*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +A.S. No.801 of 1995; C.M.S.A. No.90 of 2005; and A.S.M.P. Nos.1931 and 1354 of 2005 in A.S. No.801 of 1995 % 23/10/2009 A.S. No.801 of 1995: # Chukka Venkatadri and another ..... APPELLANTS Vs. $ Mallavarapu Mahalakshmamma and others .....RESPONDENTS ! COUNSEL FOR THE APPELLANTS: Sri G. Ram Gopal ^ COUNSEL FOR RESPONDENTS 1 TO 4 AND 36 TO 40 : Sri V.L.N.G.K. Murthy ^ COUNSEL FOR 5 TO 12 RESPONDENTS : ^ COUNSEL FOR 13TH RESPONDENT: Sri Meharchand Nori ^ COUNSEL FOR 14 TO 16 RESPONDENTS: ^ COUNSEL FOR 17TH RESPONDENT: Sri K. Harinath ^ COUNSEL FOR 18 TO 35 RESPONDENTS: C.M.S.A. No.90 of 2005: # Komarneni Hanumantha Rao … Appellant/third party Vs. $ Mallarapu Peda Venkaiah and others … Respondents ! COUNSEL FOR THE APPELLANT: Sri K. Harinath ^ COUNSEL FOR THE RESPONDENTS: A.S.M.P. No. 1931 of 2005: # Chukka Venkatadri and another … Petitioners Vs. $ Mallavarapu Mahalakshmamma and others … Respondents ! COUNSEL FOR THE PETITIONERS: Sri G. Ram Gopal ^ COUNSEL FOR THE RESPONDENTS: A.S.M.P. No.1354 of 2005: # K. Hanumanthu Rao … Implead Pettioner Vs. $ M. Mahalakshmamma and others … Respondents ! COUNSEL FOR THE PETITIONER: Sri K. Harinath ^ COUNSEL FOR THE RESPSONDENTS: < Gist : Ø Head Note: ? CITATIONS: 1. (1996) 3 All ER 156 2. AIR 1956 MADRAS 301 3. AIR 1963 CALCUTTA 473 4. AIR 1963 SUPREME COURT 1901 5. (1996) 6 Supreme Court Cases 699 6. 1993 (3) ALT 712 7. 2007 (4) ALD 70 (SC) 8. (1976) 4 Supreme Court Cases 763 9. 2001 (5) ALD 102 HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S. No.801 of 1995; C.M.S.A. No.90 of 2005; and A.S.M.P. Nos.1931 and 1354 of 2005 in A.S. No.801 of 1995 COMMON JUDGMENT: A.S. No.801 of 1995 is against the judgment and decree in O.S. No.91 of 1983 on the file of the Subordinate Judge’s Court, Chirala, dated 08-03-1995. C.M.S.A. No.90 of 2005 is against the order and decreetal order in E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983, dated 27-03-2003 on the file of the Senior Civil Judge’s Court, Chirala. A.S.M.P. No.1931 of 2005 in A.S. No.801 of 1995 is to receive the accompanying documents as additional evidence, whereas A.S.M.P. No.1354 of 2005 is a petition by a third party to be impleaded as 36th respondent in A.S. No.801 of 1995. The parties are referred to herein as they are arrayed in O.S. No.91 of 1983. Respondents 1 to 4 in A.S. No.801 of 1995 filed O.S. No.91 of 1983, in which the appellants are defendants 2 and 32. The claim in the suit is that Mallarapu Venkateswarlu, Ramulu, Kotayya and Lakshmayya are brothers and they divided their family properties under a registered partition deed, dated 14-04- 1931, in which Ac.4-05 cents of dry land of Kothapet village in patta No.759 and D.No.146/1-A fell to the share of Kotayya and Lakshmayya. The 1st plaintiff is the widow and plaintiffs 2 to 4 are the sons of Kotayya. In 1935, Kotayya sold Ac.0-70 cents to Chukka Venkateswarlu, son of Lakshmayya and the same was purchased by the 2nd defendant and his brother Venkateswarlu. After Kottayya died intestate in 1943, the 1st plaintiff sold Ac.0-76 cents to the 2nd defendant, for herself and on behalf of the then minor plaintiffs 2 to 4. She also sold Ac.0-40 cents to Chukka Kotayya, son of Peraiah. In 1953, the 2nd defendant sold Ac.0-26 cents out of Ac.0-76 cents to Chukka Kotayya, resulting in the 2nd defendant retaining Ac.0-50 cents and Chukka Kotayya getting Ac.0-66 cents. On 22-02-1967, Mallarapu Lakshmayya, his son Sambayya and the plaintiffs sold Ac.0-50 cents to the 1st defendant along with some other annexed wet land. The plaintiffs along with Chukka Kotayya and his sons, and Mallarapu Lakshmayya and his son Sambayya also sold Ac.1-00 to the 1st defendant. Thus, the plaintiffs, Kotayya, Lakshmayya and Lakshmayya’s son Sambayya parted with Ac.2-70 cents in D.No.146/1-A leaving Ac.1-35 cents to the plaintiffs who became entitled to the same under the registered