HON’BLE SRI JUSTICE A.GOPAL REDDY DT. 5-2-2010 S.A.No.1044/2009 1. Yerramsetti Udaya Bala Bhaskara Surya Kantham and another …Appellants V. 1. Karri Punyavathi and another ..Respondents HON’BLE SRI JUSTICE A.GOPAL REDDY SA No.1044/2009 ORAL JUDGMENT: The unsuccessful plaintiffs in the trial Court as well as the lower appellate Court has filed this Second Appeal against the judgment and decree dated 24-4-2009 passed in AS No.47/2004 on the file of Senior Civil Judge, Ramachandrapuram, whereunder learned Judge dismissed the appeal confirming the judgment and decree dt. 30-4-2004 passed in OS No.49/1996 on the file of Junior Civil Judge, Alamuru, East Godavari District, dismissing the suit filed by the appellants/plaintiffs for declaration of title over the plaint schedule property and for permanent injunction. For the sake of convenience the parties hereinafter will be referred to as arrayed in the suit. The plaintiffs initially filed the suit for permanent injunction restringing the defendants from interfering with their peaceful possession and enjoyment over plaint schedule property. On defendants’ filing written statement with a counter claim claiming declaration of their title and for consequential relief of permanent injunction, the plaintiffs got amended the plaint by filing IA No.334/99 and sought for declaration of their title over the plaint schedule property. In the plaint filed by the plaintiffs, it is pleaded that the second plaintiff is the husband of the first plaintiff and the second defendant who is the husband of the first defendant is the sister’s son of the second plaintiff. The suit schedule property originally belonged to Reddy Veeramsetty and his brother Reddy Veerraju of Penikeru village. According to the plaintiffs, Reddy Veeramsetty and his brother Reddi Veerraju sold the suit schedule property for a sum of Rs.60,000/- on 29-12-1981 to Polabathula Seeta Devi under an agreement of sale with possession. The said Seeta Devi paid entire sale consideration to Reddy Veeramsetty and his brother Reddy Veerraju, who agreed to execute the registered sale deed whenever she demands. The said Seeta Devi sold the suit schedule property to the first plaintiff under a registered sale deed dt. 25-7-1995 and put the first plaintiff in possession of the suit schedule property. The defendants who have no right over the suit schedule property tried to interfere with the plaintiffs’ possession and proclaiming in the village that they would dispossess the plaintiffs and enter into the suit schedule land. The defendants filed their written statement while resisting the claim of the plaintiffs contended that the first defendant is the absolute owner of the suit schedule property. The father-in-law of the first defendant purchased the suit schedule property under an agreement of sale dt. 15-2-1980 from Reddy Veeramsetty and his brother Reddy Veerraju for a sum of Rs.24,000/-. Subsequently, in the year 1986, the second plaintiff who is a document writer scribed settlement deed dt. 29-7-1986 executed by Reddy Veeramsetti and his brother Veerraju in favour of Veeram Setti’s daughter Kanaka Durga Padmavathi. Thereafter, the second defendant raised a dispute with regard to the settlement of 20 cents of land in RS No.13/7. Then the said Reddy Veeramsetty and Veerraju executed Kararunama dt. 18-9-1986 agreeing to execute the sale deed along with Kanakadurga Padmavathi. Subsequently, on 4-10- 1995 a registered sale deed was executed by Reddy Veeramsetti and his brother Veerraju for 60 cents of land covered by S.Nos.13/4 and 13/7 and on the same day another sale deed for 20 cents was also executed by Kanaka Durga Padmavathi in favour of the first defendant. During the minority of the second defendant, his father used to cultivate the suit schedule property and after attaining majority, the second defenant used to cultivate it personally till 4-10-1995 and from 4-10-1995 he is cultivating the same on behalf of the first defendant also as a husband and denied the possession of the first plaintiff. It is also pleaded that the second plaintiff who is not only a document writer but also worked as Village Administrative Officer created revenue record and concocted the receipts and obtained alleged pass books by exercising his influence. On the mid night of 13-11-1995, the second plaintiff and his men removed the crop in the suit schedule property and kept it in his house. The second defendant gave a report to the police of Ramachandrapuram, who have not registered any case. On 24-3-1996, when the second defendant was carrying on agricultural operations for removing the standing crop, the second plaintiff attempted to take possession of the property. On the report, the police intervened and kept the property in their custody. Reddy Veeramsetty, at the request of the 2nd defendant’s father obtained loan from PAC by offering the suit schedule property and the same was discharged by the second defendant’s father through Reddy Veeramstty. The second plaintiff fabricated all the documents by exercising his influence. It is lastly pleaded that the plaintiffs have no valid title and are not in possession of the suit schedule property. On the above pleadings, the trial court framed the following issues and additional issue for trial: 1. Whether the plaintiff are entitled for a decree for permanent injunction in respect of the suit schedule property against the defendants as prayed for? 2. Whether the defendants 1 and 2 are entitled for decree for a declaration that they have title to the plaint schedule property? 