The High Court · 2025

Judgment

This Second Appeal is filed by the appellants - appellants - defendants aggrieved by the judgment and decree dated 03.06.2006 passed in A.S.No.3 of 2005 by the leamed Senior Civil Judge, Narayanpet, confirming the judgment and decree dated 31.01.2005 passed in O.S.No.29 of l99l by the learned Junior Civil Judge, Narayanpet.

2. The respondents are the plaintiffs. The parties are hereinafter refemed as anayed before the trial court as plaintiffs and defendants.

3. The plaintiffs initially filed a suit for permanent injunction in respect of the suit schedule property admeasuring an extent of Ac.0-24 guntas of dry land in Survey No.280 situated at Makthal Village with specific boundaries. The

plaintiff No.l is the husband of plaintiff No.2 and father of plaintiffs 3 and 4 and he is the General Power of Attomey (for short "GPA') holder of plaintiffs 2 to4

4. The case of the plaintiffs was that the plaintiff No.2 purchased an extent of 300 square yards and I 50 square yards vide registered sale deed Nos. 101 9 of 2 Dr.GR& J sa 1160 2006 1984 and 1020 of 1984 dated 27.06.1984 respectively out of the land in Survey No.280. The plaintiff No.3 purchased an extent of Ac.0- I 0 guntas on

15.05.1984 and the plaintiff No.4 purchased an extent of Ac.O-lll guntas on

14.05.1984 in Survey No.280 of Makthal Village. All the plots were adjoining each other and form a compact block of Ac.0-24 guntas. The lands so purchased were mutated in the names of plaintiffs 2 to 4 in the revenue records. The defendants were strangers to the suit land and were trying to disturb the possession of.the plaintiffs over the suit land under a false claim that the suit land was pertaining to Survey No.4. Police Makthal registered a criminal case and initiated proceedings under Section 145 Cr.P.C. The suit land i.e. Ac.0-24 guntas out of Suwey No.280 was taken into custody by the Sub-Divisional Magistrate, Narayanpet vide File No. C1487187 dated 21.03.1987 The Sub- Divisional Magistrate, Narayanpet rendered a decision on 20.10.19-t)0 declaring the plaintiffs to be in possession of the suit land and ordered restoration of possession ofthe suit land in favor of the plaintiffs. In compliance of the above order of the Sub-Divisional Magistrate, Narayanpet, the Mandirl Revenue Officer (for short "MRO"), Makthal restored the possession of the suit land to the plaintiffs on 28 01.1991 under a panchanama. The plaintiff Nr:r.2 obtained construction permission from Gram Panchayat, Makthal on 08.01.1987 in File No.255186, which rvas subsequently renewed upto 07.01.1989. Later on, the Gram Panchayat renewed permission upto 04.07.1991 and approvcd the plan. F i 3 Dr.GR& J sa 1150 2005 Inspite of all the above documents and the order of the Sub-Divisional Magistrate, Narayanpet, the defendants on07.04.1991 again tried to interfere unlavrtrrlly into the possession of the plaintiffs over the suit land. As their possession was endangered, the plaintiffs filed the suit for permanent injunction

5. During the pendency of the suit, the plaintiffs filed I.A.No.132 of 1995 seeking amendment of the plaint for including the relief of declaration of title and the same was allowed on 20.11.1998. Thereafter, they filed I.A.No.26 of 2002 seeking the relief of mandatory injunction also and the same was allowed on03,06.2002

6. The defendants I to 5 filed a common written statement denying that the plaint schedule property was situated in Survey No.280. They specifically pleaded that the suit schedule property was part and parcel ofthe land in Survey No.4. The husband of defendant No.l purchased Ac.0-26 guntas of land in Survey No.4 from one Sri Prabhakar Rao by meairs ofregistered sale deed dated

19.12.197 6and from the date of purchase, the defendants were in possession of the property. The ownership of the defendants over the suit land was established in O.S.No.l9 of l98l through its judgment dated 04.08.1986 and in the said suit, it was confirmed that the suit schedule property was in Survey No.4 and Survey Nos.4 and 280 were adjacent to each other. The plaintiff No.l, who was working in Makthal knowing fully well that the suit land was 4 Dr.GR& J sa 1160 2006 part and parcel of Survey No.4, purchased the same in the names of plaintiffs 2, 3 and 4 without delivery of possession of any land during the pendency of litigation. In vierv of the declaration of title and perpetual injunction in O.S.No.19 of 1981 in favor of the defendants, the order passed by the Sub- Divisional Magistrate, Narayanpet ex-parte was without jurisdiotion and the same was not binding on the Civil Court. The plaintiffs could have impleaded themselves to the suit in O.S.No.19 of 1981 during its pendency ald could have put forth their claim to the effect that the suit land was part of Survey No.280. { As the plaintiffs were out of possession, they were not entitled for any decree for injunction