partition deed, dated 22-02-1967 between the branches of Lakshmayya and the plaintiffs. The plaintiffs claimed that when plaintiffs 2 to 4 were getting the land measured to partition the same between themselves in the middle of June, 1983, the 2nd defendant and others abetted by the 1st defendant and Dr. K. Sadananda Rao and others obstructed them in respect of Ac.0-85 cents while the remaining Ac.0-50 cents are always in the possession and enjoyment of the plaintiffs. The plaintiffs were not ousted even from the remaining Ac.0-85 cents and the 1st defendant having Ac.1-50 cents in D.No.146/1-A and Ac.0-50 cents in D.No.146/1-B must be in the possession of the said Ac.0-85 cents along with the sons of the 2nd defendant i.e. Ramulu and Peda Venkateswarlu. The defendants were alleged to have brought into existence the sale deeds of 1981 from defendants 1 to 3 and hence, the plaintiffs filed the suit for possession of Ac.0-85 cents. The 1st defendant contended that the plaintiffs and others executed a sale deed dated 22-02-1967 in favour of the 1st defendant for a consideration of Rs.4,000/- in respect of the 1st item of wet land and the 2nd item of Ac.1-50 cents (Ac.1-00 in D.No.146/1-A belonged to Chukka Kotayya, plaintiffs and others and Ac.0-50 cents in D.No.146/1-B). The entire plot of Ac.1-50 cents is bounded by a road on the East, the 2nd defendant’s land in D.No.146/1-A on the South, the wet land sold under 1st item on the West and rest of the land in D.No.146/1-B belonging to the 2nd defendant on the North. The said land of the 2nd defendant is also bounded by road on the East and rest of the land in D.No.146/1-B on the North. The plaint schedule is, hence, incorrect and the 1st defendant also purchased another Ac.0-50 cents for Rs.3,000/- in D.No.146/1-A from the plaintiffs and others and since then the 1st defendant is in possession and enjoyment of the lands purchased under the two sale deeds. The 1st defendant got the sites measured in 1981 and sold the same to the 15th defendant, Kunam Bharathamma and others and delivered possession to them, who divided them into plots and got them registered. The purchasers are in possession, who are necessary parties and the 1st defendant is not in possession of any portion of the suit property. The 2nd defendant contested the suit claiming that Chukka Venkateswarlu sold Ac.0-83½ cents under a sale deed dated 30-07-1951 to Burra Nagaiah, and Chukka Ramulu and Chukka Peda Venkateswarlu got Ac.0-60 cents and Ac.0-50 cents respectively out of Ac.1-10 cents in the suit survey number under the registered partition deed dated 29-06-1976 executed by the 2nd defendant and his sons. Whatever the plaintiffs got, they sold it away and the 2nd defendant sold away Ac.0-76 cents in the suit survey number and some extent in some other number. The plaintiffs or their predecessors were never in possession before 1935, due to which the suit is barred by limitation and is also bad for non-joinder of proper parties. The suit is undervalued and the 2nd defendant is in possession and enjoyment of Ac.1-10 cents as per his documents. By the amendment of the plaint, the plaintiffs sought to confuse the boundaries. The 5th defendant contended that the plaintiffs showed the entire Ac.2-50 cents in the plaint schedule and as Ac.0-50 cents described therein have no fixed boundaries, no possession of such an imaginary plot can be claimed. The suit as framed is not maintainable, as the suit plot is not in existence and is unidentifiable. The 5th defendant purchased Ac.0-11½ cents of site under registered sale deed, dated 11-08-1982 for Rs.8,625/- in S.Nos.146/1A and 146/1B within specified boundaries and the 4th defendant similarly purchased the Northern plot of Ac.0-11½ cents for a similar sum. The 5th and 4th defendants are in possession of their respective plots getting title and possession from their vendors to the knowledge of the plaintiffs and the