THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.49 of 2007 Dated:- 28th December, 2010 Between:- Anabheri Rama Chander …Appellant AND Chippabathula Anjaiah …Respondent THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No. 49 of 2007 JUDGMENT: This appeal is directed against the judgment and decree dated 09.10.2006 passed in A.S.No. 37 of 2004 by the IV Addl. District Judge (Fast Track Court), Karimnagar, (‘lower appellate Court’, for brevity) whereby and whereunder, the judgment and decree dated 19.01.2004 passed in O.S. No.37 of 1996 by the Principal Junior Civil Judge, Karimnagar, (‘trial Court’, for brevity) was set aside. 2. The appellant herein is the defendant and the respondent herein is the plaintiff in the Original Suit. For the sake of convenience, the parties will be referred to as they were arrayed before the trial Court. 3. The plaintiff filed the suit for perpetual injunction against the defendant in respect of the land admeasuring Acs.1.21 guntas in Survey No.283 of Polampalli village, Timmapur Mandal, Karimnagar District (‘the suit land’, for brevity). The case of the plaintiff in brief is that he is the absolute owner and possessor of the suit land and that he purchased an extent of Acs.0.30 guntas of land in Survey No.283 from one Vadla Rajaiah through a registered sale deed dated 08.06.1992 and subsequently purchased Acs.0.31 guntas in same survey number from the same person under registered sale deed vide document No.2593 of 1995, dated 10.04.1995. It is also his case that he has been in possession and enjoyment of the entire extent of land and that he intended to dig a well in the suit land and that when he started digging the well, the defendant, without any right, interfered and obstructed the same and, therefore, he filed the suit for perpetual injunction restraining the defendant from interfering into his possession over the suit land. 4. The defendant filed written statement inter alia contending that though the suit land is shown in the name of Vadla Rajaiah in the revenue records during partition, Survey No.283 and 286/B fell to the share of his brothers – Vadla Kanthaiah and Vadla Ramaiah. It is also his case that the wife of Vadla Ramaiah had sold Acs.0.33 guntas of land to the defendant through an agreement of sale in the year 1994 along with the land in Survey No.286/B on 06.01.1995 and that she received entire sale consideration and later Vadla Ramaiah and Vadla Rajaiah executed a joint agreement of sale and subsequently they had executed registered sale deed in his favour for 33 ½ guntas of land in Survey No.283 and Acs.0-08 guntas in Survey No.286/B. Thus, the specific case of the defendant is that the plaintiff’s vendor had no right over the land covered by the second document No.2593/95, dated 10.04.1995 since the said land fell to the share of Vadla Ramaiah. It is also his case that subsequently Vadla Rajaiah also executed a deed of cancellation dated 25.03.1996 cancelling the document No.2593 of 1995. It is also his case that since 1994 the said land has been in his possession. He denied the allegations of the plaintiff that the plaintiff was in possession of Ac0.31 guntas of land and dug a well in the said land. It is also the case of the defendant that the plaintiff himself executed a document on 15.10.1996 admitting that he will cultivate only Acs.0.30 guntas of land purchased from Vadla Ramaiah and will not interfere with the possession of the remaining land of Acs.0.31 guntas in Sy.No.283. 5. Basing on the averments made by the parties, the only issue framed by the trial Court is as to whether the plaintiff is entitled for perpetual injunction? 6. On behalf of the plaintiff, the plaintiff himself was examined as PW.1, PWs.2 and 3 were examined and Exs.A.1 to A.6 were marked. On behalf of the defendant, the defendant himself was examined as DW.1, DWs. 2 to 6 were examined and Exs.B.1 to B.15 were marked. 