TRAS/2024/1996 of - Vs - on 31 December 2014

COMMON JUDGMENT:-

These three Transfer Appeals are in between the same partiesand in respect of the same property. The dispute in all the matters is inrespect of an extent of Ac.1-66 cents and Ac.0-46 cents of land inSy.Nos.537/5 B and 537/4 of Kollavaripalem village, H/o.Parchur ofChirala Taluq of Ongole District. The appellant in all the appeals isthe sole contesting defendant in the original suits.

2. The 1[st] respondent/plaintiff originally filed O.S.No.533 of 1976on the file of the District Munsif, Chirala, which was subsequentlytransferred to the Court of Subordinate Judge, Chirala and numberedas O.S.No.78 of 1978. The suit was for recovery of a sum of Rs.3,086/-being the cost of cotton crop removed and appropriated by thedefendants on 17-02-1976 and 18-02-1976 unlawfully from theplaintiff’s land during the pendency of C.M.A.No.6 of 1976 on the file ofthe Subordinate Judge, Chirala. By Judgment dated 31-12-1988, thelearned Subordinate Judge decreed the suit directing the 4[th]defendant/appellant to pay the decretal amount together with costs andalso exemplary costs of Rs.200/-. The appellant preferred the appealagainst the Judgment and Decree on the file of the District Judge, Ongole where it was numbered as A.S.No.19 of 1989. The saidappeal has been transferred to this Court and numbered asTr.A.S.No.2960 of 1996 where A.S.No.965 of 1989 in respect of thesame subject matter was pending.

3. O.S.No.21 of 1979 on the file of the Subordinate Judge, Chirala,was filed by the respondents/plaintiffs for injunction restraining thedefendants from interfering with their possession over an extent ofAc.0-46 cents of land in Sy.Nos. 537/5 B and 537/4 of Kollavaripalemvillage, H/o.Parchur of Chirala Taluq of Ongole District. By Judgment,dated 31-12-1988, the learned Subordinate Judge decreed the suit. The 5[th] defendant in the suit filed A.S.No.30 of 1989 on the file of theDistrict Judge, Ongole. Subsequently, the same has been transferredto this Court and numbered as Tr.A.S.No.2959 of 1986.

4. O.S.No.20 of 1979 was filed by the respondent/plaintiff on the fileof the Subordinate Judge, Chirala, for restraining the defendants frominterfering with the possession in respect of Ac.1-66 cents of land inSy.No.537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq ofOngole District. By Judgment, dated 31-12-1988, the learnedSubordinate Judge decreed the suit. Aggrieved by that, the 4[th]defendant therein preferred A.S.No.18 of 1989 on the file of the DistrictJudge, Ongole and subsequently the said appeal is transferred to thisCourt and numbered as Tr.A.S.No.2024 of 1996.

5. The above three appeals have been transferred to this Courtsince A.S.No.965 of 1989 was pending, which arose out of O.S.No.33of 1976 on the file of the Subordinate Judge, Chirala, filed by theappellant in all the four appeals for specific performance of contractdated 24-04-1974 in respect of the land admeasuring Ac.2-06 cents ofland in Sy.Nos. 537/5 B and 537/4 of Kollavaripalem village,H/o.Parchur of Chirala Taluq of Ongole District. By Judgment, dated31-12-1988, the learned Subordinate Judge dismissed the suit. Aggrieved by which, the appellant preferred the said appeal. Thatappeal has been disposed of by separate Judgment of even date, by

and under which, it is held that though the appellant is not entitled tothe relief of specific performance of the contract, dated 24-04-1974, heis entitled to recover the amount of Rs.32,000/- together with interestthereon at 12% per annum from the date of the suit till realisation. When the suit of the appellant for specific performance was pending,the defendants of that suit filed the three suits which are subject matterof the transferred appeals.

The sole plaintiff (Kolla Venkateswarlu) filed the suit O.S.No.78of 1978 (O.S.No.533 of 1976 on the file of the District Munsif, Chirala)on the file of the Subordinate Judge, Chirala, for recovery of asum of Rs.3,086/- from the defendants being the cost of the cotton cropremoved by them.