plaintiffs have no right in the said plots. The 6th defendant contended that the 2nd defendant and his son, the 3rd defendant, partitioned their joint family properties under a registered partition deed and Ac.0-50 cents purchased by the 2nd defendant from the plaintiffs in D.No.146/1-A fell to the share of the 3rd defendant. The 3rd defendant sold Ac.0-08¾ cents in S.No.145/1A for Rs.5,700/- under a sale deed dated 21- 05-1981 to the 6th defendant, who is in possession and enjoyment since then. The 7th defendant claimed that Ac.0-07 cents were similarly sold by the 3rd defendant for Rs.4,550/- in favour of defendants 6 to 11 as a path way to reach the various plots sold by him, for which he executed a sale deed on 21-05-1981. The 7th defendant claimed that defendants 6 to 11 are jointly in possession and enjoyment of the same since then. Defendants 7 to 9 jointly pleaded that the 3rd defendant sold two plots of Ac.0-08¾ cents for Rs.5,700/- each under two sale deeds, dated 21-05-1981, which are in their possession and enjoyment since then. The 10th defendant contended similarly that he purchased Ac.0-08¾ cents for Rs.5,700/- under a sale deed dated 21-05- 1981. Similar is the claim of the 11th defendant. Defendants 13 and 14 claimed that they purchased Ac.0-14 cents for Rs.9,100/- under a sale deed, dated 20-04-1981 and they also purchased Ac.0-07 5/8 cents for Rs.4,900/- under a sale deed dated 23-04-1981 from the 1st defendant. The second purchase is for use as path way for several plots sold by the 1st defendant to various people. The 24th defendant contended that he purchased Ac.0-16 cents in S.No.146/1A and S.No.146/1B for Rs.10,400/- from the 1st defendant under a sale deed dated 25-06-1981. The 27th defendant claimed that the plaintiffs are falsely claiming Ac.0-50 cents without fixed boundaries out of Ac.2-50 cents in the plaint schedule and the suit as framed is not maintainable. The 27th defendant purchased Ac.0-22 cents from Katari Veeranjaneyulu and Manam Bharatamma under registered sale deed, dated 18-08-1982 for Rs.22,000/- and is in possession of the same. The vendors of the 27th defendant purchased the same from Chinta Savitri on 25-04-1981. The 29th defendant claimed that she purchased Ac.0-11½ cents in S.No.146/1A under a registered sale deed dated 18-10-1982 for Rs.11,500/- from Kunam Lakshmaiah and the Eastern side owner constructed a house also in her plot. The 28th defendant also purchased Ac.0-11 cents on 06-12-1982 for Rs.11,000/- and he is in possession. The vendors have title and possession. Defendants 4, 5, 27 and 28 purchased their plots which are within Ac.1-50 cents in S.No.146/1A. The 29th defendant’s elder sister also purchased a plot and constructed a house in 1983 and her husband Amarneni Subba Rao arranged the sale transactions. The other contesting defendants adopted the written statements of others respectively. On such pleadings, the trial Court framed the following issues for trial: (1) Whether the plaintiffs are entitled for a decree for possession of the suit land from the defendants ? (2) Whether the plaintiffs are having subsisting rights and interest in the suit land ? (3) Whether the plaint schedule extent and boundaries thereof are not true and correct ? (4) Whether the suit is bad for non-joinder of parties ? (5) Whether the suit is not maintainable ? (6) To what relief the plaintiffs are entitled to ? The trial Court examined P.Ws.1 to 3 and D.Ws.1 to 6 during trial and marked Exs.A.1 to A.12, B.1 to B.10 and X.1. It rendered its judgment on 08-03-1995 noting that the suit was originally filed for possession of Ac.0-50 cents but was later amended to one for possession of Ac.0-85 cents and that the plaintiffs are claiming to have a balance of Ac.1-35 cents of land after selling away Ac.2-70 cents of land in Ac.4-05 cents in S.No.146/1A, which originally fell to the share of Peda Kotayya and Lakshmayya in their family partition