Dismissed

V. Venkateswara Rao v. S. Venkateshwara rao

Telangana HC6 Nov 2009AS/46/2007

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by a plaintiff challenging a lower court decree that denied his title and possession over a house property. The court held the plaintiff failed to prove his vendor had any title to the land derived from a 1965 sale by Bhawarlal, whom the plaintiff alleged was an attesting witness but not a co-owner.

What did the court decide?

The appeal was dismissed with costs, confirming the judgment and decree of the Additional Senior Civil Judge.

V. Venkateswara Rao Vs S. Venkateshwara rao — Succession and Inheritance | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Appeal Suit No.46 of 2007

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Dated:06th November, 2009.

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Between:

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V.Venkateshwar Rao

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….Appellant/Plaintiff

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and

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1. S.Venkateshwar Rao & Anr.

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**…Respondents/defendants ******

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Appeal Suit No.46 of 2007

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JUDGMENT:

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This Appeal is filed uner Section 96 of the Code of Civil Procedure by the plaintiff in O.S.No.1049 of 2002 on the file of II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, assailing the judgment and decree dated 10.10.2006 passed therein, whereby and whereunder the learned Additional Senior Civil Judge dismissed the suit of the plaintiff, which has been filed for declaration of title and recovery of possession in respect of the house property bearing No.10-33/9 (New) which corresponds to 10-44/6 (old) on Plot No.7 admeasuring 305 sq. yards, equivalent to 255 sq. meters, in Survey No.720/1 situated at Malkajgiri village and mandal, Ranga Reddy District.

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2. The appellant is the plaintiff in O.S.No.1049 of 2002. He filed the suit for declaration and recovery of possession in respect of house property bearing No.10-33/9(New), which corresponds to 10-44/6 (old) on Plot No.7 admeasuring 305 sq. yards, equivalent to 255 sq. meters

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in Survey No.720/1, situated at Malkajgiri village and mandal, Ranga Reddy District. One P.Jawarlal was the owner of the suit schedule house property. He sold the suit schedule house property to Smt.R.Siva Kumari under a registered sale deed dated 31.08.1981. The plaintiff purchased the suit schedule house property from Smt.R.Siva Kumari under a registered sale deed dated 30.04.1982. When the defendants through their father S.Narasimha Rao made attempts to interfere with his peaceful possession and enjoyment of the suit schedule house property, he filed O.S.No.64 of 1996 on the file of the Principal Junior Civil Judge, East & North, Ranga Reddy District against the defendants and their father for perpetual injunction. Subsequently, the suit came to be transferred to the file of the Principal Junior Civil Judge, West and South, Ranga Reddy District and renumbered as O.S.No.600 of 2000. The defendants 1 and 2 entered appearance in the said suit and filed written statement contending that they purchased the property from the legal representatives of Bhawarlal under registered sale deeds. The suit filed by the plaintiff ended in dismissal. It is the contention of the plaintiff that after dismissal of the suit, the defendants 1 and 2 forcibly occupied the suit schedule house property on 15.09.2002 by throwing out his belongings. Hence, the plaintiff filed the suit for declaration of title and for recovery of possession of the suit schedule house property.

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3. The defendants 1 and 2 filed written statement contending that they purchased the suit schedule house property under registered sale deeds dated 22.04.1992. The earlier suit filed by the plaintiff ended in dismissal with a specific observation of his not having any title over the suit schedule house property. It is further stated in the written statement that Jawarlal had no right and title over the suit schedule house property and in which case he cannot convey any better title than that of him to R.Siva Kumari from whom the plaintiff claimed to have purchased the suit schedule house property. The defendants

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specifically asserted that as per the lay out plan, there is no Plot No.7 admeasuring 305 sq. yards. The defendants traced the title to the Plots 6 and 7 purchased under registered sale deeds through Bhawarlal. Reference has been made in the written statement with regard to various suits such as O.S.Nos.287/86, 262/88 and 600/2000. The principal plea of the defendants in the written statement is that Jawarlal has no title to the suit schedule house property and therefore, sale deed executed by Smt.R.Siva Kumari in favour of the plaintiff does not convey any title to the plaintiff.

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4. Basing on the above pleadings, the trial Court settled the

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following issues for trial:

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1. Whether the sale between Jawaharilal and Smt.Sivakumari in 1981 is binding on the defendants?

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2. Whether the plaintiff is entitled to declare that he is the absolute owner of the suit schedule property?

