Andhra HC (Pre-Telangana)
Nimmaraju Samba Sadasiva Sarma vs Potharaju Venkateswara Rao (Died) And ... on 26 November, 1996
Equivalent citations: 1997(2)ALT147, 1997 A I H C 2135, (1997) 2 ANDHLD 54, (1997) 2 ICC 361, (1997) 2 ANDH LT 147, (1997) 1 APLJ 249, (1997) 2 CIVLJ 803
ORDER P. Ramakrishnam Raju, J.
1. The unsuccessful plaintiff is the appellant. He filed the suit for permanent injunction restraining defendant Nos. 1 to 3, as originally shown, i.e., respondent Nos. 1 to 3 in the second appeal, since respondent Nos. 1 and 2 died pending the second appeal, respondent Nos. 4 and 5 are brought on record as the legal representatives of the deceased respondent No. 2, from interfering with the possession and enjoyment of the plaint schedule property comprising Ac. 28-03 cents in Survey No. 272 of Sanampudi village, Vinukonda Taluk, Guntur District.
2. According to the appellant, the suit property originally belonged to one Nimmaraju Venkateswarlu, an Advocate of Narasaraopet who obtained a decree in O.S.No. 472 of 1945 against one Kotha Ramachandraiah towards his fee and in execution of the said decree, he brought the suit property to sale in E.P.No. 69 of 1950 and purchased the same on 5-3-1979. The sale was confirmed on 28-4-1951 and the sale certificate No. 5/51 was issued to him. He also took delivery of the property on 12-8-1951. Patta for the suit land was also mutated in his name in the revenue records. He was alone in possession and enjoyment of the said land through his tenants, Dulipala Perayya and Budala Ramaiah. Late Venkateswarlu died on 27-5-1967 leaving his last will being a registered one dated 6-4-1966 whereunder the suit property was bequeathed to the appellant and four others. The appellant is in possession of the property for himself and also on behalf of the other legatees. While so, as respondent Nos. 1 to 3 started interfering with his possession, he filed the suit.
3. The first respondent filed written statement which was adopted by respondent Nos. 2 and 3. The appellant or his predecessor has no title or possession at any time within 12 years from the date of the suit. The allegation that late Venkateswarlu purchased the suit land through Court auction, mutated his name in the revenue records are all false. The debt as well as the decree obtained by Venkateswarlu against Ramachandraiah is a sham and collusive one. The suit property is owned by respondent Nos. 1 and 2 and thereafter, by purchase respondent Nos. 4 and 5 and they alone are in possession of the same for over 50 years. The Judgment-debtor, Ramachandraiah had no saleable interest subsisting at the time of Court sale. Even during 1948 Venkata Govindarao, son of Ramachandraiah filed O.S. No. 447 of 1948 for partition of the family properties in which respondent Nos. 1 and 2 and their father were parties. The suit property was shown as Item No. 1 in plaint 'B' Schedule in the said suit. It was contended by the defendants therein that Ramachandraiah in discharge of debts to the family of the first defendant sold away the property to their father 30 years ago and ever since they have alone been in possession and enjoyment and perfected their title. In the said judgment, it was held that item No. 1 of the plaint B Schedule therein which is the subject matter of this suit does not belong to Ramachandraiah or his family, but it belongs to the defendants' family. The said finding operates as resjudicata against the plaintiff. In fact being the owners the defendants even in 1969 obtained loan of Rs. 8,600/- from Land Mortgage Bank for conversion of this land into wet land. Patta was also mutated in the name of the first defendant. Hence the suit has to be dismissed.
4. Before the trial Court, the plaintiff examined seven witnesses including himself as P.W. 5 and marked Exs. A-1 to A-61; while the defendants examined eight witnesses including the first respondent as D.W. 3 and marked Exs. B- 1 to B-52. As the trial Court decreed the suit, respondent Nos. 1 to 3 filed an appeal which was allowed. Hence this second appeal.
5. Sri P.V.R. Sarma, the learned counsel for the appellant submits that in view of Exs. A-10 and A-11 dated 28-4-1951 and 12-8-1951 respectively being the sale certificate and delivery receipt, the appellant obtained possession of land, and in view of Ex.A-32 wherein the appellant got his name mutated on 11-7-1953, the appellant has established his title to the suit land and also his possession in view of the lease deeds under Exs.A-5, A-33, A-34 and A-35, Adangals under Exs. A-36 to A-38, and in view of the cist receipts under Exs. A-15 to A-28 and A-48 has amply established his exclusive possession long before and also at the time of filing of the suit, as such, the appellant is entitled to a decree.
