Between:-
HON’BLE SRI JUSTICE M.S.K.JAISWAL Tr.A.S.Nos.2024, 2959 and 2960 of 1996 31st December, 2014 Poturu Seetharamaiah .. Appellant And Kolla Venkateswarlu and others .. Respondents HON’BLE SRI JUSTICE M.S.K.JAISWAL Tr.A.S.Nos.2024, 2959 and 2960 of 1996 COMMON JUDGMENT:-
These three Transfer Appeals are in between the same parties and in respect of the same property. The dispute in all the matters is in respect of an extent of Ac.1-66 cents and Ac.0-46 cents of land in Sy.Nos.537/5 B and 537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq of Ongole District. The appellant in all the appeals is the sole contesting defendant in the original suits.
2. The 1st respondent/plaintiff originally filed O.S.No.533 of 1976 on the file of the District Munsif, Chirala, which was subsequently transferred to the Court of Subordinate Judge, Chirala and numbered as O.S.No.78 of 1978. The suit was for recovery of a sum of Rs.3,086/- being the cost of cotton crop removed and appropriated by the defendants on 17-02-1976 and 18-02-1976 unlawfully from the plaintiff’s land during the pendency of C.M.A.No.6 of 1976 on the file of the Subordinate Judge, Chirala. By Judgment dated 31-12-1988, the learned Subordinate Judge decreed the suit directing the 4th defendant/appellant to pay the decretal amount together with costs and also exemplary costs of Rs.200/-. The appellant preferred the appeal against the Judgment and Decree on the file of the District Judge, Ongole where it was numbered as A.S.No.19 of 1989. The said appeal has been transferred to this Court and numbered as Tr.A.S.No.2960 of 1996 where A.S.No.965 of 1989 in respect of the same subject matter was pending.
3. O.S.No.21 of 1979 on the file of the Subordinate Judge, Chirala, was filed by the respondents/plaintiffs for injunction restraining the defendants from interfering with their possession over an extent of Ac.0-46 cents of land in Sy.Nos. 537/5 B and 537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq of Ongole District. By Judgment, dated 31-12-1988, the learned Subordinate Judge decreed the suit. The 5th defendant in the suit filed A.S.No.30 of 1989 on the file of the District Judge, Ongole. Subsequently, the same has been transferred to this Court and numbered as Tr.A.S.No.2959 of 1986.
4. O.S.No.20 of 1979 was filed by the respondent/plaintiff on the file of the Subordinate Judge, Chirala, for restraining the defendants from interfering with the possession in respect of Ac.1-66 cents of land in Sy.No.537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq of Ongole District. By Judgment, dated 31-12-1988, the learned Subordinate Judge decreed the suit. Aggrieved by that, the 4th defendant therein preferred A.S.No.18 of 1989 on the file of the District Judge, Ongole and subsequently the said appeal is transferred to this Court and numbered as Tr.A.S.No.2024 of 1996.
5. The above three appeals have been transferred to this Court since A.S.No.965 of 1989 was pending, which arose out of O.S.No.33 of 1976 on the file of the Subordinate Judge, Chirala, filed by the appellant in all the four appeals for specific performance of contract dated 24-04-1974 in respect of the land admeasuring Ac.2-06 cents of land in Sy.Nos. 537/5 B and 537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq of Ongole District. By Judgment, dated 31-12-1988, the learned Subordinate Judge dismissed the suit. Aggrieved by which, the appellant preferred the said appeal. That appeal has been disposed of by separate Judgment of even date, by and under which, it is held that though the appellant is not entitled to the relief of specific performance of the contract, dated 24-04-1974, he is entitled to recover the amount of Rs.32,000/- together with interest thereon at 12% per annum from the date of the suit till realisation. When the suit of the appellant for specific performance was pending, the defendants of that suit filed the three suits which are subject matter of the transferred appeals.
6. Tr.A.S.No.2960 of 1996 The sole plaintiff (Kolla Venkateswarlu) filed the suit O.S.No.78 of 1978 (O.S.No.533 of 1976 on the file of the District Munsif, Chirala) on the file of the Subordinate Judge, Chirala, for recovery of a sum of Rs.3,086/- from the defendants being the cost of the cotton crop removed by them.
