Andhra HC (Pre-Telangana)
Adapa Tatarao vs Chamantula Mahalakshmi on 8 September, 2006
Equivalent citations: AIR2007AP44, 2006(6)ALD745, AIR 2007 ANDHRA PRADESH 44, 2007 (2) ALL LJ NOC 228, 2007 (2) AJHAR (NOC) 450 (AP), (2007) 51 ALLINDCAS 364 (AP), 2007 (51) ALLINDCAS 364, (2006) 6 ANDHLD 745, (2007) 2 CURCC 465
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This CRP under Section 115 of CPC is filed against the judgment and decree dated 24-11-2003, passed by the Court of I Additional Junior Civil Judge, Kakinada in O.S. No. 874 of 1999.
2. The respondent filed the suit for the relief of recovery of possession of Item-I of the plaint schedule, comprising of 50 cents, and for the relief of perpetual injunction, as regards Item-II, admeasuring 30 cents. Both the bits are in Sy. No. 32/2E of Karakuduru Village, of East-Godavari District. It was pleaded that she purchased the land through a sale deed dated 7-6-1973 in the name of her husband, and that ever since then, she has been in possession and enjoyment of the same. Certain disputes were said to be pending between herself and Pedapudi Co-operative Society as regards the plaint schedule property. It was alleged that the petitioner herein had trespassed into Item-I of the plaint schedule on 18-7-1999, and had threatened to occupy Item-II thereof. Therefore, she filed the suit for the relief referred to above.
3. Petitioner filed a written statement, denying the contents of the plaint. According to him, his wife is the absolute owner of Item-I of the plaint schedule, to an extent of 20 cents, which was purchased under a sale deed dated 6-5-1996 from one Mr. Kamireddy Sitaratnam, the daughter of the respondent. The husband of the respondent is said to have executed a gift, in favour of the said Sitaratnam.
4. The trial Court decreed the suit. Aggrieved thereby, the petitioner filed A.S. No. 1 of 2004 in the Court of III Additional District Judge, Kakinada. The appeal was dismissed as not maintainable, through judgment dated 21-2-2006, on the ground that the suit was filed under Section 6 of the Specific Relief Act, and that appeal against the decree passed in such a suit is not maintainable.
5. Learned Counsel for the petitioner submits that, in a suit filed under Section 6 of the Specific Relief Act (for short 'the Act'), the trial Court ought to have concentrated on the questions, such as whether the dispossession took place within six months from the date of filing of the suit, otherwise than through course of law, and in the instant case, no such exercise was undertaken. He contends that the plaint as presented by the respondent, was defective, inasmuch as the relief of injunction, in respect of another item of property was also included.
6. Learned Counsel for the respondent, on the other hand, submits that though no specific issue, as such was framed, the trial Court was satisfied, that the ingredients of Section 6 of the Act were proved, and that the decree under revision does not warrant any interference.
7. The respondent filed the suit for the twofold relief of recovery of possession of one item of suit schedule property, and decree for perpetual injunction, as regards the other item. The first part of the relief was claimed under Section 6 of the Act. It was for that reason, that the respondent did not claim the relief of declaration of title. At the initial stage, only one issue was framed by the trial Court, i.e., whether the plaintiff is entitled for the relief of permanent injunction. At a subsequent stage, one more issue was framed, to the following effect:
Whether the plaintiff is entitled for recovery of possession of Item-I of the plaint schedule property.
8. On behalf of the respondent, PWs.l and 2 were examined and Exs.A-1 to A-6 were filed. The petitioner deposed as DW-1, and he filed Exs.B-1 to B-5. As observed earlier, the trial Court decreed the suit.
9. On noticing that the suit itself was filed under Section 6 of the Act, the lower Appellate Court observed that the decree passed in such a suit is not appealable. Apart from undertaking discussion on the relevant facts, the lower Appellate Court placed heavy reliance on the judgment of the Supreme Court in Sanjay Kumar Pandey v. Gulbahar Sheikh , and ultimately dismissed the appeal as not maintainable. No exception can be taken to it.
10. This revision is directed against the judgment and decree passed by the trial Court. It has to be recognized that the revision cannot be treated as an appeal, and the evidence on record cannot be re-appreciated. However, if it becomes evident that if there is any legal infirmity in the decree and judgment, necessary relief is to be granted.
11. In a suit filed under Section 6 of the Act, the occasion for the trial Court to address itself to the question of title or other entitlement of the plaintiff does not arise. The only question assumes significance in such a suit is, as to whether the plaintiff was dispossessed from the suit schedule property, otherwise than through the procedure prescribed by law, and whether the suit was filed within six months from the date of such dispossession.
12. The proceedings in such suits are, almost summary in nature. However, the trial Court did not address itself to this basic requirement. Both the issues, framed by it, are totally unrelated to an adjudication, to be undertaken in a suit, filed under Section 6 of the Act.
13. Another serious infirmity in the proceedings is, that the respondent incorporated the relief of perpetual injunction in respect of another item, filed under Section 6 of the Act. This is totally impermissible. The parameters for adjudication of claim under Section 6, on the one hand, and the one, for perpetual injunction, under Section 38, on the other hand, of the Act, are totally different. In the case of the former, the trial is summary in nature. The decree passed in such proceedings is not appealable. In contrast, a detailed trial has to be conducted in a suit for perpetual injunctions. An appeal under Section 96 and second appeal under Section 100 is provided against the decree passed in such suits. It is impossible and impermissible to mix up such divergent types of adjudication. Therefore, the judgment and decree passed by the trial Court need to be set aside, and the matter needs to be adjudicated on proper lines, afresh.
14. For the foregoing reasons, the C.R.P. is allowed, and the judgment and decree passed by the trial Court is set aside. The matter is remanded to the trial Court for fresh disposal. The relief of perpetual injunction, in respect of Item-II of the suit schedule, shall stand rejected. As regards Item-I, the trial Court shall proceed to decide the matter on the basis of the following issue, viz.
Whether the plaintiff was dispossessed from Item-1 of the plaint schedule, otherwise than in accordance with the procedure prescribed by law, within six months, preceding the date of filing of the suit.
15. It shall be open to the parties to adduce such evidence, as they intend to, on the above point, and the trial Court shall dispose of the suit as early as possible.
16. There shall be no order as to costs.