Partly allowed

K.Peda Gangannaa and Anr. v. Kasarapu Rajanna and 2 Ors.

Telangana HC1 Sept 2023AS/1134/1998

Case brief

AI extract

What is this about?

In this appeal under Section 96 of the CPC, the High Court dismissed the plaintiffs suit for title and infringement and also dismissed the defendants counter-claim for declaration of title and injunction, holding that neither side proved title over the suit land due to lack of evidence regarding subdivision and transfer documents. The trial court dismissal was confirmed while the counter-claim dec

What did the court decide?

Suit dismissed; Counter-claim dismissed; Decree in counter-claim set aside; Costs dismissed.

K.Peda Gangannaa and Anr. Vs Kasarapu Rajanna and 2 Ors. — Partition | Telangana HC (2023)

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[³²¹⁶¹

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IN THE HIGH COURT FOR THE^{STATE OF TELANGANA} AT HYDERABA

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4rl

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FRIDAY, THE FIRST DAY OF^SEPTEMBER TWO THOUSAND AND TWENW^THREE

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PRESENT

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' THE HoNouRABLE sRt JUsrtcE M.LA:xMAN

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FIRST APPEAL O: 1134 OF 1998

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Appeal under Section 96 of C.P.C against^{the JudgnentandDecreeDated} 06.12.1995, made in O.S.^{No. 7 of 1994 on the file of the Courtof the Additional} District Judge, Adilabad.

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Between:

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K.Peda Gangannaa, S/o. Ramulu, aged^{49 years, Occ: Agriculture,R:/o.} Kachikanti Village

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Kukkula Chinna Ganganna S/o. Ramrlu,^{aged about44 years,Occ:} Agriculture, Rl/o. Kachikant Village, Adilabad^{Mandal & District}

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...APPELLANTS/PI.AI NTI FFS

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AND

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Kasarapu Rajanna, S/o. Linganna @^{Raiilingu (Died per Lrs 4 to 9), aged} about 49^years, Occ:^Agriculture, Rl/o.^{Kachikant Village}

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Kasarapu Narsaiah, S/o Rajamailu,^{aged about 49 years, Occ: Agriculture,} R/o Kachikanti Vg., Adilabad District

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Kasarapu Dhanaiah S/o Raiamallu,^{R/o Kachikantivg.,Adilabad Districl}

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Smt. Bhulaxmi, W/o. Late^{K. Ra,anna, Aged 61 years, Occ: Housewifu}

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Smt. K. Radha, Wo. Late Ra.leshwer,^{Aged40 years, Occ: Housewife}

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K. Asash, S/o. Late^{K. Rajanna,Aged 41 years, Occ; Agriculture}

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K. Srinivas, S/o. Late K. Rajanna, Aged^{41 years, Occ: Agriculture}

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K. Narshing, S/o.^{Late K. Rajanna, Aged 38 years,Occ:Agriculture}

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K. Shanker, S/o. Late K. Rajanna, Aged^{32 years, Occ: Agriculture}

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(Respondents Nos. 4 to 9 are R/o. H. No. 1-75, Kachikanti Village, Tanteli Post, Adilabad District)

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...Proposed Respondents 4 to I are LRs of^1sr Respondent

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Ri dismissed for default vide Court order dated^02,02.2011.

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Respondent viz., Kasarapu _ Respondents Nos. 4 RE.q,]!.",_as to g are brought pertourt on ordJ record dated as LRs za.oi.zoli,iiie of deceased rA.1.r No. 4 of 2023 made in AS No. i 134 ot rsjga^{--- -}

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Counsel for the Appellant :Mr. V RAVI KIRAN RAO Counsel for the Respondents :Mr. SOURABH AGARWAL The Court made the following:

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t T tt

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i | -)

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THE HONOURABLE SRI JUSTICE M.LAXMAN

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APPEAL SUIT No. 1134 of L998

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JUDGMENT:

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The present appeal is filed challenging the judgment and decree dated 06.L2.1995 in O.S.No.7 of 1994 on the file of the Additional District Judge at Adilabad (hereinafter referred to as 'trial Court'), wherein and whereby the suit filed by the appellants herein for declaration and injunction was dismissed arrd counter claim frled by the respondents herein for declaration and injunction was allowed. Aggrieved by the same, the present appeal is frled challenging the dismissal of the suit filed by the appellants as well as allowing of counter claim frled by the respondents, in consolidated appeal since decree was not separately prepared. The Court fee was paid for both.