7. The plaintiff averred that in the year 1975 he was a lessee of dryland to an extent of Ac.1-66 cents in D.N.537/4 of Kollavaripalembelonging to Bachina Venkayamma and raised cotton crop. He filedO.S.No.634/1975 on the file of the District Munsif, Chirala for injunctionrestraining the defendants from interfering with his peacefulpossession and on enquiry, in I.A.No.2931 of 1975 interim injunctionwas granted in his favour and the same was made absolute on 16-02-1976. The defendants filed C.M.A.No.6 of 1976 on the file of theSubordinate Judge, Chirala, and on 17-02-1976 interim stay wasgranted restraining the plaintiff from entering into the land videI.A.No.158 of 1976. By taking advantage of the orders passed inI.A.No.158 of 1976, on 17-02-1976 and 18-02-1976 the defendants,high handedly and without any right, have removed the cotton cropworth Rs.3,000/-. The plaintiff filed I.A.No.173 of 1976 in C.M.A.No.6of 1976 and the Court passed orders on 18-02-1976 restraining bothparties from entering the land till C.M.A. is disposed of. On 6-3-1976,on enquiry, I.A.No.158 of 1976 and C.M.A.No.6 of 1976 weredismissed. As the defendants have removed the cotton crop withoutany right, they have to reimburse the same with interest. Therefore the suit is filed to recover the suit amount with costs.

8. The 1[st] defendant (Kolla Gangaiah) filed his written statementdenying the allegations made in the plaint. It is averred that thedefendant has nothing to do with the suit property and that himself anddefendants No.2 and 3 are added as unnecessary parties. Thereforethe suit is liable to be dismissed against him and defendants No.2 and3 with costs.

9. 2[nd] and 3[rd] defendants filed memo adopting the writtenstatement filed by the 1[st] defendant.

10. The 4[th] defendant (Seetharamaiah) filed a separate writtenstatement denying the material allegations. It is averred in the writtenstatement that this defendant and others never entered into the suitland and cut the cotton crop and that it is the plaintiff, who knowingfully well about filing of C.M.A.No.6 of 1976, entered into the suit landand cut the cotton crop. It is also averred that this defendant hadpurchased the suit land from one Bachina Venkayamma, who is thelessor of the plaintiff, and the suit in O.S.No.33 of 1976 on the file ofSubordinate Judge, Chirala, for specific performance is pending. Therefore, the suit is liable to be dismissed against this defendant anddefendants No.5 and 6.

11. Defendants No.5 and 6 filed a memo adopting the writtenstatement filed by the 4[th] defendant.

12. On the basis of the above pleadings, the trial Court framed thefollowing issues:-

1) Whether the plaintiff raised cotton crop in the suit propertyand if so whether it was removed by the defendants on 17-02-1976 and 18-02-1976?and if so whether it was removed by the defendants on 17-02-1976 and 18-02-1976?

2) Whether the defendants No.1 to 3 are necessary parties tothe suit?the suit?

3) To what damages is the plaintiff entitled?

4) To what relief?

13. On behalf of the plaintiff, P.Ws.1 to 4 were examined and Es.A.1to A.5 were marked. Neither oral nor documentary evidence wasadduced by the defendants.

14. By Judgment, dated 31-12-1988, the learned Subordinate Judgedecreed the suit directing the 4[th] defendant to pay the decretal amounttogether with costs and also exemplary costs of Rs.200/-.

15. Aggrieved by the same, the 4[th] defendant (Seetharamaiah) filedA.S.No.19 of 1989 on the file of the District Judge, Ongole andsubsequently, the said appeal has been transferred to this Court andnumbered as Tr.A.S.No.2960 of 1996.

The 1[st] plaintiff (Kolla Subbaiah) and his sons filed O.S.No.21 of1979 on the file of Subordinate Judge, Chirala, for injunctionrestraining the defendants from interfering with their possession overan extent of Ac.0-46 cents of land in Sy.Nos.537/5 B and 537/4 ofKollavaripalem village, H/o.Parchur of Chirala Taluq.

17. The averments of plaint in brief are as under:- The 1[st] defendant is the Judgment-debtor in O.S.No.6 of 1956 onthe file of the Subordinate Judge, Bapatla and the schedule land wasbrought to sale in E.P.No.82 of 1975 in O.S.No.6 of 1956 and the 1[st]plaintiff being the highest bidder purchased the same for Rs.6,000/- inCourt auction on 19-08-1976 and the sale certificate was issued on 05-10-1976 and subsequently on 15-11-1976 the same was deliveredto the plaintiff together with standing cotton crop and ever since theplaintiff continued in possession and enjoyment of the plaint scheduleland. Rumours spread over in the village that the defendants will notallow the plaintiffs to enjoy the property and hence the plaintiffs filedthe suit for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit scheduleland.

