Mr. Ginnela Venkatesh @ Sarangi Venkateswarlu v. Mr. Venkata Ramanamma
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
TUESDAY, THE THIRTY FIRST DAY OF DECEIVIBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE N.TUKARAMJI SECOND APPEAL NO: 435 OF 2024 Appeal under Section 100 of CPC against the Judgment and Decree dated 07-03-2024 made in A.S.No.43 of 2019 on the file of the Court of the Principat District Judge, Nagarkurnool, preferred against the Judgment and Decree passed in O.S.No.121 of 2013 daled 13-02-2019 on the file of the Court of the Junior Civil Judge, at Kollapur.
Between:
Mr. Ginnela Venkatesh @ Sarangi Venkateswarlu, S/o. Jambulaiah, Age 46 years, Occ Business, R/o. Steel Shop No. 6, G.P Complex Near Govt. Hospital, Kollapur Town and Mandal of Nagarkurnool District ...Appellant / Plaintiff AND Mr. Venkata Ramanamma, W/o. Ramudu, Age 60 years, Occ. Business, R/o. H.No. 1- B- 74, Near Sri Sathya Sai Cinema Talkies, Kollapur Town and Mandal of Nagarkurnool District
...Respondent / Defendant
lA NO: 1 OF 2024 Petition under Section '151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, thp High Court may be pleased to suspend the operation of the Judgment and Decree dated 07.03.2024 in A.S. No. 43 of 2019 on the file of Principal District at Nagarkurnool otherwise, I will be put irreparable loss and damages which cannot be compensated by any means. lA NO:2 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petation, the High Court may be pleased to extension of lnterim Orders dt 30-10-2024 passed in lA No 1 oI 2024 in SA No 435 of 2024 until disposal of the Second Appeal.
Counsel for the Appellant :
Sri N Bhujanga Rao Counsel for the Respondent :
Sri Jagan Mohan Reddy Kotha The Court delivered the following Judgment :
:)- THE HONOURABLE SRIJUSTICE N. TUKARAMJI SECOND APPEAL No.435 oF 2024 JUDGMENT:
This appeal is filed challenging the decree and judgment dated07.03-2014inASNo.43of20lgpassedbythePrincipal District Judge, Nagarkurnool, whereby the judgment dated 13.02.2019 in OS No.121 of 2013 on the file of the Junior Civil Judge, KollaPur, has been inversed.
2.
Heard Sri N.Bhujanga Rao, learned counsel for the appellant and Sri Jagan Mohan Reddy Kotha, learned counsel for the respondent.
3.
The relevant facts in brief are that the appellant herein as plaintiff filed the suit in OS No.121 of 2013 seeking perpetual injunction against the defendant over the suit schedule 'A' and 'B' properties (schedule'A' property is 150 Sq'yds of open plot and schedule 'B' property is 300 Sq'yds of open plot) The appellanUplaintiff case is that, the respondenUdefendant without any manner of right or interest over the suit schedule properties' is interfering with his possession. As per the appellant' the schedule properties originally belonged to his father and the same were !
NTR,.I S.A No.135 of 2024 gifted to him under registered deeds on 31 .12.2012 and he is in possession and enjoyment of the property 4.
On the other hand, the respondenUdefendant's case is that the plaint 'A' schedule property was the property of the plaintiffs father and he sold the same under an unregistered sale deed/Ex.B1 to one Krishna Murthy and B.Mohan Rao/DW.2 on 15 09.2003 From them, she purchased under unregistered sale deed dated 08.09.2005/Ex.82, since then she is in possession of the property Her further case is that she purchased plaint 'B' schedule property under another unregistered sale deed/Ex.83 dated 19 09 1986 from the original owner S.V.K.B.A.Laxma Rao/DW 4 and the property was delivered to her on the date of the sale deed and she in possession of the property.
Thus, seeking perpetual injunction against her over the suit schedule properties is un-sustained The trial Court, having regard to the evidence placed by the parties, decreed the suit with costs in favour of the appellanUplaintiff restraining the respondenUdefendant from interference over the suit schedule properties. Aggrieved thereby, the respondenUdefendant preferred the appeal.
J NTR,J S.A No.135 of2021 unregistered sale deeds were proved by the respondenUdefendant andtheappellanuplaintifffailedtoflleanydocumentestablishing his possession, reversed the findings and selaside the judgment of perpetual injunction passed by the trial Court Thus, the plaintiff preferred this second aPPeal.
6'LearnedcounselfortheappellanUplaintiffwouldcontestthat the appellate Court had grossly erred in recording the findings of the title over the properties though the documents relied upon by the respondenVdefendant are unregistered and would not convey any title. Thus, the appellate Court accepting the unregistered sale deeds/Ex.B1 to 83 and conclusively recording the title' without therebeinganymaterialprovingpossessionespeciallyintheteeth of the admission that the suit schedule properties were purchased by the respondenVdefendant under unregistered deeds' setting aside the injunction granted by the trial Court is unsustainable' hence prayed for interference in second appeal' 7.
Learned counsel cited the authority between Tulasidhara and another v. Narayanappa and othersl to show that the formulation of substantial question of law in a case where reverse findings were recorded by the Courts below is stne qua non tor ' (lo tq) 6 Suprcme Court Cases 409 I
NTR,J S.A No.435 of 2024 exercising the jurisdiction under Section 100 of the Code of Civil Proced u re 8.