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The appellants herein are plaintiffs and the respondents herein are defendants before the trial Court. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the suit.

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The sum and substance of the case of the plaintiffs is that originally one Onkarma-l was absolute owner and possessor of land in Sy.No.Sl of Kachikanti Village, Adilabad Mandal and District, to an extent of Ac.28-1O guntas. One K. Ramulu, who is

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{

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the father of the plaintiffs purchased land to an extent of Ac.7-O6 guntas and one Chukkabotla Ushanna purchased land to an extent of Ac.7-05 guntas. They were owners and possessors of the said extent. There was partition between said Ramulu and Ushanna in respect of said lands purchased by them and they made the said lands into four parts. The land to an extent of Ac.3-20 guntas (hereinafter referred to^.suit land), which is in dispute in the present suit is part and parcel of one of the said parts. The defendants without any right over the suit propert5r are trying to disturb the possession of plaintiffs. Therefore, the present suit is frled.

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The defendants denied the plaintiffs claim that their father purchased the suit land. They admitted that originally one Onkarmal was owner of land in the said survey number. The ancestors of the defendants were protected tenants and their ancestors were granted 38-E certifrcate for land to an extent of Ac.13-39 guntas in Sy.No.Sl and they are in possession of such land being rightful owners and possessors. The suit land to an extent of Ac.3-2O guntas is owned by them and they are in possession. They hled written statement and counter claim seeking declaration of title and perpetual injunction and alternatively claimed for recovery of possession.

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On the basis of the above pleadings, the trial Court has framed the following issues for consideration:

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"7. Whether the plaintiffs are owners and possessors of suit l.an! -in Sy.No.StlB of Kachikantl Vittage -;;;; Ac.3-20 gts. as shown in the sketch app.id"d to plain? and wherein possession of it on th€ date i.e., OS.lO.l992 wleen ttrey rrled o.S.No.94/rgg2 in the court of District Munsiff, Adilabad?

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Whether the plaintiff No.t has purchased al extent of Ac.T-O6 gts. in Sy.No.St/B of kachikantl ,iffag. 1;o; Onkarmal pattedar in the year l97O and what are its boundaries?

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Whether the defendants have trespassed into the suit land on 03.10.1992 and interfered^{^i.,} the posses"io, oi plaintiffs?

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Whether the plaintiffs are entitled to the reliefs of declaration of title and perpetual injunction with regard to the suit land?

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Whether the defendants are entitled to the reliefs of declaration of^ title and perpetual injunction or alternative relief of possession of suit land?

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To what relief2"

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6 The plaintiffs in support of their case examined p.ws.l to 4 and got marked Exs.A-l to A_23. Defendants got examined D.Ws. 1 to 5 and got marked Exs.B_ I to B_22.

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7 The trial Court dismissed the suit of the plaintiffs holding that the plaintiffs failed to establish title and possession. However, the trial Court has decreed the counter claim of

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defendants for declaration and injunction. Therefore, the present appeal is filed chalenging the dismissal of the suit and allowing of the counter claim.

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8. Head both sides

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9 The points emerging for consideration in the present appeal are as follows:

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Whether the plaintiffs proved title to the suit propert5r?

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2 Y-!.t**^{the-plaindffsproved their} possession over the surt property?

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r) whether the defendants proved their title over the suit propert5r?

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4 Y-!:ln^{. the defendants proved their} possession over the sult properly?

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5 Whether the defendants rn tfe light of their ownership relier or recoverv or p.;;";; i" .]iJ.,,.ti,,.

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i.?r[.i:'

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Point I\Ios .l and2:

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The erridence of plaintiffs shows that their father K. Ramulu purchased land to an extent gf _^{Ac.7_O6 guntas} forming part of SY.No.Sl/El. They purchased the said land along with one Ushanna, who also purchased Ac.7-O5 guntas from the same survey number. They have purchased the said lands from one Onkarmal, who was absolute owner and possessor of entire extent of larld i.e., Ac.2g_lO guntas in Sy.No.51. The pahanies produced

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)

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by the plaintiffs show that Onkarmal was recorded as owner for land to an Ac. l4-ll guntas in Sy.No.51/8. In the possessory column, the names of plaintiffs and Ushanna were recorded as equal possessors.