7. The plaintiff averred that in the year 1975 he was a lessee of dry land to an extent of Ac.1-66 cents in D.N.537/4 of Kollavaripalem belonging to Bachina Venkayamma and raised cotton crop. He filed O.S.No.634/1975 on the file of the District Munsif, Chirala for injunction restraining the defendants from interfering with his peaceful possession and on enquiry, in I.A.No.2931 of 1975 interim injunction was granted in his favour and the same was made absolute on 16-02- 1976. The defendants filed C.M.A.No.6 of 1976 on the file of the Subordinate Judge, Chirala, and on 17-02-1976 interim stay was granted restraining the plaintiff from entering into the land vide I.A.No.158 of 1976. By taking advantage of the orders passed in I.A.No.158 of 1976, on 17-02-1976 and 18-02-1976 the defendants, high handedly and without any right, have removed the cotton crop worth Rs.3,000/-. The plaintiff filed I.A.No.173 of 1976 in C.M.A.No.6 of 1976 and the Court passed orders on 18-02-1976 restraining both parties from entering the land till C.M.A. is disposed of. On 6-3-1976, on enquiry, I.A.No.158 of 1976 and C.M.A.No.6 of 1976 were dismissed. As the defendants have removed the cotton crop without any right, they have to reimburse the same with interest. Therefore the suit is filed to recover the suit amount with costs.
8. The 1st defendant (Kolla Gangaiah) filed his written statement denying the allegations made in the plaint. It is averred that the defendant has nothing to do with the suit property and that himself and defendants No.2 and 3 are added as unnecessary parties. Therefore the suit is liable to be dismissed against him and defendants No.2 and 3 with costs.
9. 2nd and 3rd defendants filed memo adopting the written statement filed by the 1st defendant.
10. The 4th defendant (Seetharamaiah) filed a separate written statement denying the material allegations. It is averred in the written statement that this defendant and others never entered into the suit land and cut the cotton crop and that it is the plaintiff, who knowing fully well about filing of C.M.A.No.6 of 1976, entered into the suit land and cut the cotton crop. It is also averred that this defendant had purchased the suit land from one Bachina Venkayamma, who is the lessor of the plaintiff, and the suit in O.S.No.33 of 1976 on the file of Subordinate Judge, Chirala, for specific performance is pending. Therefore, the suit is liable to be dismissed against this defendant and defendants No.5 and 6.
11. Defendants No.5 and 6 filed a memo adopting the written statement filed by the 4th defendant.
12. On the basis of the above pleadings, the trial Court framed the following issues:-
1) Whether the plaintiff raised cotton crop in the suit property and if so whether it was removed by the defendants on 17- 02-1976 and 18-02-1976?
2) Whether the defendants No.1 to 3 are necessary parties to the suit?
3) To what damages is the plaintiff entitled?
4) To what relief?
13. On behalf of the plaintiff, P.Ws.1 to 4 were examined and Es.A.1 to A.5 were marked. Neither oral nor documentary evidence was adduced by the defendants.
14. By Judgment, dated 31-12-1988, the learned Subordinate Judge decreed the suit directing the 4th defendant to pay the decretal amount together with costs and also exemplary costs of Rs.200/-.
15. Aggrieved by the same, the 4th defendant (Seetharamaiah) filed A.S.No.19 of 1989 on the file of the District Judge, Ongole and subsequently, the said appeal has been transferred to this Court and numbered as Tr.A.S.No.2960 of 1996.
16. Tr.A.S.No.2959 of 1996 The 1st plaintiff (Kolla Subbaiah) and his sons filed O.S.No.21 of 1979 on the file of Subordinate Judge, Chirala, for injunction restraining the defendants from interfering with their possession over an extent of Ac.0-46 cents of land in Sy.Nos.537/5 B and 537/4 of Kollavaripalem village, H/o.Parchur of Chirala Taluq.
17. The averments of plaint in brief are as under:-
The 1st defendant is the Judgment-debtor in O.S.No.6 of 1956 on the file of the Subordinate Judge, Bapatla and the schedule land was brought to sale in E.P.No.82 of 1975 in O.S.No.6 of 1956 and the 1st plaintiff being the highest bidder purchased the same for Rs.6,000/- in Court auction on 19-08-1976 and the sale certificate was issued on 05-10-1976 and subsequently on 15-11-1976 the same was delivered to the plaintiff together with standing cotton crop and ever since the plaintiff continued in possession and enjoyment of the plaint schedule land. Rumours spread over in the village that the defendants will not allow the plaintiffs to enjoy the property and hence the plaintiffs filed the suit for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule land.
