1. This second appeal under Section 100 of the Code of Civil Procedure is filed aggrieved against the judgment and decree, dated 13.10.2009, in A.S.No.11 of 2006 on the file of the Senior Civil Judge, Allagadda, reversing the judgment and decree, dated 21.02.2006, in O.S.No.126 of 1998 on the file of the Junior Civil Judge, Koilkunta.
2. The plaintiffs initiated action in O.S.No.126 of 1998 on the file of the Junior Civil Judge, Koilkunta, with a prayer for permanent injunction to restrain the defendant, his men, agents, or anybody on behalf of the defendant from interfering with peaceful possession and enjoyment of the suit schedule property.
3. The learned Junior Civil Judge, Koilkunta, dismissed the suit. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Senior Civil Judge, Allagadda, allowed the appeal with costs by setting aside the judgment and decree passed by the learned trial Judge. Aggrieved thereby, the defendant approached this Court by way of second appeal.
4. The appellant herein is the defendant and the respondents herein are the plaintiffs, who are minors and are daughters of Venkatarami Reddy represented by their mother and next friend Katha Prabavatamma in O.S.No.126 of 1998.
5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the suit O.S.No.126 of 1998.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.126 of 1998, is as follows:
The plaintiffs are the minors under the guardianship of their mother Smt. Katha Prabhavathamma, and the granddaughter of Sri Katha Thulasi Reddy, who is the original owner of the suit schedule properties and who purchased plaint „A‟ schedule properties under a registered sale deed dated 01.08.1960, plaint „B‟ schedule properties under registered sale deeds dated 15.10.1981 and 19.05.1958, and plaint „C‟ schedule properties under registered sale deeds dated 06.04.1953, 22.04.1958, 13.04.1960, 07.09.1963 and 11.07.1966 with his own funds being his self-acquired properties. The plaintiffs further pleaded that out of love and affection towards the plaintiffs being his grandchildren, the said Thulasi Reddy executed a registered gift deed dated 30.06.1997 in favour of the plaintiffs, thereby gifting the plaint „A‟ schedule properties to the plaintiff No.1, plaint „B‟ schedule properties to the plaintiff No.2 and plaint „C‟ schedule properties to the plaintiff No.3 represented by their guardian and mother, since then the plaintiffs through their guardian and mother have been in possession and enjoyment of the suit schedule properties. The plaintiffs further pleaded that their names as the owners of the suit schedule properties were incorporated in the concerned registers by the Revenue Authorities and accordingly, the plaintiffs were issued with the pattadar pass books by the Revenue Authorities. The plaintiffs further pleaded that the defendant without having any manner of right over the suit schedule properties is trying to lay a false claim over the suit schedule properties and prior to the institution of the suit, the defendant made a high handed attempt to trespass into the suit schedule properties which could be thwarted by the plaintiffs‟ guardian with the timely intervention of the village elders. Therefore, as there is a threat of illegal trespass by the defendant, the plaintiffs filed the present suit.
7. The defendant filed written statement before the trial Court denying the material averments made in the plaint. The brief averments in the written statement of the defendant are as follows:
The defendant‟s father by name Thulasi Reddy sold the ancestral properties situated in Kothapalli village of Giddalur Mandal under a registered sale deed dated 19.05.1945 for Rs.1,000/- and later settled down in Gulladurthy village in Koilakuntla Mandal and thereafter, he purchased the suit schedule properties with the income derived by him from the sale of ancestral properties. The defendant further pleaded that he being the elder son of Thulasi Reddy, also contributed his income which was merged into the common hotchpot of the joint family with whose nucleus the suit schedule properties were purchased in the name of Thulasi Reddy, who was the kartha of the joint family. The defendant further pleaded that he is entitled to 1/3rd share in the suit schedule properties along with Thulasi Reddy and the father of the plaintiffs namely, Venkatarami Reddy and hence, he being the co-owner of the suit schedule properties cannot be restrained by a permanent injunction sought for by the plaintiffs from enjoying the suit schedule properties. The defendant further pleaded that Thulasi Reddy has got right to execute a gift deed in respect of his 1/3rd share in the suit schedule properties and the remaining 2/3rd share belongs to the defendant and the father of the plaintiffs being the other co-owners and he requested to dismiss the suit.