and later to the branch of Peda Kotayya under a family arrangement. The trial Court also noted that the defence is based on the purchase of part of the lands by defendants 1 and 2 from the family of the plaintiffs and further sales by them to various persons as house plots after division of the lands into plots. The trial Court dealt with the contention that an unexecutable decree in respect of unidentifiable property cannot be passed. It noted that the 3rd plaintiff as P.W.1 marked Ex.A.1 registered partition deed, dated 14-04-1931 in respect of allotment of Ac.4-05 cents and Exs.A.8 and A.9 to show the sale of Ac.0-70 cents by Peda Kotayya and Lakshmyya to Chukka Venkateswarlu, son of Lakshmaiah in 1935. P.W.1 further stated about the sale of Ac.0-40 cents by the 1st plaintiff under Ex.A.10 in 1951 and the sale of Ac.0-76 cents by all the plaintiffs under Ex.B.1, dated 25-07-1951 to the 2nd defendant. The trial Court also referred to the sale of Ac.1-00 to the 1st defendant under Ex.B.4 and Ac.0-50 cents under Ex.A.2 on 22-02-1967. P.W.2, the cousin of P.W.1, and P.W.3, a neighbouring land owner, also deposed about such facts and circumstances said to be covering the sale of Ac.2-70 cents leaving Ac.1-35 cents to the plaintiffs. The trial Court further referred to the evidence of the 1st defendant as D.W.1 about purchase of Ac.1-50 cents under Exs.A.2 and B.4 and another Ac.0-50 cents also in S.No.146/1B, which was divided into plots and sold to the 15th defendant and others as house sites. The trial Court also dealt with the evidence of the 2nd defendant as D.W.2 about purchase of Ac.0-49½ cents under Ex.B.2 from Nagaiah and Ac.0-76 cents under Ex.B.1 from the plaintiffs, out of which he sold Ac.0-26 cents to Kotaiah under Ex.A.11, leaving the remaining land with him. While noting that the 2nd defendant admitted the possession of Ac.0-50 cents with the plaintiffs, the trial Court referred to the evidence of D.W.3 about cultivating the land of D.W.2 and Chukka Venkateswarlu on lease, the evidence of D.W.4 about the purchase of Ac.0-11½ cents each by his sons, the 4th and 5th defendants under Exs.B.6 and B.7, the evidence of D.W.5 about his attesting Exs.B.6 to B.9 and the evidence of D.W.6 about the purchases by defendants 28 and 29 of Ac.0-11½ cents each from P. Rama Rao. The trial Court referring to the contentions of the parties, upheld the original title for Ac.4-05 cents in S.No.146/1A for the family of the plaintiffs and sale of Ac.2-70 cents by them leaving a balance of Ac.1-35 cents. It further noted that possession of Ac.0- 50 cents of land with the plaintiffs, which is not part and parcel of the land claimed by the defendants, is admitted and hence, concluded that as the plaintiffs are claiming balance of Ac.1-35 cents of land owned by them, they will take possession of the same if such an extent is available in the suit survey number and if the extent is less than Ac.4-05 cents, then the plaintiffs cannot proceed against the purchasers. Accordingly, the trial Court held the plaintiffs to be entitled for possession of Ac.0-85 cents of land, for which the suit is filed, observing that they can take possession of the remaining land only after the extent of Ac.2-70 cents is accounted for on land. The objections about the boundaries of the plaint schedule were rejected and as the land was found to be vacant by the learned advocate commissioner appointed in the suit, the trial Court found no occasion to apply any principles of equity. It also observed that if any alienees are not added as parties to the suit, the judgment and decree will not bind them, but the suit cannot be considered bad for non-joinder of necessary parties. Any plea of bar of limitation is also rejected and the suit was decreed without costs granting three months time to the defendants to remove constructions made in any part of the suit property and deliver possession to the plaintiffs. The