18. 5[th] defendant (Seetharamaiah) filed a written statement, whichwas adopted by defendants No.6 to 8, specifically denying theallegations made in the plaint. It is averred that this defendantpurchased the suit schedule property under a contract of sale, dated24-04-1974 and ever since he has been in possession and enjoymentof the same and also he filed a suit for specific performance videO.S.No.33 of 1976 and temporary injunction was granted in I.A.No.774of 1976 in his favour. The plaintiffs are not in physical possession ofthe same and if there is any delivery, the delivery was only a paperdelivery. The defendants No.6 to 8 have nothing to do with theproperty and they are unnecessary parties to the suit. The suit is liableto be dismissed with costs.

19. Defendants No.1 to 4, 9 and 10 remained ex parte.

20. On the basis of the above pleadings, the trial Court framed thefollowing issues:-

1) Whether the plaintiff is entitled for permanent injunction?

2) Whether the plaintiff is in physical possession of the suitproperty on the date of filing of the suit?property on the date of filing of the suit?

3) To what relief.

21. On behalf of the plaintiffs, P.Ws.1 and 2 were examined andExs.A.1 and A.2 were marked. Neither oral nor documentary evidencewas adduced by the defendants.

22. By Judgment, dated 31-12-1988, the learned Subordinate Judgedecreed the suit with costs.

23. Aggrieved by the same, the 5[th] defendant (Seetharamaiah) filedA.S.No.30 of 1989 on the file of the District Judge, Ongole and subsequently, the said appeal has been transferred to this Court andnumbered as Tr.A.S.No.2959 of 1996.

The plaintiff (Kolla Venkateswarlu) filed the suit O.S.No.20 of1979 on the file of the Subordinate Judge, Chirala, for permanentinjunction restraining the defendants and their men from interferingwith the possession and enjoyment of the plaintiff in respect of the suitschedule property.

25. The averments made in the plaint in brief are as follows:- The suit property originally belongs to the 1[st] defendant and oneBachina Venkayamma obtained a decree in O.S.No.6 of 1956 on thefile of the Subordinate Judge, Bapatla, and in execution of the saiddecree, the plaint schedule property was brought to sale and the samewas purchased by the said Venkayamma in Court auction andobtained sale certificate and took delivery of possession through Courton 26-09-1974 in E.A.No.377 of 1974 and ever since she has been inpossession and enjoyment of the plaint schedule property. While so,the said Venkayamma leased out the said land to the plaintiff under aregistered lease deed and the plaintiff was put in possession of thesame and the plaintiff is entitled to continue in possession till 31-03-1976. The plaintiff spent considerable amount for raising cotton crop. Enraged by the purchase of his property by Bachina Venkayamma andfiling of the Insolvency Petition by the plaintiff against the 1[st]defendant, the 1[st] defendant is trying to interfere with the possessionand enjoyment of the plaintiff over the plaint schedule property withother defendants, who are all his close relatives. Therefore, the suit isfiled for permanent injunction restraining the defendants frominterfering with the peaceful possession and enjoyment of the plaintiffover the plaint schedule property.

26. The 4[th] defendant (Seetaramaiah) filed his written statement,which was adopted by defendants No.1 to 3, 5 and 6, denying the

execution of lease deed by Venkayamma in favour of the plaintiff on21-08-1975 and taking possession of the same and raising crop. It isaverred that Bachina Venkayamma and Anche Veeraiah sold theplaint schedule property and some other property to this defendantunder contract of sale, dated 24-04-1974 for a consideration ofRs.32,000/-, and after receiving Rs.25,000/-, this defendant was put inpossession of the property on the date of execution of the said contractof sale and ever since this defendant is in possession and enjoymentof the suit schedule property. On the representation of BachinaVenkayamma that herself and Kolla Gangayya compromised thematter, he kept quiet for delivery of possession through process ofCourt. Venkayamma gave possession of the suit schedule land undercontract of sale on the date of execution of the contract of sale itself. The plaintiff began cultivating the same. As Bachina Venkayammahas no possession of the suit land, the alleged lease deed in favour ofthe plaintiff is not true and the same was brought into existence to setnaught the contract of sale, dated 24-04-1974. Under the contract ofsale, this defendant has paid Rs.25,000/- out of total consideration ofRs.32,000/- and the remaining balance of Rs.7,000/- is to be paid withinterest at 12% per annum, for which he is ready and willing to obtainthe sale deed. While so, the plaintiff and Bachina Venkayammacolluded together and obtained an ex parte injunction order and withthe aid of the said order, the plaintiff has removed the cotton crop worthRs.4,000/-. Bachina Venkayamma is not at all in possession of thesuit property and the plaintiff is not a lessor of the suit land. Thereforethe suit is liable to be dismissed.