7. After amendment of the suit seeking the relief of declaration of title, an additional written statement was filed by the defendants submitting that the plaintiffs failed to give the names of their vendors. The owner of Survey Nos.4 and 280 was one Prabhakar Rao, the vendor of the defendants an<i he had sold the suit plot to the defendants in the year 1978 under registered sale deed with specific boundaries described in the sale deed. As both the surve,y Nos.4 and 280 were owned by the vendor of the defendants, it was immaterial as to the location of the suit plot and its survey number. The defendants further contended that the vendors of the plaintiffs had no valid and marketable title to the suit plot to execute the sale deed in favor of the plaintiffs and no valid title was conveyed to the plaintiffs nor delivery of possession was af1-ected to the 5 Dr.GRR, J sa 1160 2006 plaintiffs, as the vendors of the plaintiffs never enjoyed possession over the suit plot at any time. The defendants after obtaining decree in O.S.No.l9 of 1981 on

04.08.1986 developed the site by levelling the same and constructed a pennanent structure after obtaining permission from Gram Panchayat, Makthal, in which they were running real estate business in the name and style of M/s.SVN Plots Scheme. Mere amending plaint for declaration of title without seeking the relief of possession by paying court fee was defective. It was also further contended that the defendants perfected their title by adverse possession over the suit plot by their continuous enjoyment of the same from 1978 i.b. from the date of their purchase on 19.12.1978, which was the starting point of adverse possession and the same ripened into title on completion of l2 years, against the plaintiffs, their vendors and any others concemed to the suit plot openly and continuously. The title of the plaintiffs, if any, had extinguished due to efflux of time. The defendants further contended that the proceeding initiated by the Sub-Divisional Magistrate, Narayanpet in Case No. 8/3063/1990 dated

20.10.1990 under Section 145 Cr.P.C. was set aside in revision by the Additional Sessions Judge, Mahabubnagar in Criminal Petition No.30 of 1991 dated 29.09.1995 and hence the ex-parte orders of the Sub-Divisional Magistrate, Narayanpet, were not helpful to the plaintiffs and prayed to dismiss the suit. 6 Dr.GRR, J sa 1160 2006

8. Basing on the said pleadings, the trial court framed the issur:s as follows (i) Whether the plaintiffs were entitled for perpetual injunctiorr in respect of Survey No.280 to an extent of Ac.0-24 guntas situated in Makthal Yillage? (ii) To what relief.)

8.1. After filing the amended plaint by the plaintiffs seeking the relief of declaration of title, the additional issues were framed on I7 .06.2000 as follows: (i) Whether the plaintiffs 2 to 4 were the owners in possession of the suit land? (iD Whether the vendor of the plaintiff has got a saleable interest in the suit land? (iii) Whether the plaintiffs were entitled for declaration of title for the suit property?

8.2. Further, the plaintiffs filed I.A.No.2l of 2003 seeking amendment of the plaint once again for the relief of mandatory injunction. The triat court again framed the issues on 06.02.2003 as follows: (iu) Whether the plaintiff was entitled for mandatory injunction, as prayed for? (v) Whether the judgment on the file of the Court in O.S.No.l,) of 1981 as confirmed by the l't and 2"d Appellate Courts operates as res jtrd,icata against the plaintiffs? 7 Dr.GR& J sa 1160 2005

8.3. One more additional issue was framed on 13.12.2001 as per I.A.No.222 of 2004 filed by the plaintiffs as follows: ("i) Whether the suit land was part of Survey No.4 of Makthal Village, as claimed by the defendants?

9. During the course of trial, the plaintiff No.l examined himself as PW.l and got examined the witness, who was present at the time of conducting panchanama by the Sub-Divisional Magistrate, Narayanpet as PW.2 and the attestors of the sale deeds of plaintiffs 2 to 4 as PWs.3 and 4 in support of his case and got marked Exs.Al to A22 on their behalf. The defendant No.2 was examined as DW. I and got examined the owner of the adjacent suit land, who also purchased a plot from the same vendor Sri Prabhakar Rao as DW.2 and got ma-rked Exs.Bl to B10 on behalf of the defendants.

