Andhra HC (Pre-Telangana)
Ranukanta Mullaiah vs Sircilla Rajamma And Anr. on 26 July, 2006
Equivalent citations: 2006(6)ALD113, 2006(6)ALT443
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The plaintiff in O.S. No. 150 of 1980, in the Court of District Munsif, Huzurabad, is the appellant. He filed the suit against the 1st respondent herein, initially, and thereafter, the 2nd respondent was impleaded. The suit was filed for the relief of perpetual injunction. It was decreed through judgment, dated 6-10-1989. Aggrieved thereby, the 1st respondent filed A.S. No. 26 of 1989, in the Court of District Judge, Karimnagar. The appeal was allowed on 31-3-1992, and the matter was remanded to the trial Court, for fresh disposal. On remand, the trial Court dismissed the suit, through its judgment dated 31-12-1992. The appellant filed A.S. No. 7 of 1993, in the Court of II Additional District Judge, Karimnagar. The appeal was dismissed on 29-3-1994. Hence, this second appeal.
2. The appellant pleaded that his father, by name Pochaiah, and the father of the 1st respondent, by name Durgaiah, were sons of late Rajaram. According to him, his father died in the year 1943, and the father of the 1st respondent died in the year 1946. Since Durgaiah did not have any male issues, the appellant is said to have become absolute owner of the entire properties left by Rajaram, by survivorship. It was also pleaded that the Hindu Women's Right to Property Act, 1937, for short "the 1937 Act" was made applicable to the erstwhile State of Hyderabad, only with effect from 7-2-1953, and much before that date, Durgaiah died, and thereby, his wife, the 2nd respondent herein, did not succeed to his estate. The appellant further pleaded that he has been recognized as the owner and possessor of the suit schedule property, and other lands, ever since the death of Durgaiah, and that the same is evidenced by the kasra pahani, prepared in the year 1954-55, marked as Ex.A-4, and subsequent pahanies, which are marked as Exs.A-8 and A-15. He alleged that the 1st respondent tried to interfere with his possession over the suit schedule property.
3. The 1st respondent opposed the suit, by filing written statement. She pleaded that her father Durgaiah and the father of the appellant, Pochaiah, divided the ancestral properties in equal shares, and that the suit schedule property has fallen to the share of her father. She contends that the revenue records have also disclosed that she is in possession of the suit schedule property, immediately before filing of the suit, and that there was no basis for the claim of the appellant. The 2nd respondent almost toed the land of the 1st respondent, but she died at a later point of time.
4. As observed earlier, though the suit was decreed at the initial stage, after remand, it was dismissed, and the same was affirmed by the lower appellate Court.
5. Sri I. Aga Reddy, learned Counsel for the appellant, submits that the evidence on record clearly discloses that the appellant is in possession and enjoyment of the property through out, and that Durgaiah died, much before 1937 Act was extended to the State of Hyderabad. He contends that by operation of the extant law, the 2nd respondent got excluded from succession in favour of the survivors, and thereby, the plea of partition or succession were not available to her, much less to her daughter, the 1st respondent. He contends that the trial Court ought to have decreed the suit for injunction, if necessary, by leaving it open to the 1st respondent, to work out her remedies, by filing a suit for declaration of her rights.
6. Sri M. Rajamalla Reddy, learned Counsel for the 1st respondent, on the other hand, submits that the appellant was not certain as to the date of death, be it of his father Pochaiah, or the father of the 1st respondent, Durgaiah. He contends that the burden to prove these aspects, is squarely upon the appellant, particularly when he intends to exclude the succession in favour of the 1st respondent. Learned Counsel further contends that as long as the relationship between the appellant and the 1st respondent is not disputed, and even if the plea of prior partition urged by the 1st respondent is to be ignored, both of them deserve to be treated as co-owners, and no injunction can be granted against such an individual.