27. On the basis of the above pleadings, the following issues were settled:-

1) Whether the plaintiff is the lessee of the suit land?

2) Whether the plaintiff is entitled to the permanent injunctionas prayed for?as prayed for?

3) Whether the defendant is a bona fide purchaser for value?

4) Whether the plaintiff is in possession of the suit land on the date of suit?

5) To what relief

28. On behalf of the plaintiff, PWs.1 and 2 were examined andExs.A.1 to A.4 were marked. Neither oral nor documentary evidencewas adduced by the defendants.

29. By Judgment, dated 31-12-1988, the learned Subordinate Judgedecreed the suit with costs.

30. Aggrieved by the same, the 4[th] defendant (Seetharamaiah) filedA.S.No.18 of 1989 on the file of the District Judge, Ongole andsubsequently, the said appeal has been transferred to this Court andnumbered as Tr.A.S.No.2024 of 1996.

31. As already stated, one of the contesting defendants in the abovethree suits viz., P.Seetharamaiah has filed the appeals contending thatthe Judgments and Decrees of the Court below are erroneous andcannot be sustained.

32. On the other hand, learned Counsel appearing for therespondents/plaintiffs submits that even according to the appellant, inthe suit which he filed, it is admitted that the plaintiffs in these threesuits came in possession of the schedule properties and hence he isseeking for recovery of possession. So long as the possession of therespondents/plaintiffs continues, they are entitled to injunction, asprayed for. The specific case of the contesting defendant/appellantherein is that the plaintiffs in these suits have come in possession ofthe property in pursuance to a registered lease deed said to have beenexecuted by his vendor Smt. Bachina Venkayamma subsequent to theagreement of sale in his favour. Learned Counsel further submits thatin view of the above, the Judgments and Decrees under challengecannot be interfered with and the plaintiff is entitled to be in possessionof the schedule properties so long as he is not dispossessed inaccordance with law.

33. The point for consideration is as to whether the plaintiffs in the

33. The point for consideration is as to whether the plaintiffs in the three suits are entitled to the relief of recovery of money and injunctionrestraining the appellant/defendant from interfering with theirpossession?

34. The brief history of the litigation which dates-back to the year1956 and which is in respect of the schedule property, briefly benoticed;

35. The schedule properties were owned and possessed by KollaGangaiah (respondent/defendant). Bachina Venkayamma has filedsuits in the year 1956 against said Kolla Gangaiah in respect of certainproperties belonging to her father. Those suits were decreed. In thatround of litigation, the Court held that Bachina Venkayamma is entitledto certain amounts towards maktha and mesne profits from KollaGangaiah (respondent/defendant). To recover the said amounts,execution proceedings were taken up. The schedule property whichcomprises of Ac.1-66 cents and Ac.0-46 cents which are abuttingeach other and also a daba house of Kolla Gangaiah was put in Courtauction. Bachina Venkayamma, with the permission of the Court, wassuccessful bidder in respect of the agricultural lands of Kolla Gangaiahin the years 1970 and 1973. Bachina Venkayamma obtainedpossession of the said properties through process of Court. Subsequently, it is alleged that in between the appellant/defendant –Seetharamaiah and Bachina Venkayamma there was settlementinvolving the properties of Kolla Gangaiah (respondent/defendant) andit was decided that Kolla Gangaiah is liable to pay a sum ofRs.32,000/- to Bachina Venkayamma if he has to retain the lands thatwere sold in the Court auction. Since Kolla Gangaiah had no means,the appellant – Seetharamaiah being his brother-in-law came forwardand agreed to purchase the schedule lands from BachinaVenkayamma for a consideration of Rs.32,000/-. Said Seetharamaiahand Bachina Venkayamma entered into an agreement of sale on 24-04-1974 and on that date it is said that the appellant-Seetharamaiahpaid Rs.25,000/- to Bachina Venkayamma and obtained an agreement of sale. The balance amount of Rs.7,000/- was agreed to be paid by05-05-1974 and Seetharamaiah was to obtain a registered sale deed. Since Bachina Venkayamma failed to execute the same,Seetharamaiah filed O.S.No.33 of 1976 (which is the subject matter ofA.S.No.965 of 1989 on the file of this Court).