10. On considering the oral and documentary evidence on record, the trial court opined that the plaintiffs were in possession of the property. Exs.A2 to A5 registered sale deeds would prove the ownership of the plaintiffs. The vendors of the plaintiffs were having a saleable interest in the suit land and the plaintiffs were entitled for declaration of title and that they were also entitled for mandatory injunction and the judgment in O.S.No.19 of 1981 would not operate as res judicata against the plaintiffs. The trial court also held that the suit land of Ac.0-24 guntas in Survey No.280 was not part and parcel of Survey No.4 and decreed the suit in favor of the plaintiffs. a Dr.GR& J se 1160 2006 I I. Aggrieved by' the said judgment and decree passed by the L:amed Junior Civil Judge, Narayanpet in O.S.No.29 of 1991 dated 31.01.2005, the defendants preferred an appeal The appeal was heard by the leamed Senior Civil Judge, Narayanpet and vide judgment and decree in A.S.No.3 of 2005 dated

03.06.2006, dismissedlhe appeal confirming the judgment of the trtal court

12. Aggrieved by' the said dismissal of their appeal by the First Appellate Court, the defendants preferred this Second Appeal

13. This Court admitted the Second Appeal on 31.10.2006 on the following substantial questions of law: (a) Whether the suit for mandatory injunction of title was maintainable in the absence of relief for recovery of possession, when the plaintiffs admitted the defendants' possession? (b) Whether the judgment in O.S.No.19 of 1981 as confirmed in appeals would operate as res judicata in view of the fact that the predeces-sor in title of the plaintiffs was a party to O.S.No. I9 of l98l? (c) Whether the Advocate Commissioner's report could be a basis for granting a decree for declaration of title?

14. Heard Sri O.Manohar Reddy, leamed Senior Counsel for the appellants representing Sri P.Chakavarthy, leamed counsel for the appellaars on record and Sri D.Prakash Reddy, leamed Senior Counsel representing S ri Rupendra Mahendra, learned counsel for the respondents on record. 9 Dr.GR& J sa 1160 2006

