HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL Nos.698 of 2007 & 701 of 2007 DATE:17-12-2009 SECOND APPEAL No.698 of 2007 BETWEEN: Koppisetti Mirasaheb (died) per L.Rs. & Others. …Appellants AND Kudupudi Pallamsetti & Others. …Respondents SECOND APPEAL No.701 of 2007 BETWEEN: Koppisetti Mirasaheb (died) per L.Rs. & Others. …Appellants AND Koppisetti Nagaratnam @ Suramma & Others. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL Nos.698 of 2007 & 701 of 2007 COMMON JUDGMENT These two second appeals are arising out of the common judgment passed by the lower appellate Court. Hence, they are heard together and being disposed of by this common judgment. These appeals are directed against the common judgment and decree passed by the Senior Civil Judge, Amalapuram, dated 25.7.2006 passed in A.S.No.98 of 1997 and 93 of 1997 dismissing the appeals preferred by the appellants confirming the common judgment and decree passed by the District Munsif, Mummidivaram in O.S.No.87 of 1987 and O.S.No.106 of 1987, dated 20.10.1997 respectively. Facts in O.S.No.87 of 1987 O.S.No.87 of 1987 was filed for permanent injunction restraining the defendants from interfering with the plaintiffs possession and enjoyment over the plaint schedule property i.e. Ac.0.0¾ cents out of Ac.0.24 cents in R.S.No.701/7 of Mummidivaram Village contending that the plaintiffs are the absolute owners of the suit schedule property having purchased the same from Koppisetti Veera Raghavulu by the first plaintiff under a registered sale deed, dated 20.6.1987 for a consideration of Rs.1,500/-. Defendants 3 and 4 remained ex parte while the defendants 1 and 2 filed a written statement contending that the plaintiffs filed the suit with wrong survey number and obtained ex parte interim order and under the guise of the injunction, they trespassed into a portion of the land in possession and enjoyment of the defendants. The vendor of the plaintiffs has no manner of right to execute any sale deed, and that the possession of the property was never delivered to the plaintiffs. It was the case of the defendants that the suit schedule property is the absolute property of Koppisetti Veranna, the father of the second defendant, who purchased the same under a registered sale deed, dated 7.7.1955, and that he was in possession of the same till his death. The said Veeranna had two wives by name Suramma and Nagaratnam @ Suramma, who is the mother of second defendant and mother-in-law of first defendant. Veera Raghavulu is the son of Veeranna through his first wife, and that Veeranna had one more son by name Ramakrishna who died in 1974. Koppisetti Satyanarayana-the first son of Veeranna through his second wife is now residing in Dubai. Another daughter Kudupudi Veera Ratnam is residing in Yanam. The second son’s share devolved upon his mother-Nagaratnam. After the death of Veeranna, Koppisetti Nagaratnam along with her children was in possession of the suit schedule property till she left to Komaragipatnam. The southern land of Ac.0.01 ½ cents, which is the part of the suit schedule property was given to these defendants about 14 years back, and that these defendants got constructed a thatched house and residing therein. The house constructed by the first defendant is assessed by the Gram Panchayat. The vendor of the plaintiffs was never in possession of the suit schedule property and the property was never divided and separated. On the basis of the rival pleadings, the trial Court framed the following issues for trial: “1. Whether the plaintiff is in possession of the suit schedule property as on the date of suit? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief?” Facts in O.S.No.106 of 1987: The suit in O.S.No.106 of 1987 was filed for declaration of the title of the plaintiffs 1,3 & 4 and defendants 6 and 7 to the suit schedule property and to direct the defendants 1 and 2 to deliver the vacant site of BCEF portion of the plaint plan and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over the BCEF portion of the plaint plan. It was their case that the suit schedule property belong to defendants 1 and 2 and the same was encroached by the first defendant. The first plaintiff is the mother-in-law of the second plaintiff; plaintiffs 3 and 4 are the daughters of first plaintiff through Veeranna; defendants 1 and 2 are brothers; and the defendants 3 and 4 are the sons of the first defendant. The fifth defendant is the junior paternal