Andhra HC (Pre-Telangana)
Nitchenametla Subrayudu And Anr. vs Nookala Subramanyam And Ors. on 3 February, 2004
Equivalent citations: 2004(3)ALD427, 2004(3)ALT5
JUDGMENT D.S.R. Varma, J.
1. This civil miscellaneous appeal is directed against the judgment and decree, dated 28-11-2003, in A.S. No. 88 of 2002, passed by the II Additional District Judge at Proddatur, Kadapa District.
2. By the said judgment, the lower Appellate Court after setting aside the judgment and decree, dated 27-2-2001, in OS No. 446 of 1998, remanded the matter back to the Trial Court with a direction to dispose of the same afresh giving liberty to the second plaintiff as well as third defendant to prove their will said to be in dispute.
3. The appellants are plaintiffs and the respondents are defendants.
4. For the sake of convenience, the parties will be referred to as arrayed in the suit.
5. The first plaintiff died on 30-9-2001 during the pendency of the appeal before the lower appellate Court. Hence, for all purposes, it is only the second plaintiff who remains on record and the contesting plaintiff filed the suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the plaint schedule property.
6. The averments in the plaint are that the second plaintiff is the grand son of deceased first plaintiff. The first plaintiff became absolute owner of the plaint schedule property by virtue of joint family partition effected with other family members some time back, which is not in dispute; that the first plaintiff had executed a will on 9-2-1996 and got it registered, according to which the second plaintiff has become absolute owner of the plaint schedule property after the demise of first plaintiff; that inasmuch as the first plaintiff was not in a position to look after the Rice Mill even as on the date of filing of the suit, he got the licence of the Rice Mill situate in the plaint schedule mentioned property transferred in the name of the second plaintiff; that therefore, the registration and the licence to run the plaint schedule mentioned Rice Mill stands in the name of the second plaintiff and possession was also handed over to the second plaintiff apart from transferring the registration and licence that the first plaintiff was living with the second plaintiff till he breathed last; that the second plaintiff has been in possession and enjoyment of the plaint schedule property; that after knowing about The execution of the said will in favour of the second plaintiff, the defendants got disappointed and started harassing the first plaintiff for a share in the plaint schedule property. Hence, the plaintiffs were constrained to file the said suit against the defendants for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the plaint schedule property since the defendants were creating scenes and trying to interfere with their peaceful possession and enjoyment of the plaint schedule properties.
7. On the other hand, the case of the defendants was almost total denial of the plaint averments. It is the further case of the defendants that it was first defendant who actually developed the Rice Mill; that the first plaintiff appointed the second defendant as Manager of the plaint schedule property and that in fact with the efforts of all the defendants, the plaint schedule property was developed and improved, therefore, they are co-owners of the plaint schedule properties and hence no injunction can be granted against them.
8. Basing on the respective pleadings of the parties, the Trial Court framed the following issues:
(i) Whether the plaintiffs are in actual enjoyment of entire plaint schedule property?
(ii) Whether the plaintiffs are entitled for permanent injunction ?
(iii) To what relief ?
9. Before the Trial Court, the second plaintiff examined himself as PW1 and two others as PWs.2 and 3 and got marked Exs.A-1 to A-16 on their behalf. On behalf of defendants, the Defendants 1 and 5 examined themselves as DWs 1 and 4 and two others as D.Ws.2 and 3 and got marked EXS.B1 to B-11. Exs.X-1 and X-2 were marked with consent of both the parties.
10. The Trial Court, having considered the entire evidence on record, both oral and documentary, through judgment and decree, dated 27-2-2001, decreed the suit in favour of the plaintiffs and against the defendants so long as the second plaintiff was permitted by the first plaintiff to manage the Rice Mill situate in the plaint schedule property, excluding the room covered by Ex.B-1.
11. Challenging the said judgment and decree of the Trial Court, the defendants have preferred an appeal in A.S. No. 88 of 2002 before the lower appellate Court. During the pendency of the said appeal, the first plaintiff died. Further development on record is that, the first defendant filed an application before the lower Appellate Court to implead his wife as party defendant to the suit on the ground that the first plaintiff had already cancelled the will alleged to have been executed in favour of the second plaintiff and also executed a fresh registered will in favour of his wife. The said application was allowed.
