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High Court of Andhra Pradesh · body

2025 DAILYLAW 12790 (AP)

A.R.Anantha Krishna, v. Pilla Pydithallamma

SA/212/2011 · 2025-04-29

Venuthurumalli Gopala Krishna Rao

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.212 of 2011 Judgment: This second appeal is filed aggrieved against the Judgment and decree dated 18.08.2010 in A.S.No.114 of 2005, on the file of the District Judge, Vizianagaram (“First Appellate Court” for short), reversing the Judgment and decree, dated 16.09.2005 in O.S.No.49 of 2002, on the file of the Junior Civil Judge, Kothavalasa (“Trial Court” for short). 2. The appellant herein is the plaintiff and the respondents herein are the defendants in O.S.No.49 of 2002, on the file of the Junior Civil Judge, Kothavalasa. 3. The plaintiff initiated action against the sole defendant in O.S.No.49 of 2002, on the file of the Junior Civil Judge, Kothavalasa, with a prayer for declaration that the plaintiff is the absolute owner of the plaint schedule property, for consequential relief of recovery of possession of the plaint schedule property by evicting the defendant, his agents, servants, etc., and by removing his material there from, for mesne profits from the date of suit till recovery to be determined by a separate application and for costs of the suit. 4. The learned trial Judge decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendants in the above said suit filed A.S.No.114 of 2005, on the file of the District Judge, Vizianagaram. The learned First Appellate Judge allowed the first appeal by setting aside the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful plaintiff approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.49 of 2002, is as follows: 2 The father of plaintiff A.S. Rama Iyer @ Ramaswamy purchased the suit property under a registered sale deed, dated 28.08.1968 and since then the father of the plaintiff was in possession and enjoyment of the same till his death. The plaintiff is the only son of his father. The name of the plaintiff is mutated in the revenue records and Government also issued title deed and pattadar passbook in favour of the plaintiff for the suit property recognizing his title over the same. The plaintiff also paid tax for the suit schedule property. The revenue authorities also issued 10(1) Adangal in favour of the plaintiff for the suit schedule property. In the year 1994 while the plaintiff was cultivating the suit schedule property, the defendants made an attempt to trespass and grab the same and as such the plaintiff filed suit in O.S.No.64 of 1994 on the file of District Munsif Court, S. Kota, seeking permanent injunction against the defendants and the said suit was decreed in favour of the plaintiff. The defendants preferred an appeal, A.S.No.102 of 1998 before the Additional District & Sessions Judge, Vizianagaram, against the decree and judgment in O.S.No.64 of 1994 and the said appeal was allowed by setting aside the decree passed by the District Munsif Court, S. Kota, on the ground that the father of plaintiff made admission before the Land Reforms Tribunal that the defendants were in possession of the suit schedule property in pursuance of an agreement of sale, dated 05.03.1970. The plaintiff filed second appeal, S.A.No.395 of 2001 before the composite High Court of Andhra Pradesh at Hyderabad and the same was dismissed on 07.09.2001 holding that the plaintiff did not prove his possession over the suit property. The father of the plaintiff during his life time executed a Will on 05.09.1999 in favour of plaintiff and the father of plaintiff died on 04.02.2001 and after demise of the father of plaintiff, the plaintiff became absolute owner of the suit property as per the Will, dated 05.09.1999. The father of plaintiff never alienated the suit property to anyone much less to the defendants and no consideration was passed to the father of plaintiff for the suit schedule property in respect of the alleged agreement of sale. The said agreement of sale which was marked as Ex.A.18 3 before the Land Reforms Tribunal which was declared as not genuine and the entire plaint schedule property was included in the total holdings of the father of the plaintiff and the order passed by the Tribunal became final. The defendants are no way concerned with the suit property and they have no right or possession over the same. Taking advantage of the dismissal of the earlier suit, the defendants occupied the suit land on 04.02.2002 and that the plaintiff is constrained to file the suit. 7. The sole defendant died during the pendency of the suit and his legal representatives are brought on record as defendant Nos.2 to 4. The 3rd defendant filed written statement before the trial Court denying the contents of plaint averments which was adopted by the defendant Nos.2 and 4. The brief averments in the written statement are as follows: The plaintiff claiming title under his father as a legatee is bound by his admission about the execution of the agreement of sale, receipt of consideration and delivery of possession to the deceased 1st defendant and the possession and enjoyment of the land in dispute by the vendee under contract of sale and the defendants are entitled to protection under Section 53 (a) of the Transfer of Property Act and the plaintiff is debarred from seeking possession of the suit property. Since the father of the plaintiff and the deceased 1st defendant died during the litigation, the defendants 2 to 4 have no knowledge about the contents of agreement of sale and more so, the same was snatched away by the father of the plaintiff from the Land Reforms Tribunal and the defendants have no chance to know about the payment of consideration under the said contract and that whether any balance amount was due. The defendants expressed their willingness to pay or deposit the said balance sale consideration into the Court and sought for dismissal of the suit. 4 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether the plaintiff is entitled for declaration of title as prayed for? (2) Whether the plaintiff is entitled for recovery of possession of the plaint schedule land as prayed for? (3) Whether the plaintiff is entitled to mesne profits? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 to P.W.4 were examined and Exs.A-1 to A-14 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.10 were marked. 10. The learned trial Judge, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendants filed the appeal suit in A.S.No.114 of 2005, on the file of the District Judge, Vizianagaram, wherein, the following point came up for consideration. Whether the impugned judgment of the trial Court in decreeing the suit of the plaintiff is in correct lines or not? 11. The learned first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiff/appellant and in favour of the defendants/respondents and allowed the appeal filed by the defendants by setting aside the decree and judgment of the trial Court. Felt aggrieved of the 5 same, the unsuccessful plaintiff in O.S.No.49 of 2002 filed the present second appeal before this Court. 12. On hearing both sides counsel at the time of admission of the appeal, on 11.03.2011, the composite High Court of Andhra Pradesh at Hyderabad, framed the following substantial questions of law: (1) Whether in the facts and circumstances of the case, the defendants can protect their possession under Section 53(a) of Transfer of Property Act in view of the fact that the written agreement has not been filed in the court and since the defendants failed to establish that they have performed their part of contract and have done some act in furtherance of the contract? (2) Whether in the facts and circumstances of the case, the finding of the First Appellate Court that the title and right of defendants was confirmed in the earlier suit, O.S.No.193 of 1996 and so the same cannot be reopened is legally sustainable since the earlier suit was for permanent injunction, wherein the title of the parties was not decided and the present suit is declaration and recovery of possession? (3) Whether in the facts and circumstances of the case, the approach of the First Appellate Court in receiving the additional evidence allowing the I.A.No.3055 of 2009 without assigning any reasons as envisaged under Order 41 Rule 27 of CPC is legally sustainable? (4) Whether in the facts and circumstances of the case, the First Appellate Court ignored the material evidence of the plaintiff through Ex.A1 registered sale deed, Ex.A12 Will deed and the evidence of P.Ws.2 and 3 to prove the title of plaintiff, which evidence if considered in a right perspective would have lead the First Appellate Court to come to a different conclusion that the plaintiff is entitled for the relief of declaration and possession? 6 (5) Whether the First Appellate Court misread, misinterpreted and ignored the evidence on record? 13. Heard Smt. Nimmagadda Revathi, learned counsel, representing Sri Nimmagadda Satyanarayana, learned counsel for the appellant and heard Sri K. Subrahmanyam, learned counsel for the respondents. 14. Law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the Apex Court held as follows: “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 1 AIR 1993 SC 398 2 AIR 1999 SC 471 7 15. The plaintiff in the suit is seeking relief of declaration of title and recovery of possession of plaint schedule property. It is trite law in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weaknesses, if any, of the case set up by the defendants would not be a ground to grant the relief of declaration of title in favour of the plaintiff. The onus to prove title to the schedule property in question was on the plaintiff. 16. The undisputed facts are originally, the father of plaintiff has got right and title in the plaint schedule property. The same is undisputed by the defendants.The case of the plaintiff is that his father executed an unregistered Will on 05.09.1999 bequeathing all his properties including the suit schedule property in favour of him. The said Will is got marked as Ex.A.12. The two attestors to the Will are examined as P.W.2 and P.W.3. It is not at all suggested to P.W.2 and P.W.3 in cross examination by the learned counsel for the defendants that the testator is not a sound and disposing state of mind at the time of execution of Will. It was not suggested to P.W.2 and P.W.3 in cross examination by the learned counsel for the defendants that the said Will is not a genuine Will. The execution of Will in favour of the plaintiff by the father of the plaintiff is undisputed by the defendants. Ex.A.12 Will is properly proved by the plaintiff through P.W.2 and P.W.3. The plaintiff also paid land revenue to the Government and his name is also mutated in the revenue records and to that extent revenue record is also filed by the plaintiff before the trial Court, therefore, the plaintiff proved his title in respect of the plaint schedule property. 