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The evidence of defendants shows that they are owners and possessors of Ac. I3_39 guntas in Sy.No.Sl/A. It is not in dispute that the said Onkarmal was absolute owner and possessor of entire extent of land i.e., Ac.2g_ 10 guntas in Sy.No.Sl. The ancestors of defendants were tenants and they received land to an extent of Ac. 13-39 guntas through tenancy. It is also not in dispute that though survey numbers shown were divided as per adangals, there is no erridence on record for demonstrating subdivision has taken place as per the survey arrd settlement. The same is seen from the evidence of Viltage Assistant_D.W.5 and he categorically stated that there was no subdivision of Sy.No.51 into sy.Nos.Sr/A and 51/B. The oral evidence adduced by both parties trying to locate the boundaries shows that the plaintiffs are trying to claim that the suit land is not part of land claimed by the defendants. According to them, the land of defendalts, is different and the ra,d which is in their possession is different. The defendants tried to clairn that the suit rand is part and parcel

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of larger extent of land of^{Ac.13-39 guntas,to which they were} granted 38-E certificate.

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Absolutely, there is no^{evidencefrom the plaintiffs to show} that the suit land^{was purchasedby their fatherfrom Onkarmal} and further, no record pertaining to^{subdivisionwas produced.} However, they tried to rely^{upon Ex.A-17,which is the proceedings} of Tahsildar, whereunder attempt^{was made totake the} possession of suit land on the basis of ceiling^{declarationand} ultimately, the^proceedings for taking^{possession was droppedon} the premises as those lands were declared^{excludedfrom the} computation of ceiling of declarant and^{also due to objections} raised by the plaintiffs ctaiming that^{such a land was purchased} by them from Onkarmal. The same^{was acceptedby the} Tahsildar. As a result, taking^{possessionof land in pursuanceof} declaration was dropped. Except that^{there is no evidence to} prove that the ancestors of plaintiffs purchased the suit land^from said Onkarmal. They failed to^produce documentar5r as^{well as} oral evidence pertaining to transfer of ownership of suit land^from Onkarmal. For sale, a document must be registered.^{Since no} sale deed has been^produced the^{title of plaintiffs cannot be} declared and^{such findingsof the trial Court cannot be disturbed.}

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The evidence on record shows that the names of plaintiffs are recorded in the possessor column of pahanies in Sy.No.Sl/B and the entire extent of Sy.No.S1/B is shown as Ac. 14-11 guntas and the father of plaintiffs claimed to have purchased land to an extent of Ac.7 -06 guntas and since then the same is in their possession. According to the plaintiffs, their father purchased land to an extent of Ac.7-06 guntas from one Onkarmal ald combined the said land with land of one Ushalna to an extent of Ac.7-05 guntas. Subsequently, the said land was partitioned and by virtue of same, they received the suit land to an extent of Ac.3-2O guntas.

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The pleadings of the defendants shows that the plaintiffs took possession of suit land on the strength of injunction obtained by them in O.S.No.2S of 1992 on the file of the District Munssif, Adilabad and for the said reasons they have sought for alternative relief of recovery of possession in counter claim liled by the defendalts. This claim of the defendants that plaintiffs are not in possession of land in Sy.No.Sl/B cannot be believed in the light of entries in the adangals produced by plaintiffs under Ex.A- 1 to A-16. They clearly show that there is long standing established possession of plaintiffs over the half extent of land to an extent of Ac. 14- 1 1 guntas in Sy.No.S f /El. These documents clearly show

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the possession of plaintiffs in Sy.No.Sl to the above extent. The said possession cannot be said to be obtained under temporary injunction and in fact, such claim has not been decided or answered by the trial Court. Therefore, the plaintiffs are in possession of the land to an extent of Ac.7-06 guntas out of Ac. 14- 1 1 guntas as reflected in Exs.A- 1 to A- 16.

