Andhra Pradesh High Court - Amravati
Boei Rama Devi vs Suggu Ammaji @ Suggu Ammojamma on 30 December, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.504 of 2022
Between:
Boei Rama Devi, W/o Venkata Ramana,
Hindu, Aged 47 years, residing at
Boravanpalem village, Paradesipalem
Panchayat, Visakhapatnam District.
... Appellant/Plaintiff.
Versus
Suggu Ammaji @ Suggu Ammojamma, W/o
late Venkata Rao, Hindu, aged 67 years,
residing at D.No.7-9-34, Geetha Nivas, 7th
Ward, Chittivanipalem, Dasimmikonda area,
Gajuwaka, Visakhapatnam.
... Respondent/Defendant.
Counsel for Appellant : Sri K.Siva Ramakrishna
Counsel for respondents : ---
JUDGMENT
Plaintiff in the suit filed above second appeal aggrieved by the judgment and decree dated 05.07.2022 in A.S.No.100 of 2016 on the file of Special Sessions Judge for SC & ST Cases-cum-XI Additional District & Sessions Judge, Visakhapatnam, confirming the judgment and decree dated 11.03.2016 in O.S.No.269 of 2007 on the file of I Additional Junior Civil Judge, Bheemunipatnam.
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2. For the sake of convenience, the parties to this judgment are referred to as per their array in plaint.
3. Plaintiff filed the suit O.S.No.269 of 2007 for permanent injunction.
4. In the plaint, it was contended interalia that plaintiff is the absolute owner of the land admeasuring 220 square yards in S.No.188/1 of Madhurawada village having purchased the same under a registered sale deed dated 30.12.2002; that vendor of plaintiff got the property under a registered sale deed bearing document No.675 of 2002 from one R.Prabhakar Rao, GPA Holder; that plaintiff constructed two shop rooms within the schedule property in the year 2003; that plaintiff filed C.O.P.No.242 of 2005 on the file of Junior Civil Judge, Bheemunipatnam and the counsel for defendant issued reply on 07.10.2005 with false allegations; that in October, 2005 defendant illegally demolished the structures i.e. two shop rooms; that plaintiff filed complaint before Bheemunipatnam police, who in turn admonished the defendant for his illegal and high handed act; that Page 3 of 22 SRSJ SA No.504 of 2022 Bheemunipatnam police issued letter dated 23.03.2006 to the MRO for identification of property and its boundaries in order to settle the dispute; while the matter is pending before the MRO, defendant high handedly tried to construct compound wall and the same was resisted and hence, filed the suit for perpetual injunction.
5. Defendant filed written statement and contended interalia that mother-in-law of defendant by name Suggu Narasayamma purchased property in S.No.188/1 under Patta No.678 of an extent of Ac.0.05 cents in the year 1977 under a registered document No.1252 of 1977 from V.V.L.Krishna Rao; that Narasayamma executed a registered gift deed in favour of her son Atchiraju in the year 1983; that Atchiraju died on 26.01.1989 leaving behind defendant, Narasayamma, his two daughters and one son as his legal heirs; the schedule property purchased by Narasayamma came into possession and enjoyment of defendant and her family members jointly and they have been in peaceful possession and enjoyment of schedule property; that in the year 2000, defendant started to construct a pucca house in the property; Page 4 of 22
SRSJ SA No.504 of 2022 that on 27.11.2000 one Pothina Venkata Ramana @ Potti Ramana and Rudraraju Markendeya Raju and their men tried to interfere with the possession of defendant; that suit O.S.No.387 of 2000 was filed on the file of Junior Civil Judge, Bheemunipatnam seeking permanent injunction and the same was decreed on 13.06.2005; that defendant completed compound wall and two rooms in the property; while constructing the compound wall, defendant left two feet site on the western side and later stopped construction as per Vastu; that defendant demolished the compound wall and at that stage, plaintiff and her husband including Pothina Venkata Ramana and their men threatened the defendant; that on 04.10.2005 plaintiff filed caveat and defendant sent a suitable reply on 17.10.2005; that plaintiff issued paper publication on 25.10.2005 and in response, defendant also issued paper publication on 27.10.2005; that defendant also placed the matter before the Police Commissioner, Visakhapatnam in Spandana programme, who in turn directed the MRO to depute Mandal Surveyor to resolve the problem; that MRO deputed Mandal Surveyor, who surveyed Page 5 of 22 SRSJ SA No.504 of 2022 the land basing on documents and also handed over property of schedule property to defendant vide proceeding in L.Dis.No.206/06/A; that defendant obtained approval from GVMC; that as per the plan, defendant started construction of house in schedule property; that on 07.07.2007, defendant dug a well in north-east corner of property and further attended the construction work; that defendant constructed compound wall around the schedule property by investing Rs.1,30,000/- by 26.07.2007; that plaintiff, her husband and their men visited the schedule property on 27.07.2007 and demolished the walls highhandedly; since the police failed to take any action, defendant filed a private complaint under Section 190 (3) and 200 of Cr.P.C on the file of IV Additional Metropolitan Magistrate, Bheemunipatnam on 05.09.2007; that defendant filed E.P.No.55 of 2007 in O.S.No.328 of 2000 against the plaintiff and her men; that boundaries shown by the plaintiff are different from that of decree in O.S.No.328 of 2000 dated 13.06.2005 and thus, prayed to dismiss the suit.