uncle of the first defendant. The defendants 6 and 7 are children of late Veeranna and as they are residing at a distance place and as they are not cooperating with the plaintiffs, they are added as defendants. The ACDF portion of the plaint plan is the absolute property of Koppisetti Veeranna, the husband of the first plaintiff, who purchased the same under a registered sale deed, dated 7.7.1995 and obtained delivery of the same. He was in possession and enjoyment of the same till his death about twenty years back. Subsequently, the first plaintiff came into possession of the same. Upon the death of late Veeranna, the suit schedule property was devolved upon the plaintiffs 1,3, 4 and the defendants 6 and 7. The first plaintiff was living in the thatched house constructed by late Veeranna till she left to Komaragiripatnam. While leaving to Komaragipatnam, the first plaintiff and the seventh defendant gave the southern land of Ac.0.01 ½ cents shown in the plaint plan as XCYF to the second plaintiff, who dismantled the old thatched house and got constructed a thatched house and has been residing therein. While so, the first defendant, who is a co-sharer along with the second defendant filed the suit in O.S.No.87 of 1987 in respect of the property shown as DFGH against the plaintiffs 2 and 3 and some others with false allegations and by showing false survey number and thereby obtained a temporary injunction. Defendants 6 and 7 remained ex parte and the first defendant died during the pendency of the suit. The other defendants resisted the suit claim contending that the plaint plan and the schedule are not correct and that the survey number mentioned in the schedule is also not correct. It was their case that the first defendant purchased Ac.0.0¾ cents of land in R.S.No.701/4 out of Ac.0.24 cents from the sixth defendant and his sons under a registered sale deed and ever since he has been in possession and enjoyment of the same. But, due to mistake, the survey number of the property was mentioned as R.S.No.707/4 for which, the necessary steps were taken to get the said mistake rectified. Taking advantage of the said mistake in the sale deed, the plaintiffs attempted to interfere with the possession and enjoyment of the first defendant over the suit schedule property for which, the first defendant filed O.S.No.87 of 1987 for permanent injunction and obtained temporary injunction. Basing on the rival pleadings, the following issues were settled for trial: “1. Whether the plaintiffs 1,3 and 4 and defendants 6 and 7 are entitled to the declaration of plaint schedule property, and also possession of the plaint schedule property i.e. ABDE after evicting the defendants 1 and 2 therefrom? 2. Whether the plaintiffs are entitled to permanent injunction against the defendants 1 to 5 and their men, as prayed for in respect of ‘BCEF’ portion of plaint plan? 3. To what relief?” Since the issue involved in both the suits was one and the same, both the suits were clubbed together and a joint trial was held by recoding the evidence in O.S.No.106 of 1987. On behalf of the plaintiffs, first plaintiff examined herself as P.W.1 apart from examining three more witnesses as P.Ws.2 to 4 and marked Exs.A.1 and A.2. On behalf of defendants, third defendant himself examined as D.W.1 and three more witnesses were examined as D.Ws.2 to 4 and marked Ex.B.1. The trial Court on appreciation of the oral and documentary evidence adduced by the parties decreed the suit of the plaintiffs i.e. O.S.No.106 of 1987 holding that the plaintiffs 2 and 3 who are the defendants 1 and 2 in O.S.No.87 of 1987 have clearly stated that a house with Door No.1-58 under Assessment No.71 is situated in the schedule property and that Ex.A.2, the bunch of tax receipts reveals that the second plaintiff has been paying taxes to the Gram Panchayaat, Mummidivaram for the house covered by Door No.1-58 under assessment No.71. It was further observed that the third defendant during his examination as D.W.1 has not stated that he is having any right or title over the suit schedule property covered by O.S.No.106 of 1987 and that his evidence is simple to the effect that they never encroached into the site of the plaintiffs. The other witnesses examined by the defendants did not state in their evidence that the defendants are having any right over the suit schedule property covered by O.S.No.106 of 1987 nor any documentary evidence was produced to prove