Dismissed

V. Radha, v. Pallagolla Venkata Lakshmamma

Andhra Pradesh HC11 Jan 2024CMA/5/2022

Case brief

AI extract

What is this about?

Civil miscellaneous appeal challenging the first appellate court's remand of a title and possession suit over Plot Nos. 176 and 177 in Nellore. The defendant's own documents showed she purchased only Plot No. 177. Finding no illegality or perversity in the remand decision, the High Court dismissed the appeal.

What did the court decide?

None granted; appeal dismissed, no costs, pending applications closed.

V. Radha, Vs Pallagolla Venkata Lakshmamma — Property and Title | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY ,THE TWELFTH DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE DR JUSTICE K MANMADHA RAO

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CIVIL MISCELLANEOUS APPEAL NO: 5 OF 2022

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Appeal Under Order 43 Rule 1 of C.P.C against the judgment^and decree passed in AS 34/2018, dt. 20.07.2021 on the file of the Court of the Principal District Judge, Nellore confirming/reversing the orders passed in O.S.No.542 of 2009 of dt. 29.01.2018, on the file of I Additional Senior Civil Judge, Nellore.

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Between:

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V. Radha, W/o M.S. Veeraraghavan, Hindu, 62y, Housewife, residing at B-1 Sabarmathi Aprtments, Old No.-17, New No.43, Madley Road, 2nd Street, T.Nagar, Chennai-600017, Tamilnadu

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...Appellant

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AND

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Pallagolla Venkata Lakshmamma, w/o Balaiah, Hindu, 50y, H.No.9, Avvaiuyar Street, Taramani, Tiruvammaiyur, Chennai 600113.

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...Respondent

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lA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in AS 34/2018 on the file of Principal District Judge, Nellore and pass.

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Counsel for the Appellant: SRI. AMANCHARLA SATISH BABU Counsel for the Respondents: SRI SIVAPRASAD REDDY VENATI The Court made the following: JUDGMENT

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HON’BLE DR. JUSTICE K. MANMADHA RAO

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CIVIL MISCELLANEOUS APPEAL No.5 of 2022

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JUDGMENT;

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The present Appeal is preferred by the appellant aggrieved by the Decree and Judgment dated 20.07.2021 passed in A.S.No.34 of 2018 on the file of Principal^District Judge, Nellore confirming/reversing the orders passed in O.S.No.542 of 2009 dated 29.01.2018 on the file of 1 Additional Senior Civil Judge, Nellore.

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The appellant herein is the plaintiff and the respondent is the defendant in O.S No.542 of 2009 on^the file of 1 Additional Senior Civil Judge, Nellore (for^short“the trial Court”) filed for declaration of title over the plaint schedule property and recovery of possession and mandatory injunction directing the defendant to demolish and remove the illegal constructions made in plot No.^176at Teachers colony, Vedayapalem, Nellore and costs.

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For the sake of convenience the parties are hereinafter referred to as arrayed before the trial^Court.

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The facts of the case are that the plaint schedule property was originally given to one Panchagnula Mallikarjunaiah under Patta dated 30.09.1969. The Said Mallikarjunaiah died and his son by name P. Nagaraju became the owner of the plaint schedule properties as per Hindu Succession Act and he executed a registered settlement deed in favour of his wife Panchagnula Amruthamma on 22.08.1984, The said Panchagnula Amruthamma sold the plaint schedule property under registered sale deed dated 29.4.1987 to one Vadala Padmavathamma. The said Padmavathamma sold the plaint schedule property under agreement of sale with deliveiy of possession on 03.12.1988 to Juturu Chandra Mouli. The said Juturu Chandra Mouli died and his only married daughter Survepalli Nagalakshmi sold the plaint schedule property under registered sale deed dated 15.12.2008 to the plaintiff and in view of discrepancy^inthe said sale deed a rectification deed was executed on 29.08.2009. After a period of 10 days, plaintiff came to Nellore from Chennai to construct a house in the plaint schedule property and thereafter she applied for plan

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approval with the Commissioner, Nellore Municipal Corporation and also applied for electricity connection.^On 25.08.2009 the neighbours informed the plaintiff that^the defendant, her men and agents illegally entered and trespassed into the plaint schedule property and started raising illegal constructions therein. On 26.08.2009 the plaintiff along with her husband rushed to Nellore from Chennai and went to plaint schedule property and found that the defendant, her men and her agents making further constructions and then they questioned about their unlawful and illegal constructions in the plaint schedule property. As the defendant refused to deliver possession^of plaint schedule property, she filed the suit.

