THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No. 285 of 1999 Dated:- 03rd September, 2010 Between:- Gullapalli Venkataiah …Appellant AND B.Chinnaiah and others …Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No. 285 of 1999 JUDGMENT: This appeal arises out of the judgment and decree dated 20.10.1998 passed in A.S. No. 74 of 1993 by the III Additional District Judge, Warangal, (‘lower appellate Court’, for brevity) whereby and whereunder, the judgment and decree dated 28.08.1993 passed in O.S. No. 381 of 1991 by the Principal District Munsif, Warangal,(‘trial Court’, for brevity) has been confirmed. 2. The parties will be referred to as they are arrayed in the original suit for the sake of convenience. 3. The brief facts of the case are as follows:- One Gullapalli Ramaswamy, the father of the plaintiff and Gullapalli Yellaiah, brother of Ramaswamy were cultivating lands in Survey No.533 admeasuring Acs.7.13 guntas of land at Guvicherla Village since about 50 to 60 years, they having made the land cultivable. The Tahsildar, Warangal, vide proceedings in R.C.No.B3/2149/67, dated 18.05.1967, assigned each four acres of land to Sri Gullapalli Ramaswamy and his brother Gullapalli Yellaiah. The plaintiff is son of Gullapalli Yellaiah. After the death of Gullapalli Ramaswamy, since Gullapalli Yellaiah was allotted some other land, the plaintiff was allotted entire eight acres of land and since then, he has been in possession and enjoyment of the said land (hereinafter referred to as ‘suit land’). In or about 1973 – 1974 during revision of survey, old survey No.533 was converted into Survey No.506 – Acs.3.28 guntas, Survey No.507 – Acs.3.28 guntas and Survey No.508 – Acs.0.11 guntas. As some members of harijan community were causing obstruction to the plaintiff’s peaceful possession of the suit land, the plaintiff filed O.S.No.819 of 1986 on the file of the II Additional District Munisif, Warangal. However, the said matter was compromised and the defendants in that suit, received a sum of Rs.20,000/- on behalf of the members of harijan community including the defendants in the present suit and recognised the right of the plaintiff over the suit land. The said suit was accordingly ended in compromise. However, as again the defendants in the suit started disturbing the peaceful possession and enjoyment of the suit land by the plaintiff, the plaintiff filed suit for injunction. 4. The first defendant filed written statement denying the title and possession of the plaintiff over the suit land. The defendants further case is that after that the plaintiff filed O.S.No.284 of 1967 on the file of the Principal District Munisif, Warangal and in the said suit it was held that the patta granted in favour of the father of the plaintiff and his father’s brother was ineffective and void. The matter was carried in appeal in A.S.No.33 of 1970 before this Court but the father of the plaintiff was unsuccessful. Again he carried the matter in Second Appeal No.711 of 1976 before this Court but in vain. It is also the contention of the defendants that the defendants in O.S.No.819 of 1986 were neither the representatives of harijans community nor they had any right to enter into compromise with the plaintiff in that suit and even if the matter ended in compromise, the defendants are not bound by the said compromise. 5. On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and PWs.2 to 4 were examined and Exs.A1 to A22 were marked. On behalf of the defendants, defendant No.8 was examined as DW.1 and Exs.B1 to B3 were marked. 6. As seen from the records, the trial Court as well as the lower appellate Court observed that the father of the plaintiff filed O.S.No.284 of 1967 on the file of the Principal District Munisif, Warangal, and in the said suit, a categorical finding was given that the land was originally assigned in favour of the harijans in the year 1952 and that without cancelling the assignment made in favour of the harijans, again assigning the land in favour of the father of the plaintiff and his brother – Gullapalli Yellaiah was void and illegal and that the findings of the earlier judgments operate as res judicata and that the plaintiff is guilty of suppression of material facts. 