Second Appeal No. 192 of 2005. Case: V. Nagamanemma Vs V. Nagulu Naidu. High Court of Andhra Pradesh (India)
|Second Appeal No. 192 of 2005
|For Appellant: P.V. Vidyasagar, Adv. and For Respondents: M. Dorai Raj, Adv.
|T. Sunil Chowdary, J.
|Civil Procedure Code
|March 28, 2014
|High Court of Andhra Pradesh (India)
T. Sunil Chowdary, J., (At Hyderabad)
1 This second appeal is filed challenging the decree and judgment dated 22.11.2004 passed in A.S. No. 132 of 1996 on the file of the V Additional District Judge, Tirupati wherein and whereby the decree and judgment dated 16.08.2009 passed in O.S. No. 320 of 1991 on the file of the I Additional District Munsif, Tirupati was reversed.
For the sake of convenience, parties to this appeal, will hereinafter be referred to as they are arrayed before the trial Court.
The case of the plaintiff, in nutshell, is that defendants 1 and 2 are son and daughter-in-law of 3rd defendant. Defendants 4 and 5 are sons of 2nd defendant. Sixth defendant is mother of defendants 7 and 8. Ninth defendant is relative of 6th defendant. Thus all the defendants are interrelated and residents of Cherlopalle village, Tirupati Rural Mandal.
Initially plaintiff filed the suit for the relief of perpetual injunction. The plaintiff purchased the plaint schedule property on 18.08.1984 under a registered sale deed from one Kandala Jayamma and her daughter by name Ratnamma, Are Guravamma, A. Ramanaidu, Medoti Sampoornamma and K. Anandamma, and ever since he has been in possession and enjoyment of the same. K. Jayamma and her daughter Ratnamma got the entire plaint schedule property under a settlement deed dated 06.11.1968 executed by her husband Venkata Rama Naidu. Father of the said Venkata Rama Naidu by name K. Peddi Naidu executed a settlement deed dated 11.4.1969 in respect of his half share in favour of K. Anandamma, Neelamma and Sampoornamma. Sampoornamma died intestate leaving behind her son A. Venkatrama Naidu (9th defendant). Therefore, A. Venkatrama Naidu, Anandamma and Neelamma got half share in the plaint schedule property. While so, on 25.08.1991, the defendants tried to trespass into the plaint schedule property. The 6th defendant denied the sale deed in favour of the plaintiff. Hence the plaintiff is forced to file the suit for declaration of title that he is the absolute owner of the plaint schedule property and also for a consequential relief of perpetual injunction.
The third defendant died during pendency of the suit. The first defendant filed written statement on behalf of defendants 1, 2, 4 and 5 admitting the relationship among defendants 1 to 5 and 9 and inter alia contended that the plaintiff has been in possession and enjoyment of the plaint schedule property by virtue of registered sale deed dated 18.08.1984. The vendors of the plaintiff never executed any sale deed or any document in favour of 6th defendant. The 6th defendant and her husband misled them and got the sale deed dated 27.10.1981 in favour of 6th defendant by playing fraud. The vendors of the plaintiff also did not execute any agreement of sale in favour of 6th defendant at any time much less in the year 1975. K. Peddi Naidu executed two settlement deeds - one in favour of Venkata Rama Naidu and second one in favour of his daughters, K. Anandamma, Neelamma and Sampoornamma. At no point of time, the 6th defendant was in possession and enjoyment of the plaint schedule property fell to the share of Peddi Naidu. Defendants 1 to 5 and 9 never interfered with the possession and enjoyment of the schedule property by the plaintiff. Therefore, they are not necessary and proper parties to the suit. Hence the suit may be dismissed.
Sixth defendant filed written statement denying all the averments made in the plaint inter alia contending that the documents on which the plaintiff is placing reliance are sham and nominal. Neither the plaintiff nor his vendors have been in possession of the plaint schedule property. The plaintiff has not mentioned the boundaries of the plaint schedule property for the reasons best known to him. This defendant is the owner of an extent of As. 4-27 cents in Sy. No. 217 of Cherlopalle village. This defendant purchased the property under an agreement of sale dated 06.06.1975 for a valid consideration of Rs. 26,000/- from Edoti Venkata Rama Naidu, Kandala Peddi Naidu, Kandala Venkata Rama Naidu, Gurrappa Naidu and Kandala Jayamma.
