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2011 Supreme(AP) 741
2011 (6) ALD 658
High Court of Andhra Pradesh
VILAS V. AFZULPURKAR
Batti Yadavarao & Others
Versus
Kandi Paparao & Others
SECOND APPEAL Nos.303 and 304 of 1999
Decided on : 09-09-2011
For the Appellant:K.V. Subrahmanya Narusu, Advocate.
For the Respondents:G. Vasantha Rayudu, Advocate.
Headnote:
Code of Civil Procedure, 1908 – Order 6 Rule 18 – Order 7 Rule 11 – Orders 8 – Specific Relief Act – Section 6 – Hindu Minority and Guardianship Act – Section 8 – Relief Of Possession – Second Appeals – Both the appeals are filed questioning the common judgment of the lower appellate Court in A.S.s, which reversed the judgment of the trial Court in O.S.s – the principal questions urged by the appellants, is that in the respondents’ suit for possession there were no consequential averments in the plaint in support of even the basic claim of the respondents that they have lost possession on a particular day pending the suit nor there is any cause of action set out in the plaint and except the substitution of relief sought for, the rest of the body of the plaint continued to show, as if it is a suit for injunction – Held, The appellants also were specifically aware of the respondents case that they have lost possession pending the suit and are seeking recovery of possession from the appellants – Court is unable to see any prejudice being caused to the appellants on account of any deficiency in carrying out consequential amendments in the body of the plaint – The averments and prayer in the amendment application of the respondents/plaintiffs were opposed by the appellants only on the ground of being belated and the same was rightly not accepted by this Court in CRP – The appellants, therefore, were expressly aware of the respondents’ averment that they lost possession during the pendency of the suit and were seeking relief of possession – This aspect coupled with the finding, that the title claimed by the appellants is on the face of it not valid leads to the only conclusion that the possession of the appellants over the suit schedule property is wholly unauthorized in law- The respondents, who are original title holders, admittedly, by survivorship, cannot be denied the relief of possession merely on the ground of technical pleas raised by the learned counsel for the appellants – The effect of the respondents not carrying out amendment in the body of the plaint, consequent upon the amended relief sought for, in the circumstances is not such a fatal defect, as the appellants’ suit for injunction claiming possession was jointly tried and disposed of along with the respondents’ suit and as mentioned above, the appellants’ had express notice of the claim for possession made by the respondents – Both the appeals are liable to be dismissed for the reasons mentioned above – Since the decree for possession follows in view of the dismissal of these appeals, the appellants are granted time to vacate and handover the possession of the schedule premises to the respondents – Second Appeals Are Dismissed
Both the appeals are filed questioning the common judgment of the lower appellate Court in A.S.Nos.13 of 1991 and 7 of 1997 dated 18.11.1998, which reversed the judgment of the trial Court in O.S.Nos.138 and 172 of 181 dated 21.12.1990.
2. The appellants as well as the respondents herein filed the aforesaid two cross-suits for injunction relating to same property and both of them had obtained temporary injunction against each other. The respondents, however, lost possession during the pendency of their suit O.S.No.136 of 1981 and therefore, sought amendment of plaint to seek relief for possession. The amendment was allowed and the respondents’ suit for permanent injunction was amended to that for possession. The trial Court held in favour of the respondents on almost all the issues but dismissed the suit on the ground that it does not disclose the cause of action for seeking relief of possession and consequently, decreed the appellants’ suit O.S.No.172 of 1981 for injunction. On appeals, the lower appellate Court has revered the said decree and while decreeing the suit of the respondents for possession had dismissed the appellants’ suit for injunction; hence, these second appeals.
3. One of the principal questions urged by Mr. K. V. Subrahmanya Narusu, learned senior counsel appearing for the appellants, is that in the respondents’ suit for possession there were no consequential averments in the plaint in support of even the basic claim of the respondents that they have lost possession on a particular day pending the suit nor there is any cause of action set out in the plaint and except the substitution of relief sought for, the rest of the body of the plaint continued to show, as if it is a suit for injunction. Learned senior counsel, therefore, placed strong reliance upon Order 6 Rule 18 as well as Order 7 Rule 11 of the Code of Civil Procedure, 1908 and relied upon the following decisions:
UNION OF INDIA v. PRAMOD GUPTA (DEAD) BY LRS. AND OTHERS (2005) 12 SCC 1; SMT. SISIR KANA GUHA v. AYAKAR GRIHANIRMAN SAMABAYA SAMITY LTD. AIR 2002 CALCUTTA 247; T. SRIRAMULU v. STATE OF KERALA 1971 (1) An.W.R. 168; SAMAR SINGH v. KEDAR NATH AIR 1987 SC 1926; RAM SARUP GUPTA (DEAD) BY LRS. V. BISHUN NARAIN INTER COLLEGE AND OTHERS AIR 1987 SC 1242; SHAIK MUNNI v. M/s. JAGAN MOHAN SALT INDUSTRIES, CALINGAPATNAM AND OTHERS 2003 (1) ALT 112 and RAJ KUMAR v. DIPENDER KAUR SETHI (2005) SCCR 166
4. Based on the above decisions, learned senior counsel contends that the dismissal of the suit by the trial Court on the ground that the plaintiffs failed to disclose cause of action seeking relief for possession was fully justified and ought not to have been interfered with by the lower appellate Court.
5. The second appeals were admitted on 16.04.1999 on the following question:
“Whether the first appellate Court was right in decreeing the suit, which was originally framed as one for injunction based on title, subsequently the amendment petition for converting it as a suit for possession having been dismissed by the trial Court, in the absence of any averments as to when the plaintiffs were dispossessed and when the cause of action arose for the suit for recovery of possession?”
6. I have heard at length Mr. K.V. Subrahmanya Narusu, learned counsel for the appellants as well as Mr. G. Vasantha Rayudu, learned counsel for the respondents and also called for amendment application filed by the plaintiffs from the lower Court records and perused the respondents’ application I.A.No.720 of 1988. The said record, which was called for was also perused by the both the learned counsel and they have been heard again in that respect as well.
7. I am of the view that in the facts and circumstances of the case, the appeals are liable to be dismissed by answering the substantial question of law against the appellants. The reasons, therefor, are as follows.
8. The undisputed facts are as follows:
(a) The suit schedule property in both the suits is on