12. Here, it is necessary to refer to certain other pleadings on behalf of the defendants. They are that a part of the room was gifted to fifth defendant by the first plaintiff under Ex.B1 and also a part of the premises in D.No. 9/535/A was leased out to fourth defendant through Ex.X-2 for one year in the said premises, in which one Maruti Enterprises was being run by the fourth defendant.
13. The lower Appellate Court formulated the following points for consideration
1. Whether the plaintiff approached the Court with clean hands?
2. Whether the plaintiff is entitled for equitable relief of permanent injunction?
3. What are the effects of registered will dated 9-2-1996 i.e., Ex.A6 and another will dated 29-9-2001 claiming by the 3rd respondent ?
14. The lower Appellate Court, having considered the evidence on record, both oral and documentary, allowed the said appeal setting aside the judgment and decree, dated 27-2-2001, in OS.No. 446 of 1998, and remanded back the matter to the Trial Court for fresh disposal after giving opportunity to the second plaintiff as well as the third defendant to prove their respective wills.
15. From the judgment of the Trial Court, it appears that the portion covered by Ex.X-2 was not considered to be a part of the plaint schedule property and therefore no finding was recorded insofar as Ex.X-2 is concerned. But, a specific finding was recorded insofar as the gift of room through Ex.B-1 in favour of fifth defendant is concerned, excluding the same from the judgment and decree passed in favour of the plaintiffs.
16. A perusal of the evidence on record, particularly Ex.A-2, which is an endorsement, discloses the transfer of licence and Exs.A-7 and A-8, which are Registers of Wages from 1999 to March, 2000, and from April, 2000 to September, 2000 respectively, disclose that the second plaintiff was in possession and enjoyment of the Rice Mill as on the date of filing of the suit and that it is further intended that the will, which is of the year 1996, executed by the first plaintiff in favour of the second plaintiff was not the basis to file the suit for injunction. Therefore, the title appears to have changed through the second will, dated 29-9-2000. In other words, for the first time, during the pendency of the appeal before the lower appellate Court, just one day before the death of the first plaintiff i.e., on 30-9-2001, a will was allegedly executed by the first plaintiff in favour of the proposed party to be impleaded, who is no other than the wife of the first defendant. This fact discloses that for the first time, the aspect of will in favour of the wife of the first defendant was set up and that the application filed by the first defendant seeking impleadment of his wife as party defendant to the suit was ordered,
17. A memo was also filed by way of reply to the memo filed on behalf of the second plaintiff in the appeal before the lower appellate Court. Along with the said memo, list of documents were also said to have been filed, as indicated in the said memo.
18. From a perusal of the said memo, it appears that two document viz., (1) certified copy of revocation deed, dated 10-9-1999, pertaining to the cancellation of the will, dated 9-2-1996, allegedly executed by the first plaintiff in favour of the second plaintiff and (2) the Photostat copy of the will dated 29-9-2001, duly notarized, executed by the first plaintiff since the original was submitted to the Sub-Registrar were filed.
19. From a perusal of the impugned judgment, it seems that these two documents were taken note of by the lower Appellate Court and eventually came to the conclusion that these documents are relevant for the purpose of proving the title and since they are essential material to refute the plaint averments that a will was executed in favour of the second plaintiff by the first plaintiff on 9-2-1996, while setting aside the judgment and decree of the Trial Court and remanded the matter back to the Trial Court for fresh disposal after giving opportunity to the second plaintiff as well as the third defendant, the wife of the first defendant, who was impleaded in the appeal, to prove their will.
20. In other words, the intention of the lower Appellate Court obviously was that both the second plaintiff and the first defendant were claiming title through two different wills and in order to test the veracity of those documents, remanded the matter back to the Trial Court for fresh disposal. Hence, challenging the said order of remand, the present appeal has been filed.
