Andhra HC (Pre-Telangana)
Pittala Kistaiah vs Smt. Ganta Laxmi And Anr. on 31 October, 2006
Equivalent citations: 2007(2)ALD81, 2007(4)ALT327, AIR 2007 (NOC) 1002 (A.P.)
JUDGMENT P.S. Narayana, J.
1. The unsuccessful 1st respondent in AS No. 41 of 1994 on the file of II Additional District Judge, Karimnagar, being aggrieved of the reversing Judgment and decree of OS No. 737 of 1987 on the file of Principal District Munsif, Karimnagar, challenged the same by way of Second Appeal.
2. This Court on 10.6.1997 made the following order:
Admit.
The following substantial questions of law arise for consideration in the above Second Appeal:
c) Whether a decree for perpetual injunction can be granted against a co-owner?
d) Whether an unregistered gift deed is valid for the establishment of possession and title over the suit property?
f) Whether the relief of perpetual injunction can be granted to the parties who have no title or interest over the property?
3. Sri Y. Rama Rao, learned Counsel representing the appellant-1st defendant made the following submissions:
The learned Counsel would submit that the reasons recorded by the Court of first instance are just and proper reasons and the appellate Court had reversed the well-considered findings without properly appreciating the oral and documentary evidence available on record. The learned Counsel would submit that the origin of the property in question appears to be by virtue of a patta granted in favour of the father of the parties to the litigation. The counsel in all fairness would submit that no doubt the appellant-1st defendant had taken a stand in the written statement that the same is ancestral property and he is the exclusive owner thereof. However, the counsel would submit that even in a suit for mere perpetual injunction the title also may have to be incidentally gone into and except the contradictory oral evidence and also the documentary evidence Ex.A17, an unregistered gift deed, said to have been executed by the father and several receipts brought into existence for the purpose of litigation, there is no other acceptable evidence placed before the Court. When that being so, the learned Counsel would contend that even if Ex.A16 to be taken into consideration, then automatically by virtue of the death of the father, all these parties become co-owners and in this view of the matter, the relief of perpetual injunction granted by the appellate Court cannot be sustained. The learned Counsel had also taken this Court through the oral and documentary evidence available on record and the findings recorded by the Court of first instance and further pointed out to the relevant findings recorded by the appellate Court and would submit that at any rate the findings recorded by the appellate Court cannot be sustained even if the evidence available on record as a whole be appreciated in a right perspective.
4. Sri Bankatlal Mandhani, learned Counsel representing the respondents- plaintiffs would maintain that no doubt this is a suit for perpetual injunction and the learned Counsel also would submit that the plaintiffs had instituted the suit for the said relief on the strength of an unregistered gift deed. However, the counsel would submit that the said unregistered gift deed alone is not the documentary evidence available on record, but there are tax receipts and the other ample evidence which would go to show that the first plaintiff has in fact constructed the house and has been in possession and enjoyment of the said property. The learned Counsel would submit that the unregistered document in question can be relied upon for the limited purpose of showing the factum of possession. The counsel also would submit that apart from the documentary evidence, ample oral evidence is available on record. The counsel also would submit that the appellate Court had framed the points for consideration at paragraph 8, dealt with all the aspects and ultimately came to the conclusion that inasmuch as the possession of the respondents-plaintiffs to be protected, the relief of perpetual injunction had been granted. The learned Counsel also would submit that though incidentally the title may be gone into, in the facts and circumstances of the case the decree granted by the appellate Court cannot be found fault with. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.
5. Heard the learned Counsel, perused the findings recorded by the Court of first instance and also the findings recorded by the appellate Court as well.
6. The Second Appeal was admitted on the substantial questions of law, which had been already referred to supra and the same need not be repeated again. The parties hereinafter would be referred to as plaintiffs and defendants as arrayed in the suit OS No. 737 of 1987 on the file of Principal District Munsif, Karimnagar.
