Andhra HC (Pre-Telangana)
Iruvanti Gopinatha Rao (Died) And Ors. ... vs Vadlapudi Narayana And Ors. on 19 April, 1997
Equivalent citations: 1997(2)ALT785, 1997 A I H C 3663, (1997) 2 ANDH LT 785, (1997) 4 ANDHLD 258, (1998) 1 ICC 137, (1997) 3 CURCC 88
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT Ramesh Madhav Bapat, J.
1. The 1st appellant herein named iruvanti Gopinatha Rao was the plaintiff in O.S. No. 12 of 1989 filed by him in the Court of the Subordinate judge, Sathupally, Khammam District against the defendants-respondents herein. The suit was filed by the plaintiff for declaration that he is the owner and possessor of Ac. 26-17 guntas of dry land situated in Sy. Nos. 404, 405 and 406 at Rayudupalem village, Hamlet of Ammapalem, erstwhile Sathupalli Taluk of Khammam District, which is the suit schedule property. On evidence, the learned Subordinate Judge dismissed the suit of the plaintiff. Aggrieved by the aforesaid judgment and decree, the first appellant-plaintiff carried the matter in appeal by filing A.S.No. 39 of 1992 in the Court of the Additional District Judge, Khammam. The learned Judge dismissed the appeal filed by the plaintiff-appellant herein, confirming the judgment and decree passed by the trial Court. Aggrieved by the judgment and decree of the first Appellate Court, the original plaintiff-1st appellant herein has filed the present appeal.
2. The brief averments made in the plaint are as follows: As stated earlier, the plaintiff filed the suit for declaration that he is the owner and possessor of the land described in the earlier paragraph of my judgment. It was further averred by him that he purchased the suit schedule property from one Nandigama Satyanarayana Rao in the year 1968. Since then he has been in peaceful possession and enjoyment of the same paying necessary land revenue.
3. It was further averred by the plaintiff that in the year 1975 he filed a declaration under Section 8 (1) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1976. The Land Reforms Tribunal declared that the plaintiff was in ceiling limit and therefore the plaintiff did not surrender any land.
4. It is the further case of the plaintiff that the defendants 1 and 2, who are the nearby cultivators of the suit land, are trying to threaten the plaintiff from dispossessing him from the suit schedule land without any legal right. The plaintiff wanted to raise dry crops in the suit schedule land, which was being used as pasture land only. When the plaintiff started agricultural operations in the suit schedule land one week prior to the date of filing of the suit, the defendants tried to trespass into the land openly declaring that they would dispossess the plaintiff therefrom.
5. It is the further case of the plaintiff that the defendants are in collusion with some of the infulential persons of the village, who are politically against the plaintiff. The plaintiff being a man of bent with age and all his sons are in the Government employment and taking advantage of the same, the defendants are continuing illegal acts to occupy thy suit lands and therefore the plaintiff had no hopes to resist the defendants from preventing their illegal acts of trespass into the suit land. Therefore, he was constrained to file the suit.
6. It further appears from the pleadings that during the pendency of the suit, injunction order was passed. The defendants 4 and 5 started enquiries about the possession of the suit schedule property to favour the defendants 1 and 2. Therefore, they were impleaded as party defendants in the suit. Hence, this suit is filed by the plaintiff seeking relief of declaration of title and the relief of permanent injunction against the defendants.
7. On presentation of the suit, summons were issued to the defendants. On appearance, defendants 1 and 5 filed their separate written statements. Defendants 3 and 4 adopted the written statement of 5th defendant. The 2nd defendant remained ex parte.
8. It was averred by the first defendant that the land in dispute originally belongs to Nandigama Rama Rao. The land was given in the name of the plaintiff who is the father-in-law of the younger brother of Nandigama Rama Rao and accordingly land ceiling declarations were filed in order to overcome the provisions of Land Ceiling Act. Accordingly the plaintiff was declared as the owner of these lands. Further his wife Vadlapudi Bapamma purchased the lands for a valuable consideration of Rs. 25,000/- under an agreement of sale executed by the plaintiff and his five sons on 25-4-1981 and on the same day she was given possession of the lands. One Gottuparthi Seshagiri Rao was the scribe. Nandigama Rama Rao, who was also the then Patwari of the village, one Yerra Veeraiah, one Thota Venkatappaiah and one Nandigama Prasada Rao are the attestors of the document. It was further contended that the sale was arranged by the original owner of the land Nandigama Rama Rao himself. It was further averred by the first defendant that his wife has been in possession and enjoyment of the land since 25-4-1981 and paying land revenue and her name has also been entered in the relevant pahanies. Because of the increase in the price of the land, Nandigama Rama Rao changed his mind and made the plaintiff to file false and fictitious suit and therefore it was prayed by the first defendant that the suit filed by the plaintiff be dismissed with costs.
