IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.19 and 54 OF 2000 BETWEEN Golla Dasari Eranna (died per LRs) …APPELLANTS AND Harijana Gampa Mareppa and two others. …RESPONDENTS Counsel for the Appellants: MR. A.V. SIVAIAH Counsel for the Respondents: MR. M.V.S. SURESH KUMAR The Court made the following: - COMMON JUDGMENT: S.A.No.54 of 2000 is filed by the plaintiffs against dismissal of their appeal being A.S.No.22 of 1995 whereby the original suit being O.S.No.43 of 1991 stood dismissed. Similarly, S.A.No.19 of 2000 is also filed by the plaintiffs against allowing the appeal being A.S.No.26 of 1995 filed by the defendants. Both the said appeals were dismissed by common judgment and decree dated 17.08.1999. 2. The brief facts are as follows: The plaint in O.S.No.43 of 1991 makes the following brief allegations. (a) The appellants are father and son, who claim the suit schedule land from Smt. Ramalingamma, mother of the first appellant and grandmother of the second appellant. The total extent in the plaint schedule is described as, Ac.2.64 cents in Sy.No.406-C and Ac.10.69 cents in Sy.No.407-C, Madira village, Sub-Revenue Division, Adoni and Revenue Division, Kurnool. In support of the plaint allegations, the plaintiffs relied upon document – Ex.A1 agreement of sale dated 10.04.1973 executed in favour of Smt. Ramalingamma covering an extent of Ac.8.63 cents and with respect to the remaining extent they relied upon another agreement of sale said to have been executed by one Bitchala Allappa in favour of Smt. Ramalingamma and claimed that they are in possession of the entire suit schedule land for over 20 years. Alleging that the defendants are interfering with respect to their suit schedule land, the plaintiffs filed the present suit for injunction on 26.04.1991. The plaintiffs relied upon the patta passbooks and revenue entries showing that the vendors under both the aforesaid documents sold the property to Smt. Ramalingamma and after her, the plaintiffs are in continuous possession for over 20 years. (b) The respondents/defendants filed a written statement alleging that the land originally belonged to one Hampamma wife of Thimma Reddy and after the death of Hampamma, her husband Thimma Reddy sold an extent of Ac.9.23 cents to the father of the first defendant under an agreement of sale dated 09.04.1966. The defendants claimed that they are in possession of the entire extent since then. It was also alleged that the dispute between the plaintiffs and the defendants over the suit land was settled under an agreement between them dated 10.09.1990. Xerox copy of the said document was marked as Ex.B2. It was also alleged that the original of Ex.B2 was given to the plaintiffs after taking a Xerox copy and that is how the Xerox copy remained with them, which is marked. The defendants, therefore, called upon the plaintiffs to produce the original and later during the trial, they have given notice to the plaintiffs for that purpose. Thus, the defendants claimed that in pursuance of the said agreement – Ex.B2, they remained in possession of Ac.6.00 cents, which was accepted by the plaintiffs and that there is no evidence of alleged purchase by the plaintiffs from Allappa, as alleged by the plaintiffs. 3. On the above pleadings, the trial framed the issues as under: 1. Whether the plaintiffs are entitled for permanent injunction as prayed for? 2. Whether the agreement dt.10-9-90 is true, valid and binding on the plaintiff? 3. To what relief? 4. The first plaintiff examined himself, as P.W.1 and also P.Ws.2 to 5, who are adjacent cultivators deposed that the plaintiffs have been in possession over 20 years and have spent huge amounts for making the land cultivable. Plaintiffs also examined P.W.8, who was the then Village Administrative Officer of Madira village and marked Exs.X3 to X8 Adangal copies through him. Plaintiffs denied that there was any such settlement as Ex.B2, as claimed by the defendants. The defendants in turn examined D.W.1, who is first respondent herein and D.Ws.2 and 3 are mediators and attestors and D.W.4 is the scribe of Ex.B2. 5. On the basis of the aforesaid evidence and after noticing the revenue record as well as the oral evidence produced by the plaintiffs, the trial Court came to the conclusion that the plaintiffs have established their prima facie title and possession to the extent of Ac.8.63 cents covered by Ex.A1. To the extent of remaining extent the trial Court took note of the evidence of P.W.1 that the agreement executed by Allappa, as contended by the plaintiffs was, admittedly, not produced, as the said original document was alleged to have been taken back from the plaintiffs for the purpose of agricultural land ceiling case of Allappa. The said fact was sought to be established by the plaintiffs by examining a witness – P.W.6. The trial Court did not accept the said evidence and as such, dismissed the suit to the extent of remaining extent. As stated above, on appeals filed by both the parties, the lower appellate Court rejected Ex.B2 agreement dated 10.09.1990 relied upon by the defendants and under a common judgment, the lower appellate Court has dismissed the suit in entirety. 