Allowed

Mr.S.Babu Reddy v. Smt.Avula Peramma

Telangana HC18 Jul 2011SA/66/2004

Case brief

AI extract

What is this about?

The lone judge dismissed a second appeal filed by defendants challenging a property suit and injunction. The court held that the Civil Court lacks jurisdiction to decide validity of assigned land sales under Act 9 of 1977 and that the earlier decree operates as res judicata.

What did the court decide?

Second Appeal allowed; Judgment and decree in A.S.No. 1 of 2002 set aside; decree in O.S.No. 220 of 1999 confirmed.

Mr.S.Babu Reddy Vs Smt.Avula Peramma — Property and Title | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No. 66 of 2004.

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JUDGEMENT

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This Second Appeal is directed against the Judgement and Decree dt. 25.7.2003 in A.S.No. 1 of 2002 passed by the Senior Civil Judge, Srikalahasti reversing the Judgement and Decree in O.S.No. 220 of 1999 passed by the Junior Civil Judge, Satyavedu.

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I have heard the learned Counsel appearing for the parties.

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The following substantial questions of law were framed by this Court at the time of admitting the second appeal:

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i) Whether the Civil Court is competent to decide the issues arising under Act 9 of 1977 to determine the sale of assigned land in favour of D.2 under Ex:B.1 dt. 31.7.1980.

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ii) Whether the Civil Court is competent to exercise the powers conferred on Revenue Authorities under Section 5 of the Act 9 of 1977 to decide the validity of the sale effected in respect of assigned land.

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iii) Whether the finding given by the lower Appellate Court regarding the possession is based on evidence on record.

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iv) Whether the lower Appellate Court is not erred in holding that the plaintiffs are in possession of the suit properties, ignoring the Judgement Decree passed in O.S.No. 92 of 1993 on the file of the Junior Civil Judge, Satyavedu i.e. Ex:B.1 which has become final.

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The defendants are the appellants herein. For the sake of convenience, the parties will be referred as the plaintiffs and the defendants.

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Brief facts of the case are as under:

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The plaintiffs’ version is that the 1^st plaintiff occupied plaint-A schedule property about 15 years prior to the filing of the suit and made it fit for cultivation and that the 2^nd plaintiff occupied plaint-B schedule

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property and made it fit for cultivation and they have been in possession and enjoyment of plaint-A and B Schedule properties by raising seasonal crops. Recognizing their possession, the Mandal Revenue Officer, Varadaiahapalem issued DKT Pattas in Proceedings No. 47/4/1404 dt. 8.8.1994 in faour of the plaintiffs in respect of plaint-A and B schedule properties respectively but, however, Pattadar Passbook and title deed in respect of plaint schedule properties were issued in favour of the 1^st plaintiff and both the plaintiffs have been paying land revenue to the Government.

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On the other hand, the contention of the defendants in the written statement filed by the 3^rd defendant is that originally the plaint schedule properties belong to one Peraiah of Chinna Panduru village and that the 2^nd defendant purchased the same from the said Peraiah under a registered sale deed dt. 31.7.1980 for Rs. 13,000/- and obtained possession of the property and since then he has been in possession and enjoyment of the same. Further contention of the defendants is that when the 1^st plaintiff and her husband and eight others were interfering with their possession, the 2^nd defendant filed O.S.No. 92 of 1993 and the said suit was decreed and that in the said suit, the defendants merely claimed that they are in possession of the plaint schedule properties. According to the defendants, the documents filed by the plaintiffs are concocted and created for the purpose of filing the suit and that they were never assigned any land by the Government. It was further contended by the defendants that against the Judgement and Decree in O.S.No. 92 of 1993, the defendants did not file any appeal and the Judgement and Decree in the said suit has become final and the same operates as res judicata against them in the present suit and that the plaintiffs concealing the material fact i.e. filing of O.S.No. 92 of 1993 and its finality, they filed the present suit with a view to get wrongful gain.

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Before the trial court, on behalf of the plaintiffs Pws 1 to 4 were examined and Exs:A.1 to A.13 were marked. On behalf of the defendants, DWs 1 to 4 were examined and Exs:B.1 to B.6 were marked.

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The question that arose for consideration before the trial court was whether the plaintiffs are entitled for permanent injunction.

