Andhra HC (Pre-Telangana)
Bulasala Subbaravamma (Died) Per Lrs. vs Saparam Venkata Subbamma on 21 October, 1998
Equivalent citations: 1999(4)ALD46, 1999(1)ALT518
JUDGMENT
1. This appeal is directed against the judgment and decree dated 18-1-1989 passed in AS No.8 of 1979 on the file of the Subordinate Judge, Chirala, reversing the judgment and decree dated 7-12-1978 passed in OS No.664 of 1974 on the file of the District Munsif, Chirala.
2. The appellants herein are the original plaintiff Bulasala Subba Ravamma and her legal heirs who have been added subsequent to her death and the respondent herein is the defendant in the said suit OS No.664 of 1974. For the sake of convenience, the parties are being referred as they are arrayed in the suit.
3. The plaintiff filed the said suit seeking permanent injunction restraining the defendant from interfering with her peaceful possession and enjoyment of the open site shown as A, B, C, D and marked as plot No.2 in the plaint plan situated in front of her house marked as plot No.1 in the plaint plan. The defendant is the owner of the house marked as plot No.3 and also the open site which is in front of her house (Plot No.3) and marked as plot No.4 in the plaint plan. The house and the open site belonging to the defendant are situated to the south of the house and the open site of the plaintiff. There is a Panchayat road passing east-west to the north of the plaintiffs and the defendant's houses and plots. There is also a lane known as 'Bulasala vari galli' to the cast of the houses and the plots of the plaintiff and the defendant. The plaintiff and the defendant traced their title with respect to their houses and open sites to the registered sale deed dated 6-5-1916 (Ex.A3) under which Yelamandamma and Mangamma had purchased the open site from Bulasala Chowdaiah and others. The purchasers under that sale deed namely Yalamandamma and Mangamma were the wives of two real brothers. It appears that the houses shown as plot Nos.1 and 3 having constructed on the said site by Yalamandamma and Mangamma leaving open space as front yards to their houses facing towards east after effecting partition between themselves. The plaintiff's husband was the brother of the said Mangamma. Subsequent to the death of Mangamma, the plaintiffs husband became the absolute owner of the house and the open site marked as plot Nos.l and 2 and after the death of her husband the plaintiff succeeded to the same. Yalamandamma adopted one Venkateswarulu as her son and he succeeded to the house and the open site marked as plot Nos.3 and 4 respectively subsequent to death of Yalamandamma. Subsequent to the death of Venkateswarulu, his widow and daughter sold the plot Nos.3 and 4 in favour of Kumara Swamy, the husband of the defendant under Ex.B2 dated 6-5-1956. Ex.B1 is the xerox copy of Ex.B2. Thus, the plaintiff and the defendant became the owners of their respective plots shown in the plaint plan Ex.A1. The plaintiff filed the present suit OS No.664 of 1974 for permanent injunction contending that the defendant with the assistance of her close relatives has been attempting to interferewith her possession of the open site marked as plot No.2 in the plaint plan.
4. The defendant resisting the claim of the plaintiff filed her written statement stating that at the time of partition between Yalamandamma and Mangamma a passage of six feet has been left over in the open space i.e., plot No.2 in front of the plaintiff's house as passage to reach the Panchayat road on the northern side from the house of Yalamandamma and that the same was purchased by the defendant's husband under Ex.B2, that Bulasala vari galli situated to the east of their houses is a private lane belonging to the owners of the houses situated to the east and south of the defendant's house and that neither the plaintiff nor the defendant have got any right of way through that Bulasala vari galli to reach the Panchayat road on the northern side. It is also further pleaded that the defendant has no other way from her house to reach the Panchayat road on the north.
5. The trial Court settled the following issues for trial :
(i) Whether the plaintiff is in possession of the A, B, C, D plot of the plaint plan?
(ii) Whether the plaint plan is correct ?
(iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ?
(iv) To what relief?