On the date of agreement of sale, the vendors received Rs. 6,000/- and agreed to receive the balance consideration of Rs. 20,000/- in two instalments i.e. a sum of Rs. 18,000/- on or before 05.12.1975 and the remaining sum of Rs. 2,000/- at the time of registration of the document. Vendors of this defendant delivered possession of the plaint schedule property on the date of agreement of sale. In pursuance of the agreement of sale, this defendant obtained a registered sale deed on 27.10.1981. This defendant has been in possession and enjoyment of the plaint schedule property from 06.06.1975 without any interruption from any body. The plaintiff is none other than the cousin of the husband of this defendant. Disputes arose between the plaintiff and the husband of this defendant due to village politics. This defendant's husband is Sarpanch of the village. This defendant is not aware of the settlement deeds alleged to have been executed by Peddi Naidu in favour of his daughters and son. The alleged beneficiaries under the settlement deeds were never in possession of the property. There is a recital in the alleged settlement deeds that those deeds will come into force after the death of said Peddi Naidu. The alleged sale deed dated 18.08.1984 in favour of the plaintiff is not legally enforceable, in view of the agreement of sale dated 06.06.1975 in favour of 6th defendant. This defendant obtained loan from Chandragiri Cooperative Agricultural Development Bank Limited by mortgaging the plaint schedule property. This defendant perfected title to the plaint schedule property even by adverse possession. This defendant filed writ petition No. 10504 of 1986 challenging the notification dated 08.05.1986 issued under Sections 4 and 6 of the Land Acquisition Act and the said writ petition was allowed. This defendant submitted objections before the Special Deputy Collector, Land Acquisition, TUDA, who made proposals to acquire the plaint schedule property. There is no cause of action to file the present suit and that the present suit is hit by the provisions of Section 34 of the Specific Relief Act. The suit as framed' is barred by limitation. The suit for declaration of title and perpetual injunction is not maintainable. Hence the suit may be dismissed.
Defendants 7 and 8 filed memo adopting the written statement filed by the 6th defendant.
Ninth defendant filed separate written statement inter alia stating that art extent of Ac. 4-27 cents in Sy. No. 217 of Cherlopalle village originally belongs to three families out of which half share belongs to this defendant's family, 1/4th share to Peddi Naidu and another 1/4th share to Kandala Chengamma who died on 25.12.1991. Chengamma had two sons by name Gurrappa Naidu (D.1) and Venkata Rama Naidu. Venkata Rama Naidu also predeceased her mother and his successors are Sulochana (wife), Ramesh and Giridhar (sons) who are defendant Nos. 3, 4 and 5. They had 1/4th share in the total extent of Ac. 4-27 cents. The remaining 1/4th share was vested with Peddi Naidu who died after executing settlement deed in favour his daughters and daughter-in-law in the year 1968 and 1969. Thus Ac. 4.27 cents was being enjoyed by three families referred above. Anandamma, Jayamma and others have executed registered sale deed dated 18.08.1984 in favour of plaintiff in respect of 1/4th share (plaint schedule property). There were misunderstandings between plaintiff and the husband of the 6th defendant. Sixth defendant is in possession and enjoyment of Ac. 3.21 cents only. This defendant is not proper and necessary party to the suit. Hence the suit may be dismissed.
Basing on the rival contentions, the trial court framed the following issues:
i. Whether the plaintiff is entitled for permanent injunction, restraining the defendants 1 to 9 and their men from interfering with his possession and enjoyment over the plaint schedule property?
ii. Whether there is no cause of action for the suit?
iii. Whether the suit is hit by the provisions under Section 34 of the Specific Relief Act?
iv. Whether the suit is barred by limitation?
v. Whether the 9th defendant (sic. 6th defendant) is not in possession of the total extent of Ac. 4-27 cents?
vi. Whether the 9th defendant (sic. 6th defendant) is in possession of Ac. 3021 cents.
The trial Court framed the following additional issue also:
Whether the plaintiff is entitled for the relief of declaration as prayed for?
Before the trial Court on behalf of the plaintiff, P.Ws. 1 to 6 were examined and Exs. A. 1 to A. 16 were marked. On behalf of defendants, D.Ws. 1 to 5 were examined and Exs. B.1 to B.52 were marked.
After analyzing the oral, documentary evidence and other material available on record, the trial Court arrived at a conclusion that the plaintiff is not entitled for the relief of declaration and consequential perpetual injunction and accordingly dismissed the suit.
Feeling aggrieved by the dismissal of his suit, the unsuccessful plaintiff preferred A.S. No. 132...
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