6. Basing on the pleadings, trial Court framed the following issues:
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SRSJ SA No.504 of 2022 (1) Whether the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?
(2) Whether the defendant without any manner of right or title is interfering with the plaintiff's possession?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
(4) To what relief?
7. During the trial, plaintiff examined herself as P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-9 were marked. On behalf of defendant, defendant examined herself as D.W.1 and got examined as D.Ws.2 and 3. Exs.B-1 to B-14 were marked.
8. Trial Court by judgment and decree dated 11.03.2016 dismissed the suit. Aggrieved by the same, plaintiff filed A.S.No.100 of 2016. Lower appellate Court being final fact finding Court, framed the following points for consideration as contemplated under Order 41 Rule 31 CPC. Page 7 of 22
SRSJ SA No.504 of 2022 (1) Whether the plaintiff has been in possession and enjoyment of the schedule property as on the date of filing of the suit?
(2) Whether the plaintiff is entitled for permanent injunction as prayed for?
(3) Whether the suit is liable to be dismissed for want of declaration of title?
(4) To what relief?
9. Lower appellate Court on appreciation of both oral and documentary evidence, dismissed the appeal vide judgment and decree dated 05.07.2022. Aggrieved by same, the above second appeal is filed.
10. Sri K.Siva Ramakrishna, learned counsel for appellant would submit that boundaries mentioned in Ex.A-1 sale deed relied upon by plaintiff and boundaries mentioned in Ex.B-1 sale deed are different and distinct and the Courts below failed to consider the same in proper perspective. He would also submit that no issue was framed regarding boundaries, which is relevant to determine the dispute between the parties. He would submit that D.W.1 during the cross Page 8 of 22 SRSJ SA No.504 of 2022 examination admitted about plaintiff's possession over the schedule property and hence, the Courts below ought to have decreed the suit instead of dismissing the same. He would submit that findings of the Courts below are contrary to Sections 91 and 92 of the Indian Evidence Act. He would also submit that plaintiff proved possession over the schedule property by examining P.W.4 and also by placing Exs.A-7 to A-9.
11. In view of pleadings and material available on record, the following substantial questions of law arise for consideration:
(1) Whether the suit for injunction simplicitor is maintainable when there is dispute regarding title or cloud over the schedule property?
(2) Whether, in the suit filed for injunction, plaintiff has to prove possession over the schedule property as on the date of filing of suit?
(3) Whether in a suit filed for injunction, plaintiff approaching the Court with unclean hands is entitled for discretionary relief of injunction?Page 9 of 22
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12. Undisputed facts, as per pleadings are that, plaintiff purchased plaint schedule property admeasuring 220 square yards in S.No.188/1 of Madhurawada village under a registered sale deed dated 3.12.2002. The vendor of plaintiff purchased the property under a registered document No.675 of 2022 from one R.Prabhakar Rao, GPA Holder. The defendant's mother-in-law purchased the property under a registered document No.1252 of 1977 and later she gifted the property under Ex.B-2 registered gift deed in favour of her son Atchiraju. The defendant filed suit O.S.No.387 of 2000 against Pothina Venkata Ramana @ Potti Ramana and Rudraraju Mankendeya Raju seeking perpetual injunction and the same was decreed on 13.06.2005.
