Kodeboyina Venkata Ratna Srinivas Kumar & Ors. vs Kodeboyina Radha Mohana Krishna Rao & Ors.

Venuthurumalli Gopala Krishna Rao, J

This second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) is filed aggrieved against the Judgment and decree, dated 24.09.2018 in A.S.No.20 of 2013, on the file of learned XV Additional District and Sessions Judge, Nuzvid, Krishna District, confirming the Judgment and decree, dated 29.11.2012 in O.S.No.49 of 2004, on the file of learned Senior Civil Judge, Nuzvid, Krishna District.

The appellants herein are the defendants 1 to 4, the 1st respondent herein is the plaintiff and respondents 2 to 6 herein are the defendants 5 and 7 to 10 in O.S.No.49 of 2004, on the file of learned Senior Civil Judge, Nuzvid, Krishna District.

During the pendency of the second appeal, the plaintiff died and his legal representatives were brought on record as respondents 7 and 8.

The plaintiff initiated action in O.S.No.49 of 2004, on the file of learned Senior Civil Judge, Nuzvid, with a prayer for declaration declaring the plaintiff is the absolute owner of the plaint schedule property with possession by cancelling the fictitious and fake documents which are not having legal sanctity to the extent of the plaint schedule property, clearly listed in the Annexure-I of the plaint, and for consequential relief of injunction restraining the defendants 1 to 4, their men, supporters and followers from interfering with the lawful possession of the plaintiff over the plaint schedule property in any manner either executing the documents or to do otherwise defeating the legitimate rights of the plaintiff and for costs.

The trial Court decreed the suit in O.S.No.49 of 2004, on the file of learned Senior Civil Judge, Nuzvid. Felt aggrieved of the same, the defendants 1 to 4 in the above said suit filed A.S.No.20 of 2013, on the file of learned XV Additional District and Sessions Judge, Nuzvid, Krishna District. The learned XV Additional District and Sessions Judge, Nuzvid, Krishna District, dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the defendants 1 to 4 in the suit approached this Court by way of second appeal.

For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.

The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.49 of 2004, is as follows:

(a) One Kodeboyina Verikata Ratnam @ Rattaiah got 3 sons, the plaintiff, Govinda Ralulu and Subrahmnayaswera Rao. Defendants 1 to 3 are the sons and 4th defendant is the wife of said Subrahmanyeswara Rao. 5th defendant and 6th defendant are the sons of said Govinda Rajulu. 7th defendant to 10th defendant are the sons of 6th defendant. Originally, the schedule property is the joint family property of mother of plaintiff, the plaintiff and his two brothers. After the death of father of the plaintiff, the plaintiff and his two brothers orally partitioned the immovable property left by his father to an extent of Ac.5.24 cents in R.S.No.55/2 in Veeravalli village, about 35 years ago. The plaintiff got Ac.1.70 cents, said Govindarajulu got Ac.1.80 cents and Subrahmanyeswara Rao got Ac.1.74 cents in the said partition. The share of plaintiff is the plaint schedule property in this, suit.

(b) The plaintiff obtained pattadar passbooks and paying revenue and also obtained loan from Veeravalli PACS by mortgaging the schedule property along with other properties to an extent of Ac.1.47 cents in R.S.No.534/1 and an extent of Ac.1.49 cents under registered mortgage deed document No.29/97. The plaintiff is residing at Ramavarappadu which is 25 Kms away from the plaint schedule property. One Lanka Kishore Babu came forward and entered into sale transaction with the plaintiff by paying advance amount and at that time in the month of February, 2003, he came to know that there are fabricated documents dt.15.03.1997 that defendants 1 to 3 and their brother Vasantha Kumar collusively created the four documents which revealed that the defendants 5 and 6 executed those documents in favour of defendants 1 to 3 and the said Vasantha Kumar. The defendants 1 to 3 and deceased Vasantha Kumar and defendants 5 and 6 played fraud. Due, to the death of Vasantha Kumar as un-married on 27.07.2003, as Class-l heir, his property was devolved upon his mother 4th defendant herein.

