Jakkula Shankaraiah vs Aggi Bheemaiah

This appeal is directed against judgment and decree dated 25.09.2013 passed by the learned III Additional District Judge (FTC), Asifabad, in A.S.No.24 of 2011 confirming the judgment and decree dated 22.09.2011 passed by the learned Senior Civil Judge, Asifabad, in O.S.No.14 of 2009. The said suit was filed by the plaintiff against the defendants seeking permanent injunction. By the judgment dated 22.09.2011, the trial Court decreed the suit as prayed for.

O.S.No.14 of 2009 was filed by Aggi Bheemaiah-plaintiff against Jakkula Shankaraiah and Jakkula Banaiah-defendants, for permanent injunction restraining the defendants from interfering into the land in Sy.No.20 of an extent of Ac.13.13 cents situated at Gampalapalli Villagee, Tandur Mandal (hereinafter referred to as ‘suit schedule land’). The plaintiff would submit that he purchased the suit schedule land on 28.02.2005 from Durgam Rajaiah for a valid sale consideration of Rs.92,000/- through a registered Sale Deed bearing No.433 of 2005 and after receiving the entire sale consideration, possession was delivered to him and mutated the suit schedule land in his name in the revenue records also and accordingly the Mandal Revenue Officer, Tandur, had issued title deed and pattadar pass book. From then onwards the plaintiff is in exclusive possession and enjoyment of the suit schedule land. On 12.04.2009 while he was clearing the bushes in the suit schedule land, the defendants tried to evict him and also threatened to dispossess him, and as such, he filed the present suit.

The first and second defendants filed their written statement contending that one Sriramulu Chinnaiah was the owner and pattadar of the suit schedule land. The second defendant purchased the said land from him for a consideration of Rs.300/-under ordinary sale deed and the first defendant is his brother and both of them are in possession and enjoyment of the suit schedule land. In the year 1984 when Sriramulu Chinnaiah and his agents tried to interfere, the defendants filed a suit in O.S.No.22 of 1984 seeking perpetual injunction and the said suit was decreed in their favour and that the plaintiff herein has no manner of right over the suit schedule land and the sale deed is not binding upon them, and therefore, prayed for dismissal of the suit.

In support of his contentions, the plaintiff himself examined himself as P.W.1 and Durgam Rajaiah and Koyyada Gopal were examined as P.Ws.2 and 3 on his behalf. The second defendant examined himself as D.W.1 Sriramula Bheemaiah and Tallapally Bapu were examined as D.Ws.2 and 3. Ex.A.1 to A.8 were marked on behalf of the plaintiff and Exs.B.1 to B.12 were marked on behalf of the defendants.

Considering the oral and documentary evidence adduced by both the parties, the trial Court decreed the suit as prayed for. Aggrieved by the said order, the defendants in the suit preferred an appeal but it was dismissed by confirming the order of the trial Court. Aggrieved by the same, the defendants preferred this Second Appeal with similar contentions.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.

Learned counsel for the appellants would contend that the suit filed for permanent injunction against Sriramulu Chinnaiah @ Mallesam in O.S.No.22 of 1984 would operate not only against him but also against his vendee-P.W.2 and the subsequent vendee ie., the plaintiff. He would further argue that though the defendants established their possession through pahanies and tax receipts pertaining to various years, the plaintiff has not turned up for cross-examination and hence his evidence was eschewed. He mainly contended that the suit in O.S.No.22 of 1984 was decreed in favour of the defendants and thus the present suit is barred by res judicata and not maintainable at all. He would also contend that the first appellate Court failed to appreciate the evidence in proper perspective and overlooked the evidence adduced by them. He also argued that when P.W.2 failed to turn up for cross-examination, adverse inference was not taken.

The suit O.S.No.22 of 1984 was filed by them against Sriramula Pedda Pocham, Sriramula Ankulu, Sriramulu Chinnaiah and Sriramulu Shankare, in respect of the same schedule property but it was ex parte decree and instant suit is filed by the plaintiff against the defendants and the parties in both the suits are different. Moreover, the prior suit was an ex parte decree. Therefore, the doctrine of res judicata is not applicable.

As per Exs.B.3 to B.8, Sriram Mallesam was show as owner and pattadar of the suit schedule land and the second defendant was shown as possessor and enjoydar of the suit schedule land. Exs.B.9 to B.12 are the land revenue receipts. Defendants would contend that the second defendant purchased the suit schedule land for an amount of Rs.300/- in the year 1960 from Sriramula Chinnaiah @ Mallesh under ordinary sale deed and later he along with his brother are in possession of the suit land. In support of their contention, they did not file any sale deed. Though they filed suit for possession, it was an ex parte decree and even after the decree, they have not made any efforts to mutuate their names in the revenue records as per Exs.B.1 and B.2. D.W.1 in his cross-examination admitted that he purchased the suit land in the name of his father in the year 1960 and by that time he was aged about 13 years, but later the patta was not transferred either in the name of his father or in his name. Admittedly, the suit land belongs to one Sriramula Mahesh. Durgam Rajaiah purchased the same from Sriramula Mahesh under Ex.A.8 and thereafter the plaintiff purchased it from Durgam Rajaiah under Ex.A.1 and later it was mutated in the name of the plaintiff and as such he is in possession and enjoyment of the same under Exs.A.1 to A.8 from the date of purchase till the date of filing the suit. As per Exs.B.4 to B.12, the first defendant was in possession and enjoyment of the suit land for the year 2003-04 but not on the date of filing the suit. D.W.1 second defendant has not filed any document to prove that he purchased the suit schedule land in the year 1960 and he is in possession of the same till the filing of the suit and moreover he has not challenged the validity of Ex.A.8, and therefore, considering the oral and documentary evidence adduced by both the parties and the recitals marked therein the trial Court rightly decreed the suit in favour of the plaintiff. The appellate Court also observed that ordinary sale deed, as stated by the second defendant, is not filed. Any movable property more than Rs.100/-is compulsorily registerable document. Though the defendants obtained ex parte decree in the year 1984, they have not filed any sale deed in the said suit. Patta was not mutated in their names. As per ‘B’ series documents, the name of the pattadar was shown as Mallesham and Shankaraiah as cultivator. The possessor name was mentioned as vacant. The second defendant purchased the suit schedule land under an unregistered agreement and he neither tried to mutate his name in the pahanies or revenue records nor register the document in his father’s name and thus Mallesh was the original and pattadar of the suit schedule land.

Admittedly, Durgam Rajaiah purchased the land from Mallesh and sold the same to the plaintiff under Ex.A.1. Ex.A.2 is the ROR proceedings Ex.A.3 is the title deed, Ex.A.4 is the pattadar pass book, Exs.A.5 to A.7 are pahanies for the years 2004-05 to 2008-09 and Ex.A.8 is the registered sale deed executed in favour of the plaintiff, and thus, the plaintiff successfully established the ownership of his vendor and also continuous possession from the date of filing the suit.

In a suit for injunction, the possession is to be established. Admittedly, the defendants failed to establish their possession and whereas the plaintiff established his title and possession over the suit schedule land by way of documentary evidence, and thus, the suit was decreed in his favour and it was rightly confirmed by the lower appellate Court and there is no questions of law much less substantial question of law involved in this second appeal, and as such, it merits no consideration.

In the result, the Second Appeal is dismissed. However, there shall be no order as to costs.

Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.