An additional issue was also framed on 5-12-1978 at the time of arguments to the following effect:
(v) Whether the plaintiff is entitled to the declaration of title to the A, B, C, D Plot?
During the course of trial, PWs.1 to 3 were examined and Exs.Al to A4 were marked on behalf of the plaintiff. DWs.1 to 4 were examined and Exs.B1 to B6 were marked on behalf of the defendant. On a consideration of the oral and documentary evidence on record, the trial Court decided all the issues in favour of the plaintiff and consequently decreed the suit with costs.
6. Aggrieved by that judgment and decree, the defendant preferred the appeal AS No.8 of 1979 before the Subordinate Judge, Chirala. The learned lower appellate Judge observed that the trial Court gave a finding without a pleading with regard to the plaintiffs title to the disputed site and that no Court fee has been paid by the plaintiff with respect to the relief of declaration of her title. As could be seen from the record the appellate Court is justified in making such an observation for the reason that there is no prayer by the plaintiff in her plaint for the relief of declaration of her title to the disputed site and no Court fee has been paid. The lower appellate Court set out the following two points for determination :
(i) Whether the plaint plan is correct ?
(ii) Whether the plaintiff is entitled for permanent injunction as prayed for ?
The lower appellate Court held on point No.l that the plaint plan Ex.Al is incorrect and on point No.2 that the plaintiff is not entitled for permanent injunction as prayed for. Consequently, the lower appellate Court allowed the appeal and dismissed the suit of the plaintiff and directed each party to bear its own costs. Aggrieved by that judgment and decree of the lower appellate Court, the plaintiff has come up with this second appeal.
7. The learned Counsel for the appellants submits that the findings of the lower appellate Court are perverse and as such its judgment is vitiated by perversity, that the lower appellate Court has not properly appreciated the effect of the admissions made by the defendant examined as DW1, that the evidence of the Advocate Commissioner examined as DW4 does not help the case of the defendant and infact the Advocate Commissioner has categorically admitted in his cross-examination that he submitted altered plan Ex.B3 without visiting the suit site and that he prepared the same at the instance of the defendant. The learned Counsel for the appellants further submits that the lower appellate Court failed to consider the testimony of CW1 who is no other than one of the vendors under Ex.B2 with respect to plot Nos.3 and 4 purchased by the defendant's husband. The learned Counsel for the appellants further submits that the impugned judgment of the lower appellate Court is based on surmises and conjectures and the findings are vitiated as the entire evidence on record was not considered.
8. The learned Counsel for the respondent-defendant, on the other hand, submits that the findings of the lower appellate Court are findings of fact and that there are no substantial questions of law involved in this appeal and this Court has no jurisdiction to interfere with regard to the findings of fact under Section 100 CPC.
9. It is well settled that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the Civil Procedure Code after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a mere question of law is the sine qua non for the exercise of the jurisdiction under Section 100 of the Civil Procedure Code. In Kasi Bai v. Parvathi Bai, . Their Lordships of the Supreme Court held thus :
"It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact based on appreciation of the relevant evidence. There is catena of decisions in support of this view."
In Dudnath Pandey v. Suresh Chandra Batha Sali, , the Supreme Court held that the High Courts in exercise of power under Section 100 of the Civil Procedure Code cannot make a fresh appraisal of evidence and come to a different conclusion contrary to the finding recorded by the first appellate Court.
10. In K Subramaniyam v. S. Nagappa, 1986 (1) ALT 32, it is held that where the reasons given by the Appellate Judge are perverse and there is no consideration at all in the appeal, it constitutes a substantial question of law within the meaning of Section 100 CPC. Thus, where the first appellate Court had considered the evidence on record by applying its mind independently and considered the reasoning of the trial Court and gave its findings on facts, the same does not deserve to be interfered with by the High Court in second appeal. But if a finding of fact has been recorded by the first appellate Court without considering the entire evidence on record, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned as a decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court would not have been reasonably accepted, the High Court would be justified in interfering with the decisions of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. The High Court is also justified in interfering when it is made out that the findings given by the lower appellate Court are vitiated by the non-consideration of the relevant evidence or failed to meet the points raised by the trial Court in appreciating the evidence on record or the approach to decide the case is quite erroneous. The High Court can also interfere when there is perversity in finding of fact or deliberate mistake either in collection or evaluation of evidence or when it is the result of surmises and conjectures.