7. The plaintiffs filed the suit praying for the relief of perpetual injunction pleading that the plaintiffs are the sisters of the defendants and further a specific stand was taken that they got the plaint schedule property by way of an unregistered gift deed from their father and plaintiff No. 1 constructed the house in her share even in the year 1967 and she has been paying municipal taxes. It was also pleaded that plaintiff No. 2 had raised a compound wall in her share and thus they claimed to be in exclusive possession and enjoyment of their respective shares in the site located in S. No. 1486 admeasuring Ac. 0-02 3/4 guntas. Further specific stand was taken by the plaintiffs that the defendants have no right over the plaint schedule property and inasmuch as there was threat of dispossession, it was pleaded that the plaintiffs were left with no other option except to institute the said suit. The 1st defendant is the present appellant. The 1st defendant pleaded in the written statement that the plaint schedule property is the ancestral property of the father and hence father has no right to gift away such property in favour of the plaintiffs. Further specific plea was taken that the alleged unregistered gift deed being void, it will not confer any title relating to the plaint schedule property in favour of the plaintiffs. It was also pleaded that the municipal receipts filed by the plaintiffs do not relate to the plaint schedule property. Further specific stand was taken that the plaintiffs filed this suit in collusion with the 2nd defendant. The other allegations also had been denied.
8. The 2nd defendant filed a written statement virtually admitting the stand taken by the plaintiffs.
9. On the strength of the respective pleadings of the parties, the Court of first instance settled the following issues:
1. Whether the plaintiffs are entitled for permanent injunction against the defendants as prayed for?
2. To what relief?
10. The trial Court recorded the evidence of PWs.1 to 4, marked Exs.A1 to A17 on behalf of the plaintiffs and further recorded the evidence of DWs.1 to 3 on behalf of the defendants and ultimately arrived at a conclusion that Ex.A17, the unregistered gift deed, cannot be looked into for any purpose and even otherwise the relief of perpetual injunction cannot be granted against a co-owner and hence in the light of the facts and circumstances inasmuch as the plaintiffs failed to prove their title relating to the plaint schedule property, they are bound to fail and accordingly dismissed the suit. Aggrieved by the same, the unsuccessful plaintiffs preferred an appeal AS No. 41 of 1994 on the file of II Additional District Judge, Karimnagar, and the appellate Court at paragraph 8 framed the following points for consideration:
1. Whether the suit property is the ancestral property of both the parties?
2. Whether D-1 has got exclusive possession over the suit property?
3. Whether the suit property can be transferred in the name of plaintiffs under Ex.A17?
4. Whether the unregistered gift deed Ex.A17 can be referred for collateral purpose of establishing the nature of the plaintiffs possession?
5. Whether the possession of the plaintiffs can be protected against D-1 basing on their exclusive possession of the suit property?
6. Whether the plaintiffs are entitled for injunction as prayed for?
7. Whether the judgment and decree under appeal are liable to be set aside?
8. To what relief? and recorded the findings commencing from paragraphs 9 to 26 and ultimately allowed the appeal decreeing the suit of the plaintiffs. Aggrieved by the same, the 1st defendant preferred the present Second Appeal.
11. In the light of the rival submissions made by the respective counsel representing the parties, the principal question to be decided is that whether the findings recorded by the appellate Court reversing the findings of the Court of first instance and granting a decree for perpetual injunction in favour of the plaintiffs to be disturbed or to be confirmed in the facts and circumstances of the case.
12. The first plaintiff was examined as PW.1. Apart from PW.1, PW.2, the 2nd plaintiff, PWs.3 and 4, the attestors of Ex.A17, the unregistered gift deed, dated 24.8.1980, also were examined. The 1st defendant examined himself as DW.1. The 2nd defendant was examined as DW.2. It is needless to say that the 2nd defendant virtually has been supporting the stand taken by the plaintiffs. DW.3 is yet another witness, who had supported the version of DW.1. Except the oral evidence, no documentary evidence was produced on behalf of the defendants. On behalf of the plaintiffs, apart from oral evidence, Ex. A17, the unregistered original gift deed already referred to supra, Ex. A16, the patta certificate issued by the Tahsildar, Karimnagar in favour of the father of the plaintiffs and defendants dated 15.8.1980, Ex.A15 notice issued by the Municipality to the first plaintiff and Exs. A1 to A14, different house tax receipts issued by the municipality in favour of the first plaintiff also were marked.