21. It is contended by the learned Counsel for the plaintiffs that the second plaintiff had proved his possession basing on Ex.A-2, which is a document transferring the licence in favour of the second plaintiff by the first plaintiff on 2-11-1998 and that he proved his possession also by way of marking Exs.A-7 and A-8, which are Registers of Wages pertaining to 1999 to March, 2000, and April, 2000 to September, 2000 respectively. He further contended that the second plaintiff did not rely on the will Ex.A-6 dated 9-2-1996. The deceased first plaintiff and the second plaintiff filed the suit mainly on the basis of the possession of second plaintiff by virtue of Ex-A2 i.e., letter of transfer of licence of mill while asserting the title of the first plaintiff.
22. He further contended that the suit was only for permanent injunction as the defendants had been interfering with the peaceful possession and enjoyment of the plaint schedule property and in fact there was no need for the plaintiffs to file a suit for declaration of title and when the suit is not for the declaration of title and it is only for permanent injunction, it is only the possession as on the date of filing of the suit that has to be gone into. He further vehemently contends that when the will Ex.A6 was incidentally relied on or was mentioned in the plaint averments, that should not be understood that the title of the plaintiffs was also in question and that it was only for the first time that too after the death of the first plaintiff the effect of the subsequent will, allegedly executed in favour of the third defendant, dated 29-9-2001, would be relevant and the first plaintiff was very much alive till 30-9-2001, Only after the death of the first plaintiff, an application came to be filed by the first defendant seeking impleadment of his wife as party defendant to the suit on the ground that the first plaintiff had cancelled the earlier will dated, 19-2-1996. He, therefore, contends that when the earlier will, dated 19-2-1996, in favour of the second plaintiff and the other will, dated 29-9-2001, in favour of the wife of the first defendant, which relates to the question of title, was not the subject-matter of the suit, the lower Appellate Court was in error in setting aside the judgment and decree of the Trial Court and remanding the matter back to the Trial Court for fresh disposal after giving an opportunity to the second plaintiff as well as the third defendant to prove their wills.
23. Per contra Sri M.N. Narasimha Reddy, the learned Counsel for the defendants, contends that the cancellation of will, dated 19-2-1996, executed by the first plaintiff in favour of the second plaintiff and the second will, dated 29-1-2001, were marked along with the memo and they are very much part and parcel of the record in the appeal. Therefore, without expressing any opinion, the lower Appellate Court has rightly remanded the matter back to the Trial Court for fresh disposal to decide the issue of execution of wills and hence the order of remand of the lower Appellate Court was not illegal. He further contends that the lower Appellate Court in fact had framed ,a point with regard to the effect of the will said to have been executed by the first plaintiff in favour of the wife of the first defendant. Therefore, the lower Appellate Court was not wrong in setting aside the judgment and decree of the Trial Court in view of these two wills on record to remand back the matter to the Trial Court for fresh disposal.
24. It is further contended by the learned Counsel for the defendants that the facts insofar as the gift deed Ex.B1 and the lease deed Ex.X-2 in favour of second defendant executed by the deceased first plaintiff are concerned, they were suppressed by the plaintiffs in the plaint averments. He further contended that the second plaintiff is not entitled to have any possession over the suit schedule property since he was treated only as a licensee. It was left open by the Trial Court as to what should happen to the suit schedule property after the death of first plaintiff. He further points out that the second plaintiff in his deposition states that even the room, which was leased out, was in his possession.
25. The lower Appellate Court has formulated the following points for consideration:
(1) Whether the plaintiff approached the Court with clean hands?
(2) Whether the plaintiff is entitled for the equitable relief of permanent injunction ?
(3) What are the effects of the registered Will, dated 9-2-1996, i.e., Ex.A-6 and another Will, dated 29-9-2001, claimed by the 3rd respondent ?
26. All these points were discussed in extenso by the lower Appellate Court and the judgment and decree of the Trial Court were set aside and the matter was remanded to the Trial Court for fresh disposal after giving opportunity to the second plaintiff as well as the 3rd respondent in the appeal (10th respondent herein).
