THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.158 of 2005 January 22, 2014 Between:
Shaik Rehman, S/o.Shaik Kudubuddin AND … Appellant/ 2nd respondent/L.R. of plaintiff State of Andhra Pradesh, represented by its District Collector, Visakhapatnam And another … Respondents/ Appellants/Defendants THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.158 of 2005 JUDGMENT:
This second appeal is preferred by the legal representative of sole plaintiff challenging the decree and judgment dated 23.8.2004 in A.S.No.43 of 1995 on the file of Senior Civil Judge Court, Anakapalle, modifying the decree and judgment dated 10.4.1995 in O.S. No.43 of 1988 on the file of Principal District Munsif Court, Anakapalle. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the suit.
2. The case of the plaintiff is that the vacant site with terraced house and thatched sheds situated in Bayyaram Village, Kasimkota Mandal, Visakhapatnam District (for short, schedule property) originally belonged to her husband, by name, Shaik Kudubuddin @ Nunna Saheb and his ancestors. Kudubuddin had executed a settlement deed dated 07.5.1960 in favour of plaintiff in respect of his property, which includes schedule property. After his death, plaintiff has been in possession and enjoyment of the same. Previously a part of the vacant site was leased out to some parties. Plaintiff belongs to minority community. Taking advantage of her economic backwardness, some of the lessees and other villagers in collusion with local M.L.A., made hectic attempts to deprive the right of plaintiff over the schedule property. The officials of second defendant have tried to measure the schedule property and fix the boundary stones, without consent of plaintiff. The officials proclaimed that they will dispossess plaintiff from plaint schedule property. Hence, the suit was filed for permanent injunction.
3. The second defendant filed written statement inter alia contending that schedule property is situated in Bayyavaram Village within the limits of erstwhile Kasimkota Zamin Estate and the same was taken over by the Government under Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948. During the survey and settlement operations, entire Bayyavaram village admeasuring an extent Ac.18.40 cents in survey No.289 declared as poramboke land and vested in the Government. The schedule property is also poramboke land and vested in the Government. The plaintiff and her predecessors in interest occupied a portion of land measuring about Ac.0.10 cents and constructed pucca terraced and thatched houses in that Ac.0.10 cents and appurtenant site. The remaining site in schedule property was occupied by 28 persons and they have been in possession and enjoyment of the same by constructing thatched houses, and are paying house tax to Gram Panchayat. The said 28 persons submitted a representation to the Chief Minister of Andhra Pradesh requesting to provide them pucca houses under Pucca Housing Scheme. Out of 28 thatched houses, there are only seven thatched houses and the remaining thatched houses became dilapidated and crumbled down. As per the sketch and layout prepared by the Government in respect of survey No.289, houses of plaintiff and appurtenant site are in Government porakboke. The Government alone has got title to the schedule property. The plaintiff filed the suit with false and frivolous allegations with a view to grab entire schedule property. Hence the suit is liable to be dismissed.
4. Basing on the above pleadings, the trial court framed following issues:
1. Whether the plaintiff is entitled for injunction as prayed for?
2. To what relief?
5. After analyzing the oral, documentary evidence and other material available on record, the trial court decreed the suit in part excluding the site covered under Exs.X1 and X2. Feeling aggrieved, plaintiff filed appeal and the same was also dismissed granting injunction in respect of Ac.0.10 cents only. Hence, the plaintiff preferred this second appeal.
6. The substantial question of law urged in this appeal is as follows.
Whether the lower appellate court was justified in disallowing injunction in respect of thatched houses in suit site 0.10 cents in Sy.No.289 of Bayyavaram village having confirmed the judgment and of trial court to the extent of terraced house and abutting site in occupation of the plaintiff?
7. Heard Sri M.Radha Krishna, learned counsel for appellant/legal representative of deceased plaintiff and learned Government Pleader for Arbitration appearing for respondents/defendant Nos.1 and 2.
Point:
8. To substantiate the case, plaintiff examined herself as P.W.1 and got marked Ex.A1 registered settlement deed. P.W.2 was examined to prove the execution of Ex.A1 settlement deed. Exs.X1, X2 and X3 were marked through P.Ws.3, 5 and 6 respectively. P.Ws.4, 7 and 8 were examined to prove that plaintiff has been in peaceful possession of schedule property. To dislodge the case of plaintiff, Supernumerary Assistant in the office of second defendant was examined as D.W.1 and Exs.B1 to B3 were marked.
9. As per the testimony of P.W.1, her husband executed a settlement deed in her favour on 07.5.1960 (Ex.A1). P.W.2 identified the signature of the scribe of Ex.A1. The schedule property is shown as item-3 in Ex.A1. The oral testimony of D.W.1 coupled with Exs.B1, B2 and B3 clearly reveals that the entire Bayyavaram village is a Government poramboke. Kudubuddin, husband of P.W.1, had occupied Ac.0.10 cents of land in survey No.289 of Bayyavaram Village.
10. To resolve the controversy in this case, this court is placing
[1]
reliance on para – 6 of the decision in Padmanabhan v Thomas , which is extracted hereunder.
It has to be remembered that a suit for injunction is an equitable remedy and the primary requirement for the grant of an equitable remedy is that the person who claims the remedy must come before the Court with clean hands. He must show equity and he must show, his entitlement under the equity the relief he has sought fairness and good faith are the two important "things required for obtaining any equitable relief.” If the plaintiff in his conduct with the person against whom the relief is sought has acted in an unfair or inequitable manner he would not be entitled to the injunction. In this case, on the facts proved, the plaintiffs' dealing is not fair; it is inequitable and so, an equitable remedy under the Specific Relief Act should be denied to such a person. The trial Court has done so. That decision is a correct decision. At any rate it cannot be said that it is a wrong decision which has to be reversed in appeal. The appellate Court ought to have considered these aspects before reversing the decision of the trial Court. Only after considering the above aspects, the appellate powers can be exercised to correct the lower Court judgment. This principle also has to be considered as a principle which has to be applied in considering the appeal by the appellate Court.