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fh-A^{Now, the question is whether the possessionreferred in} Sy.No.Sl/B in Exs.A-l to A-16 can be denied in the context of exhibits relied upon by the defendants. Absolutely, there is no clear categorical evidence to show how demarcation of Sy.Nos.S1/A and 51/B is done from the original Sy.No.Sl. Unless, the original Sy.No.Sl is subdivided in terms of procedure established under the Survey and Boundaries Act, 1923 and supplementar5r sethwar is issued after such demarcation, it cannot be said that Sy.No.S1 is subdirrided into Sy.Nos.S1/A and 51/8. Both parties from their respective oral and documentaSr evidence are ultimately trying to ascertain their own claim over the suit property on the basis of respective adalgals produced by them. The other impediment for plaintiffs is that the injunction is sought as ancillary relief and not as independent relief. When the relief of declaration is denied the plaintiffs cannot be granted the relief of injunction. Had there been independent relief sought for

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possession ald not as ancillaqr relief, this Court could have examined the entitlement of plaintiffs lor injunction. Though, the trial Court has answered the said issue against the plaintiffs without appreciating the evidence ald subdivision of survey numbers, the said findings of the trial Court cannot be reversed in the light of the above findings. Hence, these two issues are answered against the plaintiffs.

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Point Nos.3 to 5:

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The defendants claim that they are owners of land in Sy.No.S1/A admeasuring Ac. 13_39 guntas and they are in possession of such lard. It is their claim that suit land is part and parcel of larger extent of Ac. 13_39 guntas. In support of such claim, they relied upon oral evidence and adgangals under Exs'B-I to B-17- The plaintiffs denied the clarm that suit land is part and parcel of land to which the defendants were granted 3g_E certificate and they relied upon Ex.A_lg, which is the proceedings of Tahsildar delivering possession to plaintiffs. A close scrutiny of documents, absolutely there is no reference of boundaries in such parchanama. If there was some evidence to show the land which is delivered within the delined boundaries, this Court could have found out whether the suit land fell under the larger extent of

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Ac.13-39 guntas as delivered by the Tahsildar under Ex.A- 18 or otherwise.

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\f-A.^{Further, the witness examined by defendants i.e., D.W.5} clearly deposed that Sy.No.Sl, though divided on paper, was not actually divided. If that is so, it means that there is no actual subdivision of Sy.No.Sl and demarcation of lands. If such division is established then only, this Court can give findings that suit land is located either in Sy.Nos.51/A or 51/B. The documents of plaintiffs show land admeasuring Ac. 14-11 guntas are part and parcel of Sy.No.S1/A. The pahalies under Exs.B-6 to B-17 show that land admeasuring Ac.13-39 guntas is part and parcel of Sy.No.Sl/A. If really said extent of lands were subdivided in terms of claims of both parties there should have been oflicial map giving subdivisions. On the basis of such map, documents such as supplementar5r sethwar reflecting such subdirrision should have been filed. These documents were not presented. In fact, the evidence of D.W.5, who is official from revenue department, clearly shows that there is no subdivision. When there is no subdivision in respect of land admeasuring Ac.28-lO guntas in Sy.No.S1, it is very difficult to assess and give findings on riva,l claims set up by the plaintiffs and defendants as to their ownership and possession on the suit land.

The evidence of defendants may establish that they were owners rn respect of land admeasuring Ac.13-39 guntas in Sy.No.Sl, but it cannot be said that the suit land is same land, which is falling under larger extent of larld in Sy.No.13-39 guntas. If that is established, only then the title of suit land can be afhrmed to defendants. When such e\ddence is lacking, this Court cannot give hndings with regard to title and possession of defendants over the suit land, on the basis of 38-E certificate which was granted 1n respect of land admeasuring Ac.13-39 guntas. These aspects were not considered by the trial Court. Simply, declaration was granted to defendants since the plaintiffs failed to establish their suit for declaration. In fact, no findings have been given dealing with the defendants' issue of title and possession. Therefore, these findings of the trial Court have to be set aside.