6. Sri K.B.R. Krishna Murthy, the learned counsel for the respondents submits that as late Ramachandraiah had no title in view of the judgment in O.S.No. 447 of 1948 dated 23-2-1951, the subsequent sale certificate dated 28-4-1951 under Ex. A-10 or the delivery receipt dated 12-8-1951 under Ex. A-11 cannot clothe the appellant with title. He relies on Ex. A-51, plaint filed in O.S.No. 447 of 1948 where late Ramachandraiah was the first defendant. Item No. 1 of B Schedule is the present suit schedule property of Ac. 28-03 cents in Survey No. 272. The prayer is for a decree for partition of the plaint A, B, C & D schedule properties shown therein, Defendant Nos. 12 and 11 therein are respondent Nos. 1 and 2 herein. Ex. B~7 is the judgment in the said suit. The suit was decreed for partition of the plaint A schedule property and item 4 of D schedule and dismissed in other respects. It may not be out of place to mention that there was no contest for A schedule and there was a compromise with regard to C schedule properties. Therefore, the learned counsel submits that the said judgment operates as res judicata against the claim of the appellant. In support of his contention he relies on Explanation V of Section 11 of the Code of Civil Procedure which is as follows:
"Any relief claimed in the plaint, which is not expressly granted by decree, shall, for the purposes of this Section, be deemed to have been refused."
7. Since Ramachandraiah was the first defendant in O.S.No. 447 of 1948 which is a partition suit and inasmuch as every defendant is also a plaintiff in a partition action , in view of the Explanation V of Section 11 C.P.C., the judgment (Ex.B-7) in O.S.No. 447 of 1948 operates as res judicata and as Ramachandraiah had no title to the Item 1 of B Schedule therein which is also the property in dispute, the Court sale held on 5-3-1951 does not clothe the appellant-Decree holder with any rights.
8. Sri P.V.R. Sarma, next contends that there is overwhelming documentary evidence to show that the appellant was alone in possession both before and at the time of filing of the suit. In the plaint the appellant had stated that late Venkateswarlu was in possession of the same through his tenants. As Venkateswarlu died in the year 1967 and as he was trying to prepare the land for cultivation by forming small plots and ridges, the defendants tried to trespass into the land, hence he filed the suit. In his evidence, the appellant as P.W. 5 admitted that he did not raise any crop in the suit land prior to the filing of the suit and he does not know why the lessees did not raise any crop in 1969 or 1970. His case is that late Venkateswarlu executed leases for 4 years under Ex. A-33 dated 13-5-1952; for 3 years under Ex. A-5 dated 30-7-1956; and for four years under Ex. A-34 dated 2-7-1961; and for another four years under Ex. A-35 dated 22-7-1965. All these are unregistered lease deeds. Except P.W. 3 nobody was examined connected with the said leases. P.W. 3 is the lessee under Ex. A-5 dated 30-7-1956.Even assuming that the lease under Ex. A-5 is true, as per his evidence it was only for a period of 3 years from July 19, 1956 and it does not establish the possession of the appellant on the date of filing of the suit. The other lessees were not examined. Adangals by way of Exs. A-36 to A-38 were filed. Under Ex. A-38 it is seen that the land was left fallow during Faslis 1376 to 1379 corresponding to 1966 to 1969. Therefore, the Adangals also does not establish the possession of the appellant. The appellant further sought to rely on Exs. A-15 to A-28, cist receipts. Exs. A-15 to A-20 do not contain either the Survey number or Patta numbers. So also Exs. A-23 to A-26. No survey number and patta numbers were given. Therefore, nobody can say for which land these taxes were paid. Ex. A-27 is another land revenue receipt dated 31-5-1968. Here again, no Survey number and Patta number was given. Ex. A-28, dated 16-2-1970 shows that tax was paid up to 1378 Fasli i.e., 1968. Even assuming that tax was paid up to 1968 by the appellant, even then it cannot be concluded that the appellant was in possession on the date of the suit. Therefore, the finding of the lower appellate Court that the appellant has failed to establish possession on the date of filing of the suit cannot be interfered.