13. The fact that plaintiffs 1 and 2 are the sisters and defendants 1 and 2 are the brothers of the plaintiffs 1 and 2 and these are all children of one Pittala Rajaiah is not in serious dispute. It cannot also be in serious controversy in the light of Ex.A16 that this property was given by way of patta in favour of the father. It is needless to say that in this view of the matter the stand taken by the 1st defendant that this property is the ancestral property cannot be sustained. It is no doubt true that when Exs.A16 and A17 are taken into consideration, within a short span of time Ex.A17 is said to have been executed by the father of the parties. It is also needless to say that whatever the reasons may be, the 2nd defendant also is supporting the stand taken by the plaintiffs.
14. It is true that Ex. A17 is an unregistered gift deed. Submissions at length were made by the counsel representing the respective parties on the validity, admissibility or otherwise of Ex. A17 in the light of the provisions of the Transfer of Property Act, 1882. It is no doubt true that a gift to be executed by means of a registered document. Relating to the conveying of title or transfer of title, if the suit to be based on Ex.A17 and Ex.A17 alone, may be the contentions advanced by the counsel for the appellants may have to be considered with an element of seriousness. This is a suit for perpetual injunction. Apart from Ex. A17, the other aspects to be taken into consideration are as hereunder.
15. Though Ex. A17 is an unregistered document, the attestors concerned with the same were examined. For the limited purpose, the said evidence of PWs.3 and 4 also may be looked into. Apart from this aspect of the matter, the custody of Ex.A16, the patta certificate issued by the Tahsildar, dated 15.8.1980, also may be a strong circumstance in favour of the probability of Ex.A17 and this aspect also may have to be taken into consideration. Ex.A15, the notice issued by the municipality to first plaintiff and Exs.A1 to A14, the house tax receipts, also had been taken into consideration by the appellate Court. The evidence of PWs.1 and 2 is clear and categorical. Apart from this evidence, the evidence of DW.2 is clear and categorical supporting the version of the plaintiffs. As against this evidence, the evidence of DWs.1 to 3, the oral evidence alone is available. DW.1 asserting what he had pleaded in the written statement and DW.3 supporting the version of DW.1. In the light of the appreciation of the whole evidence, the present plea that the 1st defendant also is a co-owner along with the sisters in a way can be said to be a contrary stand to the plea taken in the written statement. It is pertinent to note that the 1st defendant had pleaded that this property is the ancestral property, and exclusively the property was given to him.
16. In Rame Gowda (Died) By L.Rs. v. M. Varadappa Naidu (Died) By L.Rs. 2004(2) ALD 31 (SC) at paragraphs 11 and 12 it was observed as hereunder:
In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial Court and the High Court have rightly decided the suit. It is still open to the defendant- appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.
The learned Counsel for the appellant relied on the Division Bench decision in Sri Dasnam Naga Sanyasi and Anr. v. Allahabad Development Authority, Allahabad and Anr. AIR 1995 All. 417 and a Single Judge decision in Kallappa Rama Londa v. Shivappa Nagappa Aparaj and Ors. to submit that in the absence of declaration of title having been sought for, the suit filed by the plaintiff-respondent was not maintainable, and should have been dismissed solely on this ground. We cannot agree, Sri Dasnam Naga Sanyasi and another's case relates to the stage of grant of temporary injunction wherein, in the facts and circumstances of that case, the Division Bench of the High Court upheld the decision of the Court below declining the discretionary relief of ad-interim injunction to the plaintiff on the ground that failure to claim declaration of title in the facts of that case spoke against the conduct of the plaintiff and was considered to be "unusual". In Kallappa Rama Londa's case the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of title, and on dealing with several decided cases the learned Judge has agreed with the proposition that where the suit for declaration of title and injunction is filed and title is not clear, the question of title will have to be kept open without denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to the suit. That is the correct position of law. In Fakirbhai Bhagwandas and Anr. v. Maganlal Haribhai and Anr. , a Division Bench spoke through Bhagwati, J. (as his Lordship then was), and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plea all relevant facts directed towards establishing their titles, as respectively claimed and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.
