HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.1228 of 2009 JUDGMENT: The Second Appeal arises out of a complicated set of facts. 2. The respondents 1 and 2 are the sons of Tanneeru Venkateswarlu. Mother of Tanneeru Venkateswarlu, by name, Venkamma, purchased immovable property in survey No.186/2 of Ongole Rural Panchayat through Sale Deed, dated 21-07-1977 (Ex.B- 2). She executed a sale deed, dated 22-09-1992 (Ex.B-3), in favour of the 2nd respondent. On coming to know this, Tanneeru Venkateswarlu filed O.S. No.153 of 1992 in the Court of the Principal Senior Civil Judge, Ongole, to declare that he is the absolute owner of the property covered by Ex.B-2 and that it was purchased nominally in the name of his mother. The respondents 1 and 2 and certain others were made parties to the suit. It is stated that during the pendency of O.S. No.153 of 1992, the 2nd respondent executed a Deed of Relinquishment on 03-09-1993 (Ex.A-1) in respect of the property purchased under Ex.B- 2. Tanneeru Venkateswarlu is said to have sold the said item of property in favour of the 1st respondent through Sale Deed, dated 12- 11-1993 (Ex.A-4). The 1st respondent filed O.S.No.140 of 1994 against the 2nd respondent in the Court of the I Additional District Munisif, Ongole, against the 2nd respondent for the relief of permanent injunction and the same was decreed on 07-07-1995 (Ex.A-6). 3. During the pendency of the two suits, referred to above, the appellant herein filed O.S. No.104 of 1996 in the Court of the I Additional Senior Civil Judge, Ongole, against the 2nd respondent for the relief of specific performance of agreement of sale, dated 10-05-1993 in relation to the same property. The suit was decreed ex parte on 11-10-1996 (Ex.A-9). E.P. No.153 of 1997 was filed for execution of that decree and a sale deed was executed through Court in his favour on 16-07-1999 (Ex.B-4). During the pendency of the E.P., O.S.No.153 of 1992, filed by Tanneeru Venkateswarlu, was decreed on 19-05-1998. A.S. No.143 of 1998 filed by the 2nd respondent against the decree in that suit was dismissed. The 1st respondent filed certain petitions in the E.P., but did not pursue them, till their logical end. 4. The 1st respondent filed O.S.No.1035 of 1999 against the appellant and the 2nd respondent for the relief of declaration of title and recovery of possession. He narrated the source of his title and referred to various proceedings that have ensued among the parties. The 2nd respondent remained ex parte. The appellant alone contested the suit by filing a written statement. The trial Court decreed the suit through judgment, dated 14-12-2005. Aggrieved thereby, the appellant filed A.S. No.24 of 2006 in the Court of the I Additional District Judge, Ongole. The appeal was dismissed on 27-10-2009. Hence, this Second Appeal. 5. Sri A.K. Narasimhsa Rao, learned counsel for the appellant contends that there was absolutely no basis for the trial Court or the lower appellate Court to grant relief in favour of the 1st respondent. He contends that the decree in O.S.No.104 of 1996 was the basis for the title for his client, and as long as that was not set aside, it was not at all permissible for the Courts to grant any declaratory relief to the 1st respondent. 6. Sri Venkateswarlu Sanisetty, learned counsel for the 1st respondent, on the other hand, submits that the so called agreement of sale was fabricated just before O.S. No.104 of 1996 was filed to defeat the rights of the parties in O.S. No.153 of 1992. He contends that by the time, the decree in O.S. No.104 of 1996 was passed, the 2nd respondent did not have title to the property, be it on account of the execution of relinquishment Deed Ex.A-1, or the declaratory relief granted in O.S. No.153 of 1992. Certain other grounds are also urged by both the learned counsel. 7. The trial Court framed the following issues for its consideration: “1. Whether the plaintiff is entitled to declaration as prayed for? 2. Whether the plaintiff is in possession of the schedule property? 3. Whether the plaintiff is entitled to permanent injunction prayed? 4. Whether this Court has jurisdiction to entertain the suit? 5. Whether the suit is barred by any Statute? 6. To what relief?” 8. On behalf of the 1st respondent, PWs.1 and 2 were examined and Exs.A-1 to A-32 were filed. On behalf of the appellant, D.Ws.1 and 2 were examined and Exs.B-1 to B-10 were filed. The 2nd respondent herein, remained ex parte throughout. 9. The suit was decreed and in A.S. No.24 of 2006 preferred by the appellant herein, the lower appellate Court framed the following points for its consideration: “(i). Whether there was collusion in between plaintiff, 2nd defendant and his father in the suit O.S.No.153/92? (ii). Whether the suit is barred under Land Grabbing (Prohibition) Act, 1982? (iii). Whether the suit is not maintainable in view of the Or.21 Rule 101 CPC? (iv) Whether the court fee paid is correct? (v) Whether the plaintiff is entitled for declaration of his title and recovery of possession of item No.2 of plaint schedule? 10. The appeal was, ultimately, dismissed. 11. As observed, at the threshold, the facts are a bit complicated and several proceedings came to be adjudicated without being aware of pendency or result of the other proceedings. The title in respect of the suit property, initially, vested with Venkamma. Though she executed a sale deed in favour of the 2nd respondent the result thereof, came to be nullified with the execution of Ex.A-1, the relinquishment deed, by himself and the decree passed in O.S. No.153 of 1992. There is a serious doubt as to whether the agreement of sale, pleaded by the appellant, was executed on 10-05-1993. Assuming that it was executed on that date, the fact remains that though the 2nd respondent can be said to have possessed right to sell the suit schedule property, by the time O.S.No.104 of 1996 filed by the appellant herein for specific performance of agreement of sale came to be decreed, the 2nd respondent had stripped himself of his right vis-à- vis the suit schedule property, by executing Ex.A-1 on 03-09-1993. 12. Further, though O.S. No.153 of 1992 was decreed in the year 1998, holding that Tanneeru Venkateswarlu is the absolute owner of the property, it relates back to the date of sale deed of the year 1977 in favour of his mother. Therefore, the decree in O.S. No.104 of 1996 cannot be said to have conferred any right upon the appellant herein to seek specific performance unless, the Relinquishment Deed (Ex.A-1) and the decree in O.S.No.153 of 1992 (Ex.A-3) were set aside in a properly constituted proceedings. Eve now, the appellant can take steps in that direction. As long as the state of affairs remains in the present condition, the decree passed in favour of the 1st respondent cannot be found fault with. 13. Therefore, the Second Appeal is dismissed. It is, however, left open to the appellant to institute proceedings to challenge the decree in O.S.No.153 of 1992 (Ex.A-3) and the Deed of Relinquishment (Ex.A-2) said to have been executed by the 2nd respondent. 14. The appellant is given six (6) weeks time from today to institute proceedings. Status quo obtaining as on today, shall be maintained till then. The state of affairs subsequent thereto, would depend upon the nature of the orders, which a Court of competent jurisdiction may pass. In case, no orders effecting the rights of the 1st respondent within that time, it shall be open to him to seek execution of the decree in O.S.No.1035 of 1999. In the event of any suit being filed by the appellant, various observations and findings in the present set of proceedings, shall not be treated as final and each party shall be entitled to put forward their own contentions, in accordance with law. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J November 03, 2011. Note: Issue CC in ten (10) days. B/O. KTL