Saladulla Ramamohana Rao v. Chodavaram Yocob

THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY SECOND APPEAL No.1092 OF 2012 JUDGMENT:

The unsuccessful plaintiff preferred this second appeal challenging the decree and judgment dated 05.6.2012 in A.S.No.227 of 2007 on the file of the Court of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada, wherein and whereby the decree and judgment dated 10.9.2007 in O.S.No.1500 of 2002 on the file of the Court of the Rent Controller-cum-IV Additional Junior Civil Judge, Vijayawada dismissing the suit filed for recovery of possession of the suit schedule property and perpetual injunction, was confirmed.

2.

The facts leading to filing of the second appeal are as follows: The plaintiff purchased an extent of 306.85 Sq.yards or 256.566 Sq.mts., situated in R.S.No.408/6, Ward No.9, Gollapudi Gram Panchayathi, Ibrahimpatnam Mandal, Krishna District, under a registered sale deed dated 31.3.1997 from Smt.Achyuta Lakshmi Narasamma; ever since, he has been in possession and enjoyment of the said property. The vendor of the plaintiff is said to have purchased the property from three persons respectively. The property of the defendants is situated on the north of the plaintiff's property. The extent of the plaintiff's property from south to north is 65 feet. The case of the plaintiff is that the defendants have encroached five (5) Sq.yards of the plaintiff's

property i.e., suit schedule property and constructed a wall therein. On 02.6.2002, when the plaintiff objected for construction of sunshade on the northern side of suit schedule property, which was shown as ADG in the plaint plan, the defendants threatened him with dire consequences. Hence, the plaintiff filed the suit for recovery of the suit schedule property and for perpetual injunction. 3.

The defendants filed the written statement denying all the averments made in the plaint inter alia contending that the defendants are the owners of the suit schedule property. Even as per the rough sketch filed by the plaintiff along with the plaint, the plaintiff has no right whatsoever over the suit schedule property. A criminal case is pending against the plaintiff on the file of the Station House Officer, I-Town Police Station, Vijayawada. Hence, the suit is liable to be dismissed. 4.

Basing on the rival contentions, the trial court framed the following issues:

(1) Whether the plaintiff is entitled for a decree for vacant possession of site as shown in plaint plan (ADG) and for permanent injunction as prayed for?

(2) To what relief?

5.

In the trial court, on behalf of the plaintiff, P.W.1 was examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B4 were marked.

6.

After analysing the oral, documentary evidence and other material available on record, the trial Court arrived at the conclusion that the plaintiff failed to prove that the defendants have encroached the suit schedule property and consequently dismissed the suit. Feeling aggrieved by the decree and judgment of the trial court, the unsuccessful plaintiff preferred A.S.No.227 of 2007 on the file of the Court of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada.

The first appellate Court, after reappreciating the oral, documentary evidence and other material available on record, while concurring with the findings of the trial Court, dismissed the appeal. Hence, this second appeal is preferred by the unsuccessful plaintiff. 7.

The question of law urged by the learned counsel for the appellant is:

Whether the first appellate Court is justified in disposing of I.A.No.245 of 2011 along with the main appeal? 8.

It is needless to say that when the plaintiff has taken a specific plea that northern boundary of his property from south to north is 65 feet and the defendants have encroached the suit schedule property i.e., five (5) sq.yards, the burden of proof lies on him to establish the same. Ex.A1 is the registered sale deed dated 31.3.1997, under which the plaintiff had purchased the property from his vendor. In the cross-examination, the plaintiff admitted that there is no recital in Ex.A1 that the northern boundary of the plaintiff's

property from south to north is 65 feet. In the absence of such recital in Ex.A1, much weight cannot be attached to the oral testimony of P.W.1. The trial Court, after appreciating the material available on record, arrived at the conclusion that the plaintiff miserably failed to prove that the defendants have encroached the suit schedule property. The first appellate Court, after reappreciating the oral and documentary evidence available on record, came to the conclusion that the plaintiff failed to prove that the defendants have encroached the suit schedule property. Whether defendants have encroached five (5) sq.yards of site belongs to the plaintiff, is purely a question of fact.

