IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE TWENTYEIGHTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2005 AND CIVIL REVISION PETITION No. 5054 OF 2005 Between: Balineni Subba Reddy … Appellants-Defendants 2 & 3 (Respondents 2 & 3) V/s. Ramachandruni Chalapathi Rao & 3-Ors. … Respondents-Defendant No.1 Plaintiffs (Respondent No.1) Counsel for the Appellants : M/s. Addapalli Suryanarayana Counsel for the Respondents : Sri V.Srinivas for R-1 to R-3 Smt.Laxmi Kumari for R5 to R7 The Court made the following : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2005 AND CRP.No. 5054 OF 2005 COMMON JUDGMENT : Heard Sri Addepalli Suryanarayana, learned counsel for the appellants and Sri V. Srinivas, learned counsel for the Respondents. 2. This second appeal arises out of the judgment and decree dated 11-8-2004 passed by the District Judge, Ongole in A.S.No. 85 of 2001 setting aside the judgment and decree dated 17-4-2001 passed by the I-Additional Junior Civil Judge, Ongole in OS.No. 718 of 1998. 3. For the sake of convenience, the parties will be referred to as “plaintiffs” and “defendants”. 4. The plaintiffs are brothers. They filed the suit for declaration of title and recovery of possession in respect of schedule mentioned land of an extent of AC:2-90 cents in survey No. 204 of Premarital village. According to them, the property is the ancestral property, which was leased out to the tenants, who are third parties to the suit and when the tenants committed default in payment of rent, their father filed ATC.No. 41 of 1995 before the Special Officer, Ongole and obtained order of eviction. Subsequently, the tenants were evicted in EP.No. 233 of 1988 filed by the plaintiffs through process of the Court on 04-12-1988. Since then, the plaintiffs have been in possession and enjoyment of the suit property. When they put the suit property to sale, they came to know that the first defendant sold the land to defendants 2 and 3 under two registered sale deeds, dated 24-2-1996 and defendants 2 and 3 took possession of the suit property under the said sale deeds. Under these circumstances, the plaintiffs filed the suit for declaration of title and recovery of possession of the schedule property. 4. Before the learned trial Court, the first defendant remained exparte. The second defendant filed written statement and the third defendant adopted the written statement filed by the second defendant. According to the defendants 2 and 3, the property is the ancestral property of the first defendant. The tenancy proceedings relied upon by the plaintiffs do not relate to the schedule mentioned land and that the plaintiffs had never been in possession and enjoyment of the suit land. It is the version of the defendants that they became absolute owner of the suit property under the aforesaid sale deeds executed by the first defendant and their names were mutated in the revenue records. 5. Basing on the above-mentioned pleadings, the learned trial Court framed the following issues: i) Whether the plaintiffs are entitled for declaration as prayed for ? ii) Whether the plaintiffs are entitled for recovery of the possession of property as prayed for ? iii) Whether the plaintiffs are entitled for mesne profits as prayed for ? iv) To what relief ? 6. On behalf of the plaintiffs, PW-1 R. Chalapathi Rao was examined and Exs. A-1 to A-22 were marked. On behalf of the defendants, DW-1 B. Subba Reddy and DW-2 P. Narasimha Rao were examined and Exs.B-1 to B-7 were marked. The plaintiffs in proof of their title filed the documents; namely, Ex.A-1 delivery report, Ex.A-2 delivery warrant and Ex.A-3 Amin’s warrant. They also filed Exs.A-4 CC of registered sale deed executed by Defendant No.1 in favour of Defendants 2 and 3 and Ex.A4 (a) CC of the registered sale deeds executed by the first defendant in favour of defendants 2 and 3 on 24-03-1996. It is a matter of record that survey No.204 in Premarital village consists of vast extent of Acs:80-00 under several sub-divisions. 