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2015 Supreme(AP) 258
In the High Court of Judicature at Hyderabad
S. RAVI KUMAR, J.
Sardar Balwanth Singh & Another – Appellants
Versus
Sardar Bhagath Singh & Another – Respondents
Second Appeal No. 124 of 2009 & Contempt Case No. 1935 of 2014
Decided On : 05-06-2015
Advocate Appeared:
For the Appellant :B. Vijaysen Reddy, Advocate.
For the Respondent:Ramidi Satyanarayana, Advocate.
Headnote:
Civil Law – Civil Suit – Suit for declaration of Title – Gift deeds – Execution of – Appeal against judgment – According to plaintiff his father acquired plaint schedule property and some other properties and died in the year 1973 leaving behind him, his wife and five sons including the plaintiff separate gift deeds were executed and the plaintiff took major share while plaintiff and other brothers were given small shop. When the plaintiff lost some portion of property in road widening of MCH, his mother agreed to provide the suit schedule property to him as it was appurtenant to the premises bearing and 153 belonging to plaintiff – A memorandum of understanding was executed between plaintiff and his mother plaintiff is provided passage from his property bearing western side of the road. Plaintiff complied with the conditions in Memorandum and on that, mother executed registered gift deed on gifting schedule property and as such, plaintiff has become absolute owner – Whether judgments in perpetual injunction regarding the same subject matter having attained finality do not at all operate as resjudicata in a subsequent suit for declaration of title – Whether the finding regarding common passage having attained finality can be ignored in a subsequent suit on the strength of a document allegedly creating absolute rights – Whether transferor having admitted the existence of a common passage, having allowed to use the common passage for several years by several transferee can create encumbrance over the common passage so as to cause inconvenience and hardship to one of the transferee – Whether the common passage can be alienated thereby creating absolute rights in favour of only one party to the detriment of another party in whose favour common enjoyment rights have been conveyed – Held, Burden is heavy on him to prove his right over the suit property with cogent and convincing reasons there was an earlier finding in respect of the same property, that was given in the suits filed by plaintiff himself, his burden is more heavy – In order to get the relief of declaration plaintiff must plead and prove as to how nature of property is converted from to absolute right and then only, he can overcome earlier finding with respect to nature of property. But here, plaintiff neither pleaded nor proved as to when this common passage is changed into absolute right to the mother of both parties and therefore, plaintiff cannot get the relief of declaration – No doubt earlier suit was only perpetual injunction but even for considering relief of perpetual injunction, the court has to incidentally verify the title and in that process, held that suit property was common passage and not exclusive property of any of the parties and such finding would bind both parties herein who are also parties to the earlier suit. As rightly pointed out by advocate for appellant-defendant learned trial judge has rightly applied principle of case on hand but the lower appellate court on surmises and presumptions reversed such finding which in my view is not a correct approach – Second Appeal and Contempt Case is dismissed.
1. This appeal is preferred against judgment dated 19-1-2009 in A.S.No.332 of 2007 on the file of Chief Judge, City Civil Court, Hyderabad whereunder judgment dated 29-1-2007 in O.S.No.3459 of 2004 on the file of V Additional Junior Civil Judge, City Civil Court, Hyderabad, is reversed. Appellant herein is the defendant and respondent herein is plaintiff in O.S.No.3459 of 2004. Brief facts leading to this appeal are as follows:
Plaintiff filed above referred suit for declaration that he is owner of site admeasuring Ac.9.5 square yards situated at Ameerpet, Hyderabad, which is shown as plaint schedule and for other consequential reliefs.
According to plaintiff, his father acquired plaint schedule property and some other properties and died in the year 1973 leaving behind him, his wife and five sons including the plaintiff. Thereafter, separate gift deeds were executed and the plaintiff took major share while plaintiff and other brothers were given small shop. When the plaintiff lost some portion of property in road widening of MCH, his mother agreed to provide the suit schedule property to him as it was appurtenant to the premises bearing No.7-1-166,1661/1 and 153 belonging to plaintiff. A memorandum of understanding dated 30-4-2002 was executed between plaintiff and his mother whereunder plaintiff is provided passage from his property bearing Door No.7-1-153 to western side of the road. Plaintiff has complied with the conditions mentioned in Memorandum and on that, mother executed registered gift deed on 5-5-2001 gifting schedule property and as such, plaintiff has become absolute owner.
Defendant resisted the claim of plaintiff on the ground that claim is barred by res-judicata as in the earlier suit filed by plaintiff in O.S.No.6 of 1994, a clear finding was given that the suit property was joint passage and that finding would bind both the parties and therefore, the claim is barred by res-judicata. It is also contended that the mother of plaintiff has no right to gift the common passage and there is no separate municipal number for this common passage and it is not the property of any single individual and therefore, the plaintiff is not entitled for the relief of declaration. On these contentions, trial court framed appropriate issues and conducted trial, during which, one witness is examined on each side and 19 documents are marked on behalf of plaintiff and three documents are marked on behalf of defendant and on an overall consideration of oral and documentary evidence, trial court dismissed the suit on the ground that the claim is barred by principle of res-judicata.
Aggrieved by the dismissal of the suit, plaintiff preferred appeal and the Chief Judge, City Civil Judge, Hyderabad, on a reappraisal of evidence decreed the suit holding that the finding in the suit O.S.No.6 of 1994 will not operate as resjudicata. Aggrieved by the judgment of the appellate court, defendant preferred the present appeal.
Following are the substantial questions of law that are urged in the grounds of appeal.
i) Whether the judgments in perpetual injunction regarding the same subject matter having attained finality do not at all operate as resjudicata in a subsequent suit for declaration of title.
ii) Whether the finding regarding common passage having attained finality can be ignored in a subsequent suit on the strength of a document allegedly creating absolute rights.
iii) Whether transferor having admitted the existence of a common passage, having allowed to use the common passage for several years by several transferee can create encumbrance over the common passage so as to cause inconvenience and hardship to one of the transferee.
iv) Whether the common passage can be alienated thereby creating absolute rights in favour of only one party to the detriment of another party in whose favour common enjoyment rights have been conveyed.
This court, treating the above grounds as substantial questions of law, admitted the appeal. Heard both si
