SA/1090/2013 of Yanala Yadagiri Reddy Vs Thungathurthy Janardhan Rao on 31 December 2013

JUDGMENT:

This Second Appeal is filed under Section 100 of theCode of Civil Procedure, 1908, challenging the judgmentand decree dt.30-07-2013 in A.S.No.17 of 2011 of the IIAdditional District Judge, Nalgonda at Suryapet (for short“the lower appellate Court”), confirming the judgment anddecree dt.30-08-2011 in O.S.No.11 of 2004 of the Senior Civil Judge at Suryapet (for short “the trial Court”).

2. Heard Sri K.Raghuveer Reddy, learned counselfor appellants and Sri A.Prabhakar Rao, learned counselfor respondent.

3. The appellants are defendants in the above suit.The suit was filed for declaration of title ofrespondent/plaintiff in respect of the plaint scheduleproperty and for consequential perpetual injunctionrestraining the appellants/defendants from interfering withhis peaceful possession and enjoyment over it. The plaintschedule property is an extent of 124 sq.yds. in Sy.No.281at B.Madharam village within the limits of SuryapetMunicipality.

4. The plaintiff contended that he is the owner of theabove property which he had purchased from its originalowner D.W.4 under Ex.A-1 dt.04-08-1975; that he intendedto construct a house therein and applied for constructionpermission to the Suryapet Municipality; he was grantedpermission on 09-04-2003 under Exs.A-3 and A-8; that hestarted construction work in the land and laid pillars uptoroof level; that 1[st] defendant purchased an extent of 60sq.yds. in the name of 2[nd] defendant under a registered sale deed bearingdocument No.474 of 1979, in which the above property ofthe plaintiff was shown as the western boundary and that defendants started interfering with the possession andenjoyment of plaintiff over the plaint schedule property oneweek prior to the filing of the suit. Therefore, the suit wasfiled for declaration of title and for perpetual injunction.

5. He also alleged that one G.Rajyalaxmi purchasedan extent of 490 sq.yds. from D.W.4 through Ex.A-9/ dt.04-08-1975 sale deed in which the plaint schedule property isshown as eastern boundary; that he purchased an extentof 65 sq. yds. from the said G.Rajyalaxmi out of the landpurchased by her, which is adjacent to the plaint scheduleproperty on the western side, through an agreement of salein the year 1977 (Ex.A-19); in this property he constructed ahouse in 1978; that the said house was given municipal H.No.1-6-141/24/1 and that he got it registered under Ex.A-11 dt.12-08-2003 in his favour by the said G.Rajyalaxmi;and that this house property is not the subject matter of thesuit;

6. The 2[nd] defendant filed a written statement, whichwas adopted by 1[st] defendant through a memo. Thedefendants denied that plaintiff is the owner and possessorof plaint schedule property and contended that the plaintiffintentionally gave wrong boundaries in the plaint scheduleto knock away the land of 2[nd] defendant to an extent of 60sq. yds. which defendants had purchased under Ex.B-1dt.22-11-2002 from D.W.4; that ever since the purchase,

2[nd] defendant is in actual possession and enjoyment of thesame; that when she applied Municipality for constructionof new house on 28-02-2003, plaintiff and D.W.4 colludedwith each other and got cancelled the sale deed executedby D.W.4 in favour of 2[nd] defendant vide Ex.A-20; that thiswas challenged by 2[nd] defendant in W.P.No.9512 of 2003before this Court and this Court had suspended operationof the said sale deed; that in the sale deed bearingdocument No.494 of 1979 (under which the 2[nd] hadpurchased 60 sq. yds. from D.W.4 originally andconstructed a house) , the western boundary was wronglymentioned as property of plaintiff due to illiteracy of thevendor of 2[nd] defendant; taking advantage of this wrongmention of boundary on the western side, the plaintiffstarted trying to occupy the land of 2[nd] defendant; andtherefore, D.W.4 executed a rectification deed Ex.B-2 dt.08-08-2003. He further contended that the sale byG.Rajyalaxmi of the other extent of 65 sq. yds. in favour ofplaintiff is not true and the plaintiff has tried to mislead theCourt in order to grab the land of 2[nd] defendant by creatinga false and bogus sale deed Ex.A-11 dt.12-08-2003obtained from G.Rajyalaxmi, and therefore, the suit bedismissed.

7. A rejoinder was filed by plaintiff alleging that thepurchase of 60 sq.yds. from D.W.4 under Ex.B-1 is not true; that D.W.1 played fraud on D.W.4, who is an illiterate andobtained the said sale deed even though D.W.4 was not inpossession of the said property on 22-11-2012; on coming to know of the fraud, D.W.4cancelled the sale deed, which was challenged inW.P.No.9512 of 2003 by 2[nd] defendant; that the said WritPetition was dismissed on 24-10-2006; that the defendantscannot claim 60 sq.yds. of land which is subject matter ofthat sale deed; that 2[nd] defendant, with malicious intentionafter long period of 28 years, played fraud on D.W.4 andgot Ex.A-18 rectification deed executed changing theboundary; and therefore, the suit be dismissed.

8. The trial Court framed the following issues:

“1 .Whether the plaintiff is entitled for declaration of title that he is the owner of the suitland?

2 . Whether the plaintiff is entitled for perpetual injunction against defendants?

3. To what relief?”

9. Before the Trial Court, plaintiff examined P.Ws.1 to6 and marked Exs.A-1 to A-37. The defendants examinedD.Ws.1 to 4 and marked Exs.B-1 to B-5.

10. By judgment and decree dt.30-08-2011, thesuit was decreed. The trial Court held that in Ex.A-10, thecertified copy of the sale deed No.494 of 1979 (under

which 2[nd] defendant purchased 60 sq. yds. from D.W.4),the western boundary is shown as the land of plaintiff;D.Ws.1 and 2 have admitted this fact; that although therewas a rectification deed Ex.B-2, it was done long afterwardsi.e 28 years later by inserting in the western boundary thewords “land of D.W.4” in the place of “land of the plaintiff”;that this was done as an after thought; previously the samesale deed was rectified under Ex.A-18 in 1979 itself whenthe name of husband of D.W.4 was corrected and if really,the land of D.W.4 was on the western side of the land ofdefendants, at the time of Ex.A-18 only i.e in 1979 itself, thisrectification could have been done. It also held that D.W.4stated in her cross-examination that although she executedEx.B-4 Cancellation Deed, 1[st] defendant played fraud onher and got executed Ex.B-1 even though she had no landas stated in Ex.B-1; that defendants did not establish thatthe plaintiff had given wrong boundaries; the plaintiff, byfiling Ex.A-19 unregistered sale deed dt.20-09-1977 andEx.A-11 regular sale deed dt.12-08-2003 executed byD.W.4, established that he had also purchased anadditional extent of 65 sq. yds. from one G.Rajyalakshmi,who in turn purchased 490 sq. yds. under Ex.A-9; that theevidence of D.W.3 is not trustworthy; and therefore, theplaintiff is entitled to the relief of declaration of title andinjunction.

11. Challenging the same, the defendants filed A.S.No.17 of 2011 before the lower appellate Court.

12. By judgment and decree dt.13-07-2013, thesaid appeal was also dismissed. The lower appellate Courtconfirmed the findings of the trial Court. It held that the landof 60 sq. yds. which the plaintiff had purchased underExs.A-19 and A-11 is not the disputed land and is differentfrom the plaint schedule site of 124 sq. yds.; that defendantNos.1 and 2 prevailed over D.W.4 and obtained Ex.B-2Rectification Deed, 28 years after the execution of Ex.A-10(under which 2[nd] defendant had purchased 60 sq. yds. from D.W.4) bychanging the western boundary; that this appears to havebeen done only to get over Ex.A-1 sale deed obtained byplaintiff from D.W.4 on 04-08-1975; although thecancellation of Ex.B-1 under Ex.B-4 by D.W.4 is not valid inlaw, the very execution of Ex.B-1 by D.W.4 is illegalbecause she had no land at all as she had sold her entireland in Sy.No.281 between 1975 to 1979 and she had noland of 60 sq. yds. in 2002 to sell under Ex.B-1 to 2[nd]defendant.

13. Challenging the same, this Second Appeal isfiled.

14. The learned counsel for appellantscontended that the findings of the Courts below arecontrary to law, perverse and unsustainable. He also contended that the Courts below should have accepted therectification of Ex.A-10 dt.31-03-1979 (sale deed executedby D.W.4 in favour of 2[nd] defendant in respect of 60 sq. ydsshowing the western boundary as the land of plaintiff) byEx.B-2 rectification deed dt.08-08-2003 substituting thewords “land of D.W.4” in the place of words “land of theplaintiff” in the western boundary of Ex.A-10 and therefore,the judgments of the Courts below be set aside.

15. The leaned counsel for respondent, on theother hand, supported the findings of the Courts below andcontended that the concurrent findings of the fact of bothCourts below need not be interfered with in exercise ofjurisdiction of this Court under Section 100 CPC becausethe findings are based on correct appreciation of evidenceon record and valid reasons have been given by the Courtsbelow in support of the said findings.

16. I have noted the submissions of the parties.

17. The plaintiff has claimed the relief ofdeclaration of title and recovery of possession in respect ofthe plaint schedule property which is a vacant site of 124sq. yds. which he purchased under Ex.A-1 dt.04-08-1975 from D.W.4. 2[nd] defendant purchased anextent of 60 sq. yds. under Ex.A-10 dt.31-03-1979 fromD.W.4. In that sale deed, the western boundary isdescribed as “land of plaintiff”. 28 years later, under Ex.B-2

dt.08-08-2003, the 2[nd] defendant and D.W.4 executed arectification deed correcting this western boundary bysubstituting the words “land o f D.W.4” in the place of thewords “land of the plaintiff” in Ex.A-10. Prior to the aboverectification deed Ex.B-2, Ex.A-10 was earlier rectified in1979 under Ex.A-18 by correcting the name of husband ofD.W.4. As rightly held by both the Courts below if reallythere was an error in the western boundary mentioned inEx.A-10, the defendants would have got it rectified at thetime of Ex.A-18 itself and would not have waited till 2003 toget it done. It is thus clear that this rectification appears tohave been done only with a view to defeat the claim ofplaintiff.

18. The plaintiff also claimed to have purchaseda separate extent of 60 sq. yds. from one G.Rajyalaxmi initially under an unregistered sale deed Ex.A-19 dt.20-09-1977 and regular sale deed Ex.A-11 dt.12-08-2003. In this60 sq. yds site, plaintiff got constructed a house bearingNo.1-6-141/24/1 in January, 2002.

19. The subject matter of the appeal is not theabove land of 60 sq. yds. purchased under Exs.A-19 andA-11 but the extent of 124 sq.yds. purchased by plaintiffunder Ex.A-9 dt.04-08-1975.

20. The 2[nd] defendant also claims to havepurchased 60 sq. yds. of land from D.W.4 on 22-11-2002

under Ex.B-1. This sale deed was no doubt unilaterallycancelled by D.W.4 under Ex.B-4 dt.06-03-2003, but it waschallenged in W.P.No.9512 of 2003 by 2[nd] defendant andthe Writ Petition was dismissed. It is no doubt true thatS.L.P. is pending in the Supreme Court against the saidorder. However, D.W.4 stated that she had no land at all inSy.No.281 as she had sold her entire holdings inSy.No.281 from 1975 to 1979. Therefore, she did not havethe extent of 60 sq. yds. to sell under Ex.B-1 to 2[nd]defendant in the year 2002.

21. D.W.4, vendor of both parties, admitted thatplaintiff had built a compound wall and also obtained a tapconnection from the Municipality and is possession andenjoyment of the plaint schedule property. In view of thefact that there is no challenge by defendants to Ex.A-1 saledeed under which the plaintiff had purchased the plaintschedule land, and the corrections to Ex.A-10 sale deedcannot be accepted for the reasons mentioned above, itwas rightly held by the Courts below that the plaintiff hadestablished his possession to the plaint schedule property. Moreover, the plaintiff was admittedly put in possession byD.W.4 of the plaint schedule land.

22. In this view of the matter, the plaintiff has alsoproved his possession of the plaint schedule property. Therefore, I do not find any question of law much less anysubstantial question of law arising for consideration in this Second Appeal. I am of the opinion that both the Courtsbelow had correctly appreciated the evidence and havegiven cogent reasons in support of their findings.

23. Therefore, I do not find any merit in theSecond Appeal and the same is accordingly dismissed. Nocosts.

24. The miscellaneous applications pending, ifany, in this Second Appeal shall stand closed.

Date: 31-12-2013

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JUSTICE M.S. RAMACHANDRA RAO

LR COPY TO BE MARKED : YES/NOB/o.Vsv/*