27. At this juncture itself, it is to be noted that the 3rd respondent before the lower Appellate Court, who is the 10th respondent herein, and who is no other than the wife of the first defendant, was not made a party to the suit at all.
28. From the judgment of the lower Appellate Court, it is clear that the matter was remanded back to the Trial Court mainly on three grounds; firstly, the mere possession of second plaintiff as a licensee shall not be presumed that he was in possession; secondly Ex.B-1, registered gift deed, and Exs.X-1 and X-2 show that the properties covered by the said documents were leased out to the first defendant by the first plaintiff and therefore this suppression, according to the lower Appellate Court, amounts to approaching the Court with unclean hands and hence it was found by the lower Appellate Court that the equitable relief of injunction cannot be granted in favour of the plaintiffs and thirdly a new will was relied upon by the first defendant, which is said to have been executed in favour of the third respondent in the appeal and who is no other than the wife of the first defendant, and that the genuineness or otherwise of the wills said to have been executed in favour of the second plaintiff and the third respondent in the appeal has to be decided by the Trial Court. Hence, the matter was remanded back to the Trial Court.
29. Now, it is to be examined as to whether such an order of remand, to try the suit afresh by the Trial Court, made by the lower Appellate Court, is justifiable or not ?
30. In this context, firstly it is useful to notice the plaint schedule, which runs thus:
"Rice Mill situated in Old D.Nos. 6/305, 6/ 306, 6/307 and New D.Nos. 9/535 and 9/537-1 in , Mydukur Road, Proddatur Municipality, Proddatur town, bounded as follows :
East: Middle House of Narapureddy Veera Reddy (Royal Traders) West : Houses of Cheppali Alli Saheb and others. North: T.T.D. Kalyana Mandapam. South: Public road."
31. From a perusal of the plaint schedule, it is clear that it is the Rice Mill that is the main property in dispute and permanent injunction was sought for by the plaintiff only against the Rice Mill situate in the said survey numbers as indicated above.
32. It is further stated in the plaint at Paragraph No. 4 that "anyhow as the first plaintiff does not have the physical capacity to work in the factory, the first plaintiff got the licnece for the schedule Rice Mill transferred in the name of the second plaintiff. So, the registration and licence to work in the schedule mentioned Rice Mill stands in the name of the second plaintiff. The first plaintiff handed over possession of the schedule mentioned property on 31-10-1998 apart from transferring the registration and licence of the Rice Mill in the name of the second plaintiff.
33. At paragraph No. 5 of the plaint, it is further stated as under :
"Second plaintiff is in possession and enjoyment of the plaint schedule mentioned properties."
34. At Paragraph No. 7 of the plaint, it was again stated that on 9-2-1996 the first plaintiff executed a will in favour of the second plaintiff.
35. It is clear from the aforementioned paragraphs of the plaint that the whole case of the deceased first plaintiff and second plaintiff althrough has been that the defendants had been interfering with the Rice Mill only. Further, it is clear that the first plaintiff had executed a will in favour of the second plaintiff insofar as the Rice Mill is concerned and the registration and the licence of the Rice Mill were transferred in favour of the second plaintiff on 31-10-1998. It is to be further seen that the other property viz., the leased property in favour of the first plaintiff through Ex.X-2, which was confirmed by Ex.X-1, indicating that a business in the name and style of Maruthi Enterprises was being run, and a gift deed is said to have been executed in favour of the fifth defendant insofar as the room bearing D.No. 9/536/A. Another small piece in the entire property belonging to the first plaintiff consisting of D.No. 9/534/A (mentioned as D.No. 535/A or 536/A at different places).
36. These two properties were not at all mentioned in the plaint nor it was the grievance of the plaintiffs, as on the date of filing of the suit, that the defendants have been interfering with their peaceful possession and enjoyment of those two properties. The main grievance of the plaintiffs in the suit apparently was that the defendants are interfering with their peaceful possession and enjoyment only insofar as the Rice Mill was concerned.
