THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY SECOND APPEAL No.764 of 2011 Date:12.8.2011 Between: Pavani Rangamma ………...Appellant. And Pavani Prasada Rao and others. …… Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY SECOND APPEAL No.764 of 2011 JUDGMENT: 1. This second appeal is directed against the judgment and decree dated 6.4.2011 passed in A.S.No.138 of 2006 on the file of the First Additional District Judge, Kadapa, whereby and whereunder the learned Additional District Judge dismissed the appeal confirming the judgment and decree dated 08.11.2006 passed in O.S.No.922 of 2004 on the file of the Principal Junior Civil Judge, Kadapa. 2. The appellant herein is the unsuccessful plaintiff in the trial Court as well as the lower appellate Court. It is the case of the appellant/plaintiff that the suit schedule property originally belonged to her father B. Sheshagiri Rao. She got the property under a registered Will dated 09.1.1966 executed by his father. The 1st defendant is her son. She secured a loan to the 1st defendant for running of a floor mill over the suit schedule property by mortgaging the same to the Corporation Bank, Kadapa. The 1st defendant became addicted to vices. The efforts made by her to get him changed proved to be futile. According to the plaintiff, the 1st defendant, who is her son in collusion with the other defendants are trying to interfere with her peaceful possession and enjoyment of the same. The 1st defendant remained ex-parte. 3. The 2nd defendant filed written statement and 3rd defendant filed memo adopting the written statement of defendant No.2. It is the case of the 2nd defendant that he purchased Ac.0.10 cents from the plaintiff and the 1st defendant under registered sale deed dated 13.4.1988. The survey number mentioned in the registered sale deed dated 13.4.1988 came to be rectified and rectification deed came to be executed on 05.01.1989. Ex.B.1 is the registered sale deed dated 13.4.1988 and Ex.B.2 is the rectification sale deed dated 5.1.1989. The 2nd defendant asserted his title over the suit schedule property. The Trial Court framed the following issues for trial:- “1. Whether the registered sale deed in respect of the schedule property executed by the defendant No.1 and plaintiff is true, valid and binding on the defendants? 2. Whether the plaintiff is in possession and enjoyment of the schedule property?; 3. Whether the plaintiff is entitled for permanent injunction? 4. To what relief?” 4. On behalf of the plaintiff, two witnesses were examined as P.Ws.1 & 2 and 21 documents were marked as Exs.A.1 to A.21. On behalf of the defendants, two witnesses were examined as D.Ws.1 & 2 and nine documents were marked as Exs.B.1 to B.9 besides marked eight documents as Exs.X.1 to X.8. 5. The trial Court, on considering the evidence brought on record and on hearing the counsel appearing for the parties, held that the defendant No.2 is the owner of the suit schedule property having purchased under the sale deed- Ex.B.1, dated 13.4.1988 and Ex.B.2-rectification sale deed dated 05.1.1989. With the above finding, the trial Court proceeded to dismiss the suit of the plaintiff, by judgment dated 08.11.2006. The plaintiff filed A.S.No.138 of 2006 on the file of the First Additional District Judge, Kadapa assailing the judgment and decree dated 08.11.2006 passed in O.S.No.922 of 2004 on the file of the Principal Junior Civil Judge, Kadapa. 6. The lower appellate Court, on reappreciation of the evidence brought on record, did not find any valid ground to interfere with the findings recorded by the trial Court and thereby proceeded to dismiss the appeal, by judgment dated 06.4.2011. Hence the second appeal. 7. Heard learned counsel appearing for the appellant/plaintiff and perused the judgment of the trial Court as well as the judgment of the lower appellate Court. 8. Learned counsel appearing for the appellant/plaintiff submits that there is ambiguity with regard to the identity of the land purchased by the 2nd defendant and the land retained by the plaintiff and therefore, the matter needs to be remanded to the trial Court for proper adjudication of the issues involved in the suit. 9. As seen from the material placed on record, the plaintiff disputed the sale deeds executed by her and her son, who has been arrayed as defendant No.1, on 13.4.1988 and also the rectification deed dated 5.1.1989. 10. The trial Court considered the proceedings that have taken place in O.S.No.47 of 1991, which is a suit filed by the bank against the plaintiff and the 1st defendant for recovery of the money basing on the mortgaged deed. The 2nd defendant herein sought his impleadment in the said suit in the year 1996 basing on the sale deeds executed by the plaintiff and the 1st defendant herein. The application filed by the 2nd defendant herein came to be dismissed on the ground that the land claimed by him and the land mortgaged in the bank are not one and the same. The observation made by the trial Court in this regard needs to be noted and it is thus:- “As per Ex.A11 certified copy of the affidavit, petition and orders thereon in I.A.No.560/02 in O.S.No.47/91 it is evident that the Court in the said suit itself made it clear that the property purchased by the 2nd defendant is in S.No.142/1 and that the property that was mortgaged in the bank is covered by 143/1 and therefore the request for adding the 2nd defendant herein as defendant No.4 in the said suit was negatived as per orders dt.21.3.1996 by the then honourable Subordinate Judge, Kadapa. Therefore, the