IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FOURTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.54 of 2011 Between: Madu Appala Raju & 6 others .. Appellants AND Bhimavarapu Viswanatha Reddy .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.54 of 2011 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.52 of 2010, on the file of the II Additional District Judge’s Court, Visakhapatnam, dated 12.08.2010, by which the first Appellate Court allowed the appeal and set aside the judgment and decree in O.S.No.659 of 2005, on the file of the III Additional Senior Civil Judge (Fast Track Court), Visakhapatnam, dated 31.12.2009, and decreed the said suit with costs against the defendants passing a decree for permanent injunction restraining the defendants from transferring or alienating or selling the suit schedule property to any third party as prayed for. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The factual background for the dispute is that the plaintiff filed the suit alleging purchase of the suit schedule property of 1036 square yards in S.No.27/4 A and B of Yendada Panchayat/Madhurawada Sub-Division of Visakhapatnam District from Sunkara Jagga Rao and Sunkara Surya Prakasha Rao under a registered Sale Deed, dated 13.09.1993. The said vendors were claimed to have purchased the same and other properties under registered documents, dated 07.05.1970 and 18.03.1971, whereas the vendors thereunder purchased the same from Madu Chinnayya Thata who got the property in partition with his brother Madu Appala Narayana, son of Madu Appala Swamy. The plaintiff also claimed that Madu Appala Narayana and his minor sons sold their share in S.No.27/4 and other properties to Achanta Rajeswari under a registered document, dated 25.09.1970, and thus, Madu family did not have any balance of land in S.No.27/4. Achanta Rajeswari sold her land to three vendees under registered documents, dated 22.06.1993, and thus, the plaintiff and three vendors from Achanta Rajeswari are in possession of 77 cents in S.No.27/4 since 1993. As the plaintiff came to know that the defendants were making efforts to alienate the property in favour of third parties, he claimed to have filed the suit. 4. The first defendant whose written statement was adopted by defendants 2 to 6 contested the suit claiming that Madu Appala Narayana was managing the entire properties of the family as Madu Chinnayya Thata was blind and the alleged sale under document No.3460/67 long after the death of the father of Madu Appala Narayana and Madu Chinnayya Thata was not proper. The defendants are in peaceful possession and enjoyment of the property and as absolute owners, they desired the suit to fail. 5. The trial Court framed issues about the title and possession of the plaintiff over the suit property, interference of the defendants with the plaintiff’s possession, the bar of suit by Section 80 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), and the entitlement of the plaintiff to a permanent injunction. 6. During trial, the trial Court examined P.W.1 and D.W.1 and marked Exs.A-1 to A-14 and B-1. 7. The trial Court rendered its judgment firstly referring to the rival pleadings and contentions and evidence and opining that the burden of proof is on the plaintiff in the suit for injunction simpliciter to establish that he is in possession and enjoyment under a valid title. The trial Court opined that the ancestral property of Madu Chinnayya Thata was sold under Ex.A-2-sale deed without proof of partition of the properties of the joint family of Madu Appala Swamy. The trial Court felt that unless the sale is for legal necessity or for the benefit of the family, the sale by Madu Chinnayya Thata of ancestral property will not bind the other members of the family. The plaintiff was considered to be not deriving any better title than the vendors of his vendor and the trial Court also considered the evidence referring to possession of the plaintiff also to be not absolute. The relevant issues were, hence, answered against the plaintiff, more so, as the trial Court felt that no interference was caused by the defendants even as per the plaint averments. While the suit was held to be not hit by Section 80 C.P.C, the suit was dismissed without costs in view of the other findings. 8. In appeal, the first Appellate Court rendered the impugned judgment again referring to the rival contentions and evidence and opining that while the property is the ancestral property of Madu family, the sale by Madu Chinnayya Thata for discharging sundry debts cannot be said to be without legal necessity. The sale in 1967 was not questioned so far and the said transaction cannot be challenged now due to bar of limitation. The first Appellate Court also held that the vendees under Ex.A-14 sold the property under Ex.A-3 who in turn sold the suit property to the plaintiff under Ex.A-1. The first Appellate Court, therefore, felt that the defendants, thus, became total strangers to the suit property and coupled with the other evidence concerning the adjoining properties, the first Appellate Court came to the conclusion that the plaintiff acquired valid title to the suit property under Ex.A-1 against which no independent evidence was produced by the defendants about management of the joint family properties by Madu Appala Narayana due to Madu Chinnayya Thata being blind. Refusing to deduce any probability of the property being joint family property, the first Appellate Court also considered the plaintiff to have probablised his possession as possession follows title. Ex.B-1-Adangal was not preferred as against the evidence for the plaintiff and the first Appellate Court, hence, concluded that the plaintiff is the absolute owner in possession and enjoyment of the suit land who is entitled to approach the Court for protection of his rights through a permanent injunction against alienation by the defendants, thus, preventing multiplicity of proceedings. The first Appellate Court, hence, reversed the findings of the trial Court and granted success in the suit to the plaintiff with costs. 