5. This Court while admitting the second appeals on 18.02.2000 framed the following substantial questions of law for consideration: S.A.No.19 of 2000: 1. Whether the lower appellate Court is not wrong in holding that the plaintiffs are not entitled for perpetual injunction in the light of Exs.A1 and A2, coupled with oral admissions made by DWs.2 & 3, particularly when the court eschew the documentary evidence, Ex.B-1 as not genuine? 2. Whether the plaintiff’s are not entitled for perpetual injunction having established their possession by virtue of Ex.A1, dt.10-4- 1973 which was proved to be valid and whereas the court rightly disbelieved Ex.B1 alleged to have been executed on 9-4-1996, particularly the stamps purchased on 12-4-1966? 3. Whether the courts below are right in accepting the oral evidence contrary to Sec.61 and 62 of the Indian Evidence Act the documents filed by the plaintiffs held to be proved to establish the legal possession over the suit schedule lands? S.A.No.54 of 2000: 1. Whether the courts below are right in refusing to grant perpetual injunction to the plaintiffs having rightly disbelieved the genuineness of Ex.B1 relied on by the defendants having executed on 9-4-1966 and whereas the non-judicial stamps were purchased on 12-4-1996? 2. Whether the courts below have not committed wrong in dismissing the suit wherein DWs.2 & 3 categorically admitted the possession of the plaintiffs over the suit schedule lands by virtue of Ex.A1 registered sale deed? 3. Whether the courts can ignore the documentary evidence admitted by the opposite party establishing the peaceful possession and enjoyment and can refuse the relief of injunction? In the substantial questions of law, extracted above, Ex.A1 is described as registered sale deed but, in fact, it is an agreement of sale. 6. Heard Mr. A.V. Sivaiah, learned counsel for the appellants in both the appeals and Mr. M.V.S. Suresh Kumar, learned counsel for the respondents in both the appeals. 7. Learned counsel for the appellants contends that the very defence based on Ex.B2 is liable to be rejected, as the original document has not come before the Court and even according to the defendants, the said document was handed over to the plaintiffs. However, surprisingly, the defendants sought to produce the original document by additional evidence pending first appeal and the lower appellate Court had rightly doubted the said document, as it was wholly inconsistent with the defendants’ case. He also contended that even the basic document of the defendants viz. agreement of sale dated 09.04.1966 was sought to be produced and marked but the stamp paper of the document itself has shown that it was purchased on 12.04.1966 i.e. 3 days after the alleged execution and in those circumstances, the said document was not allowed to be marked with the result the defendants have not produced any document of probative value in support of their defence and consequently, the plaintiffs suit ought to have been decreed in entirety. 8. Learned counsel for the respondents, on the contrary, placed reliance upon Ex.B2 agreement dated 10.09.1990 and contends that whatever may be the discrepancy in the purchase of stamp paper and the agreement of sale dated 09.04.1966, the parties had agreed to share the suit land as per Ex.B2. The defendants specifically pleaded that Xerox of the original document was taken and retained by the defendants whereas the original was retained with the plaintiffs. In order to establish the same, the defendants had also given Ex.B1 notice to the plaintiffs and non-production of the said document by the plaintiffs ought to result in drawing an adverse inference against plaintiffs. Learned counsel also relied upon the evidence of the panchayat held, which was established by examining D.Ws.2 and 3 and in pursuance of the said settlement, the defendants claim that they have raised crop in Ac.6.00 cents of land was agreed to conferring defendants entitlement to land under Ex.B2. Learned counsel, therefore, submits that the decree of the trial Court to the extent of the land covered by Ex.A1 was totally unsustainable and was granted in ignorance of Ex.B2 and therefore, the lower appellate Court rightly set aside the same. 9. The evidence on record and the findings of the trial Court show that the plaintiffs’ claim is on the basis of two