17. The contention of the defendants is that the father of D.W.1 purchased the plaint schedule property under an unregistered agreement of sale and possession was also delivered to him on the date of agreement of sale. A clear admission was made by D.W.1 in his evidence in cross 8 examination itself that he does not know the date of agreement of sale executed by the father of the plaintiff in favour of his father and he does not know for how much amount his father purchased the plaint schedule property from the father of the plaintiff. He further admits that they are claiming right over the plaint schedule property basing on agreement of sale but the alleged agreement of sale is not at all placed either before the trial Court or before the Appellate Courts. As stated supra, the alleged agreement of sale did not come into light till so far for the reasons best known to the defendants. There is no whisper in the written statement about the date of agreement. 18. The learned counsel for the defendants contended that the father of D.W.1 protected his possession under Section 53 of the Transfer of Property Act and the defendants are entitled benefit under Section 53(a) of the Transfer of Property Act. Section 53A of Transfer of Property Act reads as under: 53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided 9 by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. In a case of Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi3, the Apex Court held that the necessary conditions are invoking Section 53-A of Transfer of Property Act are given as under:- 1) there must be a contract to transfer for consideration any immovable property; 2) the contract must be in writing, signed by the transferor, or by someone on his behalf; 3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; 4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; 5) the transferee must have done some act in furtherance of the contract; and 6) the transferee must have performed or be willing to perform his part of the contract. In the present case, the alleged unregistered agreement of sale was not filed either before the trial Court or before the Appellate Courts. Mere surmise that it could have been inexistence is of no consequence as long as the person claiming benefit under such agreement for sale failed to produce the same before the Court. The content of the document is to be proved by production of the document itself and not otherwise. Moreover, the averments in the written statement are inadequate and insufficient to attract the provision under Section 53-A of Transfer of Property Act, 1882, in such an event, they are not entitled protection under Section 53-A of Transfer of Property Act 1882. 32002 3 SCC 676 10 19. In a case of Sardar Govindrao Mahadik and another vs. Devi Sahai and others4, the Apex Court held as follows: To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part- performance. After establishing the aforementioned circumstances it must be further shown that transferee had in part performance of the contract either taken possession of the properly or any part thereof or the transferee being already in possession continues in possession in part-performance of the contract and has done some act in furtherance of the contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. In the case on hand, as per the case of the defendants, they came into the possession of the plaint schedule property under unregistered agreement of sale, but for the reasons best known to them, they did not choose to file the said agreement either before the trial Court or before the appellant Courts. To fulfill the conditions under Section 53-A of Transfer of Property Act, the transferee failed to file the agreement and purposefully withhold the same, therefore, they are not at all entitled protection under Section 53-A of Transfer of Property Act. 20. In a case of A.Lewis and another vs. M.T.Ramamurthy and others5, the Apex Court held as follows: As rightly pointed out by the High Court, the existence of right to claim protection under Section 53-A of the Transfer of Property Act would not 4AIR 1982 SC 989 5(2007) 14 SCC 87 11 be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. On the other hand, the factual finding is that there was no intimation by defendant Nos. 3 and 4 to perform their part of contract to claim protection of Section 53-A of the Transfer of Property Act. Likewise, as rightly concluded by the courts below, there is no material to show that the plaintiff had notice of agreement of sale Ex.D-1 in favour of defendant Nos. 3 and 4. The conclusion of the High Court that defendant Nos. 3 and 4 or even defendant No.1 who claims through them are not entitled to protection of Section 53-A of the Transfer of Property Act is acceptable and the argument contrary to the said conclusion is liable to be rejected. As per the own case of the defendants, the father of D.W.1 has not obtained any registered sale deed in furtherance of the alleged agreement of sale. The alleged agreement of sale is not at all filed either before the trial court or before the Appellate Courts. The contents in the alleged agreement of sale have to be proved by the defendants because the defendants are seeking protection under Section 53 of the Transfer of Property Act. Admittedly, the defendants have not filed any suit for specific performance of agreement of sale in furtherance with the contract to perform their obligation. The agreement of sale is denied by the plaintiff. It was contended by the defendants that the father of plaintiff admitted about the execution of agreement of sale and delivery of possession before the Land Reforms Tribunal in earlier proceedings. Here, in the present case on hand, the plaintiff herein is seeking relief of declaration of title and recovery of possession, therefore, the parties have to plead and prove their title in respect of the plaint schedule property. 