37. This aspect has been elaborately considered by the Trial Court. The evidence of DW1 which was to the effect that there was a public road to the south of his shop room (Maruthi Enterprises) and as such the plaintiffs can have the relief of permanent injunction for the plaint schedule Rice Mill property by excluding the shop through Ex.B1, which admittedly, bears D.No. 9/534. Therefore, the fourth defendant was very much clear about his possession insofar as the property, which was leased out under Ex.B1 and the possession of the plaintiffs insofar as Rice Mill was concerned inasmuch as he did not deny the relief of permanent injunction to the plaint schedule Rice Mill property. This is strengthened by his statement for exclusion of his shop covered by Ex.B-1 from the plaint schedule property for the purpose of permanent injunction.
38. Similarly, the Trial Court found that insofar as the shop consisting of D.No. 9/ 535/A is concerned, no evidence was placed on record by the defendants to substantiate their contention. On the other hand, the first plaintiff was examined as PW.1 who categorically deposed in his evidence that the shop room bearing D.No. 9/535/A is part and parcel of plaint schedule property. On the other hand, DW1 asserted that the shop room is not part and parcel of the plaint schedule property.
39. DW2, who is the clerk of fourth defendant, categorically admitted that there was a lane to the west of the Rice Mill and it runs north-south and the room in which the business of Maruthi Enterprises was being run was abutting the Rice Mill. DW.2 further categorically admitted that it was possible to reach the said Maruthi Enterprises shop through the lane without entering into the premises of the Rice Mill and its gate.
40. From the above evidence on record, the Trial Court had rightly come to the conclusion that the shop room bearing D.No. 9/535/A is not part and parcel of the plaint schedule property and that the access to reach that shop is only through the main gate of the Rice Mill and eventually recorded a finding that the plaintiffs were in enjoyment of the Rice Mill shown in the plaint schedule property excluding the shop room covered by Ex.B-1.
41. Insofar as the property under Ex.B-1, which was said to have been gifted in favour of the fifth defendant is concerned, it is the evidence of the fifth defendant that it is part and parcel of plaint schedule property. But, the boundaries of the said shop are so mentioned :
East : Joint wall of the his room and Rice Mill West: Building of one Ramesh North : Joint wall of Rice Mill Sourth : Public road.
42. Hence, it was contended by the defendants, while narrating the boundaries as above, that the plaintiffs have included the shop room covered by Ex.B1 also in the plaint schedule property and, inasmuch as the property of the fifth defendant was also included in the boundaries of plaint schedule, the fifth defendant becomes a co-owner of the plaint schedule property, and hence no injunction can be granted in favour of the plaintiffs.
43. However, having regard to the evidence of the fifth and fourth defendants, insofar as the properties, which are said to have been in their possession and enjoyment, one, by way of lease and the other, by way of a gift, though initially were allegedly part and parcel of the plaint schedule property, the evidence of the fourth defendant regarding the leased property is concerned, it is not part and parcel of the Rice Mill. Therefore, the concern of the fourth and fifth defendants was not with regard to the entire plaint schedule property but was confined to the limited extent of the portions covered by Exs.B-1 and X-2.
44. Further more, it is to be noted that the main relief of permanent injunction sought for by the plaintiffs was with regard to the Rice Mill only. A comparison of the boundaries given by DW1 in respect of the property leased out to him and the boundaries mentioned in the plaint schedule would disclose that they are entirely different. The property covered by Ex.X-2, though asserted by the plaintiffs to be part and parcel of the Rice Mill, that was not strictly adhered to by the plaintiffs themselves. So also, the property covered by Ex.B-1.
45. Further, from a plain reading of the plaint schedule, it is to be seen that the Rice Mill is situate originally in Old D.Nos. 67 305, 6/306 and 6/307 and new D.Nos. 9/535 and 9/537-1. Obviously, the properties covered either by Ex.B-1 or by Ex.X-2, bearing door numbers as 9/534 and 9/535/ A, are not at all part and parcel of plaint schedule property, since the boundaries of Ex.B-1 and X2 are not at all tallying with the plaint schedule properties. Therefore, even though the plaintiffs have stated that the entire plaint schedule property has been in their possession and enjoyment, the properties covered by Exs.X-2 and B-1 were rightly and specifically excluded from the plaint schedule properties and confined to the relief of granting permanent injunction only to the extent of Rice Mill, which was specifically mentioned in the plaint schedule.