11. On earnest consideration of the impugned judgment in AS No.8 of 1979 and also that of the trial Court and the evidence on record, I am satisfied that the reasons given by the lower appellate Judge in reversing the findings of the trial Court are perverse and there is no consideration of the entire material on record and therefore it constitutes a substantial question of law within the meaning of the Section 100 CPC warranting interference by this Court.
12. Admittedly, as stated supra, both the plaintiff and the defendant traced their predecessors' title to the registered sale deed (Ex.A3) under which an open site was purchased by two ladies who are the wives of two real brothers. It has also come in evidence that open site was divided between the two i.e., Yalamandamma and Mangamma and houses were constructed by them and open space was left in front of their houses. But there is no document showing when that partition was effected and how it was effected. It is not in dispute that plot Nos.l and 2 as shown in the plaint plan belonged to Mangamma and the plaintiff succeeded to the same. The plot Nos.3 and 4 as shown in the plaint plan belonged Yalamandamma and the defendant's husband purchased the same under Ex.B2 from the legal heirs of Venkateswarulu who was the adopted son of Yalamandamma, CW2 is one of the executants under Ex.B2. In the absence of a written document evidencing the manner in which the partition took place, it has to be presumed that partition could have been effected into two equal plots between Yelamandamma and Mangamma who are the joint purchasers under Ex.A3. There cannot be any presumption that a passage was left over in the open site (plot No.2) belonging to Mangamma for reaching the Panchayat road on the northern side from the house of Yalamandamma. This is more so in view of the existence of Bulasala vari galli situated to the east of the site purchased under Ex.A3. As seen from Ex.A3, the eastern boundary to the open site purchased under that document is shown as 'Bulasala vari galli' and also in view of the fact that both the houses are facing towards that galli. PWs.2 and 3 who are also related to the defendant have stated on oath that the defendant and her predecessors in title used to pass through Bulasala vari galli to reach the Panchayat road on the northern side and that they never passed through the disputed open site. The plaintiff examined as PW1 also categorically stated that no passage has been left over in the disputed open site. Nothing has been elicited to discredit the testimony of PWs.2 and 3 who are independent witnesses. Further the admissions of the defendant in her cross-examination examined as DW1 also amply corroborate the testimony of PWs.1 to 3. DW1 stated in her cross-examination thus :
"Under the original of Ex.A3 house site was purchased by Yelamandamma and Mangamma. Both of them are entitled equally for the property purchased under Ex.A3..... Yelamandamma and Mangamma partitioned the house and site equally. Yelamandamma got half portion of the southern side and Mangamma got the remaining northern portion. This partition was after the purchase under Ex.A3. Yelamandamma and Mangamma purchased the site under Ex.A3 from Bulasala Chowdaiah and others. The site to the cast of the suit galli is Bulasala Devalla galli. Prior to the selling of site under Ex.A3 the owners of the site under Ex.A3 used to pass through Bulasala Devalla galli.... I donot known how Yelamandanima and Mangamma exercised the right of passage from their sites after partition....Electric poles were erected through the Bulasala vari galli to my house.... If the disputed site is included in the plaintiff's site, then our plot and plaintiff's plot would become equal. ..... There is no document to show that six feet width of the site in front of the plaintiffs house was carved out for purpose of passage from our site. The six feet width of the si/e exclusively belongs to us and it was not carved as passage."