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3. Whether the plaintiff is entitled to declare that the sale deeds dt.22.4.1992 are invalid and not binding on the plaintiff?

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4. Whether the plaintiff is entitled to recovery of possession of suit property?

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5. To what relief?

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5. On behalf of the plaintiff, he got himself examined as PW.1 and marked 22 documents as Exs.A1 to A22. On behalf of the defendants, father of the defendants was examined as DW.1 and the neighbour of the defendants viz., R.Yadagiri was examined as DW.2 and marked 27 documents as Exs.B1 to B27, apart from marking the certified copy of the sale deed standing in the name of wife of DW.2 as Ex.X1.

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6. The learned Additional Senior Civil Judge, on considering the evidence brought on record and on hearing the counsel appearing for the parties, held all the issues against the plaintiff and thereby dismissed the suit, by judgment dated 10.10.2006. Assailing the said judgment and decree, the plaintiff has filed this appeal.

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7. Heard learned counsel appearing for the appellant/plaintiff and learned counsel appearing for the respondents/defendants.

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8. Learned counsel appearing for the appellant/plaintiff submits that the trial Court has ignored the material fact of dismissal of the suit filed by Smt.Chandan Bai, B.Mahaveer Chand Jain and B.Dilip Kumar, who are legal representatives of Bhawarlal in respect of 28 plots and that itself indicates that the legal representatives of Bhawarlal had no title to plot Nos.6 and 7 and in which case, the sale deeds allegedly obtained by the defendants 1 and 2, certified copies of which have been exhibited as Exs.A21 and A22, do not convey any title in respect of Plot Nos.6 and 7 to them. Learned counsel would further submit that the trial Court failed to consider Ex.A17 certified copy of the judgment in O.S.No.287 of 1986 on the file of Principal Subordinate Judge, Rangareddy District and Ex.A20 certified copy of the judgment and decree passed in O.S.No.262 of 1988 on the file of the Principal Subordinate Judge, Ranga Reddy District in right perspective and thereby erred in declaring that the plaintiff has no title over the suit schedule house property. In elaborating his arguments, learned counsel would contend that the vendors of the defendants’ filed the suits for injunction, wherein plaintiff’s vendor’s vendor figured as defendant in the suits and the said suits ended in dismissal. It is also contended by him that the sale of the suit schedule house property in favour of the appellant/plaintiff is much earlier to the sale deeds allegedly pressed into service by the respondents/defendants. Much stress has been laid by the learned counsel that the defendants dispossessed the plaintiff from the suit schedule house property on 15.09.1992 after the dismissal of injunction suit being O.S.No.600 of 2000 filed by

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the plaintiff. In a way the contention of the appellant/plaintiff is that the vendors of the defendants had no title to Plot Nos.6 and 7, which are stated to have been purchased by them under the originals of Exs.A21 and A22.

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9. Learned counsel appearing for the respondents/defendants submits that the appellant/plaintiff suffered adverse findings with regard to his title over the suit schedule house property in O.S.No.600 of 2000, and therefore, it is impermissible for the appellant/plaintiff to re-agitate the same issue by filing a fresh suit. He would further submit that the respondents/defendants apart from relying on the registered sale deeds under which they purchased the suit schedule house property, examined one more witness as DW.2, to speak of their possession over the property. He would also contend that Plot Nos.6 and 7 were not the subject matter of the suit being O.S.No.287 of 1986 filed by Smt.Chandan Bai and others and therefore, judgment and decree passed therein is of no avail to the appellant/plaintiff. The learned counsel also laid much emphasis on the factual aspect of dismissal of the suit filed by the plaintiff in O.S.No.1054 of 1998 on the file of the Principal Junior Civil Judge, East & North, R.R. District seeking cancellation of the decree passed in O.S.No.682 of 1994 on the file of the Principal District Munsif, Hyderabad East & North, R.R. District.

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10. It is trite to note at this juncture that the defendants filed O.S.No.682 of 1994 against one Sreeramulu seeking for injunction in respect of Plot Nos.6 and 7 and the said suit decreed on 30.10.1996. The appellant/plaintiff filed O.S.No.1054 of 1998 seeking cancellation of the decree passed in O.S.No.682 of 1994 and the said suit ended in dismissal.