On the other hand, learned counsel for the respondenU defendant would plead that the documents filed by the appellant i.e., registered gift deeds/Exs 41 and 42 does not disclose delivery of possession. Whereas, the unregistered sale deeds/Exs.B1 and 82 are reflecting delivery of possession. Therefore, the aspect of possession is evident by the document and the Courts below had positively considered such aspect. He further submits that the unregistered sale deeds were marked, without any objection and it is settled position that the unregistered sale deeds may be taken into account for collateral purpose including determination of possession. Thus. the appellate Court was proper in considering the documents and concluding the factum of possession over the property and dismissing the appellanVplaintiffls claim. Hence, prayed for dismissal of the Appeal.
9.
I have carefully considered the submissions of the learned counsel and also the documents placed on record. '10. In the rival submissions, the preliminary question that arises .. for determination is whether the appellate Court had perversely
, NTR,J S.A No.435 oJ 2021 appreciated the facts and material in determining the prayer of perpetual injunction?
11. lt is pertinent to note that, the appellant and respondent are siblings and children of PW-2. The appellant as PW-1 to prove the title over the suit schedule properties had placed the registered gift deeds/Exs.A1 and A2 and also examined his father as PW'2' ln evidence, the PW.2 testified that he had purchased the suit schedule properties from the owner and they are self-acquired and he gifted them to his son/PW.1. ln cross-examination he asserted that the suit schedule properties were purchased from the erstwhile Raja i.e., one Jagannatha Rao under two or three registered sale deeds and that those documents were stolen by the defendant and denied execution of any unregistered sale deeds in favour of Krishna Murthy and Monhan Rao'
12. ln regard to the suit schedule 'A' property, the defendant placed the unregistered sale deeds/Exs.B1 and 82 on record and examined one of her vendors tt/lohan Rao as DW'2 The DW'2 thoughinthechiefaffidavitsupportedtheversionofdefendant'in cross-examination clarified that the PW.2 0btained hand loan from Krishna Murthy and the suit schedule'A' property was never sold
NTR.J S A No 435 of 2024 to l\tlohan Rao. but mortgaged to himself and M.Krishna Murthy as security towards hand loan
13. This statement of DW.2 is effecting the root of Ex B'1 and the claim of unregistered sale or execution of the document Further, it is well settled position that no one can transmit better title than what he/she has. Thus, the foundation of the defendant over the plaint 'A' schedule property under Ex.B-2 stands demolished and also the averments whatsoever therein. Pertinently, the defendant claimed that she had purchased the property from Krishna Murthy and Mohan Rao/DW.2 and they in turn said to have purchased from the PW.2. This stance itself is an admission as to the tifle of PW.2 over the schedule 'A' property. ln the absence of foundation and any specific document showing possession of the defendant over the Schedule 'A' property and basing on the settled proposition that in the case of vacant land, the possession should be presumed basing on title, the plaintiff shall be held as in possession. As such, the conclusion drawn by the appellate Court in regard to paint 'A' schedule property is liable to be set aside.
14. So far as, suit 'B' schedule property is concerned, the plaintiffs case is that under Ex.A-1, he got tifle over the property. Ot the other hand, the defendant claiming the property undef
NTR.J S.A No.435 oJ'2021 Ex.B-3. Further, the defendant got examined her vendor as DW.4' The DW.4 deposed that, he sold the property under Ex.B-3 in favour of the defendant with the boundaries mentioned in the sale deed.
'15. ln Ex A-1 the schedule 'B' property is in extent of 300 Sq.yds with the boundaries East: House of Jangala Pedda Chinthalaiah'
West : House of Jangala Motha Ramaiah North: Saranga Eshwaraiah vacant plot South: '10'feet road Whereas, in Ex.B-3, the plot admeasuring 286 of Sq.yds with following boundaries:
East: Plot given to Jangala Chinthalaiah, West. Plot given to Bitchagaala Ramulu, North: Plot of vendors South: Plot given to Saranga Venkateshwarlu
16. The above noted boundaries are clarifying the aspect that the plot claimed by the defendant under Ex.B3 is distinct to that of plaint 'B' schedule property. However, by the pleadings of the defendant, it is evident that the defendant is claiming the plaint 'B' schedule property to that of the property in Ex.B-3. Nonetheless, i as the plaintiff and defendant claimed properties are distinct and as
NTR,J S.A No..l35 of 2024 the suit 'B' schedule property being the vacant land, in the absence of specific evidence showing possession over the property, the party with better title shall be held as in possession of the property (See Anathula Sudhakarv. P. Buchi Reddy (Dead) By Lrsz) .
17. For the above said reasons, the other contentions of the defendant that the sale deeds of his vendor were not filed by the plaintiff or the gift deeds does not reflect delivery of the suit schedule properties fall insignificant ln this factual position, the plaintiff s entitlement for perpetual injunction against the defendant can safely be concluded and as the appellate Court fell in error in properly appreciating the evidence on record, the impugned judgment is liable to be and is accordingly set-aside. ln effect, the decree and judgment passed by the trial Court is restored. 18 ln the result, the second appeal is allowed. No costs As a sequel, miscellaneous applications if any, stands closed.
Sd/. K. SRINIVASA RAO JONNT REGISTRAR / v //TRUE COPY// SE:CTION OFFICER To,
1. The Principal District Judge, Nagarkurnool (with records, if any) r AIR 2008 SUPRITML CtoUR't 2o3l I
2. The Junior Civil Judge, at Kollapur
3. One CC to Sri N Bhujanga Rao, Advocate tOpUCl
4. One CC to Sri Jagan Mohan Reddy Kotha, Advocate tOpUCl
5. Two CD Copies VA/gh 9.
I I
HIGH COURT \ DATED:3111212024 \ 1i1F: S I.q ,l!
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JUDGMENT
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