Dismissed

Tadi Venkata Padmavathi v. Vatti Vasanth Kumar

Telangana HC20 Mar 2014AS/682/2010

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a decree granting eternal injunction for perpetual injunction on Item No.2 of the plaint schedule property in favor of the respondent plaintiff against the appellants defendants 2 & 3.

What did the court decide?

The appeal was dismissed, confirming the trial court's decree and judgment passing perpetual injunction in favor of the plaintiff.

Tadi Venkata Padmavathi Vs Vatti Vasanth Kumar — Specific Performance | Telangana HC (2014)

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THE HON’BLE Ms.JUSTICE G.ROHINI AND

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THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY APPEAL SUIT No.682 OF 2010

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JUDGMENT: (Per T. Sunil Chowdary, J.)

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This appeal, under section 96 C.P.C, is filed assailing the decree and judgment dated 25.08.2010 passed in O.S.No.197 of 2006 on the file of the IV Additional District Judge, Visakhapatnam, whereunder and whereby the suit filed by the respondent/plaintiff for perpetual injunction was decreed.

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For the sake of convenience, parties to this appeal will hereinafter be referred as they are arrayed before the trial Court.

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The case of the plaintiff, in nutshell, is that he purchased house site in an extent of 410 sq. yards plot No.30 in Sy.No.108/1 of Yendada village, Visakhapatnam along with a thatched house from one Ch.Venkata Raja under a registered sale deed dated 04.12.1985, which is more fully described as Item No.1 of the plaint schedule property. The plaintiff and one K.V. Reddy jointly purchased an extent of 375.5 sq. yards plot No.29 in Sy.No.108/1 of Yendada village, Visakhapatnam from the said Venkata Raja under sale deed dated 31.12.1985, which was registered on 02.01.1986, which is more fully described as Item No.2 of the plaint schedule property. Mr. K.V. Reddy relinquished his right in Item No.2 of the plaint schedule property in favour of the plaintiff under a registered relinquishment deed dated 11.10.2006. The plaintiff has been in possession and enjoyment of item Nos.1 & 2 of the plaint schedule property. The watchman used to reside in the plaint schedule property by raising vegetables. On 22.09.2006, when the plaintiff started constructing a compound wall to protect the plaint schedule property, the defendant Nos.1 to

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3 along with others came to the spot and obstructed the plaintiff. On 25.09.2006, the plaintiff submitted an application to the Mandal Revenue Officer for survey and localisation of the plaint schedule property belonging to him in item Nos.1 and 2. The Mandal Revenue Officer with the help of surveyor had surveyed the property and issued report. The defendants are proclaiming in the village that they will dispossess him from the plaint schedule property. Hence the suit.

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First defendant filed written statement alleging that the plaintiff has no right whatsoever over Item No.1 of the plaint schedule property. The first defendant purchased item No.1 of the plaint schedule property from Smt.Revu Ratnakumari on 29.11.2004. The vendor of this defendant purchased the property from Ch.Venkata Raja under registered sale deed dated 04.05.1983. This defendant and his vendor have been in possession and enjoyment of the Item No.1 of the plaint schedule property since 1983. The plaintiff created the documents with the help of the revenue officials. Hence the suit is liable to be dismissed.

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The defendant Nos.2 and 3 filed written statement inter alia contending that the plaintiff is not the owner of the plaint schedule property. The 2^nd defendant, who is the wife of 3^rd defendant, purchased item No.2 of the plaint schedule property from Smt.Namburi Ashalatha w/o.Daniel Suresh Babu under registered sale deed dated 05.09.2003. They have been in possession and enjoyment of the plaint schedule property. Initially, the plaint schedule property was purchased by Smt. Sakuru Sakkubai W/o Satyanarayana Murthy from Cheruku Satyanarayana Rao and his family members under registered sale deed dated 03.08.1982.

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The said Sakkubai executed a settlement deed in favour of her daughter Ashalatha on 19.12.2001. This defendant obtained loan from Union Bank of India, Isukathota Branch, Visakhapatnam by depositing title deeds. The defendants’ watchman by name Samuel has been residing in the plaint schedule property. Ch. Venkata Raja has no right to sell the same property second time to the plaintiff as the plaintiff alleged to have purchased property on 31.12.1985. On 23.09.2006 the plaintiff, without any manner of right whatsoever, tried to trespass into the plaint schedule property. The plaintiff who is a sitting MLA of West Godavari District, is interfering with the plaint schedule property by using his political power. This defendant lodged a complaint with the Commissioner of Police, Visakhapatnam and also with the Station House Officer, III Town P.S. Visakhapatnam. Hence the suit is liable to be dismissed.

