THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO SECOND APPEAL No.6 of 2012 Date: 23-07-2014 Between :-
Madiga Palavai Vannurappa.
… Appellant.
And
1. Galagala Thimmappa and others.
… Respondents.
Counsel for the appellant : Sri Golla Seshadri Counsel for respondents : Sri Meherchand Nori This Court delivered the following:-
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No.6 of 2012 JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dt.28-11-2011 in A.S.No.56 of 2010 of the I Additional District Judge, Anantapur reversing the judgment and decree dt.14-06-2010 in O.S.No.129 of 2007 of the Junior Civil Judge, Rayadurg.
2. The appellant herein is plaintiff in the suit. He filed the suit for a perpetual injunction restraining the defendants from interfering with his lawful possession and enjoyment of the plaint schedule property which is an extent of Ac.4.02 cents in Sy.No.32- B of Gonabhavi village, Gummagatta Mandal, Anantapur District.
3. According to plaintiff, an extent of Ac.1.36 cents belongs to his ancestors and an extent of Ac.2.66 cents was purchased by him under Ex.A-1 sale deed dt.13-06-2005 from D.Ws.7 and 8 for Rs.25,000/-. He contended that the defendants have nothing to do with the plaint schedule property and they were trying to interfering with his possession and enjoyment.
4. The defendants filed written statement denying the title of plaintiff and contended that D.Ws.7 and 8 did not have any right, title or interest in the extent Ac.2.66 cents conveyed to plaintiff under Ex.A-1 sale deed dt.13-06-2005. They further contended that the other extent of Ac.1.36 cents is also ancestral property of defendants and not the ancestral property of plaintiff. They filed a genealogical tree which indicated the details of the members of the coparceners of defendants. They also denied the possession of plaintiff over the plaint schedule property.
5. The trial Court framed the following issues:
“1. Whether the registered sale deed dt.13-06-2005 is sham and nominal one and fabricated by the plaintiff?
2. Whether the plaintiff is in possession and enjoyment of the plaint schedule property?
3. Whether the plaintiff is entitled for permanent injunction as prayed for?
4. To what relief?”
6. Before the trial Court, P.Ws.1 to 5 were examined by plaintiff and Exs.A-1 to A-4 were marked. On behalf of defendants, D.Ws.1 to 8 were examined and Exs.B-1 to B-7 were marked.
7. By judgment and decree dt.14-06-2010, the trial Court decreed the suit. It held that the plaintiff’s title is established under Ex.A-1 sale deed dt.13-06-2005 and the execution of said sale deed was admitted by D.Ws.7 and 8. It therefore held that the said document is binding on defendants. It also held that possession of plaintiff was established by Exs.A-2 and A-3 as well as Exs.B-4 and B-6.
8. Aggrieved thereby, defendants filed A.S.No.56 of 2010 before the I Additional District Judge, Anantapur. The said appeal was allowed by lower appellate Court on 28-11-2011. The lower appellate Court held that D.Ws.7 and 8 had admitted clearly that they and other vendors did not have any title documents over the land covered by Ex.A-1 and that they were coparceners of defendants and have only undivided share therein. It therefore held that D.Ws.7 and 8 did not have exclusive right in the extent of Ac.2.66 cents which they have sold to plaintiff and therefore, they cannot convey any valid title to plaintiff. It also held that plaintiff could not establish that the extent Ac.1.36 cents is ancestral property since the name of defendants were found in the adangal as purchasers and therefore plaintiff cannot be said to be in exclusive possession of the property. It also held that P.Ws.2 to 5 did not clearly state how the vendors of plaintiff got the property and how the plaintiff got Ac.1.36 cents. It believed the evidence of D.ws.1 to 6 and Exs.B-1 to B-5 and held that even though plaintiff’s name is mentioned as pattadar, the names of defendants are also mentioned as possessors and plaintiff cannot be said to be in exclusive possession of the property. It held that the defendants are also in possession of the property as joint owners along with plaintiff and plaintiff is not entitled to relief of perpetual injunction.
9. Challenging the same, this Second Appeal is filed.
10. Heard Sri G.Seshadri, leaned counsel for appellant/plaintiff and Sri Meherchand Nori, learned counsel for respondent Nos.1 to 7.
11. The learned counsel for appellant contended that the lower appellate Court had erroneously reversed the well considered judgment of the trial Court by disbelieving Ex.A-1 in spite of the fact that it had given a finding that he was also in possession of the plaint schedule property. He supported the reasoning of the trial Court and contended that the lower appellate Court ought not to have reversed it.
12. The learned counsel for respondents, on the other hand, supported the reasoning of the lower appellate Court and contended that it had given cogent reasons for holding against plaintiff and the said findings are not liable to be reversed in Second Appeal.
13. I have noted the submissions of both sides.
14. The basis for the claim of injunction of plaintiff is that he is in possession of Ac.1.36 cents which was purchased under Ex.A-1 dt.13-06-2005 from D.Ws.7 and 8. Since D.Ws.7 and 8 stated that they are coparceners along with other defendants and their share is undivided, they were not competent to execute Ex.A- 1 in favour of plaintiff in respect of a specific extent of the ancestral property. Therefore, the sale deed Ex.A-1 did not convey any title to plaintiff since his vendors had no exclusive title thereto. The lower appellate Court had rightly observed that even with regard to Ac.1.36 cents, P.Ws.2 to 5’s evidence did not establish the plaintiff’s claim that it is ancestral property. It also noted from the evidence of P.W.4 that plaintiff had kept the plaint schedule property vacant for many years and sometimes the defendants were raising crops and sometimes plaintiff was raising crops. The lower appellate Court also observed that the stamp of the Revenue Officials in Exs.A-2 and A-3 was made in November, 2004 in respect of Ac.2.66 cents which was purchased only on 13-06-2005 and therefore these entries do not inspire the confidence. It therefore rightly concluded that the defendants are also in possession of the property as joint owners along with plaintiff.
I completely agree with the judgment of the lower appellate Court and hold that since the defendants are also in joint possession along with plaintiff and the plaintiff did not have any exclusive title to plaint schedule property, he is not entitled to any injunction against defendants since defendants are joint owners of the property. It is settled law that one co-owner cannot injunct another co-owner from enjoying the joint family properties.
15. Therefore, I do not find any merits in the Second Appeal and the same is accordingly dismissed. No costs.
16. As a squeal, miscellaneous applications, if any, pending in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 23-07-2014 Vsv/*