Allowed

Akula Thirupalu v. K. Venkatarami Reddy

Telangana HC8 Oct 2013SA/12/2013

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction, the Supreme Court held that the lower appellate court erred in reversing the trial decree based on an ambiguous admission. The evidence of ownership was incomplete, and the additional Sale Deed filed by the defendant was improperly ignored. The appeal was allowed, the judgment remanded, and parties were directed to submit documentary ev

What did the court decide?

Second Appeal allowed, lower appellate Court judgment set aside, matter remanded for fresh disposal with opportunity to produce evidence.

Akula Thirupalu Vs K. Venkatarami Reddy — Property and Title | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR

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SECOND APPEAL No.12 of 2013

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JUDGMENT:

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Since all the learned counsel for the parties have made submissions in the main appeal itself, the appeal is heard finally at the admission stage.

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The appellant is the plaintiff in O.S.No.63 of 2006, on the file of Junior Civil Judge, Nandikotkur. He filed a suit for permanent injunction alleging that to the North of his house, there is a rastha and blocking the access of the plaintiff, the defendants are trying to construct a wall as shown in the plaint plan. While the trial Court decreed the suit after considering the evidence adduced by the parties, on appeal by the defendants, the lower appellate Court has reversed the said decree. This appeal is preferred against the said decree and one of the substantial questions of law which was urged in this second appeal was whether the lower appellate Court could have reversed the well considered judgment of the trial Court on the basis of alleged admission of P.W.1 in the crossexamination that defendant No.3 is the owner of the site which is to the North of the house of the plaintiff.

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All the learned counsel preferred to argue the appeal finally. On their request, on 30.09.2013, I fixed the appeal for hearing and for orders. All the learned counsel for the parties have made their submissions on merits.

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The primary question that falls for consideration is with regard to the disputed site as to whether it is the land belonging to Defendant No.3 or is a rastha as claimed by the plaintiff.

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Apart from the evidence of P.Ws.1 to 3, the trial Court had also relied upon and taken into consideration the evidence of P.W.4-Advocate Commissioner. Defendant No.3 was examined as D.W.1. Only notice and reply notice was marked on his behalf as Exs.B-1 and B-2.

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On the pleadings of the parties, there is no dispute that defendants 1 and 2 have allegedly sold the land to the North of the plaitniff’s house to defendant No.3. Hence, Defendant No.3 claims ownership of that site under Sale Deed. However, that document was not filed before the trial Court by defendant No.3. Later, when the suit was decreed by the trial Court and appeal was filed, defendant No.3 appears to have filed the Sale Deed executed in his favour, dated 18.11.2005, and requested the appellate Court to receive it as additional evidence vide I.A.No.9 of 2012. The said application was allowed by the appellate Court, but defendant No.3 did not choose to mark the said document nor adduced any evidence in conformity with the said document. The appellate Court, therefore, though admitted the additional evidence, the same was ignored and proceeded to decide the appeal on the basis of existing evidence. The appellate Court, in paragraph 16, came to hold that Defendant No.3 is the owner of the disputed site based upon the evidence of P.Ws.1 to 4. The appellate Court however relied on the alleged admission of P.W.1 in the crossexamination, where he stated as follows:

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“D3 purchased a site and put up a wall on the north of my house. D3 closed doors of my house on the north. It is true that D3 constructed a wall upto a height of 6 feet to the northern side of my house. The said wall is running NorthSouth. D3 has left open space only for ingress and aggress to go to his site.”

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According to the lower appellate Court, the aforesaid admission was sufficient to hold that Defendant No.3 is the owner of the disputed site and consequently set aside the decree of the trial Court on the ground that the plaintiff cannot claim injunction with regard to a rastha as he is not in exclusive possession.