plaintiff had knowledge about the existence of Ex.B.1 registered sale deed even as on 21.3.1996 wherein it was clearly mentioned that the property that was mortgaged for obtaining loan in O.S.No.47/91 is different from the property is a party to the said mortgage suit proceedings and having knowledge about the said order, the fact remains that even as on today there is no legal action taken either by the plaintiff or the 1st defendant for cancellation of Ex.B1 registered sale deed dt.13.4.1988. It may be noted that the mistake or error that was crept in Ex.B.1 regarding the survey number was also corrected and a rectification deed under Ex.B.2 was also registered on 15.1.1999 and even the validity of the said document was also not questioned by the plaintiff or the 1st defendant in any court of law and no cancellation for the same was preferred. Therefore, it is evident from all the above observations that there is a cloud upon the title of the plaintiff with respect to the suit property covering S.No.142/1.” 11. Ex.X.7 is the Ledger Extract Copy maintained by the electricity authorities. As per the entries therein, it is the 2nd defendant who has been paying electricity bills in respect of service connection ISC No.94. Exs.B.1 and B.2 sale deeds contain the electricity consumer number in the land purchased by the 2nd defendant. The trial Court noticed this fact and observed as hereunder:- “Exs.A.1 to A.3 are dt.15.8.2004 and Exs.A.7 and A.8 are dt.2.11.2004. Ex.A.4 and A.12 are the certificates issued by the Panchyat Secretary of Gudur village and the M.R.O., Kadapa. Wherein it is mentioned that the Prasad Rice Mill is situated in Door No.6/1 and S.No.142/1 and that the plaintiff is the owner of the same. It may be noted that the revenue documents do not prove title to the suit schedule property as long as Exs.B.1 and B.3 are in existence. It is also not out of place to mention that Ex.B.1 document is also acted upon. Basing on the said document, the learned Advocate for the defendant Nos.2 and 3 also relied upon Ex.X.7. A perusal of Ex.X.7 shows that it is dt.4.7.2006 issued by the Electricity authorities. There is no dispute in this case regarding the fact that the Prasad Rice Mill was with consumer or ISC No.94. It may be noted that even in the recitals in Exs.B.1 and B.2 the sale was with the electricity consumer or meter No.94 with tin sheet building in it. A perusal of Ex.X.7 shows that the said ISC No.94 supply was given on 1.8.1996 and that the ledger accounts were in the name of the 2nd defendant and later the year ledger was transferred in the name of the 2nd defendant on 13.9.2001 wherein the entry is made at page 75. A further perusal of Ex.X.7 makes it clear that the period covering April, 2002 to July, 2002 it is the 2nd defendant who is the owner of the ISC No.94 and the date of bill stopped from September, 2002. As per Ex.X.8 also the ISC No.94 stood in the name of the 2nd defendant wherein it shows that there are no dues from December, 1992 to September, 2002. Therefore, it is clear that the ISC No.94 is not in the name of Prasad Rice Mill and the plaintiff is not the owner of the said rice mill. On the other hand the said consumer number stands in the name of Amjad Rice Mill. The defendants filed Ex.B.5 Electricity Bills numbering 19 and they cover the years 1994, 1997, 1998 and 2000. A perusal of the said bills also show that they are with respect to the current consumer No.94. Apart from the same Ex.B.6 is filed and it shows that the same is issued in the name of the 2nd defendant’s rice mill for consumer No.94 and it is dt.1.2.2003. Further Ex.B.7 is the licence issued by the Joint Collector and Licencing Authority, Kadapa for running Amjad Rice Mill. In Ex.B.7 it is clear that there are two renewals also. Hence the defendant Nos.2 and 3 have proved that Amjad Rice mill is run with consumer No.94 even by the date of filing of the suit and it is not the case of the plaintiff that she is connected with Amjad Rice Mill. Apart from the above observations P.W.2 who is the Assistant Engineer, Operation categorically deposed about the entries in Exs.X.7 and X.8 and his evidence is also supporting the case of the defendants and not the plaintiff.” 12. As seen from Ex.B.1, the land sold to the 2nd defendant is adjacent to the road. The total extent of land owned by the plaintiff is Ac.0.20 cents in S.No.142/1. Of these Ac.0.20 cents, Ac.0.10 cents adjacent to the road has been sold to the 2nd defendant. The plaintiff having sold Ac.0.10 cents of land adjacent to the road has filed the suit for self same land seeking for injunction. The material brought on record clearly establishes that the appellant/plaintiff and the 1st defendant executed Ex.B.1- sale deed and Ex.B.2- rectification deed in respect of Ac.0.10 cents, which is adjacent to the road. The land retained by the plaintiff is to the north of the land sold to the 2nd defendant. The very fact that there is a rice mill in the name of “Amzad Rice Mill” owned by the 2nd defendant in the suit schedule property indicates that the plaintiff is not entitled for injunction. The trial Court as well as the lower appellate Court considered the material brought on record in right perspective and proceeded to dismiss the suit/appeal. There is no substantial question of law involved in the second appeal warranting admission. 13. Hence, the Second Appeal fails and it is hereby dismissed at the admission stage. No costs. ________________________________ JUSTICE B. SESHASAYANA REDDY Date:12.08.2011 mrb