Allam Upendra v. V. Ramachader Rao

rN rHE HIGH couRr FS$r'ISf"tiJE oF TELANGANA ruEsD#br+liJlillsxft 3'f^['-$lF53E*"'* PRESENT THE HONOURABLE SRI JUSTICE N'TUKARAMJI P L N EA o: 2050F2019 SE ND AP ecree Dated ment and D Appeal under section 100 of C.P'C against the Judg he file of the and Decre Court of the PrinciPal e Passed t tn dated 2 al, Pref 3 of 2017 on erred against e in A.S No'

8/1 1/2016 on th the file of the e Judgment Court of the Princtpal 't 1.06.2019 ma District Judge'

o.S.No.1312 o d Warang f 2008 Junior Civil Judge Warangal hord', rto3251'

Between:

All?EJ'#:flli,t3',fi::ii""lfl!''?::3,1,'"V:flir,3"3ur';;1"'se "'PtaintifflAppellanUAPPELLANT AND --^ D^^ 'natt 57u"'o' otf'p ' business r/o V.Ramachadettrq:i{"Jfi rt&,!:ff?15?",ft ffi trrl:'"#;\ii""'*dioistrict.

H'No' 2-16' Bheemarar "'DefendanuRespondenuREsPoNDENT IA NO:1 OF 2023 e circumstances stated ourt may be Pleased to ioner herein to carryout which is mentioned in Petition under Section 151 CPC praying. that in th in the affidavit fileo in supJort of tfre peiition' the..High C ,ir"* ft'. it'.trnt amendmJnl petition and permit the petit th;';;;;.t;J amendmenis in memorandum of appeal Affidavit.

: Mr. Pitta Srinivasa ReddY Gounsel {or the ApPellant Counsel for the Respondent : Mr. Yellapragada Srinivasa Murthy The Court delivered the following:

d THE HIcNoURABLE SRI JUSflcE N.TUKARAMJI SECONDAP PEAL No.2050F2019 JUDGMENT:

I have heard Mr pitta Srinivasa Reddy, learned ccrunsel for the appellant/plaintiff, on Mr.Yellapragada Srinivasa admission and also heard Murthy, learned counsel lor the respondenUdefendant.

2.

This apperal is filed assailing the decree and judgment dated 1 't 06 201 9 in A.S.No.3 of 2017 passed by the learned Principal District Judge, Warangal, whereby the decree and judgment dated ilti i 1.2016 in O.S.No..t312 of 2OOB on the.fite of learned Principal .Junior Civil Judge, Warangal, has been affirmed. fhe appellaqt' as plaintiff filed the suit vr'de o s No 1312 or 2008 seeking perpr-'l tla; injunction against the respondenUdefe ndant over the suit scheclule property i.e' open land admeasuring 82 square yards adjac€)nt to House bearing No"l-42 in Sy Nos 2rJ4lE and 205, situatecl at Bheemaram of Ramaram, Hasanparthy Manda\, Vtlarang a\ t)istrict ({or short'the subiect propertv') ::::'#I'::

::::-""r'::l; - the case t:

had Pur that he

S A. No'205 of 2019 yards joining to his house under a deed dated 01 05'1982 and in unison he paid Rs'200/- as an advance and later paid remaining sale consideration and his vendor delivered possession of the subiect property Since then' the entire land is in his possession and enjoyment Further' the plaintiff constructed residential house' for which the Grampanchayath assigned House No 1-42 and he is paying property tax' The respondent/defendant (hereinafter 'the defendant') without any right or interest over the subiect property interfering with his possession Thus' the suit for pelpetual injunction '

5.

The defendant contested that' the original own6r Ranga Rao had gifted 845 square yards of land including the subiect property under registered gift deed in 1984' Since then' he is in possession and enjoyment of the property However' the plaintiff wtlh mala fide intention created the document styling simple sale deed and claiming tifle and possession over the property, which is obviousry unsustainable under law'

6.

The trial Court on considering the materials held that the plaintiff failed to prove possession and enjoyment over the subject property, hence, declined the suit claim'

R *'/, / / JA A,o 205 of 2O19 7 '

Aggrieverd thereby the plaintiff preferred appear yrck,A.s.No.3 of 2017' on 'e'-appreciation, the first appellate court arso recorded similar conclusions and dismissed the appeal suit. Challenging the first appellate Court,s judgment, the plaintiff filed this Second Appeal.

Learned ctunsel for the plaintiff would submit that the, plaintiff had purchased -he subject property from the original ovyner and payment of corrsideration was also acknowledged under rr:ceipts The praintiff consiructed house, obtained erectricity connectidri and regularly paying the tax to the Grampanchayath and these aspects are proofs of his tossession over the subject property. Hr),urrever, the Courts belorv disregarded the documents and ther oral testimonies placed on behalf of the plaintiff and erred in conr:luding that the plaintiff is r,ot in possession of the subject property. On the other hand, contr:rrded that the gift setflement deed and other documents filed b,l the defendant are created to defeat his inbrest. Thus, prayed for reconsideration and intervention. 9.

