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2016 Supreme(AP) 477
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Kathi Narsinga Rao – Petitioner
Versus
Kodi Supriya & Another – Respondent
C.R.P.Nos.4384 & 4385 of 2015
Decided On : 29-09-2016
For the Petitioner:B. Sudhakar Reddy, Advocate.
For the Respondents:T.V.S. Kumar, Advocate.
Headnote:
Civil Law – Revision petition – Permanent injunction – Secondary evidence Admissibility of – Petitioner in both the revisions who is 1st defendant in O.S., the suit filed was by the plaintiff for the relief of permanent injunction restraining defendants viz., revision petitioner no other than his brother, in respect of part of schedule property – Claim that property originally belong to Kayeta Simhadri S/o. Chinna Appadu – After death of Simhadri supra, his sons and his minor sons along with sons of Simhadri and minors represented by father and Appalanaidu and S/o. Appalanaidu by name K.Gowri Siva Prasad minor represented by father succeeded the property of which Government acquired Ac.0-12 cents for laying road running between Viskhapatnam to Bheemunipatnam and land thereby divided into 2 parts after excluding acquired road and out of which plaintiff claimed purchased 630 square yards out of extent covered by the west of road by unregistered sale deed and since then in possession and enjoyment and one Smt. V. Nagamani, N.S. Raju and K.B. Raju also purchased each 630 square yards land from said vendors on even date and the land purchased by K.B. Raju was sold to plaintiff, Nagamani and NSN Raju under 3 separate sale deeds for each on 1/3rd share viz., 210 square yards each dated 29.04.1987 and plaintiff’s sale deed is document No.928/1987 and having obtained possession since then that extent of 210 square yards also along with 630 square yards in possession of the plaintiff – Held, opposite party must raise objection at the time of such admission and if no objections raised at that point of time, he is precluded to raise later, however such mere admission does not amount to proof of the contents, for marking of exhibit on a document does not dispense with proof which is required to prove as laid down in REV Gounder supra and also following the same in Dayamati Bai (Smt.) Vs. K.M. Shaffi (2004) 7 SCC 107)and following same later in LIC Vs. Ram Pal Singh Bisen (2010) 4 SCC 491). It also referred in Para 14, the other expression in M.Chandra Vs. M.Thangamuthu (2010) 9 SCC 712), saying if secondary evidence is admissible it may be adduced in any form in which it may be available whether by production of copy, duplicate copy of a copy or by oral evidence of the contents or any other form – It is emphasized that, exceptions to rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original for no fault of that party – From these expressions, even once the certified copy to a certified copy is within the meaning of secondary evidence and any objection to exhibit secondary evidence though in Shalimar Chemicals Supra says to decide instantly for admissibility, from the earlier expressions categorically held directing all courts to follow particularly from Bipin Shanti Lal supra and in Afzal Guru supra that but for objections on stamp duty and registration to decide instantaneously any other objection raised while marking is to record as subject to objection to decide ultimately at end of trial and not to decide instantaneously and thus against said conclusion arrived by lower Court, there is nothing to sit in revision against impugned orders of lower Court – Revision petitions are dismissed. (Paras 17, 18 and 19)
1. The revision petitioner in both the revisions by name Sri K.N. Rao, who is the 1st defendant in O.S.No.396 of 2008 on the file of II Additional District Judge, Visakhapatnam, the suit filed was by the plaintiff Smt. K.Supriya for the relief of permanent injunction restraining the defendants viz., revision petitioner and another by name K.Rama Rao, no other than his brother, in respect of part of schedule property of Ac.1-74 cents in survey No.350/8 of Timmapuram Hamlet of Kapulupada, Bheemunipatnam Mandal, Visakhapatnam District. It is the claim that the property originally belong to Kayeta Simhadri S/o. Chinna Appadu. It is the claim that after death of Simhadri supra, his sons K. Simhadri and his minor sons Muralidhar and Sridhar, along with sons of Simhadri and minors represented by father and Appalanaidu and S/o. Appalanaidu by name K.Gowri Siva Prasad minor represented by father succeeded the property of which Government acquired Ac.0-12 cents for laying road running between Viskhapatnam to Bheemunipatnam and the land thereby divided into 2 parts after excluding the acquired road as Ac.1-30 cents on west of the road and Ac.0-32 cents on the east of the road and out of which the plaintiff claimed purchased 630 square yards out of the extent covered by the west of the road by unregistered sale deed dated 13.08.1984 and since then in possession and enjoyment and one Smt. V. Nagamani, N.S. Raju and K.B. Raju also purchased each 630 square yards land from said vendors on even date and the land purchased by K.B. Raju was sold to the plaintiff, Nagamani and NSN Raju under 3 separate sale deeds for each on 1/3rd share viz., 210 square yards each dated 29.04.1987 and plaintiff’s sale deed is document No.928/1987 and having obtained possession since then that extent of 210 square yards also along with 630 square yards in possession of the plaintiff. It is further averred that P.I.Punan, P. Subiramaiah, Dilip Kumar Pal and Satyanarayana each also purchased Ac.0-13 cents of land from the said vendors which is west of the land sold by Bangar Raju and one M. Venku Reddy also purchased Ac.0-32 cents of land lying to the east of the road from said vendors and besides above persons purchased the respective extents, of the site owners in 1986 though to develop a residential layout by clubbing their respective extents commonly and a naval officer by name Masthannaiah and his wife one of the owners of the plots took initiative and applied for layout from HUDA though not fructified for some of the owners transferred from Vizag.
2. It is further averred that in 1995 plaintiff constructed house with asbestos sheets in the south east side of the plaint schedule item No.1 property and she also let out the asbestos roof house in 1995 to one V.R. V.G.K.Rao running Lakshmi Transport business therein with telephone connection and she obtained electricity connection and engaged a watchman and paying electricity charges, house tax etc. It is further averred that while so on 23.06.2005 defendant Nos.1 and 2 without any manner of right came to the schedule properties and attempted to trespass which could be resisted by watchman of the plaintiff in maintaining the suit claim for permanent injunction therefrom. The defendants resisted the suit with contest in their written statement. It is from the respective pleadings and after settlement of issues mainly in relation to the entitlement or not of the suit relief by the plaintiff, trial was commenced and K.Janardana Reddy no other than husband of the plaintiff deposed before the Court by examination in chief and cross examination and in his evidence already Exs.A1 to A24 were marked which includes original GPA dated 04.11.2008, original registered sale deeds dated 13.08.1984 and 29.04.1987, electricity bills, receipts, house tax demands and receipts, copies of the police complaint including certified copy of the commissioner report in earlier suit O.S.No.1422 of 2005, FMB, Adangal, photograph