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Basing on the rival pleadings, the trial Court has framed the following issues:

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i. Whether the plaintiff is in possession and enjoyment of plaint schedule property?

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ii. Whether the plaintiff is entitled to permanent injunction as prayed for?

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iii. To what relief?

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In the trial Court on behalf of the plaintiff P.Ws.1 and 2 were examined and Exs.A.1 to 7 were marked. On behalf of the defendants D.Ws.1 to 3 were examined and Exs.B.1 to B.9 were marked.

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After scrutinising the oral, documentary evidence and other material available on record, the trial Court arrived at a conclusion that the plaintiff has been in possession and enjoyment of the Item

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No.2 of the plaint schedule property and granted perpetual injunction. Feeling aggrieved by the said decree and judgment of the trial Court, the defendant Nos.2 and 3 in the suit have preferred this appeal.

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Heard Sri EVVS Acharyulu for Sri K. Gani Reddy, the learned counsel for the appellants / defendants 2 & 3 and Sri Satyanarayana Prasad for N. Jaya Surya, the learned counsel for the plaintiff.

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The points for determination in this first appeal are:

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a. Whether the plaintiff is in possession and enjoyment of the plaint schedule property?

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b. Whether the plaintiff is entitled to permanent injunction in respect of Item No.2 of the plaint schedule property?

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c. Whether the decree and judgment of the trial Court are sustainable?

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Points 1 and 2: These two points are intertwined hence we are inclined to address these two points simultaneously in order to avoid recapitulation of the facts and evidence.

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To substantiate his case, the plaintiff examined himself as P.W.1 and got marked Exs.A.1 to A.3. P.W.2 is neighbour of the plaint schedule property. To dislodge the case of the plaintiff, 2^nd defendant examined herself as D.W.1 and got marked Exs.B.1 to B.9. D.W.2 is the husband of D.W.1. D.W.3 is neighbour of the plaint schedule property.

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Before adverting to the findings of the trial Court, it is apposite to refer to admitted facts of the case as culled out from the pleadings and oral and documentary evidence.

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Suffice to say that the first appellate Court has to reappreciate the oral and documentary evidence afresh and arrive at its own conclusion without being influenced by the findings recorded by the trial Court as the appeal is continuation of the suit.

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The plaintiff filed the suit against the first defendant in respect of item No.1 of the plaint schedule property. Pending suit, the plaintiff and the first defendant have approached the Legal Services Authority for amicable settlement. The Legal Services Authority passed an award in PLC No.33/2008 dated 27.02.2008. No appeal lies against the award passed by the Legal Services Authority in view of Section 21 of the Legal Services Authority Act. The learned counsel across the Bar submitted that there is no dispute between the parties so far as the item No.1 of the plaint schedule property is concerned. Hence there is no necessity to deal with item No.1 of the plaint schedule property in this appeal.

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Ch.Venkata Raja and his family members owned landed property in Sy.No.108/1 of Yendada village. The said Venkata Raja sold house site plots to various persons under different registered sale deeds as a GPA holder of his family members. One K.V. Reddy along with the plaintiff purchased item No.2 of the plaint schedule property from the said Venkata Raja under a sale deed dated 31.12.1985. The said Venkata Raja relinquished his share in item No.2 of plaint scheduler property in favour of the plaintiff under Ex.A.3 registered relinquishment deed dated 11.10.2006. One Smt. Sakkubai purchased an extent of 375 sq. yards in Sy.No.108/1 P from said Ch. Venkata Raja under Ex.B.3 registered sale deed dated 03.08.1982. The said Sakkubai executed a settlement deed in favour of her daughter Ashalatha under Ex.B.2 dated 19.12.2001. The 2^nd defendant purchased an

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extent of 375 Sq. yards from the said Ashalatha under Ex.B.1 registered sale deed dated 05.09.2003. The plaintiff on one hand and defendants 2 and 3 on the other hand are claiming possession over Item No.2 of the plaint schedule property basing on their respective title deeds.

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Establishment of the following two conditions is sine qua

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non for granting of relief of perpetual injunction.

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i. The plaintiff has been in possession and enjoyment of the plaint schedule property much less as on the date of filing of the suit, and

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ii. The defendant invades or threatens to invade the plaintiff’s right or his enjoyment of the plaint schedule property.