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The defendant filed written statement and denied the contents of the plaint and submitted that the plaint schedule property which was described as if patta No.^176is not 176 and the same is 177 the same was allotted to DV. Ramanaiah on 30.09.1969 by the then Tahsildar by way^of patta for market value. The said D.V.Ramanaiah died intestate and his sons by name Dhurjati Venkata Subrahmanyam, Hanumantha Rao and Sreenivasulu

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succeeded to the estate of DV. Ramanaiah which is the subject matter of plaint schedule property with plot^No.177 and they sold the same to Parasuneni Saraladevi under registered sale deed dated 11.04.1986 and delivered the possession of the same. The said Parasuneni Saraladevi has been in possession and enjoyment of the same and she sold the same to D.V.Krishna Reddy S/o Ramana Reddy under^a registered sale deed dated 16.07.1988 and deliver the possession. The said DV. Krishna Reddy executed a registered GPA dated 24.09.1990 in favour of one Gummadi Raja Gopal Reddy. The said Gummadi Raja Gopal Reddy by virtue of the said GPA sold the same to the defendant under registered a sale deed dated 20.02.1992 on behalf of DV. Krishna Reddy. Thus the defendant has become the absolute owner and he has been in possession and enjoyment of the same with ACC roofed house with electricity connection bearing No.93146. While the matter stood thus one Koppavarapu Saritha filed a suit in O.S.No.455 of 2004 on the file of 111 Additional Junior Civil Judge, Nellore and the same was dismissed as not pressed. The plaintiff filed this suit with mistaken identification of the

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property and it is Plot No. 177 with built up building^and therefore she has to proceed against Plot No. 176 which^was in possession of whom not against the defendant and^that the Court jurisdiction is ousted and even if still^shedoesnot rectify the mistaken identity and wanted to continue the action the forum is also somewhere else and not before this court and liable to be dismissed.

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Basing on the above pleadings, the trial court has framed the following issues :

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Whether the plaintiff is entitled to declaration of^hertitle to suit property and for recovery of its possession?

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Whether the plaintiff is entitled to mandatory injunction as prayed for?

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To what relief?

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During the course of trail, on behalf of the plaintiff. PW.l was examined and Ex.Al to Ex.A9 were marked. ON behalf of the defendant, DW.l to DW.3 were examined^and Ex.Bl to Ex.Bll were marked.

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After careful examination of oral and documentary evidence and on considering the material on record,^thetrial

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Court has decreed the suit without costs declaring the right, title and interest of the plaintiff over plaint schedule property i.e., plot no. 176 and directing the defendant to deliver vacant possession of the plaint schedule property to the plaintiff within two months from that day i.e., 29.1.2018 after removing illegal construction made by her, in default the plaintiff shall follow due process of law. Aggrieved by the same, the defendant/respondent preferred A.S.No.34 of 2018 on the file of Principal District Judge, Nellore (for short “the first appellate court”). The first appellate Court has framed the following points for consideration:

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Whether the respondent is entitled to declare his right over plaint schedule property as decreed by the lower court/trial Court?

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Whether the respondent/plaintiff is entitled to direct the appellant/defendant to deliver the possession of plaint schedule property as decreed by the trial court?

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Whether the respondent/plaintiff is entitled for mandatory injunction directing the appellant/ defendant to demolish the illegal constructions made by her as decreed by the lower Court?

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The first appellate Court has allowed the appeal partly by setting aside the judgment and decree dated 29.1.2018 in O.S.No.542 of 2009 on the file of the 1 Additional Senior Civil Judge, Nellore and remanded the suit

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to the trial Court for fresh disposal, by giving opportunity^to both parties to lead further evidence and dispose according to law, and the lower court is directed to issue notice to the respondent/defendant on the ground that since identity^of the property is in dispute, without giving opportunity to examine the commissioner to the respondent/defendant, who filed objections in respect of commissioner report^and Surveyor report, pronouncing judgment is not justifiable. Aggrieved by the same, the present civil miscellaneous appeal came to be filed.

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Heard Sri A. Satish Babu, learned counsel appearing for the appellant and Sri V. Siva Prasad Reddy, learned counsel appearing for the respondent.

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Learned counsel for the appellant submits that the judgment and decree of first appellate Court is not sustainable either in law or on facts and contrary to evidence on record, hence liable to be set aside. He^submits that the first appellate court failed to appreciate the pleadings and evidence of appellant/plaintiff recorded in O.S.No.542 of 2009 on the file of the first appellate^Court and remanded the matter to O.S No.542 of 2009 on the file

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of the trial Court is bad and arbitrary. He further submits that the first appellate Court failed to appreciate the documents which are marked as Ex.B4 and Ex.BS where the boundaries of the documents is not at all lying each other which is strengthen the case of the plaintiff. The first appellate court has not applied its brain where the original document issued to first vendor by the then Tahsildar has no boundaries for identification of the plot No. 177 and that the first appellate Court has failed to see that the Unk documents of respondent/defendant, they are differ one document to another unfortunately the first appellate^court remanded the matter. Therefore, learned counsel requests this Court to pass appropriate orders by setting aside^the impugned judgment and decree passed by the first appealed court.

