APHC010362902012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] WEDNESDAY,THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 140/2012 Between: 1. MALLA JAGGA RAO, S/O LATE APPA RAO HINDU R/O D.NO. 28-76- 4, GANESH NAGAR, VADLAPUDI VISAKHAPATNAM ...APPELLANT AND 1. THE WORD TEACHER COOPERATIVE HOUSE BUILDING SOCIETY LTD, REP. BY ITS SECRETARY WTCBS LAYOUT, CHINA MUSHIDIVADA, VISAKHAPATNAM 2. MALLA PYDIRAJU, S/O LATE APPA RAO HINDU, CHINA MUSHIDIVADA, VISAKHAPATNAM 3. SMT MALLA CHINTALLI, WS/O LATE APPA RAO HINDU, CHINA MUSHIDIVADA, VISAKHAPATNAM 4. BODDETI KOTESWARA RAO, HINDU R/O VISAKHAPATNAM ...RESPONDENT(S): Appeal under section ___________ against orders IA NO: 1 OF 2012(SAMP 310 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings pursuant to the Decree and Judgment dt. 21-3- 2007 in OS No. 132 of 2002 on the file of IV Additional Senior Civil Judge (FTC) Visakhapatnam as confirmed in AS no. 144 of 2007 on the file I Additional District Judge, Visakhapatnam dt. 17-10-2011 pending disposal of the above Second Appeal and to pass Counsel for the Appellant: 1. G RAMA GOPAL Counsel for the Respondent(S): 1. Palaparthi Prabhakar The Court made the following: Judgment: This second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) is filed aggrieved against the Judgment and decree, dated 17.10.2011 in A.S.No.144 of 2007 on the file of learned I Additional District Judge, Visakhapatnam, confirming the Judgment and decree, dated 21.03.2007 in O.S.No.132 of 2002 on the file of learned IV Additional Senior Civil Judge (FTC), Visakhapatnam. 2. The appellant herein is the 1st defendant, the 1st respondent herein is the plaintiff and the respondents 2 to 4 are the defendants 2 to 4 in O.S.No.132 of 2002 on the file of learned IV Additional Senior Civil Judge (FTC), Visakhapatnam. During the pendency of the second appeal, appeal against respondents 2 to 4 was dismissed for default vide orders dated 31.03.2017. 3. The plaintiff initiated action in O.S.No.132 of 2002, on the file of learned IV Additional Senior Civil Judge (FTC), Visakhapatnam, with a prayer for eviction of the defendants, their men and agents and also for removing the structures made by the defendants and to handover vacant possession and for damages. 4. The trial Court decreed the suit in O.S.No.132 of 2002, on the file of learned IV Additional Senior Civil Judge (FTC), Visakhapatnam. Felt aggrieved of the same, the defendants in the above said suit filed A.S.No.144 of 2007, on the file of learned I Additional District Judge, Visakhapatnam. The learned I Additional District Judge, Visakhapatnam, dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the 1st defendant in the suit 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.132 of 2002, is as follows: (a) The plaintiff is a Co-operative House Building Society registered under the Co-operative Societies Act, 1964. The main objectives of the plaintiff society is to build, buy, sell and construct houses for the benefit of its members and the society has acquired an extent of Ac.4.00 cents of land covered by S.No.131/A at Chinnamushidivada village of Visakhapatnam in the year 1978 for the purpose of developing the same into layout for the benefit of its members. Accordingly, a layout was prepared and an approval was also obtained from the gram panchayat of Chinna Mushidivada on 31.3.1978. In the said approved layout, apart from making provision for houses such as MIG, LIG and master plots etc., some area is also earmarked for shops, roads and community purpose as indicated in the plan. The plaintiff society has allotted some plots to its members and some of the members have constructed houses in their respective plots allotted to them. (b) In the year 1982, one Malla Apparao, who is the father of D1 and D2 and the father-in-law of D3, was brought by one K.Ramakrishna Chetty, who is an ex-DIG of Police and former member of the society as watchman to look after his plot in the layout. As by the year 1982, there was no proposal to construct the shops in the plaint schedule property, the said Ramakrishna Chetty asked Malla Apparao to put up a small thatched shed for his residential purpose in the part of the plaint schedule property. However, in the month of September, 1982, the then office bearers of the plaintiff society have objected for his stay in the part of the plaint schedule property. At that time, Malla Apparao gave a written undertaking on 10.9.1982 to the plaintiff society stating that he would vacate the site under his occupation as and when demanded by the plaintiff society. The said Malla Apparao passed away about six months ago prior to the filing of the suit and during his lifetime, he used to live with D1, D2 and D4 in the said property. D2 was staying at Gopalapatnam. Apparao inducted D4 in part of the suit schedule property in the later part of the year, 1990 and he has set up a fabrication shop in part of the plaint schedule property. (c) Now, it is decided by the plaintiff society to construct shops and Kalyanamandapam in the plaint schedule property. After passing resolution, the members of the society requested the defendants to vacate the plaint schedule property. D1 to D3 expressed their readiness to vacate the same. They have also given an undertaking on 6.8.2000 which was also attested by D4. It is stated in the said letter that the plaintiff society agreed to show another place to them, but no such assurance is given by the plaintiff society. Apparao passed away on 5.5.2001. The defendants did not vacate the premises till now. Unless they are evicted, the plaintiff society cannot proceed with the development activity and the construction of shops and Kalyanamandapam in the suit schedule property, which is earmarked for the said purpose. The defendants have no right to continue their possession in the plaint schedule property and thereby prayed to eject the defendants there from and to pass a decree for recovery of possession of the plaint schedule property to the plaintiff society. 