3. Whether the defendants 1 and 2 are entitled for a consequential relief of permanent injunction restraining the plaintiffs 1 and 2 and their men and agents in respect of plaint schedule property? 4. To what relief? ADDITIONAL ISSUE: Whether the plaintiff is entitled for declaration of his title over the suit schedule property? On behalf of the plaintiffs, P.Ws.1 to 14 were examined and Exs.A-1 to A-38 were marked. On behalf of the defendants, D.Ws.1 to 7 were examined and Exs.B-1 to B-26 were marked. Exs.X-1 to X-9 were marked through witnesses. When the plaintiffs failed to produce P.W.9 for cross-examination, the trial court eschewed his evidence. The trial court after considering the evidence, oral or documentary, dismissed the suit. On appeal being filed by the plaintiffs, the lower appellate court dismissed the appeal confirming the judgment of the trial court. Hence, the second appeal is by the plaintiffs. Learned counsel for the appellants/plaintiffs strenuously contended that what the court has to see while granting permanent injunction is who is in possession of the property as on the date of filing of the suit and admittedly the plaintiffs are in possession of the suit schedule property, therefore, the trial court ought to have decreed the suit of the plaintiff. He further submits that the courts below failed to appreciate the documentary evidence in a proper perspective. Admittedly, both the parties are claiming title over the plaint schedule property on their own right. Both parties admitted that Reddy Veeramsetti and his brother Veerraju were the actual owners of the suit schedule property. The case of the plaintiffs is that one Polabathula Seeta Devi purchased the suit schedule property under a possessory agreement from Reddy Veeramsetty and his brother Reddy Veeraju and after enjoying the same for about 14 years, she sold the same to the first plaintiff under a registered sale deed dt. 25-7- 95 covered under Ex.A-1. Whereas, the case of the defendants is that the father of the second defendant purchased the suit schedule property under an agreement of sale dt. 15-2-1980. The plaintiffs never pleaded that the first plaintiff’s vendor Polabathula Seeta Devi has acquired title over the suit schedule property by adverse possession. Admittedly, the plaintiffs’ case is that they got the suit schedule property under possessory agreement of sale, but for the first time, during the evidence of P.W.10 the theory of adverse possession was introduced stating that since 1981 onwards the first plaintiff is in possession and enjoyment of the suit schedule property and thereby perfected title by adverse possession. Execution of the agreement of sale dt. 20-12-1981 and delivery of possession of suit schedule property is denied by the defendants and also by the vendors of Polabathula Seetadevi stating that second plaintiff who happened to be a Village Administrative Officer fabricated the revenue records in his favour. P.W.1, who is the second plaintiff, admitted in his cross- examination that he was removed from service as Village Administrative Officer, but the same was due to short collection of land revenue but not due to his misconduct or for manipulation of records. Ex.A-2 is the possession certificate issued by Mandal Revenue Officer certifying that the first plaintiff is in possession and enjoyment of the suit schedule property and some other land. Ex.A-2 was signed by in- charge MRO on 13-11-1995. The MRO who issued Ex.A-2 made entries in Ex.A-3 passbook also. When Reddy Veeramsetti and his brother Reddy Veerraju executed Ex.A-1 in favour of Kanaka Durga, they have obtained Ex.B-15-Kharajunama from DWs.2 to 4 and thereafter they have obtained Exs.B-2 and B-3 sale deeds from the original owners. Ex.A-7 is the list of loans borrowed by Reddy Veeramsetti from the Co-operative Society. Reddy Veeramsetti paid a sum of Rs.4379/- on 10-5-1989 towards discharge of the loan number SEP 265, which was also noted in Ex.B-7. Ex.B-19 is the notice issued by the Secretary demanding him to repay the amount borrowed under loan Number 645. Ex.B-20 is the receipt dt. 28-4-1988 under which Reddy Veeramsetti paid Rs.4362/- to the Society towards due under the loan number 118, which was also mentioned in Ex.B-7. Exs.B-8 and B-9 are land revenue receipts dt. 25-11-1982 and 23-1- 1985 respectively. Exs.B-5 to B-9 goes to show that Reddy Veeramsetty was enjoying the suit schedule property during that period. There is no dispute with regard to the actual ownership by D.Ws.2 and 3 over the plaint schedule property and about execution of Ex.B-1 by Reddi Veeramsetti and Reddy Veerraju in D.W.4’s favour, as they, Reddi Veeramsetti and Veerraju conveyed a good tile for 20 cents of land covered under Ex.B-1 to D.W.4. The plaintiffs failed to prove their title over the plaint schedule property. Though the plaintiffs filed pattadar passbook, possession certificate issued by the Mandal Revenue Officer, they were obtained by P.W.7 from the in-charge Mandal Revenue Officer and enquiry was conducted with regard to issuance of pattadar passbooks and no credence need be attached to those documents. Both the courts concurrently held that the plaintiffs have failed to prove that they are in lawful possession of the plaint schedule property, whereas the defendants established that they are in possession and enjoyment of the plaint schedule property. The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law; much less substantial question of law arises for consideration in the second appeal. The second appeal is accordingly dismissed. _______________ A. GOPAL REDDY, J Date:5-2-2010 kmr