different sources of title viz. one under Ex.A1 and the remaining under alleged agreement executed by one Allappa. Ex.A1 covers an extent of Ac.8.63 cents but for the remaining extent, the document said to have been executed by Allappa in favour of plaintiffs’ predecessor in title, admittedly, does not exist with the plaintiffs. It is the plaintiffs’ specific case that the said document was taken away by Allappa through P.W.6 for the purpose of his agricultural land ceiling case. However, the said document has never come back in the custody of the plaintiffs, admittedly. Thus, except the oral evidence of P.W.6, there is no evidence in support of the plaintiffs’ case that they purchased the balance extent of land from Allappa. To the extent of Ex.A1, covering Ac.8.63 cents, the said document is not disputed by the defendants and even otherwise, Exs.A2 to A21, which are in the nature of ryot passbooks and land revenue receipts, record the plaintiffs’ name to the extent of land covered by Ex.A1. The revenue record also shows the possession of the plaintiffs over the land claimed from Allappa but in the absence of any document supporting the prima facie title of the plaintiffs, the trial Court rightly confined itself to the extent of Ex.A1 land admeasuring Ac.8.63 cents. The defendants also accepted the plaintiffs’ possession and enjoyment as is evident from the cross-examination of D.Ws.2 and 3, who admit that the mother of plaintiff No.1 and plaintiffs continued to remain in possession of the suit schedule land for 10 to 12 years prior to the alleged panchayat. The holding of the panchayat was denied by the plaintiffs, but in any case, as observed by the trial Court, the possession of the plaintiffs through Smt. Ramalingamma for considerable period of years prior to holding of panchayat was established. 10. The defendants’ case that there was a settlement between the parties recorded under Ex.B2 dated 10.09.1990 also remained unestablished, as EX.B2 is only a Xerox copy and was allowed to be marked only for collateral purpose. The original of Ex.B2, even according to the defendants, was with the plaintiffs, but surprisingly, it is the defendants, who sought to produce the original before the lower appellate Court, as additional evidence. The custody of the said document with the defendants having been seriously doubted by the lower appellate Court, the said application was rightly rejected. In effect, therefore, the existence of prima facie title and possession with respect to the land covered by Ex.A1 i.e. Ac.8.63 cents was amply established by the plaintiffs not only by supporting it with oral evidence of neighbouring cultivators but also with that of Village Administrative Officer and the revenue entries for considerable length of time. The decree, as granted by the trial Court, to that extent cannot be said to be perverse or unjustified on any reason. 11. The lower appellate Court, however, reversed the said decree on a peculiar reasoning that if the plaintiffs were not found in possession of the entire plaint schedule land, no decree could have been granted by the trial Court unless the plaintiffs amended the suit by confining their relief of injunction to the extent of part of the plaint schedule. The said reasoning of the lower appellate Court is clearly perverse inasmuch as under Order 7 Rule 7 of the Code of Civil Procedure, 1908 it is open for a Court to grant lesser relief to the plaintiff to which he is found entitled to. The plaintiffs, therefore, cannot be non-suited if the Court comes to the conclusion that the plaintiff has established his case to the part of the suit claim and it is not as if that the plaintiffs are required to amend the plaint and then only seek a decree. The principle of moulding of relief applicable in such cases was clearly ignored by the lower appellate Court. Further, the lower appellate Court has not even met the reasoning of the trial Court to the extent of entitlement of the plaintiffs for the relief with respect to the land covered by Ex.A1. Thus, the defendants having failed to establish their basic title document dated 09.04.1966 as well as the subsequent agreement dated 10.09.1990 under Ex.B2, the decree, as granted by the trial Court, could not have been set aside by the lower appellate Court. The first and second substantial questions of law, therefore, deserve to be answered in favour of the appellants and consequently, the appeal deserves to be allowed by setting aside the judgment and decrees of the lower appellate Court in A.S.Nos.22 and 26 of 1995 and restoring the decree of the trial Court in O.S.No.43 of 1991 dated 27.03.1995. The second appeals are accordingly allowed with costs. _____________________ VILAS V. AFZULPURKAR, J March 23, 2011 DSK