46. Having regard to the contention of the defendants that there was a will executed by the deceased first plaintiff (died during the pendnecy of the appeal) in favour of the wife of the first defendant, it is to be noted that the wife of the first defendant was introduced only during the proceedings before the lower Appellate Court. The introduction was obviously for the reason that the first plaintiff died on 30-9-2001 and the will said to have been executed by the deceased first plaintiff was on 29-9-2001. Therefore, there was no occasion for the defendant to set up the plea of will in favour of his wife at the earliest point of time i.e., during the trial of the suit or in the initial stages of the appeal. An interlocutory application had also been filed by the first defendant to implead his wife as third respondent in the appeal and it appears that the same had been allowed and she became a party to the appeal in the lower Appellate Court.
47. In this regard, the first defendant also filed a memo along with two documents viz., (1). Certified copy of the revocation deed dated 10-9-1999 (Document No. 78/99) pertaining to the cancellation of the will dated 9-2-1996 (Document No. 6/96) executed by Respondent No. 1 and (2). Photostat copy of the will dated 29-9-2001, duly notarized, executed by the deceased Respondent No. 1 since the original submitted before the sub-Registrar, Proddatur, and thus pending enquiry, and the lower Appellate Court having regard to the will, which was pressed into service on behalf of the third respondent in the appeal, wanted to test the veracity or otherwise of the said document with that of the will said to have been executed by the first plaintiff in favour of the second plaintiff during his life time i.e., Ex.A-6, dated 19-2-1996, in order to remand the matter back to the Trial Court.
48. In this context, it is to be noted that it is the specific contention of the plaintiffs that the Rice Mill, to which the first plaintiff was the admitted owner, was transferred in the name of the second plaintiff by transferring the licnece of the same in the month of October, 1998. As already noticed, it is the specific averment of the plaintiffs in the plaint that since the date of transfer of licence in favour of the second plaintiff by the first plaintiff, it is only the first plaintiff who has been managing the affairs of the plaint schedule property and has been in possession and enjoyment of the Rice Mill.
49. It is conspicuous to notice that the suit was filed both by the first plaintiff (when he was alive) and the second plaintiff (grand son of first plaintiff) because their common case was alleged interference of defendants with their peaceful possession and enjoyment over the Rice Mill. It is also their specific averment that they were in possession of the plaint schedule property as on the date of filing of the suit and the relief sought was only perpetual injunction on the alleged interference by the defendants, particularly by the first defendant. In other words, the direct and substantial issue in the suit to be the decided was with regard to possession and not title.
50. Hence, the issues that were framed by the Trial Court were to the effect as to whether the plaintiffs are in actual enjoyment of the entire plaint schedule property and whether they were entitled for permanent injunction. Therefore, it was only the possession of the plaintiffs that was substantially in issue. The title vis-a-vis the validity of the will under Ex.A-6 executed by the first plaintiff in favour of the second plaintiff was never conceived to be decided nor was there any need for the defendants to contest regarding the title of the plaintiffs. The reason was very simple; the first plaintiff was alive as on the date of transferring of licence in favour of the second plaintiff and the will of the year 1996 was also during the lifetime of first plaintiff and subsisting as on the date of filing of the suit. Therefore, incidentally it was mentioned by the plaintiffs in the plaint averments that there was a will also executed in the year 1998.
51. Had there been a specific contention by the defendants challenging specifically about the execution of the will and also the title of the plaintiffs, there would and could have been a specific issue framed by the Trial Court itself. But, the defendants did not have the audacity to challenge the title or entering into the arena of issue of title inasmuch as the first plaintiff, who was alive as on the date of filing of the suit, admittedly, was the owner of the plaint schedule properly. Only after the death of the first plaintiff, the first defendant filed an application seeking impleadment of his wife on the ground that she was the legatee of the property mentioned in the plaint schedule property by way of a will, dated 29-9-2001. Accordingly, the wife of the first defendant became third respondent in the appeal.