9. The 5th defendant in his written statement denied all the material allegations made in the plaint. It was specifically contended by the 5th defendant that one N. Krishna Rao, General Power of Attorney of the plaintiff and his sons submitted an application on 12-5-1982 to the Tahsildar, Sathupally about making some entries under Col. No. 16 of the relevant pahanies with regard to Sy. Nos.404, 405 and 406 admeasuring Ac.27-07 guntas of Ammapalem village for the year 1981-82. Thereupon a detailed enquiry was conducted by the Dy. Tahsildar, Sathupally on 13-5-1982 which disclosed that the same lands had been in occupation of the plaintiff and as such a memo in Rc.No. A1/624/82 has been issued to the Patwari of Ammapalem village on 15-5-1982 to enter the name of the plaintiff under Col. No. 16 of the pahanies for the year 1981-82 for the lands. Aggrieved by the orders passed by the Tahsildar i .e., the 5th defendant, the first defendant preferred an appeal before the 4th defendant who remanded the same on 22-11-1982 to the 5th defendant for re-enquiry. Subsequently, the plaintiff filed the suit and also I.A.No. 190 of 1982 seeking injunction against the defendants 1 and 2 from interfering with peaceful possession and enjoyment of the suit lands. The trial Court was pleased to issue interim injunction on 6-5-1982. It was further averred by the 5th defendant that after the enquiry, he submitted his report to the 4th defendant. He received the suit notice Under Section 80 C.P.C. from the Advocate of the plaintiff on 28-2-1983. Further, as the matter is pending in the Court, again action in the matter is kept in abeyance. The plaintiff is not entitled for any of the reliefs against this defendant. With these averments, it was prayed by the 5th defendant that the suit filed by the plaintiff be dismissed with costs against him as well as the defendants 3 and 4.
10. On the strength of the pleadings, the trial Court framed the issues.
11. The plaintiff examined P.Ws.1 and 2 and produced certain documents. They were marked as Exs. A-1 to A-18. The defendants examined D.Ws.1 to 5 and produced certain documents. They were marked as Exs. B-1 to B-14. On careful consideration of the oral and documentary evidence, the learned Subordinate Judge dismissed the suit. Hence, the matter was carried in appeal by the plaintiff as aforesaid.
12. The Appellate Court formulated the issue for consideration which reads as under:
"Whether the judgment and decree of the lower Court is liable to be set aside?
13. On hearing both sides, the Appellate Court dismissed the appeal of the plaintiff-appellant. Hence the matter is carried in appeal by the plaintiff- appellant before this Court.
14. During the pendency of the appeal before this Court, the plaintiff- appellant died and his L.Rs. were brought on record as per the order dated 4-12-1995 passed in C.M.P. No. 17778/95.
15. The learned Counsel Mr. T. Veerabhadrayya appearing on behalf of the appellants herein submitted at the Bar that the point formulated by the Appellate Court is totally illegal. It is not the proper compliance of Order 41 Rule 31 CP.C. The learned Counsel invited my attention to Order 41 Rule 31 C.P.C. which reads as under;
"31. Contents, date and signature of judgment:
The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
16. The learned Counsel Mr. T. Veerabhadrayya further submitted at the Bar that the point, which was formulated by the Appellate Court for its consideration is very cryptic, meaningless and defiance of Order 41 Rule 33 (sic. 31) C.P.C. It was further submitted by the learned Counsel for the appellants herein that unless the proper pointis formulated by the Appellate Court, it is no judgment in Law. The learned Counsel relied upon a ruling of this Court reported in Katta Nageswara Rao and Anr. v. Reddi Saraswathi and Ors., to substantiate the legal position, which was placed before this Court for consideration. The learned Judge of this Court in the above ruling held as follows:
"O. 41 R.31 CPC - Appellate Courts should frame points for determination and record the decision thereon as contemplated under Order 41 Rule 31 C.P.C. - Even if points for determination are not formally stated in judgment, if the Appellate Judge has considered all the disputed questions and recorded his findings thereon, it will be substantial compliance - Whether it is concurring or reversing judgment, it is necessary for the Appellate Court to consider evidence and give its decision in accordance with Order 41 Rule 31 C.P.C."