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11. Before dwelling deep on the rival contentions of the parties, I deem it appropriate to have a brief resume of the various suits filed by the parties. Smt.Chandan Bai, B.Mahaveer Chand Jain and B.Dilip Kumar, who are legal representatives of Bhawarlal, filed O.S.No.287 of 1986 on the file of the Principal Subordinate Judge, R.R. District at Saroornagar, against P.Dharam Chand, P.Sathish Chand, J.Manak Chand, Anil Kumar, P.Jawarlaland P.M.Balaiah for perpetual injunction in respect of 28 plots admeasuring 4330 sq. yards forming part of S.No.720/1 (old 673). The 28 plots included Plot Nos.8 to 11, 20, 29, 33 to 36, 41, 46, 48, 48 to 52, 56, 58, 59 to 65, 67 and 68. Plot Nos.6 and 7 are not the subject matter in O.S.No.287 of 1986. The said suit on full pledged trial ended in dismissal.

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12. Smt.Chandan Bai, B.Mahaveer Chand Jain and B.Dilip Kumar filed O.S.No.262 of 1998 on the file of the Principal Subordinate Judge, Ranga Reddy District against P.Dharam Chand, P.Satish Chand, J.Manak Chand, Anil Kumar, P.Jawarlal for perpetual injunction in respect of the plot Nos.1, 3, 5 to 7, 19, 25, 26, 28, 30/A, 31, 32, 43, 44, 47, 54, 55 and 57, total admeasuring 4598.67 sq. yards. The said suit came to be dismissed for default on 23.06.2000.

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13. Defendants filed O.S.No.682 of 1994 on the file of the Principal District Munsif, Hyderabad East & North, R.R. District, against one Sreeramulu for perpetual injunction in respect of Plot Nos.6 and 7. The said suit ended in decree on 30.10.1996. The appellant/plaintiff filed O.S.No.1054 of 1998 on the file of the Principal Junior Civil Judge, East & North, R.R. District, seeking cancellation of the decree passed in O.S.No.682 of 1994. The said suit ended in dismissal.

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14. The plaintiff filed O.S.No.64 of 1996 on the file of the Principal Junior Civil Judge, East and North, Ranga Reddy District against the defendants and their father seeking perpetual injunction in respect of the suit schedule property. The defendants filed written statement contending that they purchased the plot Nos.6 and 7 under registered sale deeds dated 22.04.1992 from Smt.Chandan Bai and others. Subsequently, the suit came to be transferred to the file of Principal Junior Civil Judge, West and South, Hyderabad, and renumbered as O.S.No.600 of 2000. The learned Principal Junior Civil Judge, by judgment dated 20.08.2002 dismissed the suit. It is trite to note that the findings recorded by the learned Principal Junior Civil Judge, in the said suit, which read as hereunder:

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“Since the documents Exs.A8 to A10 also clearly and satisfactorily proved the fact that originally the land in Sy.No.720/1 measuring 3 acres 24 guntas was purchased by Bhawarilal and M.Ram Mohan Rao and the registered sale deeds filed by defendants 2 and 3 in Exs.B2 and B3 are executed by the legal heirs of late Bhawarilal and Ram Mohan Rao more satisfactorily proved the passing of title to the defendants from the original owners rather than the alleged title acquired by the plaintiff which in fact did not have a source of valid title to the vendors vendor of the plaintiff. As such, the plaintiff did not acquire a better title than the defendants 2 and 3 over the suit schedule property.”

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After the dismissal of the suit being O.S.No.600 of 2000, the plaintiff filed O.S.No.1049 of 2002 on the file of II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, against the defendants seeking the following reliefs:

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a) Declaration, declaring the plaintiff is the absolute owner of the suit schedule property i.e., house property bearing No.10-33/9 (new) which corresponds to 10-44/6 (Old) on Plot No.7 admeasuring 305 sq. yards., in Sy.No.720/1, situated at Malkajgiri village and Mandal, Ranga Reddy District;

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b) Recovery of possession of the suit schedule property

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by evicting the defendants thereby to deliver the same to the plaintiff;

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c) Declaration, declaring the sale deed, dated 22.04.1992 bearing document No.1871/1992 belonging to the Defendant No.1 in respect of part of suit schedule property and declaring the sale deed, dated 22-04-1992 bearing document No.1872/1992 belonging to the Defendant No.2 in respect of the part of suit schedule property registered before the SubRegistrar, Vallabhnagar, Ranga Reddy Districtis illegal, invalid and not binding on the plaintiff;

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d) Award costs of these proceedings, and

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e) Pass such other and further relief or reliefs as are deemed fit and proper in the circumstances of the case and in the interest of justice.

