SA/101/1998 of VENKATA RAO AND G.RAMANAMMA Vs K.PYDAYYA DIED AND 4 OTHERS on 28 December 2012

COMMON JUDGMENT:

Since the parties and the schedule property in boththe appeals are one and the same, they are heardtogether and dispose of by this common judgment.

Second Appeal No.101 of 1998 is filed against thejudgment and decree, dated 31.12.1997, in A.S.No.84 of1996 on the file of the District Judge, Srikakulam, whereinthe judgment and decree, dated 04.07.1996 in O.S.No.10of 1994 on the file of the Additional Sub-ordinate Judge,Srikakulam, decreeing the suit, was set aside.

Second Appeal No.598 of 1997 is filed againstjudgment and decree, dated 05.07.1996, in A.S.No.63 of1994 on the file of the Additional Sub-Ordinate Judge,Srikakulam, wherein the judgment and decree, dated09.03.1993, in O.S.No.415 of 1987 on the file of thePrincipal District Munsif, Srikakulam, dismissing the suit,was set aside.

For the sake of convenience, the parties are referredto as arrayed in S.A.No.101 of 1998.

The appellants filed the suit-O.S.No.10 of 1994 onthe file of the Additional Sub-Ordinate Judge, Srikakulam,for declaration of their title and right to the suit scheduleproperties and for consequential permanent injunction,contending that the suit schedule properties originallybelong to one Seetharama Raju, who gifted the same tosome Harijans as “Bhoodhanam” and from them, theplaintiffs have purchased the property under tworegistered sale deeds, dated 03.01.1987 and 05.01.1987,and have been in continuous possession and enjoyment of the said properties. As there was a threat for theirenjoyment, earlier, they filed O.S.No.415 of 1987 forinjunction simplicitor and subsequently, the suit-O.S.No.10of 1994 was filed for declaration of title and also forpermanent injunction.

The respondents have contended that the suitschedule properties does not belong to Seetharama Rajuand as such, he had no right to give it as a Bhoodhanamto Harijans and consequently, the plaintiffs who claim tohave purchased the properties from the said Harijans,cannot derive any title or interest over the said properties.It is their further contention that the suit scheduleproperties belong to one Krishnama Raju, who hasalienated the property in their favour and consequently,they have been in possession and enjoyment of thesame.

Though both the suits i.e., O.S.No.10 of 1994 andO.S.No.415 of 1987 relate to the same property and thecontest is the same, conflicting judgments have beendelivered with regard to the rights of the parties over thesuit schedule properties.

The comprehensive suit-O.S.No.10 of 1994 wasdecreed by the Additional Sub-Ordinate Judge,Srikakulam, declaring that the appellants are the ownersof the suit schedule properties and as such, are entitledfor permanent injunction, whereas, O.S.No.415 of 1987was dismissed by the Principal District Munsif,Srikakulam, holding that the appellants are not entitled forinjunction as prayed for. As against the judgment inO.S.No.415 of 187, the appellants have preferred theappeal-A.S.No.63 of 1994 on the file of the AdditionalSub-Ordinate Judge, Srikakulam. The Additional Sub-ordinate Judge who has decreed the suit O.S.No.10 of1994 filed by the appellants, allowed the appeal- A.S.No.63 of 1994 and granted permanent injunction.However, as against the judgment in O.S.No.10 of 1994,the respondents filed A.S.No.84 of 1996 on the file of theDistrict Judge, Srikakulam, who by judgment, dated31.12.1997, allowed the said appeal, dismissing the suit-O.S.No.10 of 1994 which was filed by the appellants fordeclaration of title and also for permanent injunction.

Aggrieved by the said judgment, dated 31.12.1007in A.S.No.84 of 1996 on the file of the District Judge,Srikakulam, the appellants filed S.A.No.101 of 1998; andthe respondents filed S.A.No.598 of 1997 aggrieved bythe judgment, dated 05.07.1996, in A.S.No.63 of 1994 onthe file of the Additional Sub-Ordinate Judge, Srikakulam.Both the appeals have been admitted by this Court onsubstantial questions of law.