52. It is the contention of the learned Counsel for the defendants that even before filing the suit or seeking impleadment of the wife of first defendant as party respondent to the appeal before the lower Appellate Court, a notice was got issued and a reply was also given by the first plaintiff regarding the will. But, neither the said notice nor the reply is not made part of the record, nor there was any application by the defendants to receive those documents as additional evidence in the appeal.
53. When the defendants want to rely upon subsequent will, said to have been executed by the first respondent in the appeal, and when they want to make such a will as a crucial document in order to prove their title to the plaint schedule property, an application under Order-41, Rule 27 of the Code of Civil Procedure could and should have been filed by them for that purpose. But, for the reasons best known to the defendants, no such steps have been taken nor the said crucial document i.e., the will said to have been executed by the first respondent pending the appeal on 29-9-2001, was never sought to be marked nor the same was received by the lower Appellate Court as additional evidence in the appeal.
54. Therefore, when the very disputed document was not there on record even before the lower Appellate Court, I am of the view that the lower Appellate Court had no necessity to rely upon a document, which was never sought to be received as additional evidence, nor the same can be treated as the subject-matter of the appeal nor can be treated as a, ground to remand the matter back to the Trial Court to test the same with the document, which was already on record on behalf of the plaintiffs in the shape of Ex.A6 will.
55. In other words, the fact of execution of Ex.A-6 will was only an incidental but not vital, in the plaint averments. Obviously, that was felt not necessary by the plaintiffs to maintain the suit for permanent injunction. Therefore, having regard to the specific averment in the plaint, the whole thrust of the plaintiffs was revolving around the transfer of licence and management of the Rice Mill in favour of the second plaintiff and the possession and enjoyment thereof as on the date of filing of the suit.
56. At this juncture, it is pertinent to note that even the lower Appellate Court recorded a finding that at best the possession of the second plaintiff can be treated as that of a licence, that too, only so long as the first plaintiff was alive. What should happen to the licence of the second respondent subsequent to the death of the first plaintiff was again left as a query. In other words, the possession and enjoyment of the second plaintiff as on the date of filing of the suit may be as a licensee, was accepted. In fact, it has to be accepted.
57. Therefore, as already pointed out, the substantial question or issue in the present suit for permanent injunction was only with regard to the possession and enjoyment of the plaintiffs over the plaint schedule property as on the date of filing of the suit, but not the title. Further, the title was never an issue before the Trial Court.
58. But, it is to be noted that the lower Appellate Court having regard to the will, dated 29-9-2001, that was attempted to be brought on record, treated the same as a vital document in order to establish the title of either of the parties as if the title was the main and substantial issue. In this regard, I am of the considered view that the lower Appellate Court had committed an error in going in to the question of title, particularly, basing on a document, which was not received by the lower Appellate Court as additional evidence.
59. Merely on the basis of a mention made in a memo filed before the Court, the lower Appellate Court ought not to have taken that document as basis for remanding the matter back to the Trial Court for fresh consideration. It could be possible only; firstly when the defendants made an application under Order 41, Rule 27 of the Code of Civil Procedure to receive such document as additional evidence and the same is allowed, and secondly when the documents were already marked before the Trial Court and not considered or improperly considered, and thirdly when the title was originally and substantially in issue before the Trial Court. None of these three contingencies are present in order to remand the matter back to the Trial Court for fresh consideration.
60. The Supreme Court in Gram Panchayat of Village Naulakha v. Ujagar Singh, , wherein similar set of facts had arisen, while dealing with the aspect of res judicata, held at Paragraph No. 10 as under :
"We may add one other important reason which frequently arises under Section 11 of CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dababhai Ummer, , where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."
61. It would also be useful to have a glance at the decision of the Supreme Court in Sajjadanashin Sayed v. Musa Dababhai Ummer, , which has been referred to by the Supreme Court in Ujagar Singhs' case (supra). From a reading of this judgment Sajjadanashi Sayed v. Musa Dababhai Ummer (supra), their Lordships while dealing with the aspect of res judicata had the occasion to discuss about matters 'directly and substantially in issue' and matters 'collaterally and incidentally in issue' and held that it depends upon facts of the case. The relevant portion at Paragraph Nos. 12 and 14 is extracted as under:
"12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceedings. Judicial decisions have however, held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceedings, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue (Mulla's Civil Procedure Code, 15th Edn., P.104).