7. According to the plaintiffs, they are owners of Ac:2-90 cents out of the total extent of Acs:80-00 in the said survey number. The learned trial court found that Ex.A-10 unregistered sale deed said to have been executed by the father of the plaintiffs in their favour is in relation of S.No.204 (a) (b) (c) and the documents filed by them such as; Ex.A-11 bunch of land revenue receipts, Exs.A-12 and A-13 pattedar passbook, Exs.A-15 to A-17 copies of pahanies, relate to survey No. 204 (2) (a) and 2 (B) with different extents. The plaintiffs have not pleaded that the sale deeds were obtained by defendants 2 and 3 are either nominal or by fraudulent means. PW-1 in the cross- examination admitted that the defendants 2 and 3 purchased the land from defendant No.1 under Ex.A-4 sale deed and also that the land is in survey No.204 (a), (b) and (c). From the admissions made in the cross-examination and fromthe documentary evidence coming on either side, the learned trial Court came to the conclusion that the plaintiffs failed to establish the property in respect of which they filed the suit is the same property which the defendants 2 and 3 purchased from defendant No.1 under Ex.A-4 and A-4 (a) sale deeds. 8. DW-2, who is one of the attestors of Exs.A-7 and A-8 sale deeds and also Village Administrative Officer deposed that the total extent of land in survey No.204 is more than Acs:80-00 which was sub-divided. His evidence also further discloses that the plaintiffs’ land is in S.No. 204 (a), (b) and (c) but not in survey No. 204/3(a) and 204-3 (b). His evidence also reveals that as per the original 10 (1) account, the first defendant’s grandfather’s name is noted as owner of the property. Therefore, it is no longer open for the plaintiffs to argue that the first defendant has no title to the property, which he sold to defendants 2 and 3 under Exs.A-4 and A-4 (a) sale deeds. The learned trial Court also considered Exs.B-1 to B-4 pattedar passbook and title deeds filed by the defendants which disclose that as per Ex.B6 extract of settlement register filed by the defendants, the land in survey No. 204/a, 204/b and 204/c is in the name of the first defendant. Ex.B-7 land revenue receipts filed by the defendants also relate to survey No. 204/2 (a), 2(b) and 2(c) and not to the land in survey No. 204/a, b, c or 204 1(a), 1 (b) and 1(c), as described by them in their plaint schedule. 9. Considering the entire evidence, the learned trial Court arrived at a conclusion that the plaintiffs failed to establish their title to the property mentioned by them in the schedule annexed to the plaint. 10. The mere fact that the plaintiffs father filed tenancy case against some third parties, obtained eviction order and subsequently by filing an E.P. evicted the tenants from the schedule land does not itself create sufficient proof of title relied upon by the plaintiffs. The learned trial Court rightly arrived at the conclusion that the plaintiffs failed to establish that they had title to the schedule mentioned property and the trial Court also of the view that the plaintiffs are not able to establish the identity of the schedule mentioned property in the vast extent of Acs:80-00 in survey No. 204. Holding as such, the learned trial Court dismissed the suit filed by the plaintiffs and refused the reliefs of declaration of title and possession. However, the first appellate court reversed the findings arrived at by the learned trial Court mainly on the ground that the defendants 2 and 3 have not placed on record, the title deeds relating to their vendor-first defendant. The first appellate Court also failed to take into consideration the fact that the order of eviction obtained by the father of the plaintiffs, is an exparte order against the third parties and basing on the said order in the absence of any other reliable evidence, it cannot be said that the plaintiffs have established the title to the suit schedule property. 11. Another important factor, which the learned first appellate Court fail to consider is that the plaintiffs, who filed the suit for recovery of possession have not stated anywhere in the plaint or in their evidence as to how and when they dispossessed the tenants from the plaint schedule property. Even the admission of PW-1 in the cross-examination clearly reveals that the defendants 2 and 3 purchased the land from the defendant No.1 under two sale deeds and they took possession of the property under the said sale deeds. Under these circumstances, it is not possible for the learned first appellate court to pass a decree for recovery of possession against the plaintiffs. The learned first appellate court also overlooked the fact that only PW-1 was examined on behalf of the plaintiffs and other witness was examined to prove that the plaintiffs are owners of the schedule mentioned land and they are in possession and that they were dispossessed subsequently. 