The 1st defendant filed written statement before the trial Court, which was adopted by the defendants 2 to 4 admitting the relationship between parties, but denying the material averments in the plaint and contended as follows:

The joint family owned and possessed Ac.3.76 cents in R.S.No.55/2 of Veeravalli village which was devolved upon plaintiff and his two brothers. The elder brother of plaintiff by name Govindarajulu purchased an extent of Ac.1.48 cents in two items Ac.0.74 cents each under two documents dt.18.05.1951 from one Uppuluri Subba Rao and his undivided son and also from Alapati Venkata Subbamma., The ancestral property Ac.3.76 cents was allotted to the share of said Govindarajulu. He also purchased Ac.1.48 cents in the same survey number under above two documents and he became owner of Ac.5.24 cents. The said Govindarajulu died intestate about 30 years ago leaving his wife and defendants 5 and 6. They sold Ac.1.80 cents out of Ac.5.24 cents in favour of one Vasana Ammaji, who purchased in the name of her minor son Murali Mohan. The remaining Ac 3.44 cents was with the legal representatives of the said Govindarajulu. After the death of the mother of defendants 5 and 6, they sold the extent of Ac.3.44 cents under four documents i.e. Ac.0.86 cents each in favour of defendants 1 to 3 and their brother Vasantha Kumar on 15.03.1997. Since then they are in possession and enjoyment of the same. Hence, sought for dismissal of the suit.

The 5th defendant also filed his written statement, which was adopted by the 6th defendant. The 5th and 6th defendants supported the pleadings in the written statement of 1st defendant.

On the basis of above pleadings, the learned trial Judge, framed the following issues for trial:

(1) Whether the defendants 1 to 3 and Vasantha Kumar purchased the properties under 4 separate sale deeds and enjoyed the properties with absolute rights is true or not?

(2) Whether the plaintiff is in possession of the plaint schedule property by the date of suit?

(3) Whether there is no plaint schedule property on ground for Ac.1.70 cents?

(4) Whether it is part of Ac.3.44 cents and in enjoyment of defendants 2 to 4 as alleged in the written statement is true?

(5) Whether D6 is unnecessary party in this suit as pleaded by the defendant?

(6) Whether the plaintiff is entitled for declaration declaring as absolute owner of plaint schedule property by cancelling the fictitious documents listed in Annexure-I of plaint as prayed for?

(7) Whether the plaintiff is entitled for consequential relief of injunction restraining the defendants 1 to 4 in respect of plaint schedule property as prayed for?

(8) To what relief?

During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A.1 to A.19 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to B.36 were marked.

The learned Senior Civil Judge, Nuzvid, Krishna District, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the defendants 1 to 4 filed the appeal suit in A.S.No.20 of 2013, on the file of learned XV Additional District and Sessions Judge, Nuzvid, Krishna District, wherein, the following points came up for consideration:

1) Whether the 1st respondent / plaintiff was able to establish his case for seeking relief of declaration of title and for consequential relief of permanent injunction?

2) Whether the decree and judgment of trial Court in decreeing the suit in favour of plaintiff is justified with reasons?

The learned XV Additional District and Sessions Judge, Nuzvid, Krishna District i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, in favour of the plaintiff and dismissed the appeal filed by the defendants 1 to 4. Felt aggrieved of the same, the defendants 1 to 4 in O.S.No.49 of 2004 filed the present second appeal before this Court.

On hearing both side counsels at the time of admission of the appeal, on 19.09.2019, this Court framed the following substantial questions of law:

(1) Whether both the Courts below are justified in granting relief of declaration of right, title and interest to the property in dispute basing on revenue records and the evidence let in, in relation to the oral partition as well as allotment of shares thereunder, is sufficient to grant such relief?

(2) What shall be the effect of failure to consider additional evidence sought to be introduced in the first Appellate Court in recording its findings?

Heard Sri Vedula Srinivas, learned counsel for the appellants / defendants 1 to 4 and Sri D.Krishna Murthy, learned counsel for the respondents / plaintiffs.

In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based on inadmissible or no evidence.

The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Courts below and if the First Appellate Court has exercises in its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal.