13. Plaintiff, being P.W.1 while reiterating the contents in plaint deposed that she constructed two shop rooms in the schedule property in the year 2003 and in October, 2005, defendant illegally demolished the structures. P.W.1 also lodged a complaint with Bheemunipatnam police. After examination of P.W.3, I.A.No.88 of 2015 was filed and as per order dated 08.12.2015, Exs.A-7 to A-9 were marked subject Page 10 of 22 SRSJ SA No.504 of 2022 to proof and relevancy by recalling P.W.1. Ex.A-7 is copy of tax pass book from 2007 to 2015. Ex.A-8 is demand notice dated 13.10.2015 and Ex.A-9 is copy of house tax receipt dated 20.11.2015. P.W.1 also examined P.W.3, whose evidence is in the lines of P.W.1.
14. On 01.05.2015 P.W.4 was examined, alleged tenant of schedule property. P.W.4 deposed that two rooms surrounded by compound wall are existing and he took the premises in the year2008 and paying the rent every month.
15. Suit, as stated supra, is filed for perpetual injunction. Plaint schedule is shown as 220 square yards of vacant site in S.No.188/1 of Madhurawada village. P.W.1 was re-called and reexamined on 08.12.2015. P.W.1 deposed that she applied for tax assessment in the year 2007, but she does not remember the date or month. Till P.W.4 was examined, it is not the case of plaintiff that structure exists in the schedule property and it was leased out to P.W.4 and he has been paying rents to P.W.1. In fact, in the plaint, it was averred that two rooms were constructed in the year 2003 and in the Page 11 of 22 SRSJ SA No.504 of 2022 year 2005, defendant illegally demolished the structures. P.W.1 further deposed that she does not remember the names of her tenants of schedule property and she does not remember whether she issued paper publication on 24.10.2005 and whether she mentioned in paper publication about the constructions made by her in the suit schedule property. She further deposed that she does not remember whether she mentioned in her counter in E.P.No.55 of 2005 in O.S.No.387 of 2000 on the file of Junior Civil Judge, Bheemili that she constructed two rooms and compound wall in the year 2005 or not.
16. It is pertinent to mention here that nowhere in the plaint, it was pleaded about structures or rooms in the schedule property. Plaintiff in the affidavit filed in lieu of chief examination on 07.06.2013, it was not mentioned about subsequent demolition of two rooms by defendant or construction of new rooms and lease out to P.W.4. P.Ws.2 and 3 also did not depose in chief examination about the existence of two rooms or any structures in the suit schedule property and they did not reveal in the chief examination Page 12 of 22 SRSJ SA No.504 of 2022 about letting out the premises to third parties or to P.W.4. P.W.4 was brought into witness box as tenant of P.W.1 without any pleading to that effect. Thus, plaintiff by examining P.W.4 tried to establish possession over the schedule property without there being a pleading to that effect in the plaint.
17. In Bachhaj Nahar Vs. Nilima Mandal and Ors.1, the Hon'ble Apex Court highlighted the importance of pleadings and reiterated the object of pleadings and held thus:
"9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not 1 AIR 2009 SC 1103 = (2008) 17 SCC 491 Page 13 of 22 SRSJ SA No.504 of 2022 found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."
18. In Nirod Baran Banerjee Vs. Dy. Commissioner of Hazaribagh2, the Hon'ble Apex Court held that it is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings.
19. In Ram Sarup Gupta Vs. Bishun Narain Inter College3, the Hon'ble Apex Court held thus:
"6. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should 2 AIR 1980 SC 1109 = (1980) 3 SCC 5 3 AIR 1987 SC 1242 = (1987) 2 SCC 555 Page 14 of 22 SRSJ SA No.504 of 2022 be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal".