7. When the suit was taken up for disposal at the initial stage, two issues were framed viz., whether the appellant is in possession of the suit schedule property, upto 5-10-1980, and whether the 2nd respondent is the owner, possessor and cultivator of the lands mentioned in Para 3 of her written statement. After remand, two more issues were framed, touching upon the ownership and entitlement of the parties, vis-a-vis the suit schedule properties. The validity of certain sale deeds had also been treated, as the bone of contention, between the parties. For all practical purposes, it can be said that the scope of a suit for injunction simplicitor has been widened, to include certain aspects, touching upon the declaration of title, etc.
8. Before the trial Court, the appellant examined himself as PW.l and two more witnesses, viz. PWs-2 and 3, deposed in his favour. He filed Exs.A-1 to A-23. Ex.A-4 is the certified copy of the kasra pahani for the year 1954-55, and Exs.A-5 to A-23 are the pahanies for the years between 1975-76 to 1990-91. On behalf of the respondents, DWs-1 to 3 were examined and Exs.B-1 to B-ll were marked. The documentary evidence adduced on behalf of the respondents was also mostly in the form of pahanies. The trial Court answered all most all the issues in favour of the respondents, and so did the lower appellate Court, in A.S. No. 7 of 1993.
9. As contended by the learned Counsel for the appellant, in a suit for perpetual injunction, the only issue that would arise for consideration is as to whether the plaintiff is in possession of the suit schedule property, as on the date of filing of the suit. If the answer is in the affirmative, grant of relief must be, almost a matter of course. The exception to this general principle is, however, that were the injunction is sought against the true owner, or a co-owner. Howsoever clinching the evidence in favour of the plaintiff, as to his possession of the suit schedule property may be, the Courts would be loath to grant the protective relief of perpetual injunction in his favour, against the true owner of the property, as well as a co-owner.
10. In the instant case, the evidence on record, to a large extent, supported the plea of the appellant as regards the possession, and that could have been a factor to grant the relief of perpetual injunction, but for the fact that the 1st respondent is none other than the daughter of the paternal uncle of the appellant.
11. It is not in dispute that the father of the appellant and father of the 1st respondent are the sons of Rajaram, and both of them have succeeded to the entire suit schedule property, except for one item, and almost an equivalent extent of property held by the appellant herein. For all practical purposes, the appellant wanted to exclude the succession of the respondents herein, to the estate of late Durgaiah. For that, he has taken shelter under the extension of the 1937 Act, to the Hyderabad State, and the allegation that Durgaiah died before the said date. By its very nature, a suit for injunction simplicitor does not permit of an adjudication of such important questions, involving the determination of certain jurisdictional facts, interpretation of the provisions and expression of view upon the operation of the provisions also. Having regard to the relationship of the parties, a presumption needs to be drawn that both of them are co-owners, if not coparceners, vis-a-vis the suit schedule property, even assuming that the plea of the 1 st respondent as to prior partition has not been proved. That being the case, the 1st respondent answered the description of a co-owner, and there was no bass, on which the relief of perpetual injunction could have been granted in favour of the appellant.
12. One fact, which needs to be taken into account, is that the appellant had kept almost a replica of the suit schedule property, i.e., equivalent extent in the same survey numbers, outside the scope of the suit, and claimed the relief, only as regards the suit schedule property, stating that the 1st respondent is trying to interfere with his possession over the same. In other words, he wanted to totally exclude the rights of the 1st respondent over the entire property left by Rajaram and his two sons. The suit for mere injunction does not permit the appellant to undertake such an overreaching exercise, resulting in declaration of rights, vis-a-vis valuable property. It is rather unfortunate that respondents 1 and 2 have been excluded from the enjoyment of the property for the last several years. Even now, if the appellant is so particular, he can file a suit for declaration, in which all the relevant issues can be put to trial, and necessary adjudication can be secured. Before that, the suit property must be made over to the 1st respondent.
13. For the foregoing reasons, the second appeal is dismissed. It is, however, made clear that if it is so advised, the appellant can file a suit for declaration of title, and in which event, any observations made by the Courts below in these proceedings, including the one as to the exact date of death of Durgaiah, or Pochaiah, shall not be taken as final pronouncement. There shall be no order as to costs.