7. The 1st defendant filed written statement before the trial Court, which was adopted by defendants 2 to 4, denying the material averments in the plaint and contended as follows: One Malla Apparao, who is the father of D1 and D2 and the husband of D3, was in possession and enjoyment of the site which is in an extent of 240 sq. yards and another site which is in an extent of 100 sq. yards belonging to R & B Department in S.No.129/2 of Chinna Mushidivada village which is in Pendurthi Mandal of Visakhapatnam District for the last two decades. The said land belongs to Swami Swarupananda Bharath @ K. Ramakrishna Chetti, who is a retired D.1.G. of Police. Malla Apparao worked as servant in the residence of said Ramakrishna Chetty. Considering his services rendered to him, said Ramakrishna Chetty permitted Malla Apparao about sixteen years back to construct a shed in the plaint schedule property. Subsequently, said Ramakrishna Chetty has gifted the said plaint schedule property to an extent of 240 sq. yards to Malla Apparao as per the document dated 15.10.1991 styled as "daana patta". Along with the said land of 240 sq. yards, Malla Apparao was also in possession of 100 sq. yards belonging to R & B department. The fourth defendant is only a tenant of D1. He vacated the premises on his own and now the entire property is in possession of D1. It is further pleaded that the plaint schedule property is not the portion of the property covered by lay out. Even otherwise, this defendant and other defendants perfected their title to the plaint schedule property under law. It is finally pleaded that the plaintiff is not entitled for recovery of possession of the plaint schedule property from the defendants and thereby prayed for dismissal of the suit. 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether the plaintiff is entitled for eviction of the defendants? (2) Whether the plaintiff is entitled for possession of the plaint schedule property? (3) Whether the plaintiff is entitled for damages? (4) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A.1 to A.7 were marked. However, the evidence of P.W.3 was eschewed. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 to B.5 were marked. 10. The learned IV Additional Senior Civil Judge (FTC), Visakhapatnam, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit. Felt aggrieved thereby, the defendants filed the appeal suit in A.S.No.144 of 2007, on the file of learned I Additional District Judge, Visakhapatnam, wherein, the following points came up for consideration: 1) Whether the plaint schedule property is the part of the layout formed by the plaintiff society and whether the defendants have been in permissive possession of the plaint schedule property and whether they are liable to be evicted from the plaint schedule property? 2) Whether the impugned judgment and decree of the trial Court are sustainable under law and whether they warrant interference by this Court and whether the same are liable to be set aside? 3) To what relief? 11. The learned I Additional District Judge, Visakhapatnam i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants and dismissed the appeal filed by the defendants. Felt aggrieved of the same, the 1st defendant in O.S.No.132 of 2002 filed the present second appeal before this Court. 12. On hearing both side counsels at the time of admission of the appeal, on 28.09.2015, the Composite High Court framed the following substantial question of law: (1) Whether the suit for mere recovery of possession is maintainable without seeking declaration of title under Section 34 of the Specific Relief Act, 1963, when the defendant asserted its right over the suit schedule property basing on substantive evidence? 13. Heard Sri G.Rama Gopal, learned counsel for the appellant and heard Sri Palaparthi Prabhakar, learned counsel for the 1st respondent. 14. In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based on inadmissible or no evidence. 