8. On the basis of above pleadings, the learned trial Judge framed the following issues for trial:
1) Whether the plaint schedule property is self acquired property of the plaintiffs‟ donor?
2) Whether the plaintiff is entitled to permanent injunction as prayed for? and
3) To what relief ?
9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-14 were marked. On behalf of the defendant, D.Ws.1 to 7 were examined and Exs.B-1 to B-9 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, dismissed the suit. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.11 of 2006, wherein the following points came up for consideration:
1) Whether the appellants/plaintiffs are entitled to seek a permanent injunction against the respondent/defendant by proving their exclusive possession and enjoyment of the suit schedule lands with an incidental title thereto derived under Ex:A9 registered gift deed executed by late Katha Thulasi Reddy in their favour?
2) Whether the impugned judgment and decree dated 21.2.2006 in O.S.No.126/1998 passed by the learned Junior Civil Judge, Koilkunta suffers from any infirmities, or irregularities or illegalities and calls for any interference by this Court? and
3) To what relief?
11. The learned first appellate Judge after hearing the arguments, answered the points, as above, against the defendant and allowed the appeal with costs by setting aside the judgment and decree passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful plaintiffs in O.S.No.126 of 1998 filed the present second appeal before this Court.
12. On hearing both sides‟ counsel at the time of admission of the second appeal on 17-12-2009, the Composite High Court of Andhra Pradesh has framed the following substantial question of law:
1) Whether the finding of the appellate Court that there was no joint family property and that there was no partition is perverse?
2) Whether the appellate Court was correct in holding that the properties are the self acquired properties of Thulasi Reddy as he had purchased the properties from out of the Nucleus of the joint family properties and he did not do any other work except cultivation?
3) Whether the appellate Court was correct in upholding the gift deed Ex.A9 as a large joint family property, cannot be gifted away by the head of the family? and
4) Whether the appellate Court was correct in not relying on Ex.B8 and B9 the Pattadar Pass Books which show the possession of the land with the sons of the appellant who got them after the partition acted upon by all the parties and an injunction order in I.A.No.491 of 2006 in O.S.No.164 of 2006 and I.A.No.496 of 2006 in O.S.No.168 of 2006 on the file of the Junior Civil Judge, Koilkunta, is granted in favour of the sons of the appellant and against the father of the respondents?
13. Heard Sri K. Sita Ram, learned counsel appearing for the appellant and Sri Suragani Krishna Vamsi, learned counsel representing on behalf of the Sri Karri Murali Krishna, learned counsel for the respondents.
14. The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is 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 uponinadmissible evidence or without evidence.
In the case of Bhagwan Sharma v. Bani Ghosh (AIR 1993 SC 398), the Apex Court heldas follows:
“The High Court was certainly entitled to go into the question as towhether the findings of fact recorded by the First Appellate Court whichwas the final Court of fact were vitiated in the eye of law on account ofnon-consideration of admissible evidence of vital nature.”
In the case of KondiraDagadu Kadam v. Savitribai Sopan Gujar (AIR 1999 SC 471), the Apex Court held as follows:
“The High Court cannot substitute its opinion for the opinion of the FirstAppellate Court unless it is found that the conclusions drawn by thelower appellate Court were erroneous being contrary to the mandatoryprovisions of law applicable or its settled position on the basis ofpronouncements made by the Apex Court, or was based uponinadmissible evidence or arrived at without evidence.”