During pen,Jr>ncy. the plaintiff filed a [/emo along with 11 05.2O09 and construction perrnission and approved plan dated establishieg -his vehemently pleaded that these documents are also Placr:'C the possession over the subiect prope(y He \

a S A. No 205 of 2019 authorities between K'R'subrahmanyam and another v' A'Raja Reddf and Kaheeda Moin and others v' Md'tqbal Ati and others2of the erstwhile High court of Andhra Pradesh and pleaded that the admissibility of unregistered document for collateral purpose and proving possession has been approved' thus' basing on the materials placed on record' the suit claim to the extent of inlunction should have been allowed'

10. Per contra' learned counsel for the defendant '"'0":'tn1 the Courts below have properly considered the oral and documentary evidence praced by the praintiff and in the absence of any particular material proving possession over lthe subject property, the suit was rightty dismissed He further contested that bringing documents on to record by way of Memo is improper and against the procedure Further' the documents filed with the Memo are of the year, 2009' which are after filing the suit and the plaintiff has to prove possession over the subject property by the date of filing suit. Thus, on any respect' the documents placed along with lVlemo cannot be looked into, as they were not placed before the trial or first aPPellate Courts'

' zoo2 (5) ALT 404 (s.8.) '? rgge (s) nLo s:r

NTR J S.A. Ato.2oi| of 2o1g 11 . I have r;onsidered the submissions of the learned counsel and perused the record.

12 ln this [rosition, the aspect for determination would be whether the ()ourts below have considered the oral and documentary erv idence in proper perspective in a'iving at the conclusions and whether any substantial question of law rs made out for considerat jon.

13. As per the plaintiff, he had purchased Ac.0_06 gts., o1. land in Sy.No.204lE of 13heemaram Village and to make it a contiious plot, he purchased g2 square yards of land from its owner V Ranga Rao. Admittedry, tire sale transaction was under simpie sare deed. It is settled posilion that untir the essential requirements under Stamps and Regis;tr-ation Act are complied, transmission of tifle witl not be complete. t is also admitted that the subject property is vacant site abutting lhe house of the plaintiff.

14. At hearing, learned counsel for the plaintiff has asserte<i that during the penden,:v of suit they have raised shed. Howsoever, thgfe iS nO materia to show such construction or the plaintiff,s p0SSgSSiOn OVer it -thus' the subiect property has to be considered as open land abuttir'g the house of the plaintiff ' :;,t x*:*;*ilti&*t:."

s.A. No.2o5 0f 2019 o

15. Howsoever' before the trial Court' to establish his possession over the sublect property' the plaintiff had placed original pattadar pass book and title deed/Exs'A-1 and A-2'Pahani/Ex'A-3' demand notice of Grampanchayath/Ex.A-7, receipt of electricity bill/Ex A-1 1 and also electricity billiEx'A-12' All these documents are pertaining to the land of plaintiff in Sy'No'204/E and the house constructed by him therein and none of them in any way establishing the possession of the plaintiff over the subject property i'e' 82 square yards.

'16. Further, the plaintiff filed two documents by way of Memo in this Appeal. As rightly pointed out by the learned c6unsel for the defendant that those documents are of the year' 2009' which is after filing of the suit Additionally' there is no explanation as to why the plaintiff could not place these documents either before trial or first appellate Courts That apart, filing of Memo to bring in the documents on to record is not proper' as it is contravening the procedure as prescribed under Order XLI Rule 27 of the Civil Procedure Code, 1908. Nonetheless, the appellant has not even stated a word explaining the essential requirements given in the provision. Even otherwise, the documents are pertaining to the construction within the undisputed premises of the plaintiff'

.

s A ,\t t 2OS of 2019 Iherefore, ever by th, the subject prop,efty,. ,"t" 'o""ents, the fact rot being refrected.

of possession over

17. ln the atrove note tuar position and the documents fired bv the plaintiff, ,u" ,r".:1,:,^ conclusion that can be drawn is, the r possession over the subject property.

19. The well setfled position is that in ftte absence ctf any particular and legerlry acceptable material estabrishing possession, the possession has to be presumed basing on the tifle, jr other words, the party with tiue over the disputed ,r"r"nr.r;""; property, shall be herld as in possession. This propositron has been fortified by the Hon'ble Apex court in the authority lt anat,*a Sudhakar v. p.Buc:hri Reddy (dead) by LRs and others3. praintiff faitedto prove n,rtt'o'"

19. ln this conte>I the ptaintiff had admitted that one V.Ranga Rao is the owner of the subject property and he purchased the same under simple sarle deed. On the other hand, the defendant is claiming tifle over tre subject property under registered gift deed executed by the ownrlr of the subject property i.e. V.Ranga Rao. This situation is making out regal tiile in favour or the derendant That being the actuality and in the absence of anv evidence t 12OOA1 + SuPreme couri f;ases 594

C\ S.A. No 205 of 2019 showing plaintiffls possession over the subiect property' it shatl be held that the Courts below have considered the facts in law tn proper perspective in determining the suit claim' Therefore' no irnpropriety is found in the impugned iudgment' much less' any substantial question o{ law for consideration in the Second Appeal' Thus, this appeal fails on merit and is liable to be dismissed'

20. Accordingly' the Second Appeal is dismissed' No order as to costs.

As a sequel, pending miscellaneous applications' if any' sh J SdI DEPUTY K.S LESHI stand closed REG STRAR /[RUE COPY// SECTION OFFICER To o DLi 15 g ;p,.[t;#*#t*illt# fifi " :"

HIGH COURT DATED31t12t2024 HE S'l-'r\f ot t 2ffi ,\ J ?4 l'lrF

JUDGMENT

* .r-) DF5 p41 r ,\\ * SA.No.205 of 2O19 DISMISSING THE S.A.

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