18. 5th defendant (Seetharamaiah) filed a written statement, which was adopted by defendants No.6 to 8, specifically denying the allegations made in the plaint. It is averred that this defendant purchased the suit schedule property under a contract of sale, dated 24-04-1974 and ever since he has been in possession and enjoyment of the same and also he filed a suit for specific performance vide O.S.No.33 of 1976 and temporary injunction was granted in I.A.No.774 of 1976 in his favour. The plaintiffs are not in physical possession of the same and if there is any delivery, the delivery was only a paper delivery. The defendants No.6 to 8 have nothing to do with the property and they are unnecessary parties to the suit. The suit is liable to be dismissed with costs.
19. Defendants No.1 to 4, 9 and 10 remained ex parte.
20. On the basis of the above pleadings, the trial Court framed the following issues:-
1) Whether the plaintiff is entitled for permanent injunction?
2) Whether the plaintiff is in physical possession of the suit property on the date of filing of the suit?
3) To what relief.
21. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A.1 and A.2 were marked. Neither oral nor documentary evidence was adduced by the defendants.
22. By Judgment, dated 31-12-1988, the learned Subordinate Judge decreed the suit with costs.
23. Aggrieved by the same, the 5th defendant (Seetharamaiah) filed A.S.No.30 of 1989 on the file of the District Judge, Ongole and subsequently, the said appeal has been transferred to this Court and numbered as Tr.A.S.No.2959 of 1996.
24. Tr.A.S.No.2024 of 1996 The plaintiff (Kolla Venkateswarlu) filed the suit O.S.No.20 of 1979 on the file of the Subordinate Judge, Chirala, for permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of the plaintiff in respect of the suit schedule property.
25. The averments made in the plaint in brief are as follows:-
The suit property originally belongs to the 1st defendant and one Bachina Venkayamma obtained a decree in O.S.No.6 of 1956 on the file of the Subordinate Judge, Bapatla, and in execution of the said decree, the plaint schedule property was brought to sale and the same was purchased by the said Venkayamma in Court auction and obtained sale certificate and took delivery of possession through Court on 26-09-1974 in E.A.No.377 of 1974 and ever since she has been in possession and enjoyment of the plaint schedule property. While so, the said Venkayamma leased out the said land to the plaintiff under a registered lease deed and the plaintiff was put in possession of the same and the plaintiff is entitled to continue in possession till 31-03- 1976. The plaintiff spent considerable amount for raising cotton crop. Enraged by the purchase of his property by Bachina Venkayamma and filing of the Insolvency Petition by the plaintiff against the 1st defendant, the 1st defendant is trying to interfere with the possession and enjoyment of the plaintiff over the plaint schedule property with other defendants, who are all his close relatives. Therefore, the suit is filed for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.
26. The 4th defendant (Seetaramaiah) filed his written statement, which was adopted by defendants No.1 to 3, 5 and 6, denying the execution of lease deed by Venkayamma in favour of the plaintiff on 21-08-1975 and taking possession of the same and raising crop. It is averred that Bachina Venkayamma and Anche Veeraiah sold the plaint schedule property and some other property to this defendant under contract of sale, dated 24-04-1974 for a consideration of Rs.32,000/-, and after receiving Rs.25,000/-, this defendant was put in possession of the property on the date of execution of the said contract of sale and ever since this defendant is in possession and enjoyment of the suit schedule property. On the representation of Bachina Venkayamma that herself and Kolla Gangayya compromised the matter, he kept quiet for delivery of possession through process of Court. Venkayamma gave possession of the suit schedule land under contract of sale on the date of execution of the contract of sale itself. The plaintiff began cultivating the same. As Bachina Venkayamma has no possession of the suit land, the alleged lease deed in favour of the plaintiff is not true and the same was brought into existence to set naught the contract of sale, dated 24-04-1974. Under the contract of sale, this defendant has paid Rs.25,000/- out of total consideration of Rs.32,000/- and the remaining balance of Rs.7,000/- is to be paid with interest at 12% per annum, for which he is ready and willing to obtain the sale deed. While so, the plaintiff and Bachina Venkayamma colluded together and obtained an ex parte injunction order and with the aid of the said order, the plaintiff has removed the cotton crop worth Rs.4,000/-. Bachina Venkayamma is not at all in possession of the suit property and the plaintiff is not a lessor of the suit land. Therefore the suit is liable to be dismissed.