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15. In view the background facts of the case and submissions made by the learned counsel appearing for the parties, the issues that arise for consideration in this appeal are:

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1) Whether the appellant/plaintiff acquaired title over the suit schedule house property under sale deed, certified copy of which has been exhibited as Ex.A11?

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2) Whether the appellant/plaintiff is entitled to recovery of possession from the respondents/defendants?

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16. Issue No.1:- Indisputably, Bhawarlal and M.Rama Mohan Rao purchased Ac.3.24 guntas under a registered sale deed dated 21.10.1965, certified copy of which has been exhibited as Ex.B13. The land has been converted into house plots, numbering 71. Bhawarlal died leaving behind his wife and two sons. Jawarlal is the brother of Bhawarlal and he figured as an attesting witness in the sale deed dated 21.10.1965. The plaintiff/PW.1 claims to have purchased the suit schedule house property under the original of Ex.A11 sale deed dated 30.04.1982 from Smt.R.Shiva Kumari. Ex.A10 is the certified copy of the registered sale deed dated 31.08.1981 under which Smt.R.Shiva Kumari purchased the suit schedule

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house property from Jawarlal. In a way the appellant/plaintiff is tracing title to the suit schedule house property through Jawarlal. It is no more in dispute that suit schedule house property forms part and parcel of the land purchased by Bhawarlal and M.Ram Mohan Rao under registered sale deed dated 21.10.1965. Jawarlal was one of the defendants in O.S.No.287 of 1986. Copy of the judgment passed in O.S.No.287 of 1986 has been exhibited as Ex.A17. Jawarlal filed written statement in the said suit. He did not claim any share in the land, which has been converted into 71 plots by Bhawarlal and M.Ram Mohan Rao. The relevant portion of the judgment in O.S.No.287 of 1986 reads as hereunder:

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“On behalf of the defendants 1 to 5 a Written Statement was filed. The defendants have denied all the allegations and averments made in the plaint. It is contended that the lay out was obtained with the efforts of D5 and about 71 plots were demarcated. They admitted that Bawarlal and Ram Mohan Rao were executed an agreement of sale in favour of D6. It is contended that late Bawar Lal and Ram Mohan Rao are sold away all those plots and plaintiffs have not at all in possession of any plots and therefore, they are not entitled for perpetual injunction as prayed for. Therefore, suit is liable to be dismissed with costs.”

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Jawarlal through whom the appellant/plaintiff is tracing title did not claim to have any share in the land purchased by Bhawarlal and M.Ram Mohan Rao. When Jawarlal had no share in the land purchased by Bhawarlal and M.Ram Mohan Rao, even if he executed a registered sale deed in favour of Smt.R.Shiva Kumari is accepted as true, he could not convey any title under the said document. When Smt.R.Shiva Kumari had not acquired any title to the suit schedule house property, she could not convey better title than that of her under a registered sale deed executed by her in favour of the plaintiff. Though the appellant/plaintiff asserted that Smt.R.Shiva Kumari obtained a building permission from the Municipality after purchase, his

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contention proved to be false since Ex.A12, which is stated to have been obtained by Smt.R.Shiva Kumari is much prior to the purchase of the suit schedule house property under registered sale deed, copy of which has been exhibited as Ex.A10. This fact has been specifically admitted by him in the crossexamination. I deem it appropriate to refer the crossexamination of the appellant/plaintiff in his own words and it is thus:

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“I have not filed any documents to show the payment of municipal tax. Though I paid tax I have not filed tax receipts into Court. The suit house bearing No.1033/9. 10-44/8. By the time of payment of house tax by me the suit land comes under Malkajgiri later upgraded to Municipality. I do not know whether the certificate issued by Municipality stating that the House No.10-33/9 not allotted to anybody. Ex.A12 is the C.C. of tax receipt issued by the Malkajgiri Gram Panchayat for plot No.7, Sy.No.720/1. There is no house number in the year 1981. I purchased the property from R.Shiva Kumari in the year 1982. Ex.A10 executed by one Jawahar Lal in favour of R.Shiva Kumari. My vendor secured Ex.A12 prior to her purchase. Ex.A11 dt.30.04.1982, which is my sale deed. Ex.A14 is dt.15.07.82. The permission will be obtained from the Govt. only after purchasing the property. Witness adds while purchasing the property applied for permission. It is not true to say that Ex.A12 is a false document. Ex.A13 is the permission from Gram panchayat, dt.18.7.81 in the name of R.Shiva Kumari. Ex.A10 was executed on 31.8.91. My vendor obtained permission from Gram Panchayat. It is not true to say that the permission was created. Ex.A13 does not contain the seal and signature of Gram panchayat. I have taken Electricity Connection, but I cannot say the Service Number. It is not true to say that I am not residing in the schedule property. After September, 2002 I have not visited the suit property.”

