C.R.P. Nos. 1257, 1260 and 1265 of 2017. Case: Talari Marthamma and Ors. Vs Kama Jeevarathnam and Ors.. High Court of Andhra Pradesh (India)
| Case Number | C.R.P. Nos. 1257, 1260 and 1265 of 2017 |
| Judges | M.S. Ramachandra Rao, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 101, 35, 35(3), 98; Sections 11, 151, 47; Transfer of Property Act, 1882 - Sections 47, 51 |
| Judgement Date | March 22, 2017 |
| Court | High Court of Andhra Pradesh (India) |
Order:
M.S. Ramachandra Rao, J.
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These three Revisions arise out of the same suit between the same parties. Therefore they are being disposed of by this common order.
O.S. No. 336 of 1989
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Smt. Kama Mariyamma, the predecessor in interest of respondents, filed O.S. No. 336 of 1989 on the file of the Principal District Munsif, Eluru against respondent Nos. 1 to 3 and another for perpetual injunction restraining the latter from interfering with her peaceful possession and enjoyment of the plaint schedule property. She claimed to have purchased plaint schedule property the under sale deed dt. 07-09-1988 and alleged that she was in possession of the said property. She contended that petitioner Nos. 1 to 3 and another, who have property on the northern side, were trying to encroach the plaint schedule property even though she was granted permission on 24-11-1988 by the Executive Officer, Vatluru Gram Panchayat, Vatluru to make constructions therein.
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Pending suit, the said Mariyamma died, and respondents herein were impleaded as her legal representatives.
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A written statement was filed by petitioners alleging that petitioner Nos. 1 to 3 and another are in possession and enjoyment of the site and there is thatched house therein and it was not a vacant site.
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The said suit was dismissed on 27-07-1995. It was held that there was a hut in the plaint schedule property and the plaintiff was not able to establish her possession though there was a recital in the sale deed dt. 07-09-1988 that she was given possession of the land. An observation was made therein that the plaintiff ought to have sought for declaration of title if advised, since petitioner Nos. 1 to 3 and another, who were defendants therein, have disputed the title of her vendors.
A.S. No. 135 of 1995
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Thereafter Smt. Mariyamma filed A.S. No. 135 of 1995 before the District Judge, West Godavari at Eluru questioning the judgment and decree dt. 27-07-1995 in O.S. No. 336 of 1989. The said appeal was also dismissed on 14-07-2003 confirming the findings of the trial Court.
O.S. No. 130 of 2004
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She then filed O.S. No. 130 of 2004 before the Principal Junior Civil Judge, Eluru for eviction of petitioner Nos. 1 to 3 and for recovery of possession of the plaint schedule property. She mentioned the plaint schedule property as an extent of 229 sq. yards of vacant site equivalent to Ac.0.4 3/4 cents in R.S. No. 422/1 of Vatluru village, Pedapadu Mandal, West Godavari District within the specified boundaries. She reiterated that she was the owner of the property by virtue of the sale deed dt. 07-09-1988 and stated that after the first appeal A.S. No. 135 of 1995 was dismissed on 14-07-2003, the petitioners forcibly and high handedly occupied the plaint schedule property with the assistance of rowdy elements without having any right, title or interest in the plaint schedule property.
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Petitioner Nos. 2 and 3 filed a written statement, which was adopted by 1st petitioner, opposing the suit claim. They contended that they had succeeded in O.S. No. 336 of 1989 as well as in A.S. No. 135 of 1995 and that it was Mariyamma, who was trying to evict them by force. They contended that in O.S. No. 336 of 1989 and in A.S. No. 135 of 1995 it was held that that Mariyamma had no title to the plaint schedule property. They stated that they have been living in the plaint schedule property by constructing sheds therein and that the Record of the Village Panchayat showed that one Smt. V. Arogyam was living in a thatched house therein since time immemorial and that she sold the property to petitioner Nos. 1 and 2 for Rs. 90/-.
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O.S. No. 130 of 2004 was decreed by the Principal Junior Civil Judge, Eluru on 08-09-2009 directing the petitioners to hand over vacant possession of the schedule property within two months.
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The petitioners questioned the same in A.S. No. 232 of 2009, which was dismissed on 25-04-2016.
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Thereafter they filed S.A. No. 699 of 2016 before this Court, which was dismissed on 14-10-2016. This Court held that there is no finding regarding title to the property in O.S. No. 366 of 1989 or in A.S. No. 135 of 1995, that the issue of title was incidental and both the suit O.S. No. 336 of 1989 and A.S. No. 135 of 1995 were decided only on the basis of possession of the parties and there was no bar for Mariyamma to file a fresh suit for recovery of possession basing on her title. This Court held that the dismissal of O.S. No. 336 of 1989 filed by Mariyamma for injunction did not bar her from filing the subsequent suit for recovery of possession of the same property. It also rejected the contention of the petitioners that Mariyamma should have sought the relief of declaration of title and ought not to have sought merely recovery of possession. It held that if the title of the plaintiff is clear and is supported by documents, and a trespasser, without any claim to title or interloper without any apparent title denies plaintiff's title, it would not amount to raising a cloud over the title of plaintiff necessitating the plaintiff to suit for declaration. It held that trial Court and lower...
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