12. Sri V. Srinivas, the learned counsel appearing for the plaintiffs submitted that the ground urged by the appellants in the second appeal only relate to appreciation of the evidence by the first appellate court and no substantial question of law being involved for consideration, the second appeal itself is not maintainable and therefore is liable to be dismissed. 13. I am unable to agree with the submissions made by the learned counsel for the plaintiffs. It is true that the existence of substantial question of law is sine qua non for entertaining the second appeal. But the first appellate Court by resorting to pervert reasoning reversed the well-reasoned judgment passed by the trial Court. Certainly, this Court under section 100 of CPC can interfere with the findings of fact even in the second appeal, if they are perverse. In the instant case, the plaintiffs have not adduced any reliable oral or documentary evidence in proof of their title. The findings recorded by the learned trial Court that obtaining eviction order by the father of the plaintiffs in a tenancy case against third parties exparte and subsequently evicting them by filing execution proceedings does not create any title in the plaintiffs in the absence of any positive evidence. In this case, the plaintiffs did not adduce any reliable evidence in proof of their title and therefore, they cannot contend that the Court has to give finding in their favour basing on the tenancy proceedings initiated by their father against some third parties. Further as I have already pointed out, the plaintiffs did not assert in the plaint as to how they came into possession of the property and when they were dispossessed from the property. The factum of dispossession is nowhere pleaded by the plaintiffs. Therefore, the learned first appellate court ought not to have granted the relief of recovery of possession. When the findings recorded by the first appellate court are not based on any evidence forthcoming in the case and they are the result of wrongly placing the burden of proof on the defendants and when the relief granted is not based on evidence on record, such findings can be said to be perverse and the learned first appellate court in the circumstances pointed out hereinabove is wholly unjustified in reversing the well-reasoned findings recorded by the trial Court. The findings recorded by the first appellate are thus perverse and contrary to the evidence on record. Therefore, they are liable to be set-aside in the second appeal. 14. For the foregoing reasons, the decree and judgment passed by the first appellate court is set aside, confirming the decree and judgment passed by the trial Court. The second appeal, therefore, succeeds and the same is allowed. There shall be no order as to costs. CRP.No. 5054 of 2005 : 15. CRP.No.5054 of 2005 is filed by the defendants against the order passed by the I-Additional Junior Civil Judge, Ongole in EP.No. 610 of l2004 in OS.No.718 of 1998. After the judgment passed by the first appellate court in AS.No. 85 of 2001, the plaintiffs- decree holder filed EP.No. 610 of 2004 for delivery of possession as per the provisions of Order-21, Rule-35 of CPC by deputing the bailiff for effecting delivery of property after evicting the judgment-debtors (defendants) from the schedule mentioned property. The learned executing court initially issued notice to the second judgment-debtor on 14-11-2004 but ordered delivery of property even before the notices were served on them. As rightly pointed by the learned counsel appearing for the Revision Petitioners once the executing court had chosen to issue notice to the judgment-debtors it has to wait till the service of notice. It is not the case where the executing court ordering delivery of property without notice to the judgment- debtors 2 and 3. Having issued notice, the learned executing court erred in ordering delivery of property even before the notices are served on the judgment-debtors 2 and 3. The order of the executing court, being illegal and is liable to be set aside. 16. For the foregoing reasons, the order passed by the executing court dated 29-11-2004 which is impugned in this revision is set aside and the CRP is allowed and there shall be no order as to costs. 17. In the result, SA.No. 173 of 2005 and CRP.No. 5054 of 2005 are allowed. There shall be no order as to costs. ________________________ JUSTICE R. KANTHA RAO 28-04-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2005 AND CIVIL REVISION PETITION No. 5054 OF 2005 (COMMON JUDGMENT) Circulation No. 96 Date:28-04-2011 Court Master: I s L Computer No. 43