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It is settled principle of law that in a suit for perpetual injunction, the Court should not decide the title of the parties. If the parties to the suit assert their possession over the plaint schedule property basing on title, then the Court can incidentally look into the title. In the present case, the plaintiff and defendant Nos.2 and 3 are claiming to be in possession of Item No.2 of the plaint schedule property basing on their respective title deeds. Having regard to the facts and circumstances of the case, the Court can look into the title of the parties for a limited purpose without expressing any opinion with regard to the validity or otherwise of the documents.

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As per the testimony of P.W.1, he has been in possession and enjoyment of Item No.2 of the plaint schedule property. As per the testimony of D.Ws.2 and 3 they have been in possession and enjoyment of Item No.2 of the plaint schedule property. D.W.3 is the husband of D.W.2. P.W.1, D.Ws.2 and 3 are interested witnesses as they have personal interest in the subject matter of the suit schedule property. It is needless to say the Court has to

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meticulously scrutinise the testimony of witnesses, more particularly, the testimony of interested witnesses so as to ascertain the truthfulness or otherwise of their testimony.

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As per the testimony of P.W.2, she is the owner of plot No.28 in Sy.No.108/1 of Yendada village. This fact is also born out by the report of the Advocate Commissioner. In the crossexamination of P.W.2, nothing is elicited to establish that she is speaking false due to previous animosity with D.Ws.2 and 3. In the cross – examination of P.W.2, nothing is elicited to shake her testimony so far as her ownership over Plot No.28 is concerned. As per the testimony of D.W.3, he is having plot by the side of Item No.2 of the plaint schedule property. D.W.3 did not produce any document to establish that he is neighbouring owner of Item No.2 of the plaint schedule property. As per the testimony of D.W.1, Item No.2 is surrounded by boundary wall and fencing. As per the testimony of D.W.3, there is no compound wall or fencing demarcating Item No.2 of the plaint schedule property. Therefore, it is not safe to place reliance on the oral testimony of D.W.3. On the other hand, the testimony of P.W.2 is cogent and convincing in all aspects. The testimony of P.W.2 inspires the confidence of the Court. P.W.2 who is an independent witness fully supported the case of the plaintiff.

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As per the testimony of P.W.1, he lodged a complaint before the III Town Police station, Visakhapatnam (Ex.A.4). His testimony further reveals that he requested the Mandal Revenue Officer to localise and demarcate his plot. Both parties have admitted that the Revenue Divisional Officer, Visakhapatnam passed orders under Section 145 (6) Cr.P.C. on 07.07.2007 under Ex.A.6. At the initial stage, the Sub Divisional Magistrate,

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Visakhapatnam passed interim orders directing both parties not to enter into the suit schedule property pending disposal of the Section 145 Cr.P.C. proceedings. Pending enquiry the SubDivisional Magistrate, Visakhapatnam directed the Mandal Revenue Officer, Visakhapatnam Rural to inspect the schedule property along with the Mandal Surveyor and submit a report after due enquiry. The Mandal Surveyor conducted survey with the help of FMB, copy of layout plan and also the sale deeds of both parties and submitted his report to the Mandal Revenue Officer vide letter No.1180/2006/Special R.1, dated 29.09.2006. The Mandal Revenue Officer in turn had submitted his report to the Sub Divisional Magistrate along with the report of the Mandal Surveyor. Basing on the report submitted by the Mandal Revenue Officer and the Mandal Surveyor, the Sub Divisional Magistrate has arrived at a conclusion that the plaintiff was in lawful possession of the schedule mentioned property as on the date of passing of the interim orders under Section 145 (1) Cr.P.C and as such he is entitled to possession over the suit schedule land until otherwise ordered by the competent civil Court. It is not the case of the defendants that they have challenged the orders passed by the Sub Divisional Magistrate. Whatever the order passed by the Sub Divisional Magistrate became final. We are very much conscious that the order passed under Section 145 Cr.P.C. are quasi civil in nature. The findings recorded by the Sub Divisional Officer while passing orders under Section 145 Cr.P.C. have persuasive value only and not binding in nature. A perusal of the impugned decree and judgment clearly demonstrates that the trial court has not decreed the suit basing on Ex.A.6 only. Therefore, the contention of the learned counsel for the appellants/defendant Nos.2 and 3 that the findings of the trial Court are based on Ex.A.6

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only is not sustainable.