(emphasis supplied)
11. Let me consider the facts of the case on hand with reference to the above legal principle. As per the testimony of P.W.1, she has been in possession and enjoyment of schedule property, which is shown as item-3 in Ex.A1 settlement deed from the year 1970 onwards. It is not out of place to extract here the relevant portion in the plaint, “Previously a part of the vacant site was leased out to some parties”. The extent of land leased out to third parties is not mentioned in the plaint. A plain reading of the plaint gives an impression even to an ordinary prudent man that P.W.1 did not sell schedule property to anybody as on the date of filing of the suit. A perusal of the testimony of P.W.1 clearly reveals that she sold the site covered by item-3 of Ex.A1 settlement deed to Pasa Adugula Sanyasi Rao, Theeda Rama Rao and Kodidasu Apparao under Exs.X1, X2 and X3 registered sale deeds respectively. A perusal of Exs.X1 to X3 clearly reveals that the plaintiff sold part of schedule property to the husband of P.W.3 under Ex.X1 dated 29.6.1981; to P.W.5 under Ex.X2 dated 16.12.1991; and to the husband of P.W.6 under Ex.X3 dated 19.8.1961.
12. As per the testimony of D.W.1, 28 persons were in occupation of part of schedule property and they made Ex.B1 representation dated 21.1.1988 to the Government for construction of pucca houses in the schedule property. A perusal of the testimony of P.W.8 reveals that he is one of the persons signed in Ex.B1. As per the testimony of P.W.8, some persons have taken parts of schedule property from plaintiff for rent and some others have constructed houses in schedule property. The version put forth by defendants that part of schedule property was occupied by third parties is more probable particularly in the light of the oral testimony of P.W.8.
13. Admittedly, plaintiff sold the part of schedule property under Exs.X1 to X3 registered sale deeds as referred supra. The plaintiff has given different boundaries in Exs.X1 to X3. In such circumstances, there is every possibility for variation of the boundaries of schedule property to that of boundaries mentioned in Ex.A1 settlement deed. The boundaries of schedule property are replica to that of the boundaries mentioned in item-3 of Ex.A1. As per the recitals of Ex.A1, total extent of item-3 from east to west 100 yards and north to south 60 yards. For the reasons best known, plaintiff did not choose to mention measurements of schedule property. This particular aspect creates any amount of doubt in the mind of the court whether the total extent of land shown in Ex.A1 was in possession and enjoyment of plaintiff as on the date of filing of the suit or not.
14. At this juncture, learned counsel for appellant has drawn my attention to the decision in Alla Basavapunnareddy v Kalaga
[2]
Krishnayya . As per the principle enunciated therein, the area
comprised within the boundaries prevailed over the area specified. The principle is not applicable to the facts of the case on hand for the simple reason that the plaintiff has not mentioned correct boundaries for the suit schedule property.
15. The Government has filed written statement admitting that plaintiff has been in possession and enjoyment of Ac.0.10 cents of land. It is apposite to extract here the relevant portion in the plaint, “The second defendant sent his surveyor and others to measure the schedule site and they tried to measure and put up stones etc., without the consent of plaintiff”. A perusal of the testimony of D.W.1 reveals that surveyor measured the entire Village including plaint schedule property. As per the testimony of P.W.1, she did not allow the officials to measure plaint schedule property. If really the plaintiff was in possession and enjoyment of 100 yards from east to west and 60 yards from north to south, as mentioned in Ex.A1 settlement deed, certainly she might have cooperated with surveyor for measuring schedule property. It appears, despite the resistance of plaintiff, revenue officials measured the land in possession of plaintiff and found that plaintiff was in possession of Ac.0.10 cents only. It seems that plaintiff has approached trial court after completion of survey in Bayyavaram village.
16. The burden of proof lies on plaintiff to establish that she was in possession of plaint schedule property as on the date of filing of the suit. The documents filed by plaintiff and oral testimony of her witness negatives the contention of plaintiff that she was in possession of entire schedule property as on the date of filing of the suit. The first appellate court considered the oral testimony of D.W.1 in the light of Exs.B1 to B3 and arrived at a conclusion that plaintiff was in possession of Ac.0.10 cents of land only. The plaintiff did not file plan showing various structures in the schedule property. In such circumstances, whether thatched house is in her possession or not cannot be decided. The plaintiff did not mention in the plaint that she sold the part of schedule property to third parties prior to filing of the suit. The plaintiff also did not mention the total extent of land in her possession as on the date of filing of the suit. All these facts clearly go to show that plaintiff has not approached the court with clean hands.
17. In the light of foregoing discussion, I have no hesitation to hold that plaintiff is entitled for the relief of permanent injunction to an extent of Ac.0.10 cents of land in survey No.289 of Bayyavaram village including the structures subject to the condition that structures are within Ac.0.10 cents and in possession of plaintiff. The findings of the courts below are, accordingly, modified. There is no question of law much less a substantial question of law in this appeal.
18. The second appeal is allowed in part to the extent indicated above, modifying the decree and judgment dated 23.8.2004 in A.S.No.43 of 1995 on the file of Senior Civil Judge Court, Anakapalle. There shall be no order as to cost.
19. The miscellaneous petitions if any pending in this second appeal shall stand closed.
(T.SUNIL CHOWDARY, J) 22nd January, 2014.
YS
[1] AIR 1989 Kerala 188
[2] AIR 1966 AP 260 (1)