plan A of Ex.A.12 was directed to be appended to the decree. The appellant in C.M.S.A. No.90 of 2005 filed E.A. No.259 of 1996 in E.P. No.75 of 1995 in O.S. No.91 of 1983 in the execution petition filed by the plaintiffs claiming that he purchased Ac.0-07 cents described in the petition schedule from S. Sambasivarao and constructed a house in door No.12/132 in the same. He traced his title to Chintha Savitri Devi, a purchaser from the plaintiffs and her alienees and contended that his vendor was not a party to the suit. The plaintiffs resisted the claim on the ground of the purchases being during the pendency of O.S. No.91 of 1983 and with knowledge of the same. The executing Court noted the obstruction by the claim petitioner to the delivery of property by the Amin on the strength of Ex.A.1 sale deed and referred to the evidence of the petitioner and his vendor as P.Ws.1 and 2 and the 3rd decree-holder as R.W.1. The executing Court noted that the petitioner, his vendor—P.W.2, his vendor Polineni Lakshmi Narayana and his vendor Muppalla Subba Rao trace their title to Chintha Savitri Devi, who purchased Ac.0-50 cents in S.No.146/1A. As Chintha Savitri Devi is also a party to O.S. No.91 of 1983 (as the 1st defendant), the executing Court considered the judgment and decree in O.S. No.91 of 1983 to have decided the sale of Ac.2-70 cents to be to Chintha Savitri Devi, Chukka Venkateswarlu, Chukka Kotayya and Chukka Venkatadri, only leaving Ac.1-35 cents with the plaintiffs therein and when the purchase by P.W.1 under Ex.A.1 does not mention the survey number and he is a transferee pendente lite, hit by Section 52 of the Transfer of Property Act, the petitioner is bound by the decree in O.S. No.91 of 1983. The executing Court concluded that the petitioner failed to prove his title and so, dismissed the claim petition. The petitioner filed C.M.A. No.26 of 2004 against the same, which was decided by IV Additional District Judge (Fast Track Court), Ongole on 08-02-2005 holding that Exs.A.1 and A.4 came into existence during the pendency of O.S. No.91 of 1983 and that the vendors of P.W.1 were parties to O.S. No.91 of 1983, due to which Ex.A.1 is hit by the doctrine of lis pendens. The appellate Court also noted the failure of the petitioner in O.S. No.147 of 1995 filed by him and also considered the petition to be barred by time under Article 128 of Limitation Act read with Order XXI Rule 97 of the Code of Civil Procedure. The appeal was accordingly dismissed. A.S. No.801 of 1995 was filed by defendants 2 and 32 against the judgment and decree in O.S. No.91 of 1983 and when the 2nd respondent/2nd plaintiff died during pendency of the appeal, the legal representatives were brought on record as respondents 36 to 40. The appellants contended that Exs.B.1 and B.3, under which Ac.1-26 cents of land was purchased in S.No.146/1A, should have been relied on and the possession and enjoyment of the 2nd defendant since more than 30 years prior to the suit should have been appreciated. When the plaintiffs have admitted in the plaint and the plan about the 2nd defendant having Ac.0-70 cents to the South of the suit schedule, the suit ought to have been dismissed against the 2nd defendant. The decree is unexecutable without specification of which defendant being in occupation of the suit site and hence, the suit, which is bad for misjoinder and non-joinder of necessary and proper parties, ought to have been dismissed. The appellant in C.M.S.A. No.90 of 2005 claimed that when the judgment and decree in the suit clearly stated that the alienees not made parties are not bound by judgment and decree, the appellant could not have been bound by the same under the guise of Section 52 of the Transfer of Property Act. What the appellant purchased is part of the land purchased by Chintha Savitri Devi, the 1st defendant in the suit, and the decree cannot be executed against the same, more so when there