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Pending suit, the plaintiff filed I.A.No.1456 of 2007 for appointment of an advocate commissioner to measure the plaint schedule property with the help of surveyor and with reference to the sale deeds of both parties. A perusal of the record reveals that the advocate commissioner visited the suit schedule property and identified the same with the aid of the surveyor and with reference to the sale deeds of both parties.

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A perusal of the report of the advocate commissioner reveals that at the time of execution of the warrant, an old aged person came to the site and introduced himself as Vammi Chandra Rao and told that the plot on the western side of item No.1 belongs to him.

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In Ex.B.1, the Western boundary is shown as Vammi Chandra Rao. As per the report of the Advocate commissioner, the plot of Vammi Chandra Rao is situated on the West of item No.1 and not Item No.2. This particular aspect also supports the version of the plaintiff and negatives the contention of the defendants. As per the recitals of Exs.B.1 and B.2, the Northern boundary owner’s name is shown as Karanam Satyanarayana. As per the advocate commissioner’s report, Sy.No.87 is situated on the North of the Item No.2. It is nobody’s case that Sy.No.878 belongs to Ch.Venkata Raja. For better appreciation of the rival contentions, it is not out of place to mention hereunder the boundaries of Item No.2 as per the sale deed and the advocate commissioner’s report.

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Sale deed Ex.A.2:	Commissioner’s Report:
East: Plot No.28.	Plot No.28 (K.Suryakumari)
South: 30 ft. road.	30 ft. road.
West: Plot No.30.	Item No.1 in Plot No.30

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North: Sy.No.107. Vacant land in Sy.No.87.

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A perusal of the above table at a glimpse demonstrates that the boundaries as mentioned in Ex.A.2 are tallying with the report of the Advocate Commissioner on ground. The boundaries mentioned in Exs.A.1 and A.2 are tallying with each other on ground. As per the FMB and Surveyor report, the northern boundary of Ex.A.2 is Sy.No.87 and not Sy.No.107. This is the only discrepancy as per the sale deeds. It is nobody’s case that Sy.No.87 originally belongs to Ch.Venkata Raja. Defendants 2 and 3 are not claiming the property covered under Sy.No.87. This minor discrepancy by itself is not a sufficient ground to disbelieve the entire case of the Plaintiff.

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Neither the plaintiff nor the defendant Nos.2 and 3 have filed any objections to the report submitted by the advocate commissioner. The Court can place reliance on the report of the advocate commissioner even in the absence of examination of the advocate commissioner and marking of the report. The report of the advocate commissioner will become part of the record in view of Order 26 Rule 10 CPC. To fortify our view, we are placing reliance on the ratio laid down in Karri Marriyamma Vs. Penumatcha [1] Ramamma . The relevant portion in Para No.13 is extracted

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hereunder:

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“The necessity for examination of a Commissioner would arise if only one of the parties disputes the correctness of the report. When no objections are filed to the report and when Rule 10 of Order 26 C.P.C. mandates that the report, together with the enclosure shall become part of the record of the suit, the mere fact that the Commissioner was not examined, does not disentitle the Court from taking the report into account.”

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Having regard to the facts and circumstances of the case and the principle enunciated in the case cited supra, the trial court

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has not committed any error in placing reliance on the report of the advocate commissioner.

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In the cross-examination, D.Ws.2 and 3 in unequivocal terms admitted that the boundaries mentioned in Ex.B.3 are not tallying with the boundaries mentioned in Exs.B.1 and B.2. As per their testimony, the boundaries mentioned in Exs.B.2 and B.3 are corresponding to each other. For better appreciation of the same, we mention the boundaries of Ex.B.1 to B.3 hereunder:

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	Exs.B.1 & B.2	Ex.B.3
East:	Reddygari Site	Our land
South:	30 ft. road	Rastha
West:	Vommi Chandrarao	Our land
North:	Karanam Satyanarayana	Satyanarayana

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The boundaries in Ex.B.1 and B.2 are not tallying with the boundaries as mentioned in Ex.B.3, which is an earlier document. As per the testimony of D.Ws.2 and 3, one Reddygaru is having plot on the East of their site. They further deposed that they do not know whether the said Reddygaru is having house plot in his own name or not as on today. It is the duty of the defendant Nos.2 and 3 to adduce cogent and convincing evidence that there is a change in the boundaries due to change of the ownership of their neighbours. In Ex.B.5 letter and Ex.B.6 copy of the telegram also, the defendants did not mention the boundaries of their property. Exs.B.7 to B.9 are post lit documents, hence much weight cannot be attached to these documents. In the absence of convincing evidence, it is not possible to arrive at a conclusion that the property purchased by the plaintiff and 2^nd defendant is one and the same.