15. Learned Senior Counsel for the appellants contended that once the vendors of the plaintiffs was party to the earlier suit in O.S.No.19 of 1981 and the property was purchased by the vendors of the plaintiffs during the pendency of the suit and there was no proof to show that the property claimed by the plaintiffs was not the subject matter of the earlier suit, the courts below ought to have seen that the earlier findings recorded by the trial court in O.S.No.19 of 1981 as confirmed in the Second Appeal were binding on the plaintiffs and would operate as res judicata. In O.S.No.19 of 1981, the trial court held that the appellants were entitled for permanent injunction. In A.S.No.6l bf 1986 filed against it, the Appellate Court had framed the point for consideration and gave a finding that the trial court was right in holding that the appellants herein were the owners of the property and the said judgment was confirmed in Second Appeal No.669 of 1993. Once the vendors of the plaintiffs were parties to the suit, the findings recorded in the suit were binding upon the ptaintiffs and they operate as res judicata, the plaintiffs could not re-agitate their claim by filing a suit for declaration of title and for mandatory injunction. No evidence was adduced by the plaintiffs to show the source of title of their vendors. On the other hand, the evidence on record would clearly show that their vendors purchased the property from the persons, who were parties to the suit in O.S.No.19 of 1981. The burden would always lie on the plaintiffs to prove their title to the property and the suit could not be decreed on the basis of weakness 10 Dr.GRR" J sa 1160 2006 of the case of the defendants. The plaintiffs failed to prove their title to the property. Even their claim for possession was on the basis of order passed in 145 Cr.P.C. proceedings and the said order was set aside in appeal and confirmed in revision. The plaintiffs failed to show that they were in possession of the property. The reasoning of the courts below in decreeing th: suit without considering the earlier decree of the Civil Court in O.S.No. 19 ol'1981 would amount to substantial question of law. The evidence on record rvould clearly show that the appellants were in possession of the property and r;onstructed a room. Once the appellants were in possession of the property, the suit for mandatory injunction without seeking the relief of recovery of possession was not maintainable. lhe Appellate Court exceeded its jurisdiction and granted the relief, which was not prayed for. The courts below failed to see that the entries made in the revenue records were only for the purpose of collection of tax and that they would not confer any title to the property. The reasoning of the courts below in relying upon the entries in the revenue records and decreeing the suit for declaration of title was not legal and the same was contrary to the taw laid down by the Hon'ble Apex Court and relied upon the judgment of the Hon,ble Apex Court in Union of India and others v. Vasavi Co-operative Housing Society Limited and Othersr. '(20t4) 2 SCC 269 Dr.GR& J sa 1160 2006 16. Learned counsel for the respondents on the other hand contended that 11 both the courts below after looking into the various documents and considering the oral evidence of the parties came to a categorical conclusion that the suit schedule property was part of Survey No.280 and not part of Survey No.4, as claimed by the appellants - defendants. It was a concurrent finding of fact recorded by both the courts after elaborately considering the oral and documentary evidence on record, which could not be disturbed in the Second Appeal. The scope of Second Appeal under Section 100 of CpC was limited to substantial questions of law and could not dishrrb the concurrent finding of facts. He further submitted that the Advocate commissioner was appointed in I.A.No,28 of 1999 by the trial court and the Advocate Commissioner with the assistance of the Assistant Director, Surveyor of Land Records categorically observed in the report that the suit land admeasuring Ac.O-24 guntas was situated in Survey Nol280. The Advocate Commissioner also fumished a plan along with the report. The report of the Advocate Commissioner would go to show that the suit land was identihed in Survey No.280 within the boundaries mentioned therein and totally match with the suit schedule property. The report of the Advocate. Commissioner being part of the record was considered and taken note of by the trial court as well as the first Appellate Court. The first Appellate Court while coming to the conclusion that the respondents plaintiffs were entitled for declaration and recovery ofpossession had also looked into the L2 Dr.GRR, J sa 1160 2006 orders of the leamed Sub-Ordinate Judge, Mahabubnagar passed in O'P'No'549 of 1981, wherein the rival claims of Prabhakar Rao and Seshadri (predecessor- in-title of the respondents - plaintiffs) were considered and came to a positive conclusion that thc predecessor-in-title of the vendor of the respondents i.e. Seshadri was entitled to receive compensation and he was in absolute possession and enjoy.ment of the suit property. The contention of the appellants that the trial court as well as the first Appellate court relied upon the entries in the revenue records as basis for grant of decree was not correct. The trial court as well as the first ,A.ppellate Court categorically discussed all thtr documents including Exs.Al to A14 in support of the claim of the respondents - plaintiffs and passed a decree. Both the courts below after considering the evidence on record came to a conclusion that the judgment and decree in o.S.No.19 of 1981 would not operate as res judicata, as the property claimed under Ex'B2 i'e' judgment in O.S.No.19 of 1981 and the boundaries of Ex'81 rvere part of Survey No.4, but not part of Survey No-280' The courts belou' also found inconsistency in respect of the boundaries in Ex.Bl (sale deed) and Ex.B2 (udgment in o.S.No.l9 of 1981) and further observed that the parties to the suit were also not one and the same. He further contended that the first Appellate Court at length discussed whether the respondents - plaintiffs could be granted the relief of possession, which was not sought for at the tirne of amending the ptaint seeking for mandatory injunction for removal of the shed and 13 Dr.GR& J sa 1160 2006 categorically held that the relief could be granted subject to payment of court fee after obtaining valuation certificate. Both the courts below categorically observed that the shed was constructed by the appellants - defendants only during the pendency of the suit illegally on a small portion of the suit schedule property and that they failed to mention about the existence of the shed in their written statement on 25.04.1991 and that the claim of existence of the shed was made only after an application was filed by the respondents - plaintiffs seeking for amendment of the plaint on 18.07. 1989. The Appellate Court had categorically discussed the same in its judgment and considering the long delay in the progress of the suit before the courts below observed that it was not desirable to drive the plaintiff from pillar to post for getting the relief of possession after removal of the shed in pursuance of the mandatory injunction and by taking into consideration the subsequent events during the pendency of the suit and more particularty in the interest of justice, granted the relief of recovery of possession, which was not originally sought for and relied upon the judgments of the Hon'ble Apex Court in Rajendra Tiwary v' Basudeo Prasad and another2, Bhagwati Prasad v. Chandramaulis, Srinivas Ram Kumar v. Mahabir Prasad and othersa, Ram Sarup Gupta (Dead) by LRs. v. Bishun Narain Inter College and others s , Misrilal Ram Rathan and others,