concludes that the burden of proof rests with the Respondents/Plaintiffs to establish the 4 AIR1989AP290 15 nominality of the document. The evidence presented is insufficient to meet this burden. Furthermore, the available material does not substantiate the Respondents' claim that Ex.B.2 was executed nominally in favour of Hanumanthappa or that it was not intended to be acted upon. Consequently, the assertions made by the Respondents/Plaintiffs lack the requisite support to invalidate the transaction.
41. The learned Counsel for the Respondents contends that they have submitted numerous documents to demonstrate their possession of the property. In light of this, I have examined Exs.A1 to A69.
42. In Balakrishna Dattatraya Galande v. Balakrishna Ram 5 , while considering the scope of Section 38 of the Specific Relief Act, the Hon'ble Apex Court held that permanent injunction can be granted to a person who is in actual possession of the property. The burden of proof lies upon the Plaintiff to prove that he is in actual physical possession of the property as on the date of the suit. An injunction restraining Defendant from disturbing Plaintiff's possession, may not be granted in favour of the Plaintiff unless he proves the possession on the date of filing of the suit.
43. It is important to note that many of these documents are cist receipts issued after the initiation of the suit. No evidence has been submitted to establish the Respondent/Plaintiffs‟ possession as of the date the suit was filed. Although the Plaintiff in O.S. No.119 of 1981 initiated proceedings in 1981 seeking a declaration of title, the Plaintiffs in this matter waited for three years to file the suit for permanent injunction. Notably, in O.S.No.119 of 1981, the Plaintiff claims possession of the schedule property and other property and sought consequential relief of injunction. In light of these circumstances, the Respondent/Plaintiffs are obliged to clarify the reasons for this extended delay in filing the suit while simultaneously asserting possession of the property and requesting a permanent injunction. Consequently, this Court is 5 MANU/SC/0148/2019 16 disinclined to place reliance on these documents, as revenue authorities may have collected cist payments without verifying the legal entitlement of the individuals to the property in question. It appears that the 1st Appellate Court attributed undue significance to the cist receipts and adangals presented by the Defendants, which relate to the period following the initiation of the suit.
44. In Balwant Singh and Another V. Daulat Singh (dead) by L.R.s and others6, the Hon‟ble Apex Court held that "mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue".
45. Given the observations from the preceding decision, this Court concludes that the cist receipts issued after the suit hold limited weight in assessing the parties' rights.
46. The trial Court noted that the 4th Defendant had initially filed suit O.S. No.119 of 1981 against the Plaintiff and others, which is still pending. P.W.1 admitted during cross-examination that she was aware of the suit. Based on the evidence, the trial Court found that Plaintiff was aware of the proceedings in O.S. No.119 of 1981 but failed to mention this fact in the plaint for O.S. No.141 of 1984. Considering this omission, the trial Court correctly concluded that the Plaintiff had suppressed this information when filing her suit.
47. It is well established principle of law that the concealment of material facts constitutes a sufficient basis for the Court to deny discretionary injunctive relief. A party petitioning for such relief must approach the court with "clean hands," necessitating full disclosure of all pertinent facts that could influence the Court's decision. A party that intentionally withholds material information is precluded from receiving any discretionary remedy, and the Court retains the authority to dismiss the matter on its merits. It is imperative for an individual seeking an injunction to engage in complete and honest disclosure of all 6 197 (4) ALT page 17 17 relevant factual statements; failure to do so may be deemed an abuse of the Court's process.
48. After careful examination, the trial Court observed that the Plaintiffs failed to demonstrate that the property covered under Ex.B2 was the joint family property of Hanumanthappa and Bheemanna, nor did they establish that the plaint schedule property fell to Bheemanna's share in the partition.
49. The trial Court considered the testimony of P.W.4, the son of Hanumanthappa, who stated that his father purchased the plaint schedule property and other properties from Kariyappa under a registered sale deed. P.W.4 also confirmed that Hanumanthappa later sold the property to the 4th Defendant. This admission further supports the 4th Defendant's position, as observed by the trial Court.
50. After reviewing the material on record, the trial Court concluded that the 4th Defendant had established his right to the suit schedule property. At the same time, the Plaintiff failed to prove that her husband acquired the property in a partition and that she has been in possession of it following his death. The 1st Appellate Court, however, set aside the trial Court's Judgment without properly appreciating the evidence available on record.
51. The Courts of law meant for imparting justice between the parties. The relief of injunction being equitable relief, the person who approaches with unclean hands is not entitled to the relief. As stated supra in this case on hand a perusal of the entire material would discern that Plaintiff invoked jurisdiction of the Court by suppressing facts and with unclean hands and hence, the Plaintiff is not entitled for equitable relief of injunction.
52. This Court identifies a degree of perversity in the Judgment rendered by the learned 1st Appellate Court. The findings and reasoning presented are inconsistent with established legal principles. Moreover, the 1st Appellate 18 Court should have considered the evidence on record following well-settled legal standards.
53. Upon a thorough examination of the evidence on record, this Court concludes that the trial Court correctly evaluated the evidence in its context and rendered its findings with accuracy, in alignment with the material presented. The conclusions reached by the trial Court are based on a sound interpretation of the evidence and do not warrant any interference. Accordingly, the Judgment and decree of the learned 1st Appellate Court are set aside. The substantial questions of law raised in this second Appeal are adjudicated in favour of the Appellant and against the Respondents.
54. As a result, this Second Appeal is allowed without costs, consequently, the Judgment and decree dated 01.11.2004 passed by the learned Senior Civil Judge, Hindupur in A.S. No.09 of 2002, are hereby set aside. The Judgment and decree, dated 22.01.2002 passed by the learned Junior Civil Judge, Madakasira, in O.S. No.141 of 1984, are restored.
In this Second Appeal, miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date:26.10.2024 MS / SAK 19 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO SECOND APPEAL NO.186 OF 2005 Date: 26.10.2024 MS