Sri Vedula Srinivas, learned Senior Counsel for the appellants would contend that the appellants during the pendency of the first appeal, filed an application before first appellate Court vide I.A.No.68 of 2016 under Order XLI Rule 27 of CPC to receive the additional evidence. But the said application was dismissed by the learned first appellate Judge during the pendency of the first appeal on 22.04.2016 and the appellants having aggrieved the said order, filed C.R.P.No.3017 of 2016 before the composite High Court of Andhra Pradesh at Hyderabad. He would further contend that the said C.R.P.No.3017 of 2016 was allowed by the composite High Court of Andhra Pradesh at Hyderabad on 11.06.2018 by directing the first appellate Court to decide I.A.No.68 of 2016 along with A.S.No.20 of 2013 as expeditiously as possible preferably within a period of three months from the date of receipt of copy of said order and I.A.No.68 of 2016 is restored by the composite High Court of Andhra Pradesh as per the orders in C.R.P.No.3017 of 2016. Sri Vedula Srinivas, learned Senior Counsel would further contend that the learned first appellate Judge has not complied the order passed by the composite High Court of Andhra Pradesh in C.R.P.No.3017 of 2016, dated 11.06.2018 and dispose of the first appeal alone on 24.09.2018. Learned counsel for the respondents / plaintiffs fairly conceded that the learned first appellate Judge has not complied the orders passed by the composite High Court of Andhra Pradesh in C.R.P.No.3017 of 2016.

The material available on record reveals that the appellants filed a petition under Order XLI Rule 27 of CPC to receive the additional evidence in the year 2016 vide I.A.No.68 of 2016. In a case of Union of India v. Ibrahim Uddin (2012) 8 SCC 148, the Apex Court held as follows:

“52…... it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.”

In the case at hand, the appellants filed the first appeal in the year 2013 vide A.S.No.20 of 2013 before the XV Additional District and Sessions Judge, Nuzvid. During the pendency of the said first appeal, the appellants filed an application vide I.A.No.68 of 2016 under Order XLI Rule 27 of CPC to receive the additional evidence. But the learned first appellate Judge, kept aside the first appeal and dismissed the interlocutory application vide I.A.No.68 of 2016 on 22.04.2016 without following the principles laid down by the Apex Court as stated supra. Aggrieved by the said order, C.R.P.No.3017 of 2016 was filed by the appellants and the said C.R.P.No.3017 of 2016 is allowed on 11.06.2018 by the composite High Court of Andhra Pradesh at Hyderabad by restoring the I.A.No.68 of 2016 and directing the learned first appellate Judge to dispose of I.A.No.68 of 2016 along with A.S.No.20 of 2013 as expeditiously as possible preferably within a period of three months from the date of receipt of copy of the said order. But without complying the orders passed by the composite High Court of Andhra Pradesh, the learned first appellate Judge decided the first appeal alone by keeping aside the I.A.No.68 of 2016. Therefore, the first appellate Judge committed an apparent error by leaving I.A.No.68 of 2016 and dispose of the first appeal without complying the orders passed in C.R.P.No.3017 of 2016 by the composite High Court of Andhra Pradesh at Hyderabad.

Sri Vedula Srinivas, learned Senior Counsel for the appellants would contend that without discussing the merits or demerits in the second appeal, the matter may be remanded back to the first appellate Court and to direct the first appellate Court to dispose of A.S.No.20 of 2013 along with I.A.No.68 of 2016 as per the orders passed by the composite High Court of Andhra Pradesh in C.R.P.No.3017 of 2016, dated 11.06.2018.

Learned counsel for the respondents / plaintiffs also fairly conceded that the matter may be remanded to the first appellate Court, but certain time limit may be fixed on the first appellate Court to dispose of the first appeal A.S.No.20 of 2013 along with interlocutory application vide I.A.No.68 of 2016 and after remanding the matter back to the first appellate Court, there is no need to adduce any oral evidence by both the parties before the first appellate Court.

For the foregoing reasons, the judgment of the first appellate Court is not legally sustainable. Therefore, the interest of the justice requires that the matter has to be remanded back to the first appellate Court i.e. XV Additional District and Sessions Judge, Nuzvid with a direction to give an opportunity to both the parties to submit hearing and dispose of the first appeal along with I.A.No.68 of 2016 on merits, without influencing by the findings in its earlier judgment dated 24.09.2018 in A.S.No.20 of 2013. The entire exercise shall be completed within two (02) months from the date of receipt of a copy of this judgment.