Basing on the material available on record, both the Courts concurrently held that the plaintiff failed to prove that the defendants have encroached five (5) Sq.yards of site belongs to the plaintiff. The first appellate Court is the final Court so far as the findings of fact is concerned. This Court shall not lightly interfere with the concurrent findings of fact recorded by the Courts below. The findings recorded by the Courts below are based on evidence much legally admissible evidence. 9.

During the pendency of A.S.No.227 of 2007, the plaintiff filed I.A.No.245 of 2011 under Order XLI Rule 27 of CPC to receive additional evidence. Along with A.S.No.227 of 2007, the first appellate Court dismissed the I.A., on the ground that the plaintiff failed to prove basic ingredients of Order XLI Rule 27 of CPC. While contending that the first appellate

Court is not justified in disposing of the I.A., along with appeal, the learned counsel for the appellant-plaintiff has drawn the attention of this Court to the judgment of the Hon'ble apex Court in Sanjiv Goel v Avtar S.Sandhu1. As per the principle enunciated in the said case, non-disposal of the application filed under Order XLI Rule 27 of CPC along with appeal would amount to miscarriage of justice. The Hon'ble apex Court, while making such an observation, remanded the matter to the appellate Court with a direction to dispose of the application under Order XLI Rule 27 of CPC along with the appeal on merits. In the instant case, the appellate Court disposed of I.A. No.245 of 2011 along with A.S.No.227 of 2007 by assigning reasons therefor; as such the decision is no way helpful to the appellant.

(i) In Union of India v Ibrahim Uddin2, the Hon'ble apex Court held at paragraph No.49 as follows:

49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/ bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. ... ... 1 (2006) 9 SCC 748 2 (2012) 8 SCC 148

(ii) In V.Ranga Reddy v. C.Rama Krishna Reddy3, this Court held at paragraph No.7 as follows:

7. Having regard to the observation of the Apex Court referred to above, it is always expedient for the Court to examine the interim application filed under Order 41 Rule 27 CPC while hearing the main appeal in order to arrive at a right conclusion and also, if necessary, by taking into consideration the documents so sought to be received by the Court and filed under Order 41 Rule 27 CPC., and if the Court is of the satisfaction that even without taking into consideration the documents so sought to be received by the Court, a judgment in a satisfactory manner can be rendered, the interim application in that regard can also be discarded. However, it is always desirable, as held by the Supreme Court, to take into consideration the documents sought to be received along with the hearing of the appeal.

Any conclusion arrived at would only amount to a premature conclusion, which may sometimes cause prejudice to the case of either party. Following the judgment referred to above, I have no option but to allow the revision. Hence, I.A.No.37 of 2004 in A.S.No.10 of 2002 is liable to be set aside and the same, accordingly, set aside. (iii) In State of Rajasthan v. T.N.Sahani4, the Hon'ble apex Court held at paragraph No.

4. It may be pointed out that this Court as long back as in 1963 in K.Venkataramaiah V. Seetharama Reddy, AIR 1963 SC 1526, pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner.

This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal.

3 2005 LawSuit (AP) 113 4 (2001) 10 SCC 619

10.

As per the principle enunciated in the cases cited supra, any application filed under Order 41 Rule 27 CPC has to be decided along with the appeal only. As observed earlier, the appellate Court dismissed I.A. No.245 of 2011 along with A.S.No.227 of 2007 on merits.

11.

In the light of the foregoing discussion and also the principle enunciated in the cases cited supra, I have no hesitation to hold that the first appellate Court is justified by disposing of I.A.No.245 of 2011 along with A.S.No.227 of 2007 on merits. The courts below have assigned cogent and valid reasons to its findings. There is no question of law much less substantial question of law in this appeal. 12.

In the result, this second appeal fails and is accordingly dismissed confirming the decree and judgment dated 05.6.2012 in A.S.No.227 of 2007 on the file of the Court of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada. No order as to costs. Miscellaneous applications, if any pending in this second appeal, shall stand closed.

__________________________ T. SUNIL CHOWDARY, J.

Date: 13.11.2017.

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