15. The undisputed facts are that the plaintiffs are minor children of the brother of the sole appellant and all the plaintiffs are minors represented by their mother as a natural guardian. The learned counsel for appellant would contend that the plaint schedule property is a joint family property, but the First Appellate Court came to the wrong conclusion that the plaint schedule property is not a joint family property. The plaintiffs produced certified copies of registered sale deeds under Ex.A-1 to Ex.A-8. Ex.A-1 is the certified copy of registered sale deed dated 01.08.1960 said to have been executed by Smt. Kamani Narasamma in favour of Thulasi Reddy. Ex.A-2 is the certified copy of the registered sale deed dated 15.10.1981 said to have been executed by Pale Koti Linga Reddy and his brothers in favour of Katha Thulasi Reddy for the sale of Item No.1 of plaint „B‟ schedule property. Ex.A-3 is the certified copy of a registered sale deed dated 19.05.1958 said to have been executed by Gandha Nagamma in favour of Thulasi Reddy. Ex.A-4 is the original registered sale deed dated 06.04.1953 said to have been executed by Kothapalli China Guravayya Setty in favour of Thulasi Reddy. Ex.A-5 is the certified copy of registered sale deed dated 22.04.1958 said to have been executed by Karnati Nagireddy in favour of Thulasi Reddy. Ex.A-6 is the certified copy of registered sale deed dated 13.04.1960 said to have been executed by Pedha Venkata Subba Reddy in favour of Thulasi Reddy. Ex.A-7 is the certified copy of registered sale deed dated 07.09.1963 said to have been executed by Dhara Doraswamy in favour of Katha Thulasi Reddy for the sale of Ac.32.00 cents. Ex.A-8 is the certified copy of the registered sale deed dated 11.07.1966 said to have been executed by Kurra Ramana in favour of Thulasi Reddy for the sale of Ac.32.00 cents in Survey No.461 of Gulladurthy village. The appellant deposed his evidence before the trial Court on 28.12.2004. On the said date, the appellant/defendant stated that his age is 50 years. All the aforesaid certified copies of registered sale deeds stand in the name of Thulasi Reddy except Ex.A-2 are much prior to the filing of the suit, i.e., relate to the period between 1953 and 1966, by which date the defendant was a minor. Ex.A-2 relates to the year 1982 and the suit is filed in the year 1998. The plaintiff also relied on Ex.A-9. Ex.A-9 is the registered gift said to have been executed by the paternal grandfather of the plaintiffs in favour of the plaintiffs dated 30.06.1997 under which the plaint schedule properties were gifted to the plaintiffs. To prove the possession of the plaintiffs, the plaintiffs produced Ex.A-10 to Ex.A-14 pattadar passbooks. Those documents under Ex.A-10 to Ex.A-14 prove that the plaintiffs are in possession and enjoyment of the plaint schedule property by the date of filing of the suit.
16. The plaintiffs relied on the evidence of P.Ws.1 to 3, in addition to the aforesaid documentary evidence, P.W.1 is none other than the mother of the minor plaintiffs, P.W.2 is none other than the wife of the donor, and P.W.3 is another independent witness.
17. It was contended by the learned counsel for the appellants that P.W.1 admitted their joint family had Ac.36.00 cents of land as on the date of partition. P.W.1 asserted in her evidence that her husband, defendant and their father Thulasi Reddy got divided the scheduled properties in the year 1995. In cross-examination, when elicited, P.W.1 admits that at about 10 years back they got partitioned the properties. P.W.2, who is none other than the mother of the defendant, also asserted that at about 10 years ago the defendant, husband of P.W.1 got partitioned along with them. She also further admits that her husband was aged about 90 years and he was bedridden and she is also one of the attestors in Ex.A-9 registered gift deed. It was stated in Ex.A-9 that Ex.A-9 property is the absolute property of the donor. As stated supra, Ex.A-9 is dated 30.06.1997 and as per the evidence of P.W.1 and the wife of donor, there was a partition in the year 1995 among Thulasi Reddy and her sons. Moreover, it is not the case of the appellant that he is not having any knowledge about the said registered gift settlement said to have been executed by his father in favour of the minor plaintiffs. The execution of registered gift settlement deed is admitted by the defendant. By the date of filing of the suit, the parents of the defendants are alive. It is admitted by the appellant that his mother was present at the time of execution of registered gift settlement deed by his father in favour of the plaintiffs.
18. The defendant admitted in his evidence that his mother died on 02.07.2005 and he did not go and see the dead body of his mother. He further admits that his father has been residing with the plaintiffs in their house till today and his mother is also present along with his father when he executed a registered gift deed in favour of the plaintiffs and also attested the same. The defendant admitted that in the year 1994, he independently executed a promissory note in favour of the Challapalli Bala Subba Reddy and he filed a suit in O.S.No.94 of 1997 and the same was decreed against him and the Subba Reddy filed Execution Petition against him and he had undergone one month in Civil Prison. The aforesaid series of events clearly indicates that the suit schedule property is not at all a joint family property as on the date of the registered gift settlement deeds said to have been executed by the donor in the year 1997 in favour of the plaintiffs.