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In the cross examination D.Ws.1 and 2 came with a new

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version that they got the land surveyed with a private surveyor prior to purchase of the property. D.Ws.1 and 2 in one voice stated that no sketch was prepared by the surveyor. These two witnesses are unable to say the name of the surveyor who measured the land. Basing on the testimony of these two witnesses, the inference that can be drawn is that D.Ws.2 and 3 have not physically verified the property before purchase of the same.

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In the cross examination D.Ws.1 and 2 in unequivocal terms deposed that plot number is not mentioned in their sale deed Ex.B.1. This Court carefully perused Ex.B.1 to B.3, to verify whether plot number is mentioned in these documents. Interestingly, no plot number is mentioned in Exs.B.1 to B.3. On the other hand, in Exs.A.2 and A.3, plot number of the property is mentioned. The plot number mentioned in Exs.A.2 and A.3 is tallying with the surveyor’s report, advocate commissioner’s report and FMB. This one of the strong circumstances, which supports the version of the plaintiff. It is a known fact that identification of property on ground is not possible without plot number. The defendant Nos.2 and 3 have not assigned cogent and valid reasons for non mentioning of plot number in their sale deed Ex.B.1, in the settlement deed Ex.B.2 and their vendor’s sale deed Ex.B.3. The discrepancy in the boundaries as mentioned in the sale deed Ex.B.1, settlement deed Ex.B.2 with that of initial sale deed Ex.B.3 coupled with non-mentioning of plot number in Exs.B.1 to B.3 creates a doubt with regard to the exact location of the property purchased by the defendant No.2.

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The predominant contention of the learned counsel for the appellants / defendant Nos.2 and 3 is that Ex.B.3 sale deed dated

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03.08.1982 will prevail over Ex.A.2 sale deed dated 31.12.1985, which is later in point of time. It is not in dispute that the vendor under Ex.A.2 and B.3 is one and the same person. In a suit for perpetual injunction, the Court has to take into consideration whether the plaintiff was in possession of the property as on the date of filing of the suit or not. While deciding the above said fact, the Court can incidentally look into the title of the parties. The scope of enquiry under Section 38 of the Specific Relief Act is entirely different to that of scope of Section 34 of the said Act. In a suit for declaration, the Court can decide the validity or otherwise of the sale deeds which is not legally permissible in a suit for perpetual injunction. Whether Ex.B.3 will prevail over Ex.A.2 falls outside the purview of the suit for perpetual injunction. Therefore, we are not inclined to express any opinion with regard to the legality of the sale deeds i.e. Exs.A.2 and B.3. Hence, we are unable to accede to the contention of the learned counsel for the appellants. The material placed before the Court clinchingly establishes that the Plaintiff came into possession of Item No.2 of the plaint schedule property by virtue of Exs.A.2 and A.3.

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In the light of the foregoing discussion, we have no hesitation to hold that the plaintiff has been in possession and enjoyment of Item No.2 of the plaint schedule property much less as on the date of filing of the suit. The defendants 2 and 3 having failed to identify the property purchased by them under Ex.B.1, have no right whatsoever to interfere with the peaceful possession and enjoyment of Item no.2 of the plaint schedule property by the plaintiff. Viewed from any angle, the plaintiff is entitled to the relief of perpetual injunction.

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Point No.3: A perusal of the record clearly reveals that the

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trial court has considered the oral evidence adduced by both parties with reference to various documents filed by both parties in right perspective. The trial court has assigned cogent and valid reasons to its findings. Viewed from any angle, the decree and judgment passed by the trial Court is legally sustainable.

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In the result, the appeal fails and is accordingly dismissed, confirming the decree and judgment dated 25.08.2010 passed in O.S.No.197 of 2006 on the file of the IV Additional District Judge, Visakhapatnam. No order as to costs. As a sequel, miscellaneous petitions pending if any shall stand closed.

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______________ G. ROHINI, J

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__________________________ T. SUNIL CHOWDARY, J Date:20.03.2014 Kvsn

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[1] 2007 (1) ALD 127

Tadi Venkata Padmavathi v. Vatti Vasanth Kumar

Case brief

What is this about?

What did the court decide?

Tadi Venkata Padmavathi v. Vatti Vasanth Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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