21. It was contended by the learned counsel for the defendants that the plaintiff herein filed a suit for permanent injunction in O.S.No.193 of 1996 and the same was decreed, the First Appellate Court and the Second Appellate 12 Court reversed the said finding given by the learned trial Judge and the title and possession of the parties has been decided in that suit and that now it cannot be reopened. The learned counsel for the defendants further contended that the principles of res judicate is applicable to the present facts of the case. In my view, the principles of res judicata is not at all applicable to the present case on hand, because earlier suit in O.S.No.193 of 1996 is filed for relief of permanent injunction, now the plaintiff filed comprehensive suit for declaration of title and recovery of possession. The title to the parties to the present suit is not yet decided in earlier suit proceedings. The cause of action mentioned in the plaint in the present suit proceedings are after disposal of second appeal in O.S.No.193 of 1996, the plaintiff filed the present suit for claiming relief of declaration of title and recovery of possession and the cause of action for the present suit shows the earlier suit for permanent injunction is dismissed by way of second appeal on 07.09.2001 and the defendants occupied the plaint schedule property on 04.02.2002 and that the plaintiff filed the present suit in O.S.No.49 of 2002 before the trial Court for seeking relief of declaration of title and recovery of possession. 22. 22. As stated supra, the defendants are not entitled protection under Section 53 of the Transfer of Property Act, because, they did not choose to file written agreement either before the trial Court or before the First Appellate Court and before this Court in Second Appeal and in pursuance of the said agreement of sale, the registered sale deed is not at all obtained by the defendants. The defendants also failed to prove that they performed part performance of the act subsequent to the alleged agreement viz., they have done some act in furtherance of the contract. Admittedly, in furtherance of the contract, the defendants have not filed any suit for specific performance of agreement of sale. 23. The First Appellate Court held in its judgment that in earlier suit in O.S.No.193 of 1996 filed for permanent injunction, the father of D.W.1 13 deposed that the land was delivered on the date of execution of agreement and the extent of plaint schedule is Ac.1-50 cents and it is dry land and he filed the agreement of sale in the Land Ceiling Tribunal, Vizianagaram and after conclusion of enquiry, he was informed that the document was taken away by the father of the plaintiff. Moreover, D.W.1 in the present suit admits in his evidence in cross examination itself that he cannot say the details of the property purchased by his father and he cannot say whether the name of his father is mentioned in revenue records as cultivator for the suit schedule property and he also cannot say for how much amount his father purchased the plaint schedule property form the father of P.W.1 and he does not know the sale transaction during the life of his father. D.W.1 pleaded ignorance about the alleged agreement of sale. The alleged agreement of sale is disputed by the plaintiff herein. It is not the case of the defendants herein that the plaintiff herein admitted about the possession of the father of D.W.1 is under the alleged agreement of sale. As noticed supra, the defendants herein are not entitled protection under Section 53 of the Transfer of Property Act. 24. The title of the plaintiff is proved by way of oral and documentary evidence by the plaintiff. As stated supra, the defendants failed to prove that they are in possession of the property by virtue of alleged unregistered agreement of sale and also they are not entitled the benefit of protection under Section 53 of the Transfer of Property Act. Admittedly, the sale deed is not at all obtained by the defendants from the father of P.W.1. As per the contentions of both parties, the father of P.W.1 was original owner of the plaint schedule property. The father of P.W.1 has got right and title in respect of the plaint schedule property by virtue of a Will executed by his father, the plaintiff has got title in the plaint schedule. It was alleged by the defendants that the status of their possession is permissive possession under unregistered agreement of sale. As stated supra, in furtherance of the act they have not filed any suit for specific performance of agreement of sale. Admittedly, the title of the property is with the plaintiff. Based on the title, the plaintiff is entitled 14 the possession of the plaint schedule property and as such the plaintiff is entitled for declaration of title and recovery of possession. 25. For the aforesaid reasons, the learned Appellate Judge came to a wrong conclusion and allowed the first appeal filed by the defendants by setting aside the decree and judgment passed by the learned trial Judge, therefore, the second appeal is liable to be allowed. 26. In the result, the second appeal is allowed setting aside the Judgment and decree, dated 18.08.2010 in A.S.No.114 of 2005, on the file of the District Judge, Vizianagaram. The respondents/defendants directed to deliver vacant possession of the plaint schedule property to the appellant/ plaintiff within a period of three (03) months from the date of this judgment. Each party do bear their own costs in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. __________________________ V. GOPALA KRISHNA RAO, J. DT. 29.04.2025. PGR 15 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.212 of 2011 Dt.29.04.2025 (PGR)