7. The trial Court, on appreciation of oral and documentary evidence available on record, decreed the suit in part granting perpetual injunction restraining the defendant from interfering with the possession over Acs.0.30 guntas of land in Sy.No.283 within the boundaries stated under Ex.A.1 – C.C. of registered sale deed, and for the remaining claim of the plaintiff, the suit was dismissed. Aggrieved by the same, the plaintiff carried the matter in appeal before the lower appellate Court in A.S.No.37 of 2004. The lower appellate Court, however, reversed the judgment of the trial Court mainly holding that Ex.B.3 – Registered cancellation deed dated 25.03.1996 was cancelled unilaterally and that Ex.B.2 – original sale deed dated 25.03.1996 was executed subsequent to the execution of Ex.A.1 – C.C. of the registered sale deed dated 08.06.1992. Aggrieved by the same, the defendant therein is before this Court as appellant. 8. Sri Aga Reddy, learned counsel for the appellant/defendant submitted that the plaintiff, who was examined as P.W.1 himself admitted that the suit land originally belong to Vadla Ramaiah and that in the partition, it fell to the share of Vadla Ramaiah and when Vadla Rajaiah had no title of the property, he had no right to sell the same to the plaintiff. His second submission is that the documents filed by the plaintiff himself show that the plaintiff has been in possession of only Acs.0.30 guntas of land and as far as the remaining Acs.0.31 guntas of land which is purchased by the defendant is concerned, the plaintiff failed to prove his possession. It is also submitted that the lower appellate Court has not appreciated the material evidence on record and failed to consider the admissions made by P.W.1 himself and, therefore, the conclusions drawn by the lower appellate Court are perverse and when the conclusions of the lower appellate Court are perverse and not based on record, such findings have to be set aside in the second appeal. 9. Per contra, Sri Ravi Kiran Rao, learned counsel for the respondent/plaintiff submitted that the suit is for injunction simplicitor and that admittedly, the plaintiff purchased Acs.0.30 guntas of land from Vadla Rajaiah under Ex.A.1 and subsequently, he purchased remaining Acs.0.31 guntas of land under Ex.A.2 and admittedly, the Patta of the land stands in the name of Vadla Rajaiah and that Vadla Rajaiah then executed a cancellation deed canceling Ex.A.2 and that a registered sale deed cannot be cancelled by executing another deed of cancellation and that law has been well settled on this point. It is also his submission that since the date of purchase of the suit land, the plaintiff has been in possession of the suit land and when the defendant started interfering with his peaceful possession, he filed a suit before the trial Court and that P.W.3, who is the son of the defendant’s brother has supported the case of the plaintiff and in view of the same, the findings of the lower appellate Court cannot be said to be perverse. 10. I have considered the above rival contentions. The points that arise for consideration in this appeal are (1) whether the findings of the lower appellate Court are perverse and not based on record; and (2) whether the plaintiff is entitled for order of injunction. 11. It is well settled principle that no one can pass better title than he has. Now the important question that arises for consideration is whether the vendor of the plaintiff, i.e., Vadla Rajaiah had any title to execute the sale deed in favour of the plaintiff. The total extent of land in survey No.283 is Acs.1.21 guntas. The plaintiff claims that he purchased Acs.0.30 guntas of land on 08.06.1992 from Vadla Rajaiah and Acs.0.31 guntas of land by document No.2593 of 1995 dated 10.04.1995 from the same person. There is no dispute with regard to Acs.0.30 guntas of land purchased by the plaintiff on 08.06.1992 under Ex.A.1. Therefore, the dispute is confined only to Acs.0.31 guntas of land which the plaintiff claims to have purchased under Ex.A.2 on 10.04.1995. The specific case of the defendant is that Acs.0.31 guntas of land belongs to Vadla Ramaiah who is the younger brother of Vadla Rajaiah and that there was an agreement of sale dated 25.10.1994 and which ultimately resulted in execution of sale deed on 25.03.1996 under Ex.B.1 through which the defendant purchased the said Acs.0.31 guntas of land from Vadla Ramaiah and the said document has been attested by his elder brother Vadla Rajaiah and, therefore, the defendant has purchased Acs.0.31 guntas of land from the real owner whereas the plaintiff claims to have purchased Acs.0.31 guntas of land from Vadla Rajaiah who had no title. 