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The contention of the appellant/plaintiff that his vendor obtained permission from the Municipality proved to be false, since the document which has been exhibited as Ex.A13 is much prior to the purchase of suit schedule house property by his vendor Smt.R.Shiva Kumari. The appellant/plaintiff failed to establish that Jawarlal had title to the suit schedule house property and

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he passed on the same to Smt. R.Shiva Kumari under registered sale deed dated 31.08.1981 from whom he claims to have purchased the same under a registered sale deed dated 30.04.1982, certified copy of which has been exhibited as Ex.A11. The trial Court considered this aspect in right perspective and recorded a finding that the appellant/plaintiff failed to prove his titlte over the suit schedule house property. I do not see any valid ground to differ with the findings recorded by the trial Court on this aspect. Hence, this issue is held against the appellant/plaintiff.

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17. Issue No.2:- The appellant/plaintiff pleaded that the respondents/defendants dispossessed him from the suit schedule house property on 15.09.2002 i.e. subsequent to the judgment passed passed in OS.No.600 of 2000 on the file of the Principal Junior Civil Judge, Hyderabad West and South. A specific finding has been recorded in the said suit that the appellant/plaintiff was not in possession of the property as on the date of filing of the suit. Certified Copy of the judgment passed in O.S.No.600 of 2000 has been marked as Ex.A2. It is trite to refer the relevant portion of the said judgment for better appreciation and it reads as hereunder:

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“After careful consideration of the entire evidence, I am of the opinion that the plaintiff failed to establish that in fact he is in possession of the suit schedule property as on the date of filing of the suit and also he failed to prove satisfactorily the title to the suit property. On the other hand, the oral evidence of the defendants and also documents in Exs.B2 to B26 satisfactorily proved that their title to the property and also their possession over the suit schedule property even as on the date of filing of the suit by the plaintiff. Accordingly, this issue is answered against the plaintiff and in favour of the defendants.”

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18. In view of the finding recorded in O.S.No.600 of 2000, it is impermissible for the appellant/plaintiff to contend that the respondents/defendants have dispossessed him after the

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disposal of O.S.No.600 of 2000. Absolutely, there is no evidence that Jawarlal delivered possession of the suit schedule house property to Smt.R.Shiva Kumari. When there is no evidence that Smt.R.Shiva Kumari got possession of the suit schedule house property, question of her putting the appellant/plaintiff in possession under registered sale deed dated 30.04.1982 does not arise. The respondents/defendants able to prove their possession by examining DW.1, who is no other than their father and DW.2 who is the husband of one of the purchasers in the lay out, which has been exhibited as Ex.B.18. The sale deed under which the wife of DW.2 purchased the property has been marked as Ex.X1. DW.2 testifies that his wife purchased plot Nos.10, 11 and 12 admeasuring 411.67 sq. yards in Sy.No.720/1 from Mahveer Chand son of Bhawarlal. The said plots form part and parcel of the lay out, which has been approved by the Gram Panchayat, Malkajgiri. His evidence is cogent and convincing. He corroborated the testimony of DW.1 with regard to the defendants being in occupation of the premises since the year 1992. Once the plaintiff failed to establish his title over the suit schedule house property, he is not entitled to recover possession from the respondents/defendants. Accordingly, this issue is held against the appellant/plaintiff.

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19. In view of the above discussion, I find that the appeal is devoid of merits and accordingly, the same is hereby dismissed with costs, confirming the judgment and decree dated 10.10.2006 passed in O.S.No.1049 of 2002 on the file of II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, Hyderabad.

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______________________ B.SESHASAYANA REDDY, J.

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Date:06^th November, 2009.

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V. Venkateswara Rao v. S. Venkateshwara rao

Case brief

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V. Venkateswara Rao v. S. Venkateshwara rao

Case brief

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