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L7 . The defendants claim that originally they were in possession of the suit land. By virtue of interim injunction in O.S.No.2S of 1992, they were dispossessed from the suit land. There is a clear cut pleading from the defendants to that effect. But there is no pleading or evidence to show that when they were dispossessed by act of Court, and what date the Court restored possession to

1 ?.

defendalts. If,^{the Court restored possession, the defendantscan} set up possessron^{over suit land but such evidence is absent'} Hence, the contention^{that they are out of possession due to grant} of temporary injunction^{is wrong}

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Defendants^{claimedthat they are out of possession by virtue} of interim order.^{Alternatively, they also sought for restoration of} possession based on title.^{The issuesrelatingto title, injunction} and alternative relief^{of recovery of possession basedon title was} dealt with in issue^{No.S by the trial Court. A reading of issue No'5} before the trial Court,^{the entire issue No.5 was answeredin} favour of defendants.^{If the entire issue was answeredthe issued} comprises of declaration^{and injunction onone side and} restoration of^{possession on the other side. If, this issueis} answered completely^{in favourof defendants,it is difficult to draft} the decree since both reliefs^{cannot co-exist together'However,} decree was^{preparedfor gralt of injunction ald nothing has been} stated with regard to alternate^{relief. In this regard,the trial} Court has committed^error.

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Further, the defendants failed^{to establish the title to the} counter claim land. They sought^{relief of recovery of possession or} injunctions consequent to^{declarationof title. Once, the title is}

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not proved, the defendants are not entitled for other reliefs of restoration of possession or injunction. In the said circumstances, this Court feels that the suit of the plaintiffs as well as the counter claim of the defendants both requires to be dismissed.

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In the result, the appeal is partly allowed and the findings of the trial Court in dismissing the suit of the plaintiffs Iiled seeking declaration and injunction is confirmed and the findings of the trial Court in granting declaration and injunction in favour of the defendants in the counter claim filed by them is set aside. Consequently, the counter claim filed by the defendant is also dismissed. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed.

; {

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Sd/.^{B.S. CHIRANJE} JO INT^REGI

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/ITRUE^COPY//

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SECTION^OFFICER

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The^{Additional DistrictJudge' Adilabad' (With Records)}

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Z. On.^{CC to Mr' V' RAVI KIRANRAO' A'dvocateIOPUCI}

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3.^{One CC to Mr' SOURABHAGARWAL' Advocate [OPUC]}

4- Two^{CD CoPies}

KP/DL

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.t. l a HIGH COURT

DATED:01/09/2023

: .i l i : ,.+.il !, i.,I, 'r' 'li 1 drlUoeueNT ''f-rl ii I "l I { AS.No.1'134 of 1998

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¶121

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THE HIGH COURT FORTHE STATE^{OF TELANGANA} AT HYDERAAAD

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I I t .1I &{II I I tt I vtt 'I{.,. ! Between:

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FRIDAY, THE FIRST^DAY OF^SEPTEMBER TWO THOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE^SRI JUSTICE^M.LAXMAN

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FIRST APPEAL NO:^{1134 OF 1998}

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1 . K.Peda Gangannaa,^S/o. Ramulu, aged 49^years, Occ:^{Agriculture,Ryo} Kachikanti Village

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Kukkula Chinna Ganganna S/o.^{Ramulu,aged about 44 years,Occ:} Agriculture, Rl/o. Kachi-kant^{Village,Adilabad Mandal& District}

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...APPELLANTS/PLAINTIFFS

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AND

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,l 1. K"."rro, K"."rro,^{Raianna,S/o.Linganna} @^{Ralilingu(Died per perLrs 4 to 9), to 9), 9),aged} i aOout 49 49^yea'rs, Occ:^{Agriculture,Fl/o.Kachikant VillageVillage}