15. The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Courts below and if the First Appellate Court has exercises in its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal. 16. The undisputed facts are the plaintiff has formed a layout in the land after purchasing the property under Ex.A.7 registered sale deed. It is the specific case of the plaintiff that the plaint schedule property which is shown in the schedule annexed to the plaint is part and parcel of the layout formed by the plaintiff society and one Malla Apparao, who is the father of the 1st defendant, worked as a watchman previously and he is permitted to construct a shed in the plaint schedule property and live in it along with family members. It is also the specific case of the plaintiff that after demise of Malla Apparao, his family members, who are the defendants 1 to 3 herein, are continued to reside in the suit schedule property. It is the specific case of the appellant that the suit schedule property is not part and parcel of the layout formed by the plaintiff society and one K.Ramakrishna Chetty has gifted the suit schedule property to said Malla Apparao under “daana patta” and as such, said Malla Apparao has become absolute owner of the plaint schedule property and he in turn executed a registered gift deed dated 21.08.1999 in favour of his son and as such, the defendants are the absolute owners of the plaint schedule property. 17. 17. Learned counsel for the appellant would contend that the suit for being recovery of possession is not maintainable without seeking the relief of declaration of title under Section 34 of the Specific Relief Act. As seen from the pleadings in the written statement, the defendants have not raised any objection that the suit for possession is not maintainable without seeking the relief of declaration of title. For the first time in the second appeal proceedings, the appellant has taken the aforesaid plea that the simple suit for possession is not maintainable without seeking the relief of declaration of title. As could be seen from the evidence of P.W.1, P.W.2, P.W.4 and P.W.5, their evidence proves that the suit schedule property belongs to the plaintiff society and the same is well supported by Ex.A.7 original registered sale deed. Exs.A.1 to A.4 also supports the case of the plaintiff. Ex.A.7 registered sale deed is undisputed by the appellant. 18. It is not the case of the defendants that they are having ownership rights in the suit schedule property. The case of the defendants is that the suit schedule property belongs to one K.Ramakrishna Chetty and he gifted the said property to Malla Apparao i.e. the father of the defendants 1 and 2 under “daana patta” and in turn said Apparao executed a registered gift deed dated 21.08.1999 in favour of his son and further, in pursuance of the gift deed, the subsequent alienations were taken place under Exs.B.2 to B.4 registered sale deeds. Admittedly, the sale deed of K.Ramakrishna Chetty is not filed by the appellant and also not filed the alleged “daana patta” said to have been executed by K.Ramakrishna Chetty. Therefore, Malla Apparao i.e. the father of defendants 1 and 2, is not having any ownership rights in the plaint schedule property and the appellant failed to prove the same. It is also relevant to say that the 1st defendant i.e. D.W.1 admits in evidence in cross- examination itself that the suit schedule property is a part and parcel of layout formed by the plaintiff society. D.W.2 also admits that the disputed site is not the part of the site of K.Ramakrishna Chetty. 19. It is the specific case of the appellant that the said Malla Apparao had gifted away the said property in favour of his son in an extent of 80.66 sq. yards under a registered gift deed and subsequently in pursuance of the same, the son of the Malla Apparao, executed sale deeds under Exs.B.2 to B.4. In fact, said Malla Apparao is not having any right and title to the said property. Therefore, Malla Apparao has no right to transfer the right and possession in the plaint schedule property in favour of defendants 1 to 3. Furthermore, the plaintiff proved its right and title in the plaint schedule property. D.W.1admits that they sold the property under Exs.B.2 to B.4 and they informed to the purchasers about pendency of the suit. Therefore, the alleged purchasers under Exs.B.2 to B.4 are pendente lite purchasers. 20. Admittedly, the appellant failed to prove the title of said K.Ramakrishna Chetty in the suit schedule property. It is the specific case of the appellant that K.Ramakrishna Chetty executed a “daana patta” in favour of father of defendants 1 and 2. For the reasons best known to the defendants, they have not even filed the alleged “daana patta” said to have been executed by K.Ramakrishna Chetty in favour of their father. On the other hand, the plaintiff proved its right and title in the plaint schedule property. 21. Learned counsel for the appellant placed a reliance on Sajana Granites, Madras and another v. Manduva Srinivasa Rao and others1, wherein the Composite High Court of Andhra Pradesh held as follows: “10. The Supreme Court in M.P. Athanastus case (supra), M.M. Catholices v. Polo Avira case (supra) and this Court in C. Audilakshmamma case (supra) held that plaintiff in a suit for declaration of title, and for recovery of possession, can succeed only on the strength of his own title and that it is not obligatory on the defendants to plead and prove the possible defects in the plaintiffs title and so if the plaintiff fails to establish his title, even if the defendant fails to establish his own title, plaintiff must be non suited. In this case since appellants are seeking declaration of their title to the suit property they have to establish their title; and cannot expect relief on the basis of the weakness of the case of respondents 1 and 2, or on the basis that the evidence adduced by respondents 1 and 2 does not establish their title to the suit property.” A Division Bench of Composite High Court of Andhra Pradesh held in Chakicherla Audilakshmamma vs Atmakaru Ramarao and others2, held that “in a suit for ejectment, the plaintiff is liable to be non-suited, if he fail to establish his own title irrespective of the question whether the defendants proved their case or not.” 22. In a case of Brahma Nand Puri v. Neki Puri3, the Apex Court held as follows: “The plaintiff's suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property…..”