9. Coming to the evidence adduced by the respondents, Exs. B-24 to B-26 which are cist receipts for the years 1951 to 1968 and D.W. 2 the Deputy Tahsildar was examined to prove them. The respondents also filed Ex.B-52 endorsement from the revenue office that the receipts prior to 1951 were destroyed. Exs. B-32 to B-35 were notices issued by Inams Tahsildar to the defendants calling for their objections. Ex. B-36 is the Ryotwari Patta given to defendant No. 1. Under Ex. B-37 the Register of Changes, the name of Ramachandraiah was rounded off and the name of the first respondent was entered on 28-9-1960. Of course, defendants also place reliance on it. Ex. X-2, report of the Supervisor of the Land Mortgage Bank and Co-operative Sub Registrar and Ex. X-4 opinion of the Advocate show that the defendants have got title. The claim of the appellant that he tried to form the land into small plots and form ridges and at that time respondent Nos. 1 to 3 interfered, was not believed by the lower appellate Court. On the other hand, the lower appellate Court placing reliance on the evidence of D.W.I, observed that his evidence that he inspected the suit land in November, 1969 before sanction of the loan, the land was fallow and bunds were not raised at that time, and after the first instalment was disbursed, bunds were raised by the defendants and on inspection of the land again before disbursing the second instalment, he found bunds in the suit land has to be accepted. As against this evidence, the lower appellate Court observed, the appellant did not file even a scrap of paper to show that he had spent Rs. 900/- for raising the bunds. Therefore I have no reason to interfere with the finding of the lower appellate Court that the defendants alone raised the bunds and they were in possession of the land on the date of the suit.
C.M.F.No. 4391 of 1991:
This is an application filed by the appellant for amendment of the plaint seeking for additional relief of declaration of title to the plaint schedule property in favour of the appellant-plaintiff.
2. In the counter-affidavit filed by the respondent, it is stated that the amendment for the relief of declaration of title is barred by limitation, and therefore, the same cannot be allowed.
3. Sri P.V.R. Sarma, the learned counsel for the appellant submits that as the suit for permanent injunction was decreed, the appellant had no occasion to ask for declaration of title before the appellate Court and it is only when the decree and judgment of the trial Court were reversed by the appellate Court, the need to file the amendment seeking declaration of title arose and he promptly filed this application along with the second appeal, as such laches or delay cannot be imputed to the appellant.
4. On the contrary, Sri K.B.R. Krishna Murthy, learned counsel for the respondents submits that no amendment so as to include a claim barred by limitation could be allowed. He relies on a decision of the Supreme Court in Muni Lal v. Oriental Fire & General Insurance Co. Ltd, . In the said case, the Supreme Court was considering the question whether an application for amendment can be ordered when the relief sought for stood barred by limitation by the date of the application for amendment. In that case the suit was filed for a declaration that the plaintiff is entitled to the loss of truck from the Insurance Company although under Section 34 of the Specific Relief Act, the plaintiff is entitled to ask for consequential relief for payment of quantified amount, but at a belated stage an application for amendment seeking consequential relief was filed. The Supreme Court finding that by the date of application for amendment the relief was barred by limitation, observed.
"On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate Court or the second appellate Court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the Courts below had not committed any error of law warranting interference."
5. Normally amendment should be allowed which satisfy the twin conditions viz., not working out injustice to the other side and being necessary for purpose of determining the real controversy between the parties. By allowing an amendment of a plea which is otherwise barred by time would have the effect of divesting the right already accrued to the other party. In Leach & Co. Ltd. v. M/s Jardine Skinner & Co., the Supreme Court has clearly indicated that Courts as a rule would decline to allow amendments if a fresh suit on the amended claim would be barred by time on the date of the application. However the Supreme Court has expressed that the Court has got power under Order 6, Rule 17 C.P.C. to order amendment of pleadings covering barred claims if that is essential in the interest of justice. Therefore, except in exceptional cases Court shall not exercise jurisdiction permitting amendments relating to barred claims. The recent decision of the Supreme Court in Muni Lal v. Oriental Fire & General Insurance Co., Ltd., further reaffirmed the same view. Of course, Sri P.V.R. Sarma, the learned counsel for the appellant as already stated, submits that he could not file the application for amendment till he lost the appeal in the appellate Court. This argument in my view is putting the cart before the horse. The plaintiff should know what reliefs he should claim and put forth necessary pleadings in his plaint.
Having filed the suit for mere injunction asserting that he is in possession on the date of the suit, and finally when the Court comes to the conclusion on the basis of the evidence adduced by both parties that the plaintiff has failed to establish possession, he cannot say that he realised this defect only after the disposal of the suit. Therefore, the plaintiff who failed to seek declaration of title cannot be heard to say that he waited to seek this relief till his suit for bare injunction is disposed of. If this contention is accepted, the unsuccessful plaintiff would have an extended period of limitation as not provided under the Act. Therefore, this submission in my view has no force I may also point out that in second appeals the High Court being bound by finding of fact recorded by the lower appellate Court cannot permit additional evidence. If the proposed amendment is accepted, the appellant will have to be permitted to adduce evidence on question of fact which is impermissible for the second appellate Court. For all these reasons, the amendment sought for cannot be allowed as it would deny the right of the respondents to plead that this relief would be barred by time, if the appellants were to file a fresh suit.
6. For all these reasons, both the second appeal and the Civil Miscellaneous Petition are devoid of merits, and they are accordingly dismissed, but in the circumstances without costs.
7. Interim injunction granted earlier is vacated.