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While the learned counsel for the appellant/plaintiff herein states that the lower appellate Court has misconceived the evidence, it has also ignored the evidence of the Advocate Commissioner and P.Ws.2 and 3. It was pointed out that in the plaint, a specific allegation was made with reference to plaint plan that on the North of his house, there is a Government site which is used by the plaintiff and others as rastha since time immemorial. However, the defendants, believing to be owners of that site, have tried to obstruct the access of the plaintiff by raising a wall. The defendants 1 and 2 claim that it was their property and they have sold it to Defendant No.3. However, the document in support of said contention was not produced before the trial Court and in appellate Court, though produced, it was not marked. Hence, could not be looked into or considered by the appellate Court.

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The learned counsel for the third defendant, who is really the contesting defendant, placed reliance upon the judgment of the Supreme Court in Avtar Singh and others Vs. Gurdial Singh and other s^[1] to contend that in view of what is admitted need not be proved. The learned counsel, therefore, submits that the admission of P.W.1 regarding the site owned by Defendant No.3 was sufficient to dismiss the suit of the plaintiff and the appellate Court has rightly allowed the appeal. The learned counsel for the

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defendants 1 and 2, who supports Defendant No.3, has also reiterated his submissions.

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In the light of the above and the substantial question of law as to whether the lower appellate Court could have reversed the well considered judgment of the trial Court on the basis of alleged admission of P.W.1 in the cross-examination that defendant No.3 is the owner of the site which is to the North of the house of the plaintiff, evidently, the appeal was allowed on the basis of admission of P.W.1 as quoted above. I am, therefore, finding it difficult to accept that the said admission is amounting to accepting title of Defendant No.3 with respect to the disputed site. In order to bind the plaintiff with the admission, such admission has to be unequivocal, clear and ought not to be ambiguous. What all the extracted portion shows is that P.W.1 accepts that Defendant No.3 purchased a site and put up a wall on the North of his house. The construction of wall with a view to obstruct the passage is, therefore, admitted by the plaintiff, but, however, to show that the aforesaid extracted statement amounts to admission of title of Defendant No.3 over the site would be reading something much more than what the deposition states. Even otherwise, the lower appellate Court ought to have appreciated the entire evidence together instead of picking up such straight sentence from the evidence of P.W.1 and deciding the appeal based on that.

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Secondly, the additional evidence produced by Defendant No.3 namely his Sale Deed was received by the appellate Court in evidence. The learned counsel for the third defendant appearing in this appeal also seeks to rely on the said sale deed and submits that it was a mistake in not marking the same before the appellate

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Court. He also states that perhaps the mistake can be rectified if an opportunity is granted. The first appellate Court being a final Court of fact, it was necessary for the lower appellate Court to have given adequate opportunity to the parties to produce oral and documentary evidence in support of their case, if they are able to make out any necessity of producing additional evidence under Order 41 Rule 27 C.P.C.

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In this present case, defendant No.3 was permitted to adduce additional evidence, but on account of mistake or otherwise, the document though received was not marked. In my view, even if it was the fault of defendant No.3 in the interests of justice, an opportunity deserves to be given to defendant No.3 to enable him to mark the said document by examining himself and also by giving opportunity to the other parties to cross-examine defendant No.3. The said document would only thereafter be of any assistance to the lower appellate Court for deciding the appeal.

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The manner in which the lower appellate Court has proceeded to decide the appeal in the impugned judgment, being wholly unsatisfactory, I am constrained to answer the substantial question of law in favour of the appellant and set aside the lower appellate Court’s judgment and remit the appeal for fresh disposal before the lower appellate Court. The lower appellate Court shall give opportunity to the parties as observed in the judgment and thereafter, re-determine the appeal, in accordance with law. The parties shall maintain the status quo with regard to the subject matter of the suit as was existing, pending the appeal before the lower appellate Court.

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Hence, the Second Appeal is, accordingly, allowed. There

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shall be no order as to costs. Miscellaneous petitions pending in this second appeal, if any, shall stand closed.

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__________________________ JUSTICE VILAS V.AFZULPURKAR Date: 8^th October, 2013

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THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR

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SECOND APPEAL No.12 of 2013

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8^th October, 2013

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[1] 2007 (1) SCJ 856

Akula Thirupalu v. K. Venkatarami Reddy

Case brief

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Akula Thirupalu v. K. Venkatarami Reddy

Case brief

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