27. On the basis of the above pleadings, the following issues were settled:-
1) Whether the plaintiff is the lessee of the suit land?
2) Whether the plaintiff is entitled to the permanent injunction as prayed for?
3) Whether the defendant is a bona fide purchaser for value?
4) Whether the plaintiff is in possession of the suit land on the date of suit?
5) To what relief
28. On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A.1 to A.4 were marked. Neither oral nor documentary evidence was adduced by the defendants.
29. By Judgment, dated 31-12-1988, the learned Subordinate Judge decreed the suit with costs.
30. Aggrieved by the same, the 4th defendant (Seetharamaiah) filed A.S.No.18 of 1989 on the file of the District Judge, Ongole and subsequently, the said appeal has been transferred to this Court and numbered as Tr.A.S.No.2024 of 1996.
31. As already stated, one of the contesting defendants in the above three suits viz., P.Seetharamaiah has filed the appeals contending that the Judgments and Decrees of the Court below are erroneous and cannot be sustained.
32. On the other hand, learned Counsel appearing for the respondents/plaintiffs submits that even according to the appellant, in the suit which he filed, it is admitted that the plaintiffs in these three suits came in possession of the schedule properties and hence he is seeking for recovery of possession. So long as the possession of the respondents/plaintiffs continues, they are entitled to injunction, as prayed for. The specific case of the contesting defendant/appellant herein is that the plaintiffs in these suits have come in possession of the property in pursuance to a registered lease deed said to have been executed by his vendor Smt. Bachina Venkayamma subsequent to the agreement of sale in his favour. Learned Counsel further submits that in view of the above, the Judgments and Decrees under challenge cannot be interfered with and the plaintiff is entitled to be in possession of the schedule properties so long as he is not dispossessed in accordance with law.
33. The point for consideration is as to whether the plaintiffs in the three suits are entitled to the relief of recovery of money and injunction restraining the appellant/defendant from interfering with their possession?
34. The brief history of the litigation which dates-back to the year 1956 and which is in respect of the schedule property, briefly be noticed;
35. The schedule properties were owned and possessed by Kolla Gangaiah (respondent/defendant). Bachina Venkayamma has filed suits in the year 1956 against said Kolla Gangaiah in respect of certain properties belonging to her father. Those suits were decreed. In that round of litigation, the Court held that Bachina Venkayamma is entitled to certain amounts towards maktha and mesne profits from Kolla Gangaiah (respondent/defendant). To recover the said amounts, execution proceedings were taken up. The schedule property which comprises of Ac.1-66 cents and Ac.0-46 cents which are abutting each other and also a daba house of Kolla Gangaiah was put in Court auction. Bachina Venkayamma, with the permission of the Court, was successful bidder in respect of the agricultural lands of Kolla Gangaiah in the years 1970 and 1973. Bachina Venkayamma obtained possession of the said properties through process of Court. Subsequently, it is alleged that in between the appellant/defendant – Seetharamaiah and Bachina Venkayamma there was settlement involving the properties of Kolla Gangaiah (respondent/defendant) and it was decided that Kolla Gangaiah is liable to pay a sum of Rs.32,000/- to Bachina Venkayamma if he has to retain the lands that were sold in the Court auction. Since Kolla Gangaiah had no means, the appellant – Seetharamaiah being his brother-in-law came forward and agreed to purchase the schedule lands from Bachina Venkayamma for a consideration of Rs.32,000/-. Said Seetharamaiah and Bachina Venkayamma entered into an agreement of sale on 24- 04-1974 and on that date it is said that the appellant-Seetharamaiah paid Rs.25,000/- to Bachina Venkayamma and obtained an agreement of sale. The balance amount of Rs.7,000/- was agreed to be paid by 05-05-1974 and Seetharamaiah was to obtain a registered sale deed. Since Bachina Venkayamma failed to execute the same, Seetharamaiah filed O.S.No.33 of 1976 (which is the subject matter of A.S.No.965 of 1989 on the file of this Court).