7. While admitting this Second Appeal, this Court framed three substantial questions of law i.e. (A) Whether the previous judgments in S.A. No.211 of 1976 on the file of High Court arising out of A.S. No.30 of 1970 on the file of District Court from O.S. No.284 of 1967 on the file of the Principal District Munsif, Warangal, to which respondents herein are not parties and do not claim through all or any of them, can be set up as barring the appellant seeking the relief of injunction on independent cause of action pleaded in this suit; (B) Whether the appellant’s suit for injunction is not maintainable though in actual possession against persons who do not claim any superior and better title; and (C) Whether in a suit for injunction simplicitor the relief can be on the ground that plaintiff’s title was not established in other suit not inter parties. 8. Having regard to the facts and circumstances of the case and the above substantial questions of law framed by this Court while admitting this Second appeal, the points that arise for consideration in this appeal are:- 1) Whether the earlier judgments of the Courts below operate as res judicata; 2) Whether the Civil Court has jurisdiction to decide the validity of assignment of land; 3) Whether adverse inference has to be drawn when a party who filed written statement did not enter into the witness box; 4) Whether the evidence on record proves that the appellant / plaintiff has been in possession of the suit schedule property; and 5) Whether the appellant / plaintiff is guilty of suppression of the material facts. POINT No.1: 9. Sri Bankatlal Mandani, learned counsel for the appellant submitted that the parties to the present suit were not parties to the earlier suit filed by the father of the plaintiff and, therefore, the earlier judgments do not operate as res judicata. In support of his contention, he relied on judgment in case between S.Nagaraj Vs. B.R.Vasudeva Murthy[1]. Sri Lakshma Reddy, learned counsel for the respondents, on the other hand, submitted that the original land was assigned in favour of harijans in the year 1952 vide Exs.B.1 and B.2 and that the assignment under Exs.B.1 and B.2 was not cancelled and that the father of the plaintiff himself filed a suit against the harijans and was unsuccessful even in the Second Appeal and that the defendants in this case are also harijans and in the above circumstances, the findings in the earlier suit operate as res judicata. 10. Section 11 of C.P.C. is as follows:- “Section 11 – Res Judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 11. Admittedly, the defendants in the present suit are not the defendants in O.S.No.284 of 1967 on the file of the Principal District Munisif, Warangal. Though D.W.1 claims that some of the defendants in the earlier suit are his agnates but there is no material on record to substantiate the same. Since the parties are different though all of them may belong to harijans community, it is clear that unless the parties to the present suit were parties to the earlier suit or claiming through the parties to the earlier suit, the principle o f res judicata does not apply. Therefore, the earlier findings do not bar the plaintiff / appellant from seeking the relief of injunction on the basis of independent cause of action pleaded in his suit. POINT No.2: 12. The next point argued by the learned counsel for the appellant / plaintiff is that the civil Court has no jurisdiction to decide the validity of the assignment of land or cancellation of assignment. He has also referred to the standing orders issued by the Board of Revenue and submitted that specific procedure has been prescribed for assignment of lands or for cancellation of assignment. He has also relied on judgment in case between Abdullamiyan Abdulrehman vs. Government of Bombay[2] and submits that when an order has been made without jurisdiction, that order is a mere nullity. He has also relied on judgment in case between Chandrabhai K.Bohir Vs. Krishna Arjun Bhoir[3] in support of his contention that an order passed without jurisdiction is nullity and non est in the eyes of law. Reference has also been made to the decision in case between Vankamamidi Venkata Subba Rao Vs. Seetharamarathna Ranganayakamma[4]. Per contra, learned counsel for the respondent submits that unless and until it is specifically pleaded that the civil Court has no jurisdiction and unless and until it is established that the jurisdiction of civil Court has been ousted under any specific statute, barring of civil Court’s jurisdiction cannot be presumed. It has to be seen that the plaintiff himself has approached