In the result, the Second Appeal is allowed and the judgment and decree dated 24.09.2018 passed in A.S.No.20 of 2013 on the file of learned XV Additional District and Sessions Judge, Nuzvid, are hereby set aside and the matter is remanded back to the first appellate Court i.e. XV Additional District and Sessions Judge, Nuzvid, with a direction to give an opportunity to both the parties to submit hearing and dispose of the first appeal vide A.S.No.20 of 2013 along with I.A.No.68 of 2016 on merits, without influencing by the findings in its earlier judgment dated 24.09.2018 in A.S.No.20 of 2013. The entire exercise shall be completed within two (02) months from the date of receipt of a copy of this judgment. There shall be no order as to costs.

Registry is hereby instructed to transmit the entire record in A.S.No.20 of 2013 on the file of learned XV Additional District and Sessions Judge, Nuzvid, forthwith to the first appellate Court i.e. XV Additional District and Sessions Judge, Nuzvid.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

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VENUTHURUMALLI GOPALA KRISHNA RAO,J

To,

KODEBOYINA RADHA MOHANA KRISHNA RAO DIED AS PER LRS, S/O. KODEBOYINA VENKATA RATNAM @ RATTAIAH, HINDU, AGED ABOUT 76 YEARS, PROPERTIES, RETIRED R.T.C. EMPLOYEE, R/O. D.NO.2-2, HIGH SCHOOL ROAD, RAMAVARAPPADU VILIAGE AND POST, VIJAYAWADA RURAL MANDAL, KRISHNA DISTRICT.

KODEBOYINA RATNA RAO, S/O. LATE GOVINDARAJULU, HINDU, AGED ABOUT 66 YEARS, R/O. C/O. KALLAM SANJEEVA REDDY, UNDAVALLI VILLAGE, UNDAVALLI CENTRE, TADEPALLI MANDAL, GUNTUR DISTRICT.

KODEBOYINA NAGAMANI, W/O. LATE K. SUBRAHMANYESWARA RAO, HINDU, AGED ABOUT 69 YEARS, C/O. ADINARAYANA, JAGANNADHAPURAM VILLAGE AND POST, GOPALAPURAM MANDAL, VIA KOYYALAGUDEM, WEST GODAVARI DISTRICT.

KODEBOYINA GOPI, S/O. LATE SUBRAHMANYESWARA RAO, HINDU,AGED37YEARS,C/O.ADINARAYANA, JAGANNADHAPURAM VILLAGE AND POST, GOPALAPURAM MANDAL, VIA KOYYALAGUDEM. WEST GODAVARI DISTRICT.

KODEBOYINA MANIKANTHA, S/O. LATE SUBRAHMANYESWARA RAO, HINDU, AGED 35 YEARS, C/O. ADINARAYANA, JAGANNADHAPURAM VILLAGE AND POST, GOPALAPURAM MANDAL, VIA KOYYALAGUDEM, WEST GODAVARI DISTRICT.

KODEBOYINA ANUSHA, D/O. LATE SUBRAHMANYESWARA RAO, HINDU,AGED33YEARS,C/O.ADINARAYANA, JAGANNADHAPURAM VILLAGE AND POST, GOPALAPURAM MANDAL, VIA KOYYALAGUDEM, WEST GODAVARI DISTRICT.

SMT KODEBOYINA RADHA DEVI, W/O LATE KODEBOYINA RADHA MOHANA KRISHNA RAO, AGE 68 YEARS, OCC HOUSEHOLD, R/O D.NO 2-2, HIGH SCHOOL ROAD, RAMAVARAPPADU, VIJAYAWADA RURAL MANDAL, KRISHNA DISTRICT.

KODEBOYINA SRINIVASA KRISHNA, S/O LATE KODEBOYINA RADHA MOHANA KRISHNA RAO, AGE.49 YEARS, OCC EMPLOYEE, R/O D.NO 2-2, HIGH SCHOOL ROAD, RAMAVARAPPADU, VIJAYAWADA RURAL MANDAL, KRISHNA DISTRICT. (AS PER THE COURT ORDER DATED 20-01-2022, RESPONDENTS NO. 7 AND 8 ARE BROUGHT ON RECORD AS LRS OF THE DECEASED RESPONDENT NO.1 IN IA.NO 1/2021 IN S.A NO 1786 OF 2018)

9.Two CD Copies