17. Reliance also was placed in the judgment in Nagam Siva Reddy v. B. Nazamuddin Saheb , wherein the learned Judge of this Court at paragraph 6, observed as follows:
Mr. Ramalinga Reddy for the appellant has firstly raised the contention that as the appellant is a co-owner along with the other heirs of deceased Khaja Saheb, a suit for injunction against him must be held to be incompetent. This contention overlooks the glaring fact that the suit property was not an undivided property held by a number of co-owners, but that it was the exclusive property which one of the erstwhile co-owners obtained in a partition with the other co-owners. It is on this basis that the property was attached and brought to sale in execution of the decree obtained by the appellant in O.S. No. 266 of 54. It was, again, on this footing that the appellant purchased the property at the Court sale. The subsequent attempts of the appellants to obtain actual, physical possession of the plaint property was also consistent only with this position adopted by him, viz., that it was the separate and exclusive property of his judgment debtors. In these circumstances, it was open to the plaintiff as one of the co-owners in actual possession of the properties, including the plaint property, to ask for an injunction against the appellant to restrain him from taking possession of the suit property on the basis that it belonged to him exclusively. I do not see what other remedy for the plaintiff, or any other co- owner for that matter, should have sought in the circumstances of this case. But for this suit, the appellant would surely have entered into actual possession and enjoyment of the plaint property and thereby invaded the right and possession of the other co-owners. I am, therefore, satisfied that the remedy sought by the plaintiff-respondent by way of an injunction against the defendant-appellant is an appropriate remedy in a case like the present.
By way of abundant caution, I would, however, say that the decree granted to the plaintiff in this litigation will not, in any way, derogate from the rights of the appellant-defendant as a co-owner. Indeed, the lower appellate Court has clearly stated that the appellant may institute a suit for partition in his capacity as a co-owner. Therefore, it is idle to urgent that the appellant's right as a co-owner is, in any manner, impaired by the decree passed, which I am now going to confirm in this second appeal. The permanent injunction against the appellant will be only to restrain him from claiming that the plaint property exclusively belonged to him and from taking action to obtain exclusive possession and enjoyment of the plaint property on the basis of the sale Certificate obtained by him in O.S. No. 266 of 1954, and the delivery account, Ex.B1.
18. It is true that the present Second Appeal is preferred as against a reversing judgment and decree. The appellate Court is the final fact finding Court. It is needless to say that as far as the factum of possession is concerned, it appears to some extent concurrent findings had been recorded, but the Court of first instance was not inclined to grant the relief of perpetual injunction on the ground of inadmissibility of Ex.A17 and also on the ground of the parties being co-owners of the property. As already referred to supra, in the light of the specific stand taken by the 1st defendant claiming exclusive right, this defence for the present purpose may not be available to the 1st defendant. It is no doubt true that incidentally the title may have to be gone into in a suit for perpetual injunction. This Court is not inclined to express any further opinion relating to the validity or admissibility and the other aspects of Ex.A17. However, in the light of ample oral and documentary evidence available on record in relation to the factum of possession, this Court is of the considered opinion that the limited relief granted by the appellate Court cannot be found fault with. However, the parties are at liberty to agitate their rights by pursuing the other proper legal remedies, if they are so advised.
19. In view of the above, the Second Appeal being devoid of merit, the same shall stand dismissed. In view of the close relationship between the parties, the parties to the litigation to bear their own costs.