The learned counsel Mr. T. Veerabhadrayya submitted at the Bar that the point formulated by the learned Appellate Judge is not proper.
17. I am in agreement with the submissions made by the learned Counsel for the appellants herein.
18. The point formulated carries no legal meaning. The learned Appellate Judge simply stated whether the judgment and decree of the lower Court is liable to be set aside? If such point is to be formulated, then the same wording can be used by the Appellate Courts in deciding any/all the First Appeals. Whatever may be the subject or issue involved in the litigation, such type of formulation of point for determination is not contemplated under Order 41 Rule 31 C.P.C. This Court has no hesitation in holding that the learned Judge totally ignored the provisions contained in Order 41 Rule 31 C.P.C.
19. The learned Counsel Mr. T. Veerabhadrayya further submitted at the Bar that the First Appellate Court not only failed to formulate the proper point for consideration but it also gave a finding on certain facts presuming certain things which is out of record. The learned Counsel Mr. T. Veerabhadrayya pointed out from the judgment of the First Appellate Court that the learned Judge restricted his judgment only on the point as to whether Ex. B-5 an agreement of sale, which is alleged to have been executed by the plaintiff in favour of the wife of first defendant, )whether it) is a genuine document or otherwise has to be decided and therefore submitted at the Bar that the judgment and the conclusion arrived at by the First Appellate Court is not legal and proper.
20. I am not in agreement with the submissions made by the learned Counsel Mr. T. Veerabhadrayya appearing on behalf of the appellants herein because of the fact. It is evident from the judgment of the First Appellate Court that the counsel who appeared for the first appellant herein in the First Appellate Court restricted his arguments regarding the genuineness of Ex. B.5 probably no other point is agitated before the First Appellate Court and therefore the First Appellate Court did not give finding on every point.
21. The learned Counsel Mr. T. Veerabhadrayya appearing on behalf of the appellants herein submitted at the Bar that it has been the specific case of the first defendant that the suit schedule property was purchased by his wife from the plaintiff. It means that the plaintiff's title was admitted by the defendants and therefore the defendants cannot raise the plea that the plaintiff was not able to establish his title to the suit schedule property and therefore the learned Counsel for the appellants herein submitted at the Bar that the First Appellate Court ought to have considered the legal aspect as to whether the admission given by the first defendant will bind him or not ? The learned Counsel further submitted that when the defendent No. 1 has admitted the title of the plaintiff, it was not necessary for the plaintiff to establish his title. Therefore, it was submitted by the learned Counsel Mr. T. Veerabhadrayya for the appellants herein that since the judgment of the First Appellate Court does not cover all the points, which are involved in the litigation, the judgment of the First Appellate Court is liable to be set aside by remanding the matter to the First Appellate Court for determination of all the points involved in the litigation between the parties.
22. The learned Counsel Mr. T. Veerabhadrayya further brought to my notice that the First Appellate Court did not consider Ex. A-2, which is the proceedings under the Land Reforms Act. The First Appellate Court safely ignored Ex. A-2 stating that Ex.A-2 can safely be ignored as the plaintiffs were not able to prove their possession to the suit schedule land holding that Ex. B-5 was executed by the plaintiff in favour of the defendants. The learned Counsel further submitted that the order passed by the Land Ceiling Authority is final which confers the title on the person in whose favour the order is passed.
23. The learned Counsel Mr. T. Veerabhadrayya further submitted at the Bar that even the First Appellate Court did not properly appreciate the genuineness of Ex. B.5 on which the learned Judge based his entire judgment. My attention was invited by the learned Counsel for the appellants herein that the First Appellate Court compared the signature of the plaintiff on Ex.B.5 with that of an admitted signature of the plaintiff and held that this document was executed by the plaintiff. The learned Counsel for the appellants herein further submitted that without admitting that Ex.B.5 is not only signed by the plaintiff but there are some more signatures alleged to have been put by the sons of the plaintiff. The signatures of the sons of the plaintiff were not compared by the First Appellate Court with that of their admitted signatures but the First Appellate Court jumped to the conclusion that Ex.B.5 was executed by the plaintiff and on the same day the plaintiff had put the first defendant in possession of the suit schedule property.