their possession or title over the said property. The trial Court holing that the plaintiffs established their title over the suit schedule property by filing Ex.A.1-registered sale deed, dated 7.7.1985 executed by Koppisetti Ramaswamy in favour of Koppisetti Veeranna, and possession by filing Ex.A.2, the bunch of tax receipts, and the first defendant failed to establish his possession, dismissed the suit filed by the defendants i.e. O.S.No.87 of 1987 while decreeing the suit of the plaintiffs i.e. O.S.No.106 of 1987. Aggrieved by the said common judgment and decree, the defendants carried the matter in appeals in A.S.No.98 of 1997 and A.S.No.93 of 1997 before the lower appellate Court. The lower appellate Court observed that the defendants in O.S.No.106 of 1987 are relying on the sale deed, dated 20.6.1987- Ex.B.1 executed by Koppisetti Veera Raghavulu, son of Veeranna to the extent of Ac.0.0 ¾ cents, and whereas the plaintiffs are claiming that husband of first defendant purchased the total extent of Ac.0.03 cents under registered sale deed-Ex.A.1, dated 7.7.1955, which was purchased by Koppisetti Veeranna, the husband of the first plaintiff and constructed a thatched house and the same was devolved upon the plaintiffs 3,4 and defendants 6 and 7. Veera Raghavulu, the vendor of the defendants is none other than the son of K.Veeranna and thus, the relationship between Veera Raghavulu, K.Veeranna and the first plaintiff is not in dispute and therefore, it is clear that K.Veeranna is the owner of the property under the sale deed, dated 7.7.1955. The property was not partitioned during the lifetime of Veeranna and after his death also, it was not partitioned and therefore, the property purchased by K.Veeranna under Ex.A.1 remained joint family property. Under the said circumstances, the defendants though obtained Ex.B.1-sale deed, dated 20.6.1987 from K.Veera Raghavulu, the son of K.Veeranna, failed to establish the right of their vendor- K.Veera Raghavulu in selling the property in their favour without there being any partition. In the absence of any partition among the children of K.Veeranna, the vendor of defendants himself has no title or right over the suit schedule property and therefore, the said sale deed obtained by the defendants, dated 20.6.1987 is not binding on the plaintiffs. It was further observed that though the defendants contended that in the sale deed executed by their vendor K.Veera Raghavulu the survey number was wrongly mentioned as 701 instead of 704 and they are trying to get rectification deed, but failed to file any rectification deed. The first plaintiff being the wife of K.Veeranna who purchased the schedule property and another property under the sale deed, dated 7.7.1955 has proved that under Ex.A.1 sale deed executed by Koppisetti Ramaswamy her husband purchased the suit schedule property and by filing Ex.A.2, bunch of tax receipts she proved her possession over the suit schedule property and holding so, the lower appellate Court dismissed the appeals confirming the judgment and decree of the trial Court. Heard the learned counsel for the appellants. I have gone through the entire findings and the reasoning adopted by the lower appellate Court. From the facts and findings as narrated above, it is clear that the K.Veeranna, the husband of first plaintiff, who purchased the suit schedule property under Ex.A.1 sale deed, dated 7.7.1955 constructed a thatched house and the defendants, who are the appellants herein are claiming the property having purchased the same from K.Veera Raghavulu who is none other than the son of K.Veeranna through his first wife but they failed to establish that upon the death of K.Veeranna, the property was partitioned among his heirs and that the property covered by Ex.B.1 was fell to the share of the vendor of the appellants herein. Inasmuch as the suit schedule property held by K.Veeranna was not partitioned among his heirs, the vendor of the appellants himself has no right or title over the suit schedule property and they cannot acquire a better right than that of their vendor. In view of the same, the concurrent findings recorded by the Courts below on appreciation of evidence in proper perspective does not give rise to any substantial question of law to admit the second appeals. The appeals are accordingly dismissed at the admission stage. There shall be no order as to costs. _______________ A. GOPAL REDDY. J DECEMBER 17, 2009 Tsr.