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Andhra Pradesh High Court
Judges : V.V.S.RAO
Narhar Raj - Appellant
Versus
Tirupathybibi and Sharadadevi - Respondent
Decided On : 11-27-02
Civil Law - Civil Matter – Code of Civil Procedure,1908 - Section 92 - Specific Relief Act, 1963 - Section 9 - Sake of Convenience - Section 42 of the Specific Relief Act, 1877 - parties are referred to herein by their status in suit - Ancestor of plaintiffs is one Person who died in 1878 A. D - He had lot of properties given to him as a Crown grant as well as other family properties which were not Crown grant - He had two sons, first son of Raja Narahari Prasad died in 1896 A. D - Leaving behind three sons - Other son of One Person had four sons - Genealogy chart below will reveal relationship between parties - Defendants 3 and 4 belong to branch of and defendants 1 and 2 allegedly belong to branch of other son - plaintiffs alleged that defendant No. 1 who claims to be daughter of is not her daughter, because, according to them, Sri Prasad alias Sri Raja, third son though married to died issueless - Be that as it may, as we proceed with narration, whether or not defendants 1 and 2 can claim lineage to branch is not a contentious issue - Crown grant properties of are not joint family properties nor ancestral properties - A Crown grant stands revoked on death of grantee and even if there is a fresh grant in favor of legal heir of original grantee, same in law is a fresh grant and no succession arises on death of original grantee - After death of persons was given a Crown grant - But case in plaint pertains to only family properties owned by and it is not concerned with Crown grant properties given to after death - It is also to be noted that, as alleged by plaintiffs other son of original ancestor pre-deceased (who lived up to 85 years) and all four sons were issueless - Court view of this, all properties which fell to share of and his sons were shared by plaintiffs and defendants 3 and 4, who belong to branch - Defendants 1 and 2 have no relation with Sri Prasad and, therefore, they cannot claim to belong to branch – Held, Court View declares that plaintiffs are absolute owners and possessors of property, same negatively means that defendants or any others do not have any right over property which vests in plaintiffs - Under Section 9 of Code 1908, Civil Court shall have jurisdiction to try all suits of civil nature except suits whose cognizance by Civil Court is expressly or impliedly barred - It is settled by a catena of decisions of apex Court that ouster of jurisdiction of Civil Court could not be presumed lightly - Should be either express ouster of jurisdiction of Civil Court or provisions of statute are such that by impliedly Civil Courts jurisdiction is ousted - As per example, when a statute creates independent adjudicatory forum or a tribunal, it is implied that jurisdiction of Civil Court is barred - A reference may be made to judgment of Supreme Court in P. M. A - Expansive nature of Section 9 is demonstrated by use of phraseology with positive and negative - Earlier part opens door widely and latter debars entry to only those which are expressly or impliedly barred - Two explanations, one existing from inception and latter added in 1976 bring out clearly legislative intention of extending operation of section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to office or not - Language used is simple but explicit and clear - It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory - Heading which is normally key to section brings out unequivocally that all civil suits are cognizable unless barred - Must hold that suit for relief of negative declaration is maintainable and plaintiffs shall prove their case that defendants 1 and 2 have no manner of right, interest, title or possession over suit schedule property - Appeal Allowed.
( 1 ) IN this regular appeal filed against the judgment and decree in O. S. No. 112 of 1984, dated 10-7-1984 passed by the Court of the Additional Chief Judge-cum-I Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, the plaintiffs are the appellants. The suit was filed for declaration and injunction in relation to the open land admeasuring Acs. 5. 00 with compound wall known as Narayan Bagh bearing Municipal No. 18-9-30, Chandrayana Gutta, Keshavagiri, Bandlaguda village. The suit was disposed of by the trial Court observing that the suit as laid for declaration and injunction is not maintainable and that the plaintiffs ought to have filed the suit for declaration of their title to the suit property.
( 2 ) THE appeal raises two questions: (1) Whether the suit for negative declaration that defendants 1 and 2 (respondents 1 and 2 herein) have no interest, claim or right either joint or otherwise as to ownership and/or possession of the suit schedule property? and (2) Whether the earlier litigation between the parties as well as litigation in relation to the property is conclusive that defendants 1 and 2 have no right joint or otherwise as to ownership and/or possession over the suit schedule property?these questions can be considered after briefly referring to the pleadings, evidence on record and the judgment of the trial Court.
( 3 ) FACTS IN BRIEF The parties are referred to herein by their status in the suit. The ancestor of the plaintiffs is one Raja Narahari Prasad who died in 1878 A. D. He had lot of properties given to him as a Crown grant as well as other family properties which were not Crown grant. He had two sons, Raja Giridihari Prasad alias Bansi Raja and Khoob Chand. The first son of Raja Narahari Prasad died in 1896 A. D. leaving behind three sons. The other son of Raja Narahari Prasad had four sons. The genealogy chart below will reveal the relationship between the parties.
( 4 ) AS seen from above, plaintiffs 1 to 8 and defendants 3 and 4 belong to the branch of Raja Giridhari Prasad (Bansi Raja) and defendants 1 and 2 allegedly belong to the branch of Khoob Chand, the other son of Raja Narahari Prasad. The plaintiffs alleged that defendant No. 1 who claims to be the daughter of Pyaro Bibi is not her daughter, because, according to them, Sri Prasad alias Sri Raja, the third son of Khoob Chand though married to Gunnu Bibi died issueless. Be that as it may, as we proceed with the narration, whether or not defendants 1 and 2 can claim lineage to Khoob Chand branch is not a contentious issue.
( 5 ) THE Crown grant properties of Raja Narahari Prasad are not joint family properties nor ancestral properties. A Crown grant stands revoked on the death of the grantee and even if there is a fresh grant in favour of the legal heir of the original grantee, the same in law is a fresh grant and no succession arises on the death of original grantee. After the death of Raja Narahari Prasad, Giridhari Prasad alias Bansi Raja was given a Crown grant. But the case in the plaint pertains to only the family properties owned by Raja Narahari Prasad and it is not concerned with the Crown grant properties given to Giridhari Prasad after the death of Raja Narahari Prasad. It is also to be noted that, as alleged by the plaintiffs, Khoob Chand, the other son of the original ancestor pre-deceased Raja Narahari Prasad (who lived up to 85 years) and all the four sons of Khoob Chand were issueless. In view of this, all the properties which fell to the share of Khoob Chand and his sons were shared by the plaintiffs and defendants 3 and 4, who belong to the branch of Raja Giridhari Prasad. Defendants 1 and 2 have no relation with Sri Prasad and Gunnu Bibi and, therefore, they cannot claim to belong to Khoob Chand s branch.
( 6 ) IT was alleged that Archaka of Sri Chennakesava Swamy Temple filed a suit under Section 92 of the Code of Civil Procedure, 1908 ( cpc for brevity) for framing a scheme in relat
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