Andhra HC (Pre-Telangana)
Ganapuram Bramaramba And Ors. vs Anneparthy Anantharamaiah And Ors. on 5 March, 2004
Equivalent citations: AIR2004AP315, 2004(2)ALD718, 2004(5)ALT597, AIR 2004 ANDHRA PRADESH 315, (2004) 18 ALLINDCAS 649 (AP), 2004 (18) ALLINDCAS 649, (2004) 2 ANDHLD 718, (2004) 5 ANDH LT 597, (2004) 4 CURCC 129, (2004) 4 ICC 47
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Parties are referred to as arrayed in the suit.
2. Defendants in O.S. No. 93 of 1996 on the file of Junior Civil Judge, Miryalaguda are appellants herein. Plaintiffs' filed the suit against the defendants for permanent injunction in respect of 'A' & 'B' suit schedule properties. According to them, the first plaintiff is in possession and enjoyment of plaint "A' schedule property comprising Ac.20.10 guntas and the second plaintiff is in possession and enjoyment of plaint 'B' schedule property over an extent of Ac.4.15 guntas. The defendants disputed the claim of the plaintiffs'. According to them, both the items of property were held by one Mr. Narayana Rao and after his death, they have succeeded to his rights. It was their case that they never parted with the land in any manner and taking advantage of their close relationship with the family, plaintiff's 1 and 2 filed this suit.
3. The first plaintiff was examined in part as P.W.I. Since he was not subjected to further chief and cross-examinations, his evidence was eschewed. Thereafter, P.Ws.2 to 6 were examined and documents Exs.A1 to A66 were marked. On behalf of defendants. D.Ws.1 to 6 were examined and documents Exs.B1 to B24 were marked. The Trial Court recorded a finding that the plaintiffs are in possession and enjoyment of the property and thereby decreed the suit through its judgment dated 22.6.2001. Aggrieved thereby, the defendants filed A.S. No. 19 of 2001 on the file of Senior Civil Judge, Miryalaguda and the same was dismissed through judgment dated 25.8.2003.
4. Sri V. Venkata Ramana, learned Counsel for the defendants (appellants), submits that the evidence on record establishes the title and possession of the defendants and that the first plaintiff has acknowledged their possession through his deposition as P.W.I in O.S. No. 17 of 1956. He submits that once it is established that P.W.I had acquiesced in the title and possession of the defendants, it was obligatory on his part to explain as to how he had assumed the possession of that very property and in the absence of the same, the presumption under Section 114 of the Indian Evidence Act needs to be drawn in favour of the defendants. He places reliance upon the Judgment of Supreme Court in Ambika Prasad v. Ram Ekbal Rai, AIR 1966 SC 605.
5. He further contends that the Lower Appellate Court has committed material irregularity in not framing points for discussion. It is his case that in the absence of formulation of clear points, the lower Appellate Court cannot be said to have undertaken an effective discussion of the matter and thereby there is non-compliance with Order 41 CPC.
6. Sri Phani Kumar, learned Counsel for plaintiffs (respondents), submits that in a suit for permanent injunction, the only factor that should weigh with the Court is possession spread over a fairly long period and in the present case, the plaintiffs' were able to establish their possession at least from 1972 onwards, through clinching documentary evidence. He contends that though the Appellate Court has not framed separate points for discussion, in the body of the judgment, the Court had undertaken extensive discussion covering all aspects of the matter.
7. The suit was filed for permanent injunction. It is settled principle of law that basis for granting relief in such suits is possession over the suit schedule property as on the relevant date. A rider is always added to the effect that the possession shall not be transitory or illegal in nature. Such possession shall not be unlawful and be spread over a fairly long period. In the present case, the plaintiffs have placed before the Trial Court, the Pattedar pass book, title deeds and entries in pahanis consistently at least for 1 1/2 decades prior to filing of the suit So far as defendants are concerned, they have placed revenue records in their favour up to the year 1972 or so. Thereafter, they did not place any documents to show that they enjoyed possession of the suit land. In that view of the matter, the Trial Court was left with no alternative except to decree the suit. Even if, there did not exist any valid conveyance or transfer in favour of the plaintiffs, that fact by itself could not have disabled the Trial Court from granting the relief of permanent injunction. If the defendants are of the view that the title to the property continued to remain with them, it was and continues to be open to them, to seek necessary declaration and to obtain a decree for recovery of possession.
8. The presumption provided for under Section 114 of the Indian Evidence Act, as interpreted by the Supreme Court in the case referred to above, is not absolute. It depends on the nature of evidence that is adduced before the Court and the nature of relief that is prayed for. The Supreme Court observed that presumption can operate forward as well as backward. While the presumption on the basis of entries in the records or similar aspects can operate forward, such presumption based on the actual state of affairs obtaining as on the date of filing of the suit can operate backward. These presumptions in turn are subject to rebuttal by the parties opposing it.
9. The contention of the learned Counsel for the defendants as regards non-framing of points by the appellate Court is certainly noteworthy. Framing of points is in fact a requirement under Order 41 CPC. It enables the Appellate Court to address itself to the respective aspects of the matter involved in the appeal. Till recently, there used to be some difference of opinion as to whether omission to frame points would amount to a material irregularity touching on the legality of the Judgment itself. However, in view of the Judgment of the Supreme Court in Rattan Dev v. Pasam Devi, , the matter is no longer res Integra. It was held therein that even where the appellate Court fails to frame points for consideration, but undertakes discussion covering all the aspects of the matter, the omission cannot be treated as fatal.
10. A perusal of the Judgment of the Lower Appellate Court discloses that though it did not frame points for consideration, each and every aspect of the matter was discussed. The arguments advanced on behalf of plaintiffs as well as defendants in relation to the important aspects, such as, the effect of non-examination of P.W.I, the purport of deposition of P.W.I in O.S. No. 17 of 1956, the appreciation of evidence touching on the possession, were discussed at length. Hence, it cannot be said that the Judgment of the lower Appellate Court suffers from any irregularity.
11. In view of the discussion undertaken above, this Court does not find any basis to interfere with the judgments and decrees of the Courts below.
12. The Second appeal is accordingly dismissed. It is, however, observed that it shall be open to the defendants to establish their title to the property in an appropriately constituted proceedings and seek ancillary relief.