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The plaintiffs admitted the grant of assignment of plaint schedule properties in favour of the said Peraiah but their contention was that though originally DKT patta was granted in favour of the said Peraiah, as he failed to take possession of the land, the Government cancelled the patta and resumed the land and as the DKT patta was cancelled and as the land is assigned land, the said Peraiah cannot sell away the same to the defendants under a registered sale deed. Under Act 9 of 1977, there is no prohibition as such to sell the assigned lands in favour of landless poor by a landless poor person. There was absolutely no evidence before the trial court as to whether Peraiah was not competent to sell the plaint schedule properties. As the sale transaction was effected by a registered sale deed, the registering authority must have verified the nature of land before registering it in the name of the 2^nd defendant.

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Further the contention of the plaintiffs is that the sale deed obtained by the defendants is not valid in law, whether the DKT Patta granted in favour of the said Peraiah is liable for cancellation is a question to be decided by the Revenue Authorities under Act No. 9 of 1977 and the Civil Court has no jurisdiction to decide the said issue, as rightly contended by the defendants. The sole question, which the Civil Court can determine is as to whether the plaintiffs are in possession of the plaint schedule properties and the said possession is lawful. The learned trial court held that as on the date of the suit, the defendants are in possession of the plaint schedule properties. The trial court also held that as the decree in O.S.No. 92 of 1993 being in operation, it is not open for the plaintiffs to contend that they are in possession of the plaint schedule properties. The learned Counsel for the plaintiffs/respondents would contend that the parties in the present suit and in O.S.No. 92 of 1993 are different and therefore the decision in O.S.No. 92 of 1993 will not operate as res judicata. I absolutely see no force in the contention urged by the learned counsel. Parties need not be same in both the

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suits. The 1^st plaintiff’s husband was the 1^st defendant in the said suit which itself is enough to say that the dispute was substantially between the same parties and therefore the decision in O.S.No. 92 of 1993 operates as res judicata in the present suit. Further, the plaintiffs/respondents in the present suit suppressed the material fact of passing decree in O.S.No. 92 of 1993 against them and filed fresh suit alleging that they were assigned the plaint schedule properties on 8.8.1994. Further, since the title to the suit lands vest with the Government, the plaintiffs cannot file a suit for declaration of title on the ground that DKT patta was granted to them on 8.8.1994. As already stated, no documentary evidence was adduced showing that DKT patta which was granted in favour of the said Peraiah, the vendor of the defendants was cancelled prior to executing the registered sale deed by him in favour of the 2^nd defendant. The courts below are only concerned with the question as to granting or refusing injunction and not the various steps, which are required to be taken by the authorities under Act 7 of 1977.

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Since the decree passed in O.S.No. 92 of 1993 was in force as on the date of filing of the suit by the plaintiffs, the issues determined therein are in respect of the subject matter and were substantially between the same parties, the subsequent suit i.e. O.S.No. 220 of 1999 filed by the plaintiffs is barred under Section 11 C.P.C. Further, as the plaintiffs have no title to the suit lands, they cannot file a suit for declaration of title. More over, as they suppressed the material fact namely the decree and judgement in O.S.No. 92 of 1993, they are not entitled for decree of permanent injunction in view of the earlier decree passed in O.S.No. 92 of 1993, in respect of the same property. The defendants are in lawful possession of the suit lands and the findings arrived at by the 1^st Appellate Court that the plaintiffs are in possession of the property merely relying on land revenue receipts filed by them cannot be sustained. The suit filed by the plaintiffs subsequent to O.S.No. 92 of 1993 is not maintainable. The findings recorded by the 1^st Appellate

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Court reversing the Judgement and Decree of the trial court are contrary to the evidence on record.

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For the foregoing reasons, the substantial questions of law framed at the time of admitting the second appeal are answered in favour of the appellants/defendants. The second appeal is allowed setting aside the Judgement and decree dt.25.7.2003 in A.S.No. 1 of 2002 passed by the learned Senior Civil Judge, Srikalahasti and confirming the Judgement and Decree in O.S.No. 220 of 1999 passed by the learned Junior Civil Judge, Satyavedu. There shall be no order as to costs.

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_______________________________ R.KANTHA RAO, J 18.7.2011. KRB.

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THE HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No. 66 of 2004.

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JUDGEMENT

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Dt. 18.7.2011.

Mr.S.Babu Reddy v. Smt.Avula Peramma

Case brief

What is this about?

What did the court decide?

Mr.S.Babu Reddy v. Smt.Avula Peramma

Case brief

What is this about?

What did the court decide?

What the court decided

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