the Court mainly contending that his father and his father’s brother were assigned each four acres of land. Thus, the plaintiff’s case is based on the assignment of suit land said to have been made by the revenue authorities in favour of his father and his father’s brother. It appears that the plaintiff has not raised this point before the lower Court. Anyhow, it is for the appellant to show that there is express or implied bar of exercising jurisdiction by the civil Court. Of course, it appears that where specific statutes have been enacted dealing with specific subjects such as tenancy, rent control, land reforms etc., and where specific forums have been provided for filing of appeals, revisions etc., those forums have to specifically deal with those issues. In fact, whether the civil Court has jurisdiction to decide the validity of the assignment made in favour of father of the plaintiff without cancelling the assignment made in favour of harijans under Exs.B.1 and B.2 ought to have been raised by the plaintiff in the earlier proceedings. Now it is an admitted fact that the findings in O.S.No.284 of 1967 on the file of the Principal District Munisif, Warangal were confirmed in A.S. No.33 of 1970 on the file of the District Judge, Warangal. It is also an admitted fact that Second Appeal No.211 of 1976 challenging the finding in A.S. No.33 of 1970 on the file of the District Judge, Warangal was dismissed. So the point whether the civil Court has jurisdiction or not, in my humble opinion, ought to have been raised in the earlier proceedings and that point cannot be decided at the present stage. Anyhow, since the plaintiff himself approached the civil Court and invited a finding, I am not inclined to accept the contention of the learned counsel for the appellant on this point. POINT No.3: 13. It is also submitted by the learned counsel for the appellant that the defendants who filed the written statements did not enter into the witness box and for non- examination of the defendants, adverse inference has to be drawn against the defendants. It is true that where a party does not enter into the witness box and state his case on oath, a presumption will arise that the case set up by him is not correct. POINT No.4: 14. The next submission of the learned counsel for the appellant is that the defendants did not file any document in support of their contention that they are in possession of their property. It is also his contention that when the plaintiff had filed Pahani, the Courts below ought to have held that the plaintiff is in possession of the suit land. He has also filed application under Order 41 Rule 27 C.P.C., requesting to receive the Pattadar Passbook issued in favour of the plaintiff. His submission is that the Pattadar Passbook issued in favour of the plaintiff shows that the plaintiff has been in possession of the property since the Patttadar Passbook will be issued to the persons who are found to be in possession of the property under the provisions of the Pattadar Passbooks Act, 1971. In reply to his point, learned counsel for the respondents submits that the lower Court has considered the oral and documentary evidence and the entries made in Pahanis were also considered by the Courts below. 15. As seen from the judgment of the trial Court, the trial Court has discussed the entire oral and documentary evidence in detail. The trial Court has discussed about Exs.A.12 to A.14, Pahanis for the years 1987 – 88, 1988 – 89 and 1989 – 90 wherein the plaintiff was shown as Pattadar and some other persons said to be the family members of the plaintiff are shown as Akramanadars and observed that the plaintiff’s name was shown as Pattadar and names of some other persons are shown as Akramanadars. Referring to Ex.A.19 – Pahani for the year 1990-91, the trial Court observed that the plaintiff’s name is shown as Pattadar and his family members were shown as Akramanadars. Of course, the plaintiff has not explained how the said Akramanadars (encroachers) are related to him. It has to be seen that the suit was filed in the year 1991. Ex.A.12 to A.14 are the relevant Pahanis of the year 1987 – 88, 1988 – 89 and 1989 – 90 and Ex.A.19 is the Pahani for the year 1990 – 91. The persons who are shown as the possessors of the land in the Pahanis are Mandapudi Venkataiah S/o. Mallesham, Gullapalli Suvarna, W/o. Anantham, Bommagani Janaiah, S/o. Ramulu, Bommagani Yella Goud, S/o. Ramulu, Gullapalli