Between :
HONOURABLE SRI JUSTICE P. NAVEEN RAO SECOND APPEAL No. 509 of 2014 Date : 30.10.2014 Goutham Chand Jain S/o. Kishan Chand Jain, Aged about 58 years, R/o. Peddapalli, Karimnagar District.
and Smt. Thara Bai, W/o. Manik Chand, Aged about 60 years, C/o. Ghoutham Enterprises, Masjid Road, Peddapalli, Karimnagar district and others.
… Appellant/appellant/ plaintiff … Respondents/respondents/ defendants The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO SECOND APPEAL No. 509 of 2014 JUDGMENT:
Appellant is the unsuccessful plaintiff. This appeal is preferred against the judgment and decree dated 11.04.2014 in A.S.No.78 of 2011 on the file of V Additional District Judge, Karimnagar, preferred by appellant against judgment and decree dated 05.09.2011 in O.S.No.70 of 2003 on the file of Senior Civil Judge at Peddapally, Karimnagar District.
2. Appellant is the plaintiff and respondents are the defendants in the suit and hereinafter referred to as arrayed in the suit.
3. Plaintiff filed O.S.No.70 of 2003 on the file of Senior Civil Judge at Peddapalli for declaration that the plaintiff is the owner and possessor of land admeasuring Ac.0.23 guntas in Sy.No.346 of Bandampalli Gram Panchayat situated at revenue shivar of Peddapalli village and mandal (suit schedule land) and for perpetual injunction restraining the defendants, their agents, servants, legal heirs from alienating or encumbering and mortgaging the suit schedule land.
4. The case of the plaintiff was that he was the owner and possessor of dry land admeasuring Ac.0.23 guntas in Sy.No.346 of Bandampalli Gram Panchayat situated at revenue shivar of Peddapalli village and mandal. Plaintiff avers that he purchased the said extent of land from his sister (defendant No.1) by way of simple sale deed dated 16.05.1978 and vacant possession was delivered on the same day. The simple sale deed was subsequently regularized by the Mandal Revenue Officer, Peddapalli and issued Form No.13-C and 13-B in favour of the plaintiff. He paid stamp duty and registration charges for regularization of the simple sale deed. In 1978, he purchased some other land adjacent to the said land by way of another simple sale deed and constructed a compound wall around these two extents of land upto the basement level. Plaintiff was granted title deed and pattadar passbook under the Record of Rights Act. It is further averred that Palle Komuramma, vendors vendor of the plaintiff and Chandaboina Ilamma, vendor of the defendant, were class-I heirs and succeeded the land in Sy.No.346 admeasuring Ac.1.03 guntas after the demise of their father late Narra Komuraiah. Chandaboina Ilamma and Palle Komuramma are only daughters of their father. Chandaboina Ilamma sold her share to the third parties and Palle Komuramma sold her share of Ac.0.23 guntas to defendant No.1 in the year 1976 through registered document No.186/76. However, in the revenue records the name of Chandaboina Ilamma was mutated as pattadar to the entire extent of Ac.1.03 guntas. The plaintiff further averred that mere entry in the revenue records do not confirm the right o f Ilamma as absolute owner while excluding the entitlement of her sister Komuramma. By applying for permission to construct a compound wall to the Bandampalli Grampanchayat, plaintiff constructed the compound wall. Plaintiff averred that the registered sale deeds alleged to have been executed by Ilamma are forged and fabricated documents, that defendants have not shown the boundaries of the sale transactions of the adjacent lands around the suit land, that defendants are trying to interfere with the possession of the suit land and trying to alienate the suit land, denying the title of the plaintiff.
5. Defendant No.1 is the sister of the plaintiff who sold the suit schedule property to the plaintiff. Defendant No.1 in her written statement admitted the contents of the plaint and possession of the suit schedule property by the plaintiff.
6. Separate written statement is filed by the defendants 2 to 4. The case of the defendants 2 to 4 is that they purchased the suit land to an extent of Ac.0.23 guntas through registered sale deed bearing Nos.1274 to 1276 of 1981 out of Ac.1.03 guntas from Chandaboina Ilamma for a valid consideration. Consequently, the names of the defendants 2 to 4 have also been recorded in pahani patrikas in respect of the suit land in the year 1980-81 onwards as owners and possessors. In the year 1995, they have mortgaged the suit schedule property with the State Bank of Hyderabad, Peddapalli branch and obtained loan. In the remaining extent of Ac.0.20 guntas of land, there were several transactions. Ultimately, the Committee of Temples purchased the land and constructed Kodanda Ramalaya and Shirdi Saibaba temples. It is further averred that late Narra Komuraiah has got five daughters, namely, Pochamma, Ilamma, Komuramma, Madhuramma and Durgamma and as on the date of purchase by the defendants 2 to 4, Chandaboina Ilamma was the owner and possessor of the suit land. Defendants 2 to 4 are bona fide purchasers of the suit land. Palle Komuramma never raised objection on the sale transactions and possession granted to the defendants 2 to 4. It is further averred that since the names of defendants 2 to 4 were reflected in pahani patrikas from the year 1981, it would show that they are in possession and enjoyment of the suit land over long period of time and, therefore, even assuming that there was any sort of right vested in the plaintiff, the same got extinguished and the defendants got adverse possession. It is further averred that defendants 2 to 4 have constructed compound wall around the suit schedule land and fixed the gate after obtaining due permissions. The Mandal Revenue Officer issued title deeds and pattadar pass books to the defendants 2 to 4 showing the defendants as owners and possessors of the suit land to an extent of Ac.0.08 guntas, Ac.0.08 guntas and Ac.0.07 guntas respectively.