36. In the said suit, the appellant-Seetharamaiah being the plaintiffcontended that in pursuance to the agreement of sale, dated 24-04-1974, he was put in possession of the properties and subsequentlyBachina Venkayamma and her people have brought into existencelease deed in respect of Ac.1-66 cents of schedule property in favourof Kolla Venkateswarlu (the respondent/plaintiff herein). It was alsothe case of Seetharamaiah that by filing a suit, the said KollaVenkateswarlu forcibly occupied the schedule properties and hencehe sought for recovery of possession of Ac.1-66 cents of land.

37. It was also the case of the Seetharamaiah that for the remainingAc.0-46 cents of land, the sale was finalised in favour of the people ofBachina Venkayamma and Kolla Venkateswarlu. The plaintiff inO.S.No.21 of 1979 appears to be the brother of said KollaVenkateswarlu. He has purchased the remaining Ac.0-46 cents ofland belonging to Kolla Gangaiah (respondent/defendant) in the Courtauction.

38. It is also alleged by Seetharamaiah that the in order tocircumvent the Court sale of Ac.0-46 cents of land, Kolla Gangaiahexecuted a registered sale deed in respect of Ac.0-46 cents of land infavour of his own son-in-law.

39. On the other hand, the contention of Bachina Venkayamma,Kolla Venkateswarlu and others had been that having purchased theschedule lands in Court auction, they had been put in possession andKolla Gangaiah who is a person having found guilty of forging the willof the father of Bachina Venkayamma has forged the agreement ofsale, dated 24-04-1974 purported to have been executed by BachinaVenkayamma in favour of Seetharamaiah, appellant herein.

40. From the above narration of facts, what is manifest is that evenaccording to the appellant-Seetharamaiah, he is out of possession ofthe schedule lands admeasuring Ac.1-66 cents and Ac.0-46 cents. Itis also his own case that Kolla Venkateswarlu (the plaintiff inO.S.No.78/1978 (OS.No.533/76) has obtained a registered lease deedin respect of the schedule lands from Bachina Venkayamma. That isthe reason why Seetharamaiah has sought for the relief of recovery ofpossession. Therefore, I have no hesitation in holding that so long asKolla Venkateswarlu and his brother Kolla Subbaiah, the plaintiffs inthree suits, are not dispossessed in accordance with law, they areentitled to injunction.

41. With regard to recovery of a sum of Rs.3,086/- towards the costof cotton crop said to have been taken away by the appellant-Seetharamaiah from the suit schedule land, it is evident that eventhough the appellant-Seetharamaiah denied the same and contestedthe suit of Kolla Venkateswarlu for recovery of the amount, but hefailed to prove that he is not liable to pay the said amount. Therespondent/plaintiff – Kolla Venkateswarlu has produced oral anddocumentary evidence which clinchingly establishes the fact that therewas a standing crop of cotton on the suit schedule lands and on 17-02-1976 and 18-02-1976, the said crop was taken away bySeetharamaiah-the appellant. Even though a feeble attempt wasmade by Seetharamaiah-the appellant to contend that he has raisedthe cotton crop, the same has not been proved and also do not appearto be correct in view of the fact that even according to Seetharamaiah,it is the plaintiff – Kolla Venkateswarlu who had been in possession ofthe suit schedule lands. The said Kolla Venkateswarlu alsosuccessfully obtained injunction orders against Seetharamaiah inanother suit. The respondent/plaintiff – Kolla Venkateswarlu byexamining himself and also examining PWs.2 to 4 and producingExs.A.1 to A.5 has proved that the standing crop on the schedule landwas worth Rs.3,086/- and the same was taken away by the appellant- Seetharamaiah. As against the above evidence, neither the appellant-Seetharamaiah adduced any evidence to support his contention. Therefore, the Court below has rightly decreed the suit of KollaVenkateswarlu for recovery of a sum of Rs.3,086/- being the cost of thecotton crop.

42. The Judgments and Decrees in all the three suits is based onproper appreciation of the material on record warranting anyinterference. There are no merits in the appeals and the same areliable to be dismissed. The point is accordingly answered.

43. In the result, the appeals fail and the same are dismissed withcosts.

Date: 31[st] December, 2014smr

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JUSTICE M.S.K.JAISWAL

Tr.A.S.Nos.2024, 2959 and 2960 of 1996(COMMON JUDGMENT)

Smr (pd)

31[st] December, 2014