Yella Goud, S/o. Mallesham, Gullapalli Tirupathi, S/o.Venkataiah, Gullapalli Motaiah. Ex.A.13 – Pahani for the year 1988 – 89 also show the same names. Ex.A.14 – Pahani for the year 1987 – 88 also shows almost same names. Ex.A.19 – Pahani for the year 1990 – 91 also shows almost the same names. Admittedly, the plaintiff’s name is Gullapalli Venkataiah and as such, the surname of the plaintiff is Gullapalli. There are certain other persons who possessed the land and whose surname is not ‘Gullapalli’ such as ‘Bommagani’ and ‘Mandapudi’. It was for the plaintiff to explain how they are related to him. Even if they are related to the plaintiff, it does not prove that the plaintiff has been in exclusive possession and enjoyment of the suit land. Once the plaintiff fails to prove that he is not in possession of the suit land, he is not entitled for the relief of injunction. Though the trial Court has not specifically dealt with this issue, it has categorically noted the names of the persons who are in possession while discussing about Exs.A.12 to A.14. POINT No.5: 16. Learned counsel for the respondents submit that the appellant / plaintiff is guilty of suppression of material facts since the appellant did not whisper about the earlier judgment in O.S.No.284 of 2007 on the file of the Principal District Munisif, Warangal, and the appeal arose out of the said judgment. It is also his submission that the plaintiff is not entitled for any relief since he has not come to the court with clean hands and is guilty of suppression of material facts. Learned counsel for the appellant / plaintiff submitted that since the respondents herein are not the defendants in O.S.No.284 of 2007 on the file of the Principal District Munisif, Warangal, the appellant / plaintiff did not refer to the above judgments. Admittedly, the appellant / plaintiff has not referred to the judgment in O.S.No.284 of 2007 on the file of the Principal District Munisif, Warangal, which was filed by his father and his father’s brother – Yellaiah against some of the harijans and consequential appeals in A.S.No.33 of 1970 on the file of the District Judge, Warangal, and Second Appeal No.211 of 1976 on the file of this Court. Admittedly, the plaintiff has been relying on Ex.A.1. Admittedly, in the above referred proceedings, Ex.A.1 was declared as void. Admittedly, the appellant /plaintiff has only referred about O.S.No.819 of 1986 on the file of the II Additional District Munisif, Warangal, filed against some of the harijans, which, according to him, ended in compromise. In the facts and circumstances of the case, I am of the considered view that the appellant / plaintiff ought to have mentioned about the earlier proceedings and ought to have stated how the findings of the earlier proceedings with regard to Ex.A.1 do not effect his case, when, particularly, he is relying on Ex.A.1 in these proceedings. Though the earlier proceedings do not operate as res judicata, but, in all fairness, the appellant / plaintiff ought to have referred to the earlier proceedings and non-referring of the earlier proceedings amounts to suppression of facts. Therefore, it is clear that the appellant / plaintiff is guilty of suppression of material facts and not entitled for the discretionary relief of injunction. 17. Viewed from any angle, I do not find any valid and legal reason to interfere with the reasoned judgments of the Courts below. Though it is not necessary to discuss the evidence in detail in Second Appeal, but in the light of the submissions made by both the learned counsel and in the facts and circumstances of the case, I thought it necessary to point out the truth or otherwise of the allegations made by the plaintiff. 18. In the light of the above discussion and for the foregoing reasons, I hold that there are no merits in the appeal and the same is liable to be dismissed. The Second Appeal is, accordingly, dismissed without any order as to costs. Be it made clear that this order does not come in the way of the revenue authorities in deciding the validity of assignment of pattas either in favour of the plaintiff or in favour of the defendants or in cancelling the assignments made earlier or in granting fresh assignment in favour of the eligible persons. ___________________________ Justice B.Chandra Kumar 03rd September, 2010 Bvv [1] 2010 AIR SCW 1519 [2] AIR (29) 1942 Bombay 257 [3] AIR 2009 SC 1645 [4] 1997 (5) SCC 460