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,: ,l 1. K"."rro, K"."rro,^{Raianna,S/o.Linganna} @^{Ralilingu(Died per perLrs 4 to 9), to 9), 9),} l.I i aOout 49 49^yea'rs, Occ:^{Agriculture,Fl/o.Kachikant VillageVillage} .i : J II 2. Kasarapu Narsaiah, S/o Raiamailu, aged about 49 years, Occ: Agriculture,Kasarapu Narsaiah, S/o Raiamailu, aged about 49 years, Occ: Agriculture, :I.11 if^{,Ryo Kachikanti Vs.; AdilabadDistrkrt} :l iY'i 'i 3. Kasarapu Dhanaiah S/o Raiamallu, Kasarapu Dhanaiah S/o Raiamallu, Rlo Kachikanti vg., Adilabad DistrictKachikanti vg., Adilabad District ':^I I tt +. Smt. Bhulaxmi, Smt. Bhulaxmi, W/o. Late K. Rajanna, Aged 61 years, years, occ: HousewifeHousewife 'l I s. Smt. K. Radha, W/o. Late Rajeshwer, Aged 40 years, Occ: Housewife t+ '9 ,- l I o.^{X. Asash,S/o.Late K. Rajanna, Aged 41 years,Occ;Agriculture} I, I z. f. Srinivas, f. Srinivas, Srinivas, S/o. Late K. Rajanna, Aged 41 Late K. Rajanna, Aged 41^years, occ:^Agriculture

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J II 2. Kasarapu Narsaiah, S/o Raiamailu, aged about 49 years, Occ: Agriculture,Kasarapu Narsaiah, S/o Raiamailu, aged about 49 years, Occ: Agriculture,

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iY'i 'i 3. Kasarapu Dhanaiah S/o Raiamallu, Kasarapu Dhanaiah S/o Raiamallu, Rlo Kachikanti vg., Adilabad DistrictKachikanti vg., Adilabad District I tt +. Smt. Bhulaxmi, Smt. Bhulaxmi, W/o. Late K. Rajanna, Aged 61 years, years, occ: HousewifeHousewife

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I z. f. Srinivas, f. Srinivas, Srinivas, S/o. Late K. Rajanna, Aged 41 Late K. Rajanna, Aged 41^years, occ:^Agriculture

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' 8.^{K. Narshing,S/o.Late K. Rajanna, Aged 38 years,Occ:AgricuKure}

it .:.

:;.

1 1 i f

r. I . K. Shanker, S/o. Late K. R4anna,^{Aged 32 years,Occ:Agriculture} (Respondents Nos.4 to 9 are R/o. H. No. 1-75, Kachikanti^{Village, Tanteli} Post, Adilabad Distdct)

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...Proposed Respondeirts⁴ to I are LRs^{of 1sr Respondent}

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Rl ! dismissed for default vide Court order datd 02.02.2011.

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r.,i. I Repondents t,los. 4'to I are brought on record as LRs of deceased 1"r - 'i^{Respondentviz., Kasarapu Rajanna, as per CourtOderdated28-02.2023,vide I'A.} No. 4 of 2023 made in AS No. 1134 of 1998.

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Appeal under Section 96 of C.p.C against the Judgment and Decree Dated "^j ,'{ i":06.12.1995, made in o.s. No. 7 of 1gg4 on the fire of the court of the Additionar { District Judge, Aditabad. I

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ORDER : This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower court and the materiar papers in the Suit and upon hearing the arguments of Mr. V. RAV| KIRAN RAo, for the Appellant and Mr. souRABH AGARWAL, Advocate for the Respondent.

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: .i

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, This Court doth Order and Decree as follows : r

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,.iⁱ

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l+4f,,1. rnat this appear be and hereby is parfly ar{owed and the findings of the triar '^:l court in dismissing the suit of the praintiffs fired seeking decraration and

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il injunction are confirmed and the findings of the hiar court in granting

¶164

,.,{^{,decraration and injunction in favour of the defendants in the countercraim} fired ritl^, by them is set aside; and consequenfly, the counter claim filed by the 7 defendant also dismissed; and

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' 2.^That there shall be no order as to costs in this appeal.

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//TRUE COPY//

Sd/. B.S. CHIRANJEEVI JotNTBEQISIRAR sEcrloHfFlcER

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The Additional District Judge, Adilabad.

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,d 2. Two CD Copies rKP IDL

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¶185

I I DEC RE E :, AS.No.l134 of {998 {tI ,i :1, II ) ,l:i,+ l, ,: {l, i F $#i u$j II i r[. "$! PARTLY ALLOWING THE AS WITHOUT COSTS il;f

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K.Peda Gangannaa and Anr. v. Kasarapu Rajanna and 2 Ors.

Case brief

What is this about?

What did the court decide?

K.Peda Gangannaa and Anr. v. Kasarapu Rajanna and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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