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ANDHRA PRADESH HIGH COURT
T.Sunil Chowdary, J.
V. Nagamanemma and Ors. —Appellants
versus
V. Nagulu Naidu (died) per L.R.s. and Ors. —Respondents
Second Appeal No.192 of 2005
Decided on 28.3.2014
Counsel for the Parties:
For the Appellants:Mr. P.V. Vidyasagar, Advocate
For the Respondents:Mr. M. Dorai Raj, Advocate
IMPORTANT POINTS
1. While interpreting a document the court has to keep in mind the purpose and object for which it was executed.
2. Burden of proof lies on plaintiff to establish that he has been in possession and enjoyment of plaint property, much less as on the date of filing of suit.
3. Who is not in possession of immovable property, not entitled to file suit for declaration and consequential perpetual injunction.
4. Mere asking of relief of injunction is not a substitute to relief of recovery of possession.
Headnote:(i) SETTLEMENT DEED & WILL — Difference between — Mere using of sentence that the deed will come into force after death of executant — would not change the nature of document — If document passed tests formulated for determining a document as settlement deed. [Para 28]
(ii) POSSESSION — Proof of — Inaction on part of plaintiff to challenge — Gazette Notification & Form-III Notice — HELD — Creates doubt the plaintiff’s possession of property. [Para 31]
(iii) Specific Relief Act, 1863 — Section 34 — Declaration suit — Plaintiff was never in possession of property — Much less as on date of filing of suit — HELD — Plaintiff instead of asking relief of injunction — Ought to have asked relief of recovery of possession of property. [Para 37]
(iv) Limitation Act, 1963 — Article 58 — Limitation — File the suit for declaration with consequential relief — Within three years from the date — When right to sue first accrues. [Para 43]
(v) Limitation Act, 1963 — Article 58 — Right to sue — First accrued on which date — HELD — On which date husband of 6th defendant denied title of Plaintiff — Over plaint schedule property. [Paras 48 & 50]
Result: Appeal allowed
T.Sunil Chowdary, J.—This second appeal is filed challenging the decree and judgment dated 22.11.2004 passed in A.S.No.132 of 1996 on the file of the V Additional District Judge, Tirupati wherein and whereby the decree and judgment dated 16.08.2009 passed in O.S.No.320 of 1991 on the file of the I Additional District Munsif, Tirupati was reversed.
2. For the sake of convenience, parties to this appeal, will hereinafter be referred to as they are arrayed before the trial Court.
3. The case of the plaintiff, in nutshell, is that defendants 1 and 2 are son and daughter-in-law of 3rd defendant. Defendants 4 and 5 are sons of 2nd defendant. Sixth defendant is mother of defendants 7 and 8. Ninth defendant is relative of 6th defendant. Thus all the defendants are interrelated and residents of Cherlopalle village, Tirupati Rural Mandal.
4. Initially plaintiff filed the suit for the relief of perpetual injunction. The plaintiff purchased the plaint schedule property on 18.08.1984 under a registered sale deed from one Kandala Jayamma and her daughter by name Ratnamma, Are Guravamma, A.Ramanaidu, Medoti Sampoornamma and K.Anandamma, and ever since he has been in possession and enjoyment of the same. K.Jayamma and her daughter Ratnamma got the entire plaint schedule property under a settlement deed dated 06.11.1968 executed by her husband Venkata Rama Naidu. Father of the said Venkata Rama Naidu by name K.Peddi Naidu executed a settlement deed dated 11.4.1969 in respect of his half share in favour of K.Anandamma, Neelamma and Sampoornamma. Sampoornamma died intestate leaving behind her son A.Venkatrama Naidu (9th defendant). Therefore, A.Venkatrama Naidu, Anandamma and Neelamma got half share in the plaint schedule property. While so, on 25.08.1991, the defendants tried to trespass into the plaint schedule property. The 6th defendant denied the sale deed in favour of the plaintiff. Hence the plaintiff is forced to file the suit for declaration of title that he is the absolute owner of the plaint schedule property and also for a consequential relief of perpetual injunction.
5. The third defendant died during pendency of the suit. The first defendant filed written statement on behalf of defendants 1, 2, 4 and 5 admitting the relationship among defendants 1 to 5 and 9 and inter alia contended that the plaintiff has been in possession and enjoyment of the plaint schedule property by virtue of registered sale deed dated 18.08.1984. The vendors of the plaintiff never executed any sale deed or any document in favour of 6th defendant. The 6th defendant and her husband misled them and got the sale deed dated 27.10.1981 in favour of 6th defendant by playing fraud. The vendors of the plaintiff also did not execute any agreement of sale in favour of 6th defendant at any time much less in the year 1975. K.Peddi Naidu executed two settlement deeds - one in favour of Venkata Rama Naidu and second one in favour of his daughters, K.Anandamma, Neelamma and Sampoornamma. At no point of time, the 6th defendant was in possession and enjoyment of the plaint schedule property fell to the share of Peddi Naidu. Defendants 1 to 5 and 9 never interfered with the possession and enjoyment of the schedule property by the plaintiff. Therefore, they are not necessary and proper parties to the suit. Hence the suit may be dismissed.
6. Sixth defendant filed written statement denying all the averments made in the plaint inter alia contending that the documents on which the plaintiff is placing reliance are sham and nominal. Neither the plaintiff nor his vendors have been in possession of the plaint schedule property. The plaintiff has not mentioned the boundaries of the plaint schedule property for the reasons best known to him. This defendant is the owner of an extent of As.4-27 cents in Sy.No.217 of Cherlopalle village. This defendant purchased the property under an agreement of sale dated 06.06.1975 for a valid consideration of Rs.26,000/- from Edoti Venkata Ram