7. On the basis of the above pleadings, the trial Court framed the following issues.
i) Whether the plaintiff is entitled for declaration of title of suit land ?
ii) Whether the plaintiff is entitled for perpetual injunction ?
iii) To what relief ?
8. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A18 were marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B1 to B28 were marked.
9. After thorough consideration of the oral and documentary evidence on record, the trial Court held against the plaintiff on all the issues and dismissed the suit.
10. Aggrieved thereby, the plaintiff filed Appeal Suit No.78 of 2011 in the Court of V Additional District Judge, Karimnagar.
11. The first appellate Court framed the following issues:
i) Whether the findings recorded by the trial court are to be confirmed or to be set aside in the facts and circumstances of the case ?
ii) To what relief ?
12. The first appellate Court affirmed the findings recorded by the trial Court and having found no infirmity in the judgment of the trial Court dismissed the appeal suit.
13. Learned counsel for the appellant contended that the Courts below failed to appreciate that the suit land was inherited by Palle Komuramma and Chandaboina Ilamma, that P.Komuramma was the owner of the suit land and the property was validly purchased by defendant no.1 in the year 1976 vide registered sale deed No.186/76. Therefore, the title was validly vested in the defendant no.1 from whom the plaintiff has purchased. These are the admitted facts on record and, therefore, the Courts below erred in holding that defendant no.1 has not acquired the valid title. Learned counsel further contended that trial Courts failed to appreciate that during the pendency of the application submitted by the plaintiff before the Grampanchayat, Grampanchayat illegally granted permission to the defendants 2 to 4 for construction of compound wall and, therefore, merely because the defendants claimed that they have obtained permission, it cannot be validly held that the compound wall was constructed by them. Learned counsel further contended that the Courts below wrongly declared the defendants 2 to 4 as owners and in possession merely based on the copies of pahani’s. The pahani’s cannot be the conclusive proof of ownership of landed property.
14. Learned counsel, therefore, contended that Courts below were not justified in negating the ownership and possession of plaintiff only on the ground that the plaintiff has not submitted intact copy of the sale deed. Learned counsel contended that since defendant no.1 has admitted of the sale transactions, merely because the sale deed does not show the first page of the stamp paper since it was damaged and the details of person who scribed, cannot be a ground to disbelieve the document.
15. The Courts below erred in not giving weightage to the evidence of the defendant no.1 when defendant no.1 categorically asserted that she sold the suit property to the plaintiff in the year 1978.
16. The suit is for declaration that the plaintiff is the owner and possessor of the suit schedule land. The burden lies on the plaintiff to establish ownership and possession of the suit schedule property. The Courts below concurrently held that Palle Komuramma was not the owner of the land to an extent of Ac.0.23 guntas in Sy.No.346 and, therefore, the title has not validly passed on to the defendant no.1 and, therefore, the plaintiff has not acquired the title to the suit property. In the deposition, plaintiff has admitted the ownership of Chandaboina Ilamma. The exhibits marked on behalf of the defendants 2 to 4 established that title has validly passed on to the defendants 2 to 4 and defendants 2 to 4 are in continues possession and enjoyment of the suit schedule property. The Courts below held that that even assuming that the plaintiff purchased the land from the defendant no.1, he cannot get any right over the suit land as admittedly the vendor of the defendant no.1 has no title and, therefore, defendant no.1 would not get title over the suit land and, therefore, plaintiff also cannot get any title over the suit land.
17. On the issue of possession also, on thorough analysis of the evidence on record, the Courts below concurrently found that plaintiff has not established that he is in possession. In support of his claim that he is in possession, plaintiff contended that he applied to Gram Panchayat for permission to construct a compound wall and since there was no rejection by the Grampanchayt, he has constructed the compound wall. As noticed by the Courts below, plaintiff has categorically admitted in his cross examination that Grampanchayat did not accord permission to him. The defendants 2 to 4 have also successfully objected to grant of title deed and pattadar pass books by the Mandal Revenue Officer in favour of the plaintiff and on the appeal filed by the defendants 2 to 4, the Revenue Divisional Officer set aside the order of the Mandal Revenue Officer. The evidence on record would establish that the defendants 2 to 4 are in continues occupation and enjoyment of the property. After obtaining due permission from the Grampanchayat, compound wall was constructed and gate was erected.
18. Having regard to the evidence on record, the Courts below concurrently held that plaintiff is not the owner of the suit schedule property and is not in possession and enjoyment of the suit land and the defendants 2 to 4 are the owners and are in possession and enjoyment of the suit schedule property. The Courts below have assigned cogent and valid reasons in support of the findings recorded by them. The findings recorded by the Courts below are based on evidence and on sounds principles of law. It is settled principle of law that when the Courts below have recorded concurrent findings against appellant, this Court cannot interfere in view of Section 100 of Code of Civil Procedure. I see no merit in the contentions urged by the appellant. There is no substantial question of law arise in this case which warrants consideration by this Court.
19. Accordingly, the second appeal is dismissed. No costs. Miscellaneous petitions if any pending in this appeal, shall stand closed.
JUSTICE P.NAVEEN RAO Date:30.10.2014 Kkm HONOURABLE SRI JUSTICE P. NAVEEN RAO SECOND APPEAL No. 509 of 2014 Date : .10.2014 Kkm