62. Their Lordships of the Supreme Court had also taken into account the saying of Mulla at page No. 104 in 15th edition of CPC. The relevant portion at Paragraph No. 18 of the judgment is extracted hereunder for ready reference:
"The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principle issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in latter case (Mulla, P.104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Iswer Singh v. Sarwan Singh, and Syed Mohd. Salie Labbai v. Mohd Hanifa, ).
63. Further, their Lordships in the said decision Sajjadanashin Sayed v. Musa Dababhai Ummer, (supra) had also taken into account the principle of caution referred to by Mulla. The said principle at Paragraph No. 19 is re-extracted as under for ready reference:
"It is not be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for the decision."
64. In a suit for permanent injunction, the issue of title can be decided as an incidental or collateral issue, in which event notwithstanding the finding with regard to title as incidental issue or collateral issue the losing party is not barred from filing a fresh suit for title and the principles of res judicata are not attracted in such cases whereas in a suit for title the substantial issue would always be the title.
65. Coming to the case on hand again, the suit was filed for permanent injunction. The issue as regards title was never a substantial issue nor an issue was framed in this regard by the Trial Court and only for the first time the lower Appellate Court had framed an issue with regard to the title basing on a document, as already pointed out, which was not brought on record at all. Hence, mere pleading regarding title in the affidavit filed, in support of an application, to implead the wife of the first defendant at the Appellate state, is not a sufficient ground to pass an order of remand directing the Trial Court to deal with a will, which was not at all on record.
66. Further, from the application in IA No. 271 of 2002 filed seeking impleadment, on the ground that a will, dated 29-9-2001, was executed by the first plaintiff, it is clear that the ownership of the first plaintiff to the plaint schedule property was not denied. Further, the registered will, dated 9-2-1996, executed by the first plaintiff bequeathing the plaint schedule property to the second plaintiff was also admitted. It was further stated that on 10-9-1999 the first plaintiff executed a registered document revoking the earlier registered will, dated 9-2-1996. But, as pointed out earlier, none of these documents except the will, dated 9-2-1996, are on record.
67. Therefore, when a pleading was made and no supporting documents were received and marked as exhibits, any documents pressed into service through a memo cannot be relied on and the same have to be eschewed from consideration.
68. To put it in a different way, the question of title had arisen for the first time only after the death of the first plaintiff in the year 2001, during the pendency of the appeal, but not before that and that too, on the basis of a document, which was not on record.
69. For the aforementioned reasons, I am of the considered view that the lower Appellate Court was in error in setting aside the judgment and decree of the Trial Court and remanding the matter back to the Trial Court for fresh disposal, creating a new cause of action and an issue only on the basis of an averment in the application in IA No. 271 of 2002 for impleadment.
70. However, I am of the view that if the defendants want to challenge the title as substantial issue basing on any document like the will, dated 29-9-2001, they can always file a fresh suit since this issue had arisen or is available for the defendants only for the first time during the pendency of the appeal owing to the death of the first plaintiff. I am also of the further view that the finding of the lower Appellate Court that merely because the second plaintiff was to be treated as a licensee, the possession of the second plaintiff along with the first plaintiff over the plaint schedule property as on the date of filing of the suit cannot be doubted.
71. Therefore, the impugned decree and judgment of the lower Appellate Court are liable to be set aside and the decree and judgment of the Trial Court are to be confirmed.
72. In the upshot, the Civil Miscellaneous Appeal is allowed and the decree and judgment, dated 28-11-2003, in AS No. 88 of 2002, passed by the II Additional District Judge at Proddatur, are hereby set aside and consequently the decree and judgment, dated 27-2-2001, in OS.No. 446 of 1998, passed by the Principal Junior Civil Judge at Proddatur, are hereby confirmed. However, there shall be no order as to costs.