was no finding in the judgment about any possession of any defendant in Ac.0-85 cents claimed by the plaintiffs. As there was no effective decree to be executed till the determination and adjudication of any land in possession of defendants in excess of the lands sold to them, there could be no execution. No measurements were taken and no surveyor was appointed for the purpose and the execution petition is unsustainable. The extent of S.No.146/1A was not determined and the appellant living in the RCC building constructed in the plot, will be subjected to grave injustice. The said appellant also contended that substantial questions of law that arise relate to the maintainability of the petition under Order XXI Rule 97 of the Code of Civil Procedure, when no application for removal of obstruction was filed by the decree- holders and the failure of the executing Court to decide the case on merits, more particularly about the decree not directing any particular defendant to deliver any particular piece of land and hence, being vague and unexecutable. The appellant also contended that the question of limitation and applicability of lis pendens are also substantial questions of law to be decided. The appellant in C.M.S.A. No.90 of 2005 also filed A.S.M.P. No.1354 of 2005 to implead him as respondent in the main appeal on similar grounds and contending that the evidence in the suit shows that the plaintiffs sold Ac.3-19½ cents in S.No.146/1A in total while being in possession of Ac.0-50 cents by the date of the suit, out of which they sold Ac.0-40 cents after the suit. The sale to the 1st defendant was of an extent of Ac.1-50 cents in S.No.146/1A and Ac.0-50 cents in S.No.146/1B and such land of Ac.2-00 was not demarcated. When the 1st defendant was not proved to be in possession of any excess land than purchased by her, no decree for possession could have been granted including in respect of Ac.0-07 cents of the implead petitioner. The plaintiffs opposed the request for impleadment claiming that on measurement, they were found to be having only Ac.0-50 cents with the remaining Ac.0-85 cents being in illegal occupation of the defendants, due to which they filed the suit. When the 1st defendant, the predecessor in title of the implead petitioner, was a party to the suit, her successors-in-interest need not be impleaded and the petition filed after 22 years after the suit is not bona fide. The order in C.M.A. No.26 of 2004 operates as res judicata. The appellants sought for producing extract of the sale deed dated 14-12-1935 and the publication issued on 28-01-2003 by the plaintiffs as additional evidence contending that the plaintiffs sold another Ac.0-30 cents under the first document, which was suppressed from the trial Court and there appear to be registered sale deeds in respect of various other extents. The plaintiffs merely wanted to ascertain the actual extents in the speculative suit and the conduct of the plaintiffs is evident from the paper publication trying to prevent the defendants from selling even their own lands. They also claimed that the lands in the locality were developed into house plots with buildings constructed, roads laid and electricity connected and about Ac.0-70 cents of land in S.No.146/1A is covered by Panchayat roads. The plaintiffs opposed the request to receive additional evidence contending that the 2nd defendant’s counsel stated before this Court only about there being no proper measurements and the 2nd defendant being unnecessarily impleaded. Now they seek to contend that Ac.3-66 cents but not Ac.2-70 cents were sold i.e. Ac.1-50 cents to the 1st defendant and Ac.1-20 cents to the 2nd defendant only. The sale of Ac.0-30 cents under registered sale deed dated 14-12-1935 is part of Ac.2-70 cents and the same was sold by Chukka Venkaiah to Chukka Venkateswarlu under registered sale deed dated 11-06-1941. The said Chukka Venkateswarlu purchased