Andhra HC (Pre-Telangana)
Sudhakara Reddy vs Lakshmamma on 7 February, 2014
Author: T.Sunil Chowdary
Bench: T.Sunil Chowdary
THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.258 OF 2005 07-02-2014 Sudhakara Reddy..... APPELLANT Lakshmamma.....RESPONDENT Counsel for the appellant: Sri S.V.Sundara Rajan Counsel for the respondent: Ms. B.Tarasuja <Gist: >Head Note: ?Cases referred: 1.AIR 2008 SC 2033 2.2006 (6) ALT 523 (FB) 3.AIR 1965 SC 364 THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.258 OF 2005 Dated: 07.02.2014 JUDGMENT:
This Second Appeal is filed challenging the decree and judgment, dated 20.11.2004 in A.S.No.10 of 2002 on the file of the Senior Civil Judge, Hindupur reversing in appeal the decree and judgment dated 27.02.2002 in O.S.No.241 of 1992 on the file of the Junior Civil Judge, Hindupur. For the sake of convenience the parties will be hereinafter referred to as they are arrayed in the trial Court.
2. The case of the plaintiff is that late Chinna Gowramma, wife of Venkata Reddy, during her lifetime, has been in possession and enjoyment of the land admeasuring Ac.6.29 Pyki in survey No.346/1; Ac.3.43 Pyki in survey No.327/2; Acs.4.50 Pyki and 1.25 in survey No.343/1 and Ac.0.29 Pyki in survey No.384/7 situated in Kallurupalem village of Hindupur Mandal in Anantapur District (hereafter, suit schedule property). Gowramma by registered Will dated 13.02.1985 bequeathed the suit schedule property in favour of the plaintiff. Gowramma died on 18.12.1991; thereafter, the plaintiff has been in possession and enjoyment of the suit schedule property as absolute owner. The defendant, without any right whatsoever, is trying to interfere with the suit schedule property. Having no other alternative, the plaintiff filed the suit for perpetual injunction.
3. The defendant filed written statement inter alia contending that Gowramma has no right whatsoever to execute the Will dated 13.2.1985 in favour of the plaintiff. The defendant and mother of the plaintiff by name Narayanamma are sisters; both of them are daughters of Gowramma and Venkata Reddy. The suit schedule property belongs to Venkata Reddy, who died 20 or 25 years prior to filing of the suit. After the death of Venkata Reddy, his wife Gowramma, the defendant and Narayanamma succeeded the suit schedule property. At the time of marriage of Narayanamma with Adinarayanappa, at the advice of village elders, Gowramma executed two gift deeds on 13.03.1975; one in favour of the defendant and the other in favour of Narayanamma.
4. The defendant and Narayanamma have accepted and acted upon the gift deeds. At the instance of Narayanamma and her husband, Gowramma filed O.S.No.10 of 1991 against the defendant and the same was dismissed for default. Gowramma executed nominal sale deeds in favour of K.N.Sivasankar Reddy, K.N.Narasimha Reddy and R.Thimma Reddy on 20.11.1991, 4.11.1991 and 04.11.1991 respectively. The defendant filed O.S.No.123 of 1992 on the file the Court of Junior Civil Judge, Hindupur seeking declaration of title and permanent injunction and the said suit was decreed. The defendant is the absolute owner of the suit schedule property. The suit as framed is not maintainable for non-jointer of proper and necessary parties. Hence, the suit may be dismissed.
5. Basing on the rival contentions, the trial Court framed the following issues:
1) Whether Chinna Gowramma executed registered gift deed on 13.03.1975 in respect of the suit schedule land?
2) Whether the plaintiff is entitled for permanent injunction on the suit land?
3) To what relief?
6. In the trial Court, on behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendant, DW.1 was examined and Exs.B.1 to B.8 were got marked.
7. After analysing the oral, documentary evidence and other material available on record, the trial Court arrived at a conclusion that the plaintiff is entitled for perpetual injunction and accordingly decreed the suit. Aggrieved by the decree and judgment of the trial Court, the defendant preferred A.S.No.10 of 2002 on the file of Senior Civil Judge Court, Hindupur and the same was allowed. Feeling aggrieved, the unsuccessful plaintiff preferred the present second appeal.