It is clear from these admissions of the defendant that the site purchased under Ex.A3 was partitioned between Yelamandamma and Mangamma and the northern half fell to the share of Mangamma i.e., the plaintiff's predecessor and the southern portion fell to the share of Yelamandanima i.e., the defendant's predecessors in title. The defendant also admits that there is no document evidencing the carving out six feet passage on the disputed site belonging to Mangamma. It is no doubt true that in the sale deed, Ex.B2, the father of the defendant got a recital made in it that a passage of six feet width was left over in the disputed open site situated in front of the plaintiffs house. It is significant to note that the vendors under Ex.B2 had no right to sell that portion of land i.e., six feet width in the open space belonging to the plaintiffs predecessor. Such a recital in the document without the executant having right or title over the property does not vest the title to the purchaser under that document. It is significant to note that one of the executants of Ex.B2 examined as CW1 has categorically stated that they had no right over the said six feet width site as mentioned in Ex.B2 and that she does not know how such a recital was incorporated in Ex.B2. Further CW1 admitted that the disputed site belongs to the plaintiff and that herself, Yelamandanima and Mangamma and others used Bulasala vari galli as their passage. Therefore, there is categorical statement by one of the vendors of the defendant's husband that the disputed site belonged to the plaintiff and they had no right of passage over the disputed site. Hence, even though there is such a recital in the document Ex.B2, it does not confer any right on the defendant to use that open space as passage. Further, as seen from her written statement, the defendant has pleaded that she claims the open site of six feet width as a passage for her ingress and egress from her house. But in her evidence as DW1 she has stated, as quoted supra, that "the six feet width of site exclusively belongs to her and it was not carved out as passage". Thus the defendant's version in her evidence is contrary to her pleading in her written statement. DWs.2 and 3 have deposed that from out of six feet width, two feet site was reserved for the purpose of passage. This testimony of DWs.2 and 3 is also contrary to the evidence of the defendant as DW1. There is yet another circumstance which has been ignored by the lower appellate Court and which falsifies the contention of the defendant that she has no right of passage through Bulasala vari galli which she claims it as a private galli. Admittedly the site purchased under Ex.A3 also originally belonged to Bulasala Chowdaiah and others. The defendant, as quoted supra, admitted in her cross-examination, that "prior to the selling of site under Ex.A3 the owner of the site under Ex.A3 used to pass through Bulasala vari galli". This establishes the fact that the right of passage to pass through Bulasala vari galli was vested with the owners of the site under Ex.A3. It is a right vested to the site itself. Hence, it follows that the purchasers of the site under Ex.A3 are also entitled to have the said passage through that Bulasala vari galli. Hence, there is no truth in the contention of the defendant that Bulasala vari galli is a private galli and that she has no right to use the same.
13. The lower appellate Court relied much on the plans and reports submitted by the Advocate Commissioner DW4. It is significant to note that DW4 admits that he made corrections in his additional report and plan after the defendant submitted her objections. He further admits that after detecting the mistake, be did not visit the disputed site once again and that he did not produce the paper on which he noted the measurements into Court and that he corrected the mistake out of his memory. The testimony of DW4 does not in any way support the case of the defendant and the lower appellate Court wrongly relying on the same gave a perverse findings of fact.
14. On an earnest consideration of the entire evidence on record, I am satisfied, as discussed above, that the findings of the first appellate Court are based on non-consideration of the testimony of material witness CW1 who is one of the executants of Ex.B2 and also the effect of the admissions made by the defendant in her cross-examination as DW1. Hence, I have no hesitation to conclude that the impugned judgment of the lower appellate Court is vitiated by perversity and non-consideration of the entire evidence on record warranting an interference by this Court exercising jurisdiction under Section 100 CPC. Therefore, the impugned judgment of the lower appellate Court is liable to be set aside.
15. In the result, the second appeal is allowed with costs. The judgment and decree of the lower appellate Court are set aside. The judgment and decree of the trial Court are confirmed.