36. In the said suit, the appellant-Seetharamaiah being the plaintiff contended that in pursuance to the agreement of sale, dated 24-04- 1974, he was put in possession of the properties and subsequently Bachina Venkayamma and her people have brought into existence lease deed in respect of Ac.1-66 cents of schedule property in favour of Kolla Venkateswarlu (the respondent/plaintiff herein). It was also the case of Seetharamaiah that by filing a suit, the said Kolla Venkateswarlu forcibly occupied the schedule properties and hence he sought for recovery of possession of Ac.1-66 cents of land.
37. It was also the case of the Seetharamaiah that for the remaining Ac.0-46 cents of land, the sale was finalised in favour of the people of Bachina Venkayamma and Kolla Venkateswarlu. The plaintiff in O.S.No.21 of 1979 appears to be the brother of said Kolla Venkateswarlu. He has purchased the remaining Ac.0-46 cents of land belonging to Kolla Gangaiah (respondent/defendant) in the Court auction.
38. It is also alleged by Seetharamaiah that the in order to circumvent the Court sale of Ac.0-46 cents of land, Kolla Gangaiah executed a registered sale deed in respect of Ac.0-46 cents of land in favour of his own son-in-law.
39. On the other hand, the contention of Bachina Venkayamma, Kolla Venkateswarlu and others had been that having purchased the schedule lands in Court auction, they had been put in possession and Kolla Gangaiah who is a person having found guilty of forging the will of the father of Bachina Venkayamma has forged the agreement of sale, dated 24-04-1974 purported to have been executed by Bachina Venkayamma in favour of Seetharamaiah, appellant herein.
40. From the above narration of facts, what is manifest is that even according to the appellant-Seetharamaiah, he is out of possession of the schedule lands admeasuring Ac.1-66 cents and Ac.0-46 cents. It is also his own case that Kolla Venkateswarlu (the plaintiff in O.S.No.78/1978 (OS.No.533/76) has obtained a registered lease deed in respect of the schedule lands from Bachina Venkayamma. That is the reason why Seetharamaiah has sought for the relief of recovery of possession. Therefore, I have no hesitation in holding that so long as Kolla Venkateswarlu and his brother Kolla Subbaiah, the plaintiffs in three suits, are not dispossessed in accordance with law, they are entitled to injunction.
41. With regard to recovery of a sum of Rs.3,086/- towards the cost of cotton crop said to have been taken away by the appellant- Seetharamaiah from the suit schedule land, it is evident that even though the appellant-Seetharamaiah denied the same and contested the suit of Kolla Venkateswarlu for recovery of the amount, but he failed to prove that he is not liable to pay the said amount. The respondent/plaintiff – Kolla Venkateswarlu has produced oral and documentary evidence which clinchingly establishes the fact that there was a standing crop of cotton on the suit schedule lands and on 17-02- 1976 and 18-02-1976, the said crop was taken away by Seetharamaiah-the appellant. Even though a feeble attempt was made by Seetharamaiah-the appellant to contend that he has raised the cotton crop, the same has not been proved and also do not appear to be correct in view of the fact that even according to Seetharamaiah, it is the plaintiff – Kolla Venkateswarlu who had been in possession of the suit schedule lands. The said Kolla Venkateswarlu also successfully obtained injunction orders against Seetharamaiah in another suit. The respondent/plaintiff – Kolla Venkateswarlu by examining himself and also examining PWs.2 to 4 and producing Exs.A.1 to A.5 has proved that the standing crop on the schedule land was worth Rs.3,086/- and the same was taken away by the appellant-
Seetharamaiah. As against the above evidence, neither the appellant- Seetharamaiah adduced any evidence to support his contention. Therefore, the Court below has rightly decreed the suit of Kolla Venkateswarlu for recovery of a sum of Rs.3,086/- being the cost of the cotton crop.
42. The Judgments and Decrees in all the three suits is based on proper appreciation of the material on record warranting any interference. There are no merits in the appeals and the same are liable to be dismissed. The point is accordingly answered.
43. In the result, the appeals fail and the same are dismissed with costs.
JUSTICE M.S.K.JAISWAL Date: 31st December, 2014 smr HON’BLE SRI JUSTICE M.S.K.JAISWAL Tr.A.S.Nos.2024, 2959 and 2960 of 1996 (COMMON JUDGMENT) Smr (pd) 31st December, 2014