24. It is true that the learned Appellate Judge totally ignored few signatures appearing on Ex. B.5 and did not give finding whether those signatures have been put by the sons of the plaintiff so as to pass the title in the suit schedule property in favour of the defendants. In not considering and in not giving the finding as to whether Ex. B.5 bears the signatures of the sons of the plaintiff has created a legal anomaly. If it is held that Ex. B.5 is not signed by the sons of the plaintiff, then the defendants would not get title to the suit schedule property to the extent of the share held by the sons of the plaintiff in the suit schedule property. Under these circumstances, this Court holds that the learned Appellate Judge erred in not giving a proper finding to the issue regarding the execution of Ex. B.5 by the sons of the plaintiff.
25. The learned Counsel Mr. T. Veerabhadrayya appearing on behalf of the appellants herein invited my attention to the Certificates produced by the sons of the plaintiff, which are marked as Exs. A-16 to A-18, in order to establish the fact that on the date of execution of Ex. B-5, they were not in the station and they were attending their official duties at different places. The First Appellate Court did not discuss the effect of Exs. A-16 to A-18 in the point involved between the parties. The learned Appellate Judge kept silent totally on the aforesaid point without considering the same.
26. The learned Counsel for the appellants herein further submitted at the Bar that the First Appellate Court has unnecessarily criticised the plaintiff Stating that he had not sought permission to examine his power of Attorney on his behalf. Mr. T. Veerabhadrayya further submitted at the Bar that the original G.P.A. dated 24-4-1982 was marked by the trial Court as Ex.A-1, There is no law or procedural law which requires the plaintiff to seek the permission of the Court by filing the petition to examine the G.P.A. Holder on his behalf. The learned Counsel further submitted that criticising Ex. A-l and the plaintiff is uncalled for in the judgment I am in agreement with the submissions made by the learned counsel for the appellants herein on this issue.
27. While rebutting the arguments of the learned counsel for the appellants herein, the learned counsel for the first respondent herein submitted at the Bar that the scope of Second Appeal is very limited. The learned counsel Mr. C.V. Mohan Reddy invited my attention to Section 100 C.P.C. which reads as under;
"100. (1) Save as otherwise expressly provided in the body of this Code or by any other Law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
28. The learned counsel for the first respondent herein further submitted that it is a well established law that in the Second Appeal reappreciation of evidence is not permissible. To substantiate the aforesaid legal proposition, the learned counsel for the first respondent herein relied upon a ruling reported in Ramanuja Naidu v. V. Kannnian Naidu and Anr., (D.N.). It was laid down by their Lordships of the Supreme Court as under:
"Section 100 C.P.C. - High Court's interference in second appeal with concurrent findings of fact of trial Court and first appellate Court on ground of probability - Held on facts, unjustified and unsustainable."
29. The learned Counsel Mr. C.V. Mohan Reddy also relied upon a ruling of this Court reported in G. Gurucharnam v. R. Venkata Rao and Anr., . in which the Single Judge of this Court hold as follows:
"Section 100 C.P.C. - Second Appeal - Finding regarding possession is one of fact - Appellate Court giving a finding on the said question after considering the evidence - High Court cannot in a second appeal disturb the said finding."
30. The learned Counsel Mr. C.V. Mohan Reddy also relid upon a ruling reported in Ramjanam v. Radhakrishna Chaube and Ors., . in which their Lordships of the Supreme Court held as under:
"Section 100 C.P.C. - High Court's interference in second appeal with concurrent findings of fact - Suit filed by appellant under Sections 59 and 61 of U.P. Tenancy Act claiming that he being in possession of the land for over 50 years had acquired tenancy rights therein. Trial Court and the appellate Court recording concurrently as a fact that the appellant was a tenant under the respondents and that he had tenancy rights as declared under Sections 59 and 61 of the Act - High Court finding that since there was submission and re-emergence of the lands by alluvion or de-alluvion from time to time, changing of boundaries of the States of U.P. and Bihar, the continuous possession for over statutory period of 12 years was interrupted and as such the finding of ad verse possession recorded by the trial Court was not correct in law - No factual evidence placed on record to show as to when the submersion or reemergence of the land had taken place - In the circumstances held, High Court erred in interfering with the concurrent findings of fact reported by the Courts below that appellant had perfected his title by adverse possession."