9. In second appeal, the defendants contended that substantial questions of law arise for consideration about the justification for allowing the appeal inspite of the absence of proof of possession of the property with the plaintiff or title of the plaintiff to the suit property or any interference with the possession of the plaintiff. The absence of any mutation of the plaintiff’s name in the revenue records is only due to absence of possession and, therefore, the defendants desired the first Appellate judgment and decree to be reversed. 10. The second appeal was admitted on 21.04.2011 on these questions raised by the defendants which, therefore, have to be considered and decided herein. 11. Sri Bokka Satyanarayana, learned counsel for the appellants and Sri V.L.N.G.K. Murthy, learned counsel for the respondent are heard. 12. The trial Court, in its judgment in the suit for a permanent injunction restraining alienation by the defendants, had gone into the question of title and based its conclusions more on the absence of any specific evidence about any partition preceding the execution of Ex.A-14 by Madu Chinnayya Thata. It attempted to strengthen its conclusion with reference to the alleged absence of any legal necessity or benefit to the family and the failure of the plaintiff before the trial Court was due to the trial Court, thus, opining the title of the vendors of the vendor of the plaintiff to be defective. The finding about the absence of a valid title led to the consequential conclusion about the absence of proof of possession and the trial Court did not go into the question of the alleged attempts by the defendants to alienate the property. 13. The first Appellate Court had gone deep into the two points it framed for determination about the validity of the sale of the plaint schedule property to the plaintiff under a registered sale deed, dated 13.09.1993, and the sustainability of the judgment and decree of the trial Court. The first Appellate Court, on an elaborate consideration, concluded that Ex.A-14 cannot be considered to be without any legal necessity when it specifically recited the sale to be for discharge of sundry debts of Madu Chinnayya Thata and irrespective of other considerations, it primarily relied on the absence of any challenge by any member of Madu family to Ex.A- 14, dated 15.11.1967, upto date and consequentially, any right to any relief for any property of Madu family covered by the sale deed being barred by the law of limitation. While the said conclusion of the first Appellate Court cannot be considered to be without factual or legal basis, the consequential upholding of the subsequent alienations to the vendors of the plaintiff’s vendor and by the vendor of the plaintiff to the plaintiff followed as a necessary consequence. The first Appellate Court cannot also be considered wrong in refusing to place reliance on Ex.B-1- Settlement Adangal as against the consistent recitals in the various sale deeds from 1967 to 1993 and while the oral evidence available was the uncorroborated and interested evidence of the plaintiff and the first defendant themselves, the first Appellate Court assuming the probabilities arising out of the documents to prevail under the circumstances is in tune with the accepted principles of appreciation of evidence. In the face of the oral evidence being oath against oath, the unchallenged recitals of Ex.A-14 followed by subsequent documents being the basis for the judgment of the first Appellate Court does not appear to present any substantial question of law for consideration in the second appeal. On the evidence on record, any failure of the plaintiff to prove his purchase or possession cannot be deduced and but for the attempts by the defendants to alienate the properties, there could have been no cause for the plaintiff to approach the civil Court for a relief as opined by the first Appellate Court which suit was preceded by a paper publication cautioning any intending purchasers from the defendants. Though the second appeal was admitted on questions stated in the memorandum of grounds of appeal, as they did not present any substantial question of law, the second appeal should fail. 14. Sri Bokka Satyanarayana, learned counsel for the appellants brought to notice that all the appellants had in fact filed a comprehensive suit in O.S.No.281 of 2011 before the Civil Court at Visakhapatnam against the plaintiff and others which is pending adjudication seeking declaration of title and other consequential reliefs and pleaded that any determination in that suit on merits in accordance with law should remain uninfluenced by any observations of the trial Court or the first Appellate Court or this Court in these proceedings. 15. Sri V.L.N.G.K. Murthy, learned counsel for the respondent, on the other hand, contended that the appellants cannot escape from the legal consequences that follow from the factual findings of the first Appellate Court and the bar of res judicata or constructive res judicata should operate. It is not for this Court to express any opinion in this second appeal about the effect of the judgment of the first Appellate Court as confirmed in the second appeal on the suit filed by the appellants which is pending. The suit in O.S.No.281 of 2011 will have to be decided on merits in accordance with law and during such process, if any questions are raised about any bar of res judicata or constructive res judicata or estoppel, the same will be gone into on merits and decided by the Court in that suit regarding which any finding or expression of opinion herein is not warranted. 16. Subject to the above observation, the second appeal should fail and is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.54 of 2011 Date: 24th August, 2011 KL