12. Now it has to be seen whether the evidence on record supports the case of the plaintiff or the defendant. As pointed out by Sri Aga Reddy, learned counsel for the appellant herein, P.W.1 himself had admitted that as per the partition, land in Survey No.283 had fallen to the share of his brothers Vadla Ramaiah and Vadla Kanthaiah, who are the brothers of Vadla Rajaiah. Thus, it is clear that Vadla Rajaiah had no subsisting right over the land in Survey No.283, though Patta stands in his name in revenue records. Admittedly, he is the elder brother among his brothers. When the plaintiff himself had admitted that the suit land fell to the share of Vadla Ramaiah and Vadla Kanthaiah and did not fell to the share of Vadla Rajaiah, it is clear that Vadla Rajaiah had no title over the suit land. When Vadla Rajaiah did not have any title over the suit land, he certainly had no right to convey any title to the plaintiff. Therefore, even if Vadla Rajaiah had executed a sale deed under Ex.A.2 and subsequently executed rectification deed under Ex.A.3 correcting the extent of land, these two documents did not convey any right to the plaintiff. 13. Coming to the point whether the plaintiff has proved his possession of the suit land, admittedly, the plaintiff has filed Pahanis for the year 1992-1993 and 1994- 1995 in Exs.A.4 and A.5 respectively. In Ex.A.4 – Pahani for the year 1992 – 1993, patta of the suit land is shown in the name of Vadla Rajaiah for survey No.283 whereas in the possessory coloumn, the names of his brother – Ramaiah is shown as possessor for Acs.0.31 guntas and, therefore, it is clear that even if the recitals of Ex.A.4 are taken as true, it only shows that Vadla Rajaiah was in possession of only Acs.0.30 guntas of land and that remaining Acs.0.31 guntas of land was in the possession of the vendor of the defendant, i.e., Vadla Ramaiah. In Ex.A.5 – Pahani for the year 1994 – 1995 in the Pattedar coloumn, names of Darshi @ Vadla Ramaiah and the name of the plaintiff have been shown as pattedars. But in the possessory coloumn, the plaintiff’s name is shown for only As.0.30 guntas of land. Therefore, even if the recitals of the documents filed by the plaintiff himself are taken into consideration, they only go to show that the plaintiff has been in possession of Acs.0.30 guntas of land and is not in possession of the remaining Acs.0.31 guntas of land. When there is documentary evidence available on record, there is no need to give much credence to the oral evidence. However, P.W.3, who is the son of Vadla Ramaiah, deposed that the plaintiff is in possession of Acs.1.21 guntas of land in survey No.283. He was aged about 23 years on the date of giving of evidence on 08.04.2003. Therefore, in the year 1992 – 1993 and 1994 – 1995, when the disputes arose and transactions took place, he might be aged 13 or 14 years old. Therefore, the trial Court was right in not considering his evidence. 14. Thus, it is clear that the plaintiff has failed to prove his title and possession and the lower appellate Court failed to consider the admissions made by P.W.1 and the fact that Vadla Rajaiah had no subsisting title when he executed Ex.A.2 in favour of the plaintiff. Of course, Sri Ravi Kiran Rao, learned counsel for the respondent was right in arguing that Vadla Rajaiah had no right to cancel the sale deed by executing the cancellation deed, but, when Vadla Rajaiah had no title at all to execute the sale deed, the correctness or otherwise of the subsequent cancellation deed has no bearing on the facts of the case. 15. In view of the above discussion and for the foregoing reasons, it is clear that the findings of the lower appellate Court are perverse and not based on record and, therefore, liable to be set aside. 16. In the result, the Second Appeal is allowed by setting aside the impugned judgment and decree dated 09.10.2006 passed in A.S. No. 37 of 2004 by the IV Addl. District Judge (Fast Track Court), Karimnagar. Consequently, the judgment and decree dated 19.01.2004 passed in O.S. No.37 of 1996 by the Principal Junior Civil Judge, Karimnagar, stands confirmed. There shall be no order as to costs. _______________________________ JUSTICE B.CHANDRA KUMAR 28th December, 2010 Bvv