20. In Bhagwati Prasad Vs. Chandramaul4, the constitution Bench of the Hon'ble Apex Court observed thus:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the 4 AIR 1966 SC 735 = (1966) 2 SCR 286 Page 15 of 22 SRSJ SA No.504 of 2022 substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
21. Thus, a perusal of the evidence on record would manifest plaintiff on the date of filing of the suit failed to prove possession over the schedule property. Evidence of P.W.4 is no way helpful to the plaintiff to prove possession of the plaint schedule property on the date of possession of property.
22. Plaintiff cannot depend/rely upon the weakness on the part of defendant. The deposition of D.W.1 that after galata, plaintiff forcibly evicted them, pending the suit, and occupied the schedule property and leased out the same will not Page 16 of 22 SRSJ SA No.504 of 2022 improve the case of plaintiff. It is also settled law that plaintiff has to rely on the strength of her own case, but not on the weakness/latches on the part of defendant. Till the examination of P.W.4 i.e. 06.05.2015 there is no reference as to the door number of premises as 8-3/2 by any of the witness including P.W.1. Exs.A-7 to A-9 were not supported by pleadings.
23. Before filing the suit, plaintiff filed Ex.A-2 caveat and Ex.A-3 is notice issued by defendant. As per the pleadings, plaintiff issued paper publication and thereafter defendant also issued paper publication. When there is serious dispute or cloud over title, plaintiff instead of filing suit for declaration of title, filed the suit for permanent injunction. In fact, Ex.A-6 letter addressed by Bheemunipatnam police to the MRO makes it clear that there is serious dispute regarding title over the schedule property. Defendant is claiming property under Ex.B-1 dated 19.08.1977, whereas plaintiff is claiming property under Ex.A-1 sale deed dated 30.12.2002. Both are claiming title through V.V.L.Krishna Rao.
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24. The Hon'ble Apex Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and Ors.5 held thus:
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which 5 AIR 2008 SC 2033 Page 18 of 22 SRSJ SA No.504 of 2022 parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
25. In view of expressions of Hon'ble Apex Court, suit filed for perpetual injunction by plaintiff, when there is cloud over title is not maintainable. Plaintiff failed to produce even link documents, however defendant produced link document. Ex.B-7 is link document executed by one Raghupatruni Prabhakar Rao, GPA Holder of original owner V.V.L.Krishna Rao in favour of Nagothu Chinna Rao, vendor of plaintiff. Ex.B-6 GPA is executed by V.V.L.Krishna Rao dated 31.08.1998 subsequent to Ex.B-1.
26. The relief of injunction is discretionary and equitable. In a given set of facts, injunction may be granted to protect the possession of owner or a person in lawful possession. A Page 19 of 22 SRSJ SA No.504 of 2022 party seeking discretionary relief has to approach the Court with clean hands and supposed to disclose the facts, which in one way or other effect the decision. A person seeking the relief of injunction is required to be honest and disclose the statement of facts, otherwise it would amount to abuse of process of Court.
27. As discussed supra, plaintiff pleaded vacant possession, however after examination of P.W.4, plaintiff set up a new plea of structures and tenant, which was not even pleaded initially. That apart, even prior to filing of the suit, notices were exchanged and in fact, paper publications were also made. Parties to the suit approached the police officials, who in turn addressed letter to MRO to depute the Mandal Surveyor to resolve the dispute. In the light of the material available on record, the conduct of plaintiff in framing the suit for perpetual injunction, disentitles him in getting equitable relief of injunction.
28. This Court while exercising jurisdiction under Section 100 of the CPC must confine to the substantial question of Page 20 of 22 SRSJ SA No.504 of 2022 law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below where the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record. Moreover, unless the appellant establishes that the Courts below mis-read the evidence and misconstrued the documents, the High Court normally will not interfere with the findings of fact recorded by the Courts below.
29. The concurrent findings of the Courts below are based on appreciation of both oral and documentary evidence. The appellant failed to satisfy this Court about substantial questions of law involved in this case. No question of law much less substantial question of law involved in this second appeal warranting interference of this Court under Section 100 of CPC.
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30. Accordingly, the second appeal is dismissed at admission stage. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 30th December, 2022 PVD Page 22 of 22 SRSJ SA No.504 of 2022