K.Rangaswamy v. Narayanappa And 2 Others
THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.845 of 2000 Date:27.01.2016 Between:
K. Rangaswamy ... Appellant.
AND Naryanappa (died) and others.
...Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.845 of 2000 JUDGMENT:
This appeal is preferred against decree & judgment dated 07-04-2000 in A.S.No.18/1995 on the file of Additional District Judge, Hindupur whereunder judgment & decree dated 16-06-1995 in O.S.No.49/1985 on the file of District Munsif (presently Junior Civil Judge) Madakasira was confirmed.
2. Appellant herein is unsuccessful plaintiff in both the Courts. The suit was filed contending that first respondent herein, who is father of respondents 2 & 3, borrowed a sum of Rs.1,500/- and mortgaged suit land on 20-08-1969 in favour of appellant herein as a conditional sale and delivered possession under the said mortgage document. It is further contended that ever since the date of
conditional sale, plaintiff is in possession and enjoyment of the suit land, but as the defendants i.e., respondents herein tried to interfere with the possession and enjoyment, the suit was filed for permanent injunction. It is also contended that the appellant herein filed a suit for foreclosure of the mortgage debt in O.S.No.88/1982 and a preliminary decree was passed against D1 on 19-07-1983 and thereafter, a final decree was passed on 16-11-1983. Both defendants 2 & 3 are aware of the preliminary decree and final decree, but they are trying to interfere with the possession and enjoyment of the suit land.
3. D2 & D3 have resisted the claim of the plaintiff and contended that the property is in their possession and that the plaintiff is not entitled for the relief of permanent injunction. 4.
On these contentions, trial Court, after framing appropriate issues, proceeded with trial and during trial, two witnesses are examined on plaintiff side, four witnesses are examined on defendants' side and eight documents are marked on behalf of plaintiff and 35 documents are marked on behalf of defendants besides six Court documents. On a over all consideration of oral and documentary evidence, trial Court dismissed the suit holding that appellant herein failed to prove that he is in possession and enjoyment of the suit property as on the date of the suit. Aggrieved by the dismissal of the suit, the appellant herein preferred appeal to the Additional District Judge, Hindupur and the first appellate Court, on a reappraisal of evidence, confirmed the findings of the trial Court and dismissed the appeal.
Aggrieved by the same, the present second appeal is preferred and this Court on 20-10-2000 admitted this appeal treating the following as substantial questions of law:- "1. Whether the decree and judgment granted in earlier suit O.S.No.88/82 does not operate resjudicata to the present suit?
2. Whether Courts below are not exceeded their jurisdiction in considering the merits and validity of the earlier decree granted in favour of plaintiff in O.S.No.88/82?
3. Whether the decree passed in O.S.No.88/82 against first defendant does not bind his sons defendant Nos.2 & 3, when first defendant acted as manager of the family?
4. Whether the defendants can adduce evidence to disprove possession over the suit schedule property contrary to the recitals mentioned in Ex.A1 mortgage by conditional sale deed?
5. Whether defendant Nos.2 & 3 can impeach earlier decree in O.S.No.88/82 which was decreed against first defendant, their father, who acted as manger of family.
6. Whether the Courts below are right in relying on Commissioner Report in Exhibits C-2 and C3?"
3. Heard arguments.
4. Sri R. Prasad, learned Advocate for appellant submitted that both the Courts failed to notice that possession was delivered to plaintiff in the year 1969 through mortgage documents and that the plaintiff is in possession and enjoyment of the same. He further submitted that D1 was manager of the joint family and all the acts done by D1 would bind D2 & D3 but both the Courts without considering this aspect, dismissed the plaintiff's suit and that the findings of both the Courts have to be set aside.
5. Now the point that would arise for my consideration in this second appeal is whether substantial questions of law as referred to above are made out?
6. Point:- As already observed the suit was filed for the relief of injunction and the plaintiff examined two witnesses and relied on
eight documents. All the documents Exs.A1 to A8 are in respect of earlier proceedings i.e., in O.S.No.88/82, which is a suit filed on the basis of mortgage deed. Though plaintiff contended that possession was delivered to him by D1 on the date of mortgage deed, the evidence produced on behalf of defendants particularly documentsExs.B1 to B9 clearly establish that suit property was not in possession of the plaintiff. Considering these factual aspects, both trial Court and appellate Court have disbelieved the plaintiff's case and dismissed the suit. As seen from the material, particularly the documentary evidence, it is clear that the recitals in Ex.
A1 with regard to possession is not at all correct and the suit property remained in the possession of D2 & D3 and they have been enjoying the same by paying land revenue and raising fruit bearing trees in the suit land. The main contention raised with regard to substantial questions of law is that the judgment and decree in the earlier suit O.S.No.88/82 has to be taken into consideration and both the Courts exceeded their jurisdiction in considering the merits and validity of the earlier decree, but as seen from the record, the comment and observations of the Court below with regard to earlier suit O.S.No.88/82 is in respect of delivery of possession, but not with regard to the validity of the decree passed in O.S.No.88/82.
The entire material on record and the findings of the Courts below is only on factual aspects as to the possession of property as on the date of suit and there is no law involved in the matter particularly substantial questions of law. Therefore, on a scrutiny of the entire material on record, I am of the view that there is no force in the substantial questions of law raised by the appellant and that the second appeal is devoid of merits and liable to be dismissed.
7. For these reasons, second appeal is dismissed, but under the circumstances without costs.
8. As a sequel, miscellaneous petitions, if any, pending in this
Second Appeal, shall stand dismissed.
__________________________ JUSTICE S. RAVI KUMAR Date:27.01.2016 mrb