19. It was contended by the appellant that his father Thulasi Reddy, sold the ancestral property situated at Kothapalli village under a registered sale deed dated 19.05.1945 for Rs.1,000/- and later settled down in Gulladurthy village and thereafter, he purchased the suit schedule property with the income derived by him from the sale of ancestral property. The time gap between the said sale deeds and Ex.A-1 to Ex.A-8 sale transactions is more than 20 years and the sale consideration in the said sale deed is Rs.1,000/-. Therefore, it is for the appellant to prove that from out of the sale consideration of ancestral properties, his father purchased the suit schedule property. Moreover, as on the date of giving evidence before the trial Court, i.e., on 20.12.2004, as per his own statement he was aged about 50 years. Therefore, he might have been born in the year 1954. Therefore, it is evident that by the year 1945, the defendant was not born and he was born 9 years after the aforesaid sale deed. As per his own evidence, his father has been residing with his mother in the house of his parents and his mother was also present along with his father when he executed a registered gift deed in favour of the plaintiffs and his mother also attested the said gift deed.
20. It is a settled principle of law that “there is no presumption of a property being joint family only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however the persons who assertinig proves that there was a nucleus with which the joint family property could be acquired, when there would be presumption of the property being joint and the onus would shift on the person who claims it to be the self-acquired property to prove that he purchased the property with his own funds and not out of the joint family nucleus that was available. That apart, while considering the term „nucleus‟ it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities”.
21. In the case at hand, the appellant failed to prove the above established principle of law. As per the own evidence of P.W.1 and P.W.2, the partition happened among the appellant, his brother and their father in the year 1995 and on 30.06.1997, the plaint schedule property was gifted to the paternal grandchildren, i.e., plaintiff Nos.1 to 3, by their paternal grandfather on 30.06.1997. In Ex.A-9 gift settlement deed, it was narrated by the donor that it is his absolute property and other legal heirs are not having any right in the said property. Ex.A-1 to Ex.A-8 go to show that the donor purchased the property by paying valid sale consideration to the vendors. As per the own statement of the appellant, his mother died on 02.07.2005 and he did not go and see the dead body of his mother and his parents are residing with the plaintiffs in their house. For the aforesaid reasons, the appellant failed to prove that with the sale proceeds of the sale deed of the year 1945 and with the sale consideration of ancestral properties, the donor purchased the plaint schedule property after 20 years. Thus, taking note of the facts and circumstances of the case and also the principles enunciated as stated supra, in my considered view, the appellant failed to prove that with the ancestral nucleus, the donor purchased Ex.A-9 plaint schedule property.
22. The learned counsel for appellant would contend that there was a cloud on the title of the donor and placed a reliance in Anathula Sudhakar Vs P.Buchi Reddy (Dead) by Lrs. and Others ((2008) 4 Supreme Court Cases 594), wherein the Hon‟ble Apex Court held as follows:
“21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a)...
(b) …
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
In the aforesaid case law, the Hon‟ble Apex Court held as follows:
“21.…
(a)…
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.”
23. The present suit is an injunction simpliciter and the appellant is having personal knowledge of the execution of the registered gift settlement deed in respect of the plaint schedule property said to have been executed by his father in favour of minor grandchildren of his brother i.e. the plaintiffs and by the date of filing of the suit, the donor and his wife are alive and, moreover, his parents used to stay along with the plaintiffs in their house. The respondents/plaintiffs produced the registered gift settlement deed and pattadar passbooks to prove their possession in the plaint schedule property. The aforesaid documentary evidence prove that the plaintiffs are in settled possession over the plaint schedule properties.
24. In a case of Jharkhand State Housing Board Vs. Didar Singh and Another ((2019) 17 SUPREME COURT CASES 692), the Hon‟ble Apex Court held as follows.
“11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”
25. In the case at hand, there is no cloud over the title of the donor of the plaintiffs; therefore, the suit for injunction simpliciter could be decided with reference to the finding on possession. On appreciation of the entire evidence on record the learned First Appellate Judge rightly allowed the first appeal by setting aside the decree and judgment passed by the trial Court. In the light of the material on record and upon earnest consideration, 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 second appeal does not involve any substantial question of law for determination.
26. In the result, the second appeal is dismissed, confirming the judgment and decree passed by the First Appellate Court. Pending applications, if any, shall stand closed. Each party shall bear their own costs in the second appeal.