8. The substantial questions of law raised in this second appeal is as follows:
Whether the evidence on record in respect of the proof of Exs.A.1 to A.3, particularly Ex.A.1 is in conformity with the provisions of Section 58 of the Indian Evidence Act and Section 63 of the Indian Succession Act?
9. Sri S.V.Sundara Rajan, learned counsel for the appellant submitted that the findings recorded by the first appellate Court are perverse and not legally sustainable. Per contra, Ms.B.Tarasuja, learned Advocate, representing Sri A.Hanumantha Reddy, learned counsel for the respondent submitted that there is no question of law that arises in this appeal; hence, this second appeal is not maintainable.
Point:
10. In a suit for perpetual injunction, the Court has to consider who was in possession of the suit schedule property as on the date of the filing of the suit. However, the Court can incidentally look into the title of the parties in an injunction suit if the circumstances so warrants.
11. In order to appreciate the rival contention of both parties, this Court is placing reliance upon the decision in Anathula Sudhakar v. P.Buchi Reddy , wherein it is held that:
The position in regard to suits for prohibitory injunction relating to immovable property, is summarised as under:
(a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs 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 plaintiffs 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 dejure 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). 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 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 to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
12. Let me consider whether the findings recorded by the Courts below are in accordance with law or not. The defendant and Narayanamma are daughters of late Venkata Reddy and Gowramma. Late Gowramma executed a gift deed dated 13.03.1975 in favour of the defendant. Gowramma filed O.S.No.10 of 1991 against the defendant. Ex.B.2 is the certified copy of decree in O.S.No.10 of 1991 and Ex.B.3 is the certified copy of written statement in O.S.No.10 of 1991. A perusal of these documents reveals that O.S.No.10 of 1991 was dismissed for default. Late Gowramma executed sale deeds in respect of the suit schedule property in favour of Narasimha Reddy (Ex.B.4), Thimma Reddy (Ex.B.5) and Sivasankar Reddy (Ex.B.6). The defendant filed O.S.No.123 of 1992 against Sivasankar Reddy, Thimma Reddy and Narasimha Reddy. Ex.B.7 is certified copy of decree in O.S.No.123 of 1992 and Ex.B.8 is the plaint in O.S.No.123 of 1992. A perusal of Ex.B.8 reveals that the defendant filed suit for declaration that she is the absolute owner of the suit schedule property and also for perpetual injunction. A perusal of Ex.B.7 reveals that the suit filed by the defendant was decreed as prayed for.
13. In the plaint, it is not mentioned that the plaintiff is the sisters son of the defendant. A perusal of the plaint gives an impression as if the defendant is interfering with the suit schedule property without any relationship with the plaintiff. As seen from the testimony of PW.1, Gowramma executed a will dated 13.02.1985 (Ex.A1) in his favour bequeathing the suit schedule property. As seen from the testimony of PW.3, Ex.A1 Will bears signature of his father. As per the testimony of PW.3 he is one of the attestors of Ex.A.1 Will. As per the testimony of DW.1, she got the suit schedule property under Ex.B.1 gift deed, dated 13.03.1975. It is not in dispute that the schedule property shown in Exs.A.1, B.1, B.4 to B.6 and A.7 is one and the same.
14. The plaintiff is claiming the property basing on Ex.A.1 Will and the defendant is claiming the property basing on Ex.B.1 gift deed. As per the testimony of PWs.1 and 3, late Gowramma by a registered document cancelled Ex.A.1 gift deed. The plaintiff did not plead in the plaint about the alleged cancellation of gift deed. The trial Court in para-6 of its judgment gave a finding that Ex.B.1 gift deed executed in favour of the defendant is cancelled. The first issue framed by the trial Court is with regard to the validity of Ex.B.1 gift deed. It is needless to say that donor is entitled to cancel a registered gift deed by executing another registered document. In order to resolve this issue, this court is placing reliance on the decision in Yanala Malleshwari v Ananthula Sayamma . Relevant para 26 is extracted hereunder.
26. It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written statement. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are:
the written instrument is void or voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury. Insofar as Section 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again, the person who claims the right to property can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff. The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration.
15. In view of the principle enunciated in the case cited supra, the finding of the trial Court that the Ex.B1 gift deed executed in favour of the defendant was cancelled is not sustainable. The only remedy available to the donor is to file a suit for cancellation of Ex.B1 gift deed, as provided Section 31 of the Specific Relief Act. The plaintiff filed the suit seeking injunction simpliciter. In such circumstances, the trial Court ought not to have framed the issue, which is in the nature of a declaration. The trial Court decreed the suit basing on oral evidence of PWs.1 to 3 and also on a wrong premise that Ex.B.1 gift deed was cancelled by late Gowramma, during her life time.
16. The first appellate Court framed the following points for consideration:
1) Whether the execution of will Ex.A.1 is proved by the plaintiff and Chinna Gowramma is entitled to bequeath the suit schedule property in favour of the plaintiff?
2) Whether Chinna Gowramma was competent to execute gift deeds in favour of Narayanamma mother of plaintiff and the defendant?
17. By framing these two points, the first appellate Court travelled beyond the scope of the suit which is filed for permanent injunction. The first appellate Court arrived at a conclusion that Ex.A.1 Will was not proved. It is not in dispute that the trial Court has not framed the issue with regard to validity of Ex.A.1 Will. In such circumstances, it is not fair on the part of the first appellate Court to give a finding without there being an issue in the trial Court. The first appellate Court gave a finding without giving an opportunity to both the parties to adduce oral evidence with regard to Ex.A.1. The Courts below have given findings with regard to validity of Ex.A.1 Will and Ex.B.1-gift deed, which is not warranted or permissible in a suit for perpetual injunction.
18. Taking into consideration the facts and circumstances of the case and also the ratio laid down in Anathula Sudhakars case (1 supra) and Yanala Malleswaris case (2 supra), I am of the humble view that the findings recorded by the Courts below with regard to Ex.A.1 Will and Ex.B.1 gift deed are not legally sustainable and those findings are hereby set aside.
19. The trial Court granted injunction mainly basing on Ex.A.1 Will coupled with Exs.A.2 and A.3. The trial Court gave a finding that the name of the plaintiff is recorded in revenue records; therefore, he is entitled for injunction. In Ex.A.3, 10(1) account, in column-6 (pattadar and possessor column), the name of the defendant and Narayanamma are shown. The plaintiffs name is not shown in 10(1) account. Ex.A.2 Pass book was issued in the name of the plaintiff in respect of the suit schedule property. There is no consistency between Exs.A.2 and A.3. In such circumstances, it is not safe to place reliance on Ex.A.2. The trial Court proceeded on a premise as if the plaintiffs name is shown in Ex.A.3, 10(1) account, which is not factually correct.
20. Therefore, the finding of the trial Court that the plaintiff was in possession of the property basing on Exs.A.2 and A.3 is not sustainable. At the time of hearing, learned counsel for the appellant has drawn my attention to the decision in Mahendra Manilal Nanavati v Sushila Mahendra Nanavati . As per the principle enunciated therein, the appellate Court can remand the matter if the issues were not properly framed by the trial Court in view of Order XLI Rule 25 of C.P.C.
21. In view of the facts and circumstances of the case on hand and also the ratio laid down in Anathula Sudhakars case (1 supra), Yanala Malleswaris case (2 supra) and Mahendra Manilal Nanavatis case (3 supra), I am of the humble view that this is a fit case to remand the matter to the trial Court for fresh disposal in accordance with law. There is a substantial question of law in this appeal, which warranted interference of this court.
23. In the result, the Second Appeal is allowed setting aside the decree and judgment dated 20.11.2004 in A.S.No.10 of 2002 on the file of the Senior Civil Judge, Hindupur. The matter is remanded to the trial Court, with a direction to dispose of the suit afresh in accordance with law, keeping in view the observations made hereinabove, after giving an opportunity to both the parties to adduce evidence if they intend. No costs.
24. Consequently, Miscellaneous Petitions, if any, pending in this Second Appeal shall stand closed.
________________________ T. SUNIL CHOWDARY, J Date: 07.02.2014