I have no hesitation in relying upon the aforesaid rulings. It is true that the High Court while hearing the Second Appeal cannot interfere with the concurrent findings recorded by both the Courts below provided that the finding given by the First Appellate Court is inconformity with Order 41 Rule 31 C.P.C.
31. The learned Counsel Mr. C.V. Mohan Reddy further submitted at the Bar that the plaintiff had no title to the suit schedule property. In fact, Nandigama Rama Rao was the owner of the suit schedule property and in order to overcome with the Land Ceiling Act, Mr. Nandigama Rama Rap made the plaintiff to file the declaration under the Land Ceiling Act. Thereby the plaintiff does not become the owner of the suit schedule property. The learned counsel Mr. C.V. Mohan Reddy further submitted at the Bar that though a specific plea was raised by the first defendant in the written statement, the plaintiff did not lead any evidence to establish his own title. The plaintiff must prove his own case in his own right. The plaintiff cannot succeed on the weakness of the defendants. With this proposition it was submitted by the learned counsel for the first respondent herein that the plaintiff .cannot succeed in the appeal as he has not been able to establish his title to the suit schedule lands. The lerned counsel for the 1st respondent also relied upon a ruling reported in Mown Mar Basselios Cathoticos v. Thukalan Paulo Avirn and Ors., AIR 1959 SC 31. wherein it was held by their Lordships as under:
"The plaintiffs brought the suit claiming to be trustees and praying for a declaration of their own title as trustees and for a declaration that the defendants were not trustees and for possession of the trust properties and other incidental reliefs. It was found as a fact that the meeting at which the plaintiffs were elected trustees had not been held on due notice to all churches interested and was consequently not a valid meeting.
Held, that in a suit of this description if the plaintiffs were to succeed they must do so on the strength of their own title."
On the same point, the learned counsel for the 1st respondent therein further relied upon a ruling reported in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Potdose Athanasius and Ors.., AIR 1954 SC 526. With this legal proposition, the learned counsel further submitted that the plaintiff totally failed to establish his title to the suit schedule lands and also failed to establish the possession and therefore cannot succeed in the suit.
32. It is true that the plaintiff did not lead any evidence to establish his title as to how he became the owner of the suit schedule property when the plaintiff had approached the Court with a specific plea in the trial Court that he purchased the suit schedule property from one Nandigama Satyanarayana Rao in the year 1968. Only this averment is made in the plaint without any document on record. It is a well established legal position that the title in the property does not pass to any one unless it is executed on a proper stamp paper and registered as required under Section 17 of the Indian Registration Act. The plaintiff has not been able to establish his title to the suit schedule property.
33. I have discussed in the above paragraphs of my judgment that there has been a lacuna in the judgment of the First Appellate Court, which is impugned before this Court. To summarise the lacuna in the judgment of the First Appellate Court, it can be said that the First Appellate Court formulated a cryptic point for determination. Secondly the First Appellate Court did not take into consideration properly Ex.B.5 which is the sole basis of the litigation between the parties. The first defendant had raised the contention that the property was purchased by his wife under Ex.B.5. Ex.B.5 is produced on record, which goes to show that the property was purchased by Smt.V. Bapamma, but she was not added as a party defendant in the suit. The learned Appellate Judge did not take into consideration whether the first defendant admitted the title of the plaintiff. On all those points the learned Appellate judge ought to have given the specific finding by formulating the proper points for determination. This Court has no hesitation in holding that both the parties had not conducted the suit proceedings properly. In order to give an opportunity to both the parties, this Court is inclined to remand the matter to the First Appellate Court with a direction to consider all the points discussed in the body of the judgment of this Court by giving equal opportunity to both the parties without being prejudiced to the observations made by this Court in the judgment. The learned Appellate Judge is free to come to an independent conclusion as per the evidence on record.
34. Therefore, the Second Appeal is allowed in part. A.S. No. 39 of 1992 stands remanded to the Court of the Additional District Judge, Khammam with a direction to complete the entire exercise within a period of six months from the date of receipt of this judgment by his Court. Both the parties are expected to give fullest co-operation to the First Appellate Court in disposing of the Appeal. Both the parties are directed to maintain status-quo. Under the circumstances described to above, there shall be no order as to costs.