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ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy, J.
Pothana Seshagiri Rao —Appellant
versus
Maddipati Satyavathi —Respondent
Second Appeal No. 375 of 2005
Decided on 3.12.2011
Counsels for the Parties:
For the Appellant:Mr. K. Sarvabhouma Rao, Advocate.
For the Respondent:Mr. S. Sree Rama Chandra Murthy, Advocate.
IMPORTANT POINT
Once it emerges that a suit in the name of a person of unsound mind was filed, Court cannot permit adjudication thereof notwithstanding the failure of part of other party to raise the plea.
Headnote:Specific Relief Act, 1963—Section 38—Suit for perpetual injunction filed by respondent in respect of Acs 5.06 cents of land out