. In a case of Jagdish Narain v. Nawab Said Ahmad Khan4, the Privy Council held that in a suit for ejectment, the plaintiffs can succeed only on the strength of their own title and there is no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title is disclosed. It is sufficient that in the written statement, the 1 2002 (2) ALD 436 (DB) 2 AIR 1973 Andhra Pradesh 149 3 1965 AIR 1506 4 1946 (48) BOMLR 430 defendants deny the plaintiffs' title, and under this, plea they can avail themselves of any defect which such title discloses. In the case at hand, the plaintiff proved its title and right in the plaint schedule property by producing original registered sale deed executed in favour of the plaintiff society under Ex.A.7. Exs.A.1 to A.4 also strengthen the case of the plaintiff to prove that the plaintiff is having valid right and title in the plaint schedule property and Ex.A.7 sale deed is in force. The plaintiff also proved that the father of the 1st defendant by name Apparao while appointing as a watchman of the society at the time of developing the land, was permitted to temporarily construct a shed and to reside in the plaint schedule property, only as a watchman. Further, the appellant also admits that the suit schedule property is a part and parcel of the layout laid by the plaintiff society. Therefore, the plaintiff proved its right and title in the plaint schedule property. 23. Learned counsel for the appellant would contend that the suit for possession cannot be decreed on the weaknesses of the defence of the defendants’ evidence. As stated supra, the plaintiff proved its title by producing cogent and reliable evidence. Further, the defendants set up a title in favour of third party i.e. K.Ramakrishna Chetty. The title of said K.Ramakrishna Chetty is not at all proved by the defendants and the defendants 1 to 3 also failed to produce the alleged unregistered “daana patta” said to have been executed by said K.Ramakrishna Chetty in favour of Malla Apparao and the appellant failed to prove the same and also failed to prove the alleged “daana patta”. 24. Learned counsel for the appellant would contend that the suit schedule property includes more than 100 feet road belongs to R & B and that the recovery of possession of the property cannot be granted. The trial Court compared Ex.A.4 layout plan and rough plan filed by the defendants and the trial Court after verifying the same, found that the southern plots 1A to 11A which were shown in the rough layout plan and rough plan filed by the defendants were not at all found in Ex.A.4 layout plan filed by the plaintiff and the learned trial Judge came to a conclusion in its judgment that the layout plan filed by the appellant was drafted to the convenience of the appellant and it will not give much weight to the case of the appellant. The said finding is confirmed by the first appellate Court. D.W.1 admits that he has not verified the R & B records in respect of the suit schedule property. Furthermore, D.W.1 admits the suit schedule property is part and parcel of the layout laid by the plaintiff society. 25. The general rule is, that the High Court will not interfere with the concurrent findings of both the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof in the instant case. The present case at hand does not come within the ambit of aforesaid exceptions as held by this Court. On appreciation of the entire evidence on record, the learned trial Judge rightly came to the conclusion that the plaintiff is entitled the relief of recovery of possession of the plaint schedule property. On re-appreciation of the entire evidence on record, the learned first appellate Judge also came to the same conclusion that the plaintiff is entitled the relief of recovery of possession in the plaint schedule property. 26. In the light of the material on record and upon earnest consideration, now it is manifest that the substantial questions of law raised in the course of hearing, in the second appeal on behalf of the appellant did not arise or remain for consideration. This Court is satisfied that this case did not involve any substantial questions of law for determination. 27. Resultantly, the Second Appeal is dismissed, by confirming the judgments and decrees passed by the both the Courts below. Considering the facts and circumstances of the case, 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. //TRUE COPY// VENUTHURUMALLI GOPALA KRISHNA RAO,J To, 1. THE WORD TEACHER COOPERATIVE HOUSE BUILDING SOCIETY LTD, REP. BY ITS SECRETARY WTCBS LAYOUT, CHINA MUSHIDIVADA, VISAKHAPATNAM 2. MALLA PYDIRAJU, S/O LATE APPA RAO HINDU, CHINA MUSHIDIVADA, VISAKHAPATNAM 3. SMT MALLA CHINTALLI, WS/O LATE APPA RAO HINDU, CHINA MUSHIDIVADA, VISAKHAPATNAM 4. BODDETI KOTESWARA RAO, HINDU R/O VISAKHAPATNAM 5. Two CD Copies HIGH COURT VGKRJ DATED:17/09/2025 ORDER SA 140/2012