Andhra Pradesh High Court - Amravati
Rekha Akkunaidu vs Rekha Kullibabu Appalanaidu on 2 February, 2022
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
THE HONOURABLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.437 OF 2021
ORDER:
Heard Sri Y. Sudhakar, learned counsel for the appellant and Sri P. Rajasekhar, learned counsel for respondents at admission stage.
2. Finding that this case is resting on the fact situation and no substantial questions of law attracting Section 100 of C.P.C., the Second Appeal is being now disposed of.
3. The parties were closely related. They traced their rights from their ancestors. The dispute is with reference to two lands of Ac.3.00 cents and Ac.5.00 cents in Sy. No.439/1 and Sy. No.446/2 of Ravada Sivaru Rekhavanipalem village, Parawada Mandal, respectively.
4. The appellant is the plaintiff. He is claiming that he became entitled to these lands by virtue of Ex.A.1 Agreement, dated 17.06.1992 alleged to have had been executed by his father and that he has been in possession and enjoyment of the same. He further contended that the respondents, without any manner of right, have been attempting to interfere with his possession of these lands and though he has been performing all the rituals relating to his family deity Sri Rekha Narayudu.
5. The respondents resisted the claim of the appellant on the ground that the appellant is not in exclusive possession and enjoyment of these lands while denying that their father 2 executed Ex.A.1 in favour of the appellant. They also denied that the appellant performed to their family deity.
6. On the pleadings, the trial court settled the following issues:
1. Whether plaintiff is in possession of the schedule property as on the date of suit?
2. Whether the defendants are in absolute possession in Ac.8.00 and gave part of land for construction of school building is true or not?
3. Whether the plaintiff is entitled to seek the relief of permanent injunction as prayed for?
4. To what relief?
7. At the trial, the appellant examined himself as P.W.1 and in support of his version, he relied on the testimony of P.W.2 to P.W.6 as well as Exs.A.1 to A.13. On behalf of the respondents, 3rd respondent was examined as D.W.1 and first respondent was examined as D.W.2, while they relied on the testimony of D.W.3 and D.W.4, apart from Exs.B.1 to B.12 and also Ex.X.1.
8. The trial court basing on the evidence and material did not agree with the version of the appellant and finally dismissed the suit. In the appeal preferred by the appellant, the appellant Court upon reappraisal of the material and evidence, agreed with the findings of the trial court and ultimately dismissed the appeal.
9. Under these circumstances, this Second Appeal is presented by the appellant.
10. Sri Y. Sudhakar, learned counsel for the appellant strenuously contended that both the courts below did not 3 appreciate the evidence on record properly and failed to consider the effect of Ex.A.1 as well as the revenue records produced in proof of possession and enjoyment. While drawing the attention of this Court to several paras of judgments of the trial court as well as appellate court, it is also contended by the learned counsel for the appellant that the learned appellate Judge did not go deep into the matter re-appreciating the evidence and merely relied on the statements of P.W.1 at trial. In view of the facts and circumstances, the learned counsel for the appellant requests interference by this Court basing on the substantial questions of law raised in the Second Appeal.
11. Sri P. Rajasekhar, learned counsel for the respondents, supporting the findings recorded by the Courts below, contended that right reasons are assigned by both the Courts below, particularly considering the fact situation relating to the possession of the property and also nature of right claimed by the appellant and that the present case did not call for interference by this Court. Thus, it is contended that there are no substantial questions of law made out and requested for dismissal of the Second Appeal.
12. Now, it has to be seen whether there are such substantial questions of law as raised by the appellant, particularly having regard to the background in this case where both the courts below consistently held against the appellant on the pertinent questions relating to lawful right, as well as possession and enjoyment of the lands in dispute.
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13. The case of the appellant rests on Ex.A.1, an agreement stated to have had been executed by his father on 17.06.1982. It is the claim of the appellant that these lands were given away by his father being satisfied with the services of the appellant, with a direction to utilize the income derived from the lands to perform rituals to the family deity Sri Rekha Narayudu.
14. The trial court recorded a finding that P.W.1 had failed to establish execution of Ex.A.1 at the trial. The trial court took into consideration the statements of the appellant as P.W.1 in cross-examination, who expressed his ignorance of contents of Ex.A.1 and also the purpose for which it was executed. The trial court also considered that regarding possession of the land holding against the appellant.
15. It appears that the entire extent of these lands is not in possession and enjoyment of the appellant. Not only there are statements of the appellant as P.W.1, but also P.W.2 that part of the plaint schedule land is covered by a school. Thus, they admitted existence of school building in these lands. This circumstance is alone sufficient to reject the version of the appellant that he has been in possession and enjoyment of the entire extent of Ac.8.00 of the plaint schedule land.
16. The burden of proof is on the appellant to establish his possession and enjoyment of these lands in dispute. When there is a definite proof that part of the land is not in possession and enjoyment of the appellant and when there is a school building, his claim as such cannot be accepted. 5
17. Rightly both the courts below had drawn conclusions against the appellant. It is in testimony of P.W.1 that the land occupied by the school building of Panchayat Raj Department was given away by 4th respondent. Therefore, this property apparently in possession of others. Thus, both the Courts below considered and held that the appellant is not in exclusive possession and enjoyment of these lands in entirety.
18. When the main ingredients to establish the claim for permanent injunction relating to the lands in dispute by the appellant are not made out, in view of the fact situation, having regard to the concurrent findings recorded by both the courts below, it is rather difficult to accept the contention of the appellant.
19. Thus, finding no material to attract the application of Section 100 of CPC, this Second Appeal has to be dismissed at the stage of admission.
19. In the result, the Second Appeal is dismissed at the admission stage. No order as to costs.
20. As a sequel, miscellaneous applications, pending, if any, shall also stand closed.
__________________________ M. VENKATA RAMANA, J Date : 02.02.2022 Ks 6 THE HONOURABLE SRI JUSTICE M. VENKATA RAMANA S.A.No.437 of 2021 Date : 02.02.2022 Ks