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Per contra, leaned counsel for the respondents while reiterating the averments in the written statement, argued that the layout is clearly showing that the plot no. 177 is bounded on South by bypass road, and on East by layout road, and on North by Plot No. 176 and on West by plot No. 169. The said D.V.Ramanaiah died intestate,^and

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his son Dhurjati Venkata Subrahmanyam, Hanumantha Rao and Srinivasuiu succeeded the same, and they sold^itto Parasuneni Sarala Devi W/o Ramachandraiah under a registered sale deed dated 11.4.1986 and delivered possession of the same. He further submits that as the defendant’s husband died as a result of heart attack, one Kapavarapu santha filed OS No.455 of 2004 against him claiming that she purchased Plot n0.176 from Amruthavali W/o Nagaraju under a registered sale deed dated 29.12.2003. Subsequently the suit was withdrawn as^not pressed. He mainly contended that the defendant purchased plot No. 177 from the legal heirs of D.V Ramanaiah, and wherein the Northern boundary is clearly mentioned as Plot no. 176. The southern boundary is^196. Thus the plaintiff has nothing to do with the plot^No.177. Thus the claim of the plaintiff that the plot No. 177 is bounded on South by road, is false and incorrect and invented. He further submits that the plaintiff filed^thesuit with mistaken identification of the property and plot^No.197 is with a built-up building and the plaintiff has to go for a

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relief against Plot No. 176 and no document is supplied to the defendant.

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The contention of the plaintiff is that she purchased the plaint schedule property i.e., Plot No.¹⁷⁶ from the original owner. Moreover, it is the contention of the defendant that she purchased plot no. 177 from original owner. Both parties filed patta issued by the Government. The original owners purchased the Plot Nos. 176 and 177 by paying market value to the Government. The boundaries mentioned in Ex.Al patta dated 30.09.1969 issued by^the Tahsildar, Nellore and the boundaries mentioned in the plaint schedule are one and the same.

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It is observed that, though there is no mention of northern and western boundaries in Ex.Bl, the defendants’ link documents shows that they got mentioned the north and western boundaries in Ex.B2 document, In Ex.B2 document, they mentioned the boundaries for East and Sough layout road, West-Plot No. 169 of Aanadeenam and North - Nagaraju Plot no. 176. All the documents of defendant shows that she purchased Plot No. 177, she^did not purchase the plaint schedule property i.e.. Plot^No.176.

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She don’t have any right, title, interest over the plaint schedule property.

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It is also observed from the impugned judgment that, the stand of the respondent/defendant in his^written statement that, the appellant/plaintiff filed the suit^with mistake identification of the property, At the appellate stage, learned counsel for the appellant filed I.A.No.651 of 2019 under Order XXVI Rule 9 CPC and the same was allowed by the trial Court vide order dated 11.9.2019^and appointed Commissioner to localize Plot No. 176, 177^and accordingly the learned Commissioner filed Commissioner report after localizing plot No. 176 and 177.

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In view of the foregoing discussion, it is observed that the Commissioner filed report along with plan by taking assistance of Mandal Surveyor, Nellore Rural Mandal,^and so also filed plan, got prepared by Mandal Surveyor. So, in view of the above, since identify of the property is in dispute. without giving opportunity to examine the Commissioner^to the respondent/defendant, who filed objections in respect^of Commissioner report and Surveyor report.

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I i

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Viewed from any angle, this Court found no illegality or perversity in the judgment and decree passed by the first appellate Court. Therefore, 1 do not find any reason to interfere with the judgment of the first appellate court and hence the instant civil miscellaneous appeal is^liableto be dismissed.

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Accordingly, the ‘Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.

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As a sequel, all the pending miscellaneous applications shall stand closed.

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SOI- E. KAMESWARA RAO DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Principal District Judge, Nelldre, SPSR Nellore District (with records if any).

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The 1st Additional Senior Civil Judge, Nellore, SPSR^{NelloreDistrict,} (with records if any).

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One CC to Sri. Amancharla Satish Babu, Advocate [OPUC]

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One CC to Sri. Sivaprasad Reddy Venati, Advocate [OPUC]

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The Section Officer, V.R Section, High Court of A.P.^atAmaravati.

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Three CD Copies VNA

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HIGH COURT

DATED:12/01/2024

•,* •

JUDGMENT

CMA.No.5 of 2022

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DISMISSING THE CIVIL MISCELLANEOUS APPEAL WITHOUT COSTS

V. Radha, v. Pallagolla Venkata Lakshmamma

Case brief

What is this about?

What did the court decide?

V. Radha, v. Pallagolla Venkata Lakshmamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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