Heard learned counsel appearing for both theparties.

Evidently, in this case, the title of the parties is indispute. In the judgment, dated 04.07.1996, rendered insuit-O.S.No.10 of 1994, the learned Additional Sub-Ordinate Judge, Srikakulam, observed that the appellantshave established their right and possession over the suitscheduled properties and accordingly, decreed the suit.This judgment was passed by the learned Judge on04.07.1996. Further, on 05.07.1996, the same learnedJudge delivered judgment in A.S.No.63 of 1994 allowingthe appeal filed by the appellants herein, thereby grantingdecree for permanent injunction as sought for inO.S.No.415 of 1987.

Here, it is to be noted that when the learnedAdditional Sub-Ordinate Judge, Srikakulam, was dealingwith O.S.No.10 of 1994 and A.S.No.63 of 1994 , involvingthe same schedule properties, he should have at least pronounced a common judgment in them. But, thejudgment in O.S.No.10 of 1994 was passed a day earlierto the passing of the judgment in A.S.No.63 of 1994 andconsequently, the reasoning given by him while dealingwith O.S.No.10 of 1994 has, obviously, influenced himwhile passing the judgment in A.S.No.63 of 1994, whichwas filed as against the judgment passed in O.S.No.415of 1987. Had he heard both the appeal-A.S.No.63 of 1994and the suit-O.S.No.10 of 1994 together, he would havegot the advantage of considering the contentions and thereasons given by the Principal District Munsif, Srikakulam,in O.S.No.415 of 1987. But, however, that was not doneby the Additional Sub-Ordinate Judge, Srikakulam. Evenotherwise, when the Additional Sub-Ordinate Judge,Srikakulam has delivered the judgment in O.S.No.10 of1994, he should have requested the District Judge,Srikakulam to transfer the appeal-A.S.No.63 of 1994 toany other Court for determination of the issues since hehas already expressed his opinion on the same issues inO.S.No.10 of 1994. The judgments delivered by theAdditional Sub-Ordinate Judge, Srikakulam, in O.S.No.10of 1994 and A.S.No.63 of 1994 are directly in conflict withthe judgment delivered by the District Judge, Srikakulam,in A.S.No.84 of 1996. In view of the conflicting judgmentsof the District Judge, Srikakulam and the Additional Sub-Ordinate Judge, Srikakulam, in granting injunction in onesuit on the same facts and refusing injunction in other suiton the same facts, it is desirable that both the matters beheard by the same Judge, who shall deliver a commonjudgment on merits concerning both the matters.

For the aforesaid reasons, without going into themerits of the case, both the appeals are allowed and thejudgment and decree, dated 31.12.1997 in A.S.No.84 of1996 on the file of the District Judge, Srikakulam, and alsothe judgment and decree judgment, dated 05.07.1996 inA.S.No.63 of 1994 on the file of the Additional Sub-

Ordinate Judge, Srikakulam, are set aside. Further,A.S.No.63 of 1994 is withdrawn from the Court of theAdditional Sub-Ordinate Judge, Srikakulam, andtransferred to the Court of the District Judge, Srikakulam,to decide the same along with A.S.No.84 of 1996. Boththe parties should be given an opportunity to advancecommon arguments on the material evidence available inboth the suits. The District Judge, Srikakulam, shalldispose of both the said appeals within a period of threemonths from today. Till then, status quo obtaining as ontoday shall be maintained by both the parties. There shallbe no order as to costs. The S.A.M.Ps. pending, if any, inthe appeal shall stand closed.

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JUSTICE N.R.L.NAGESWARA RAO

12[th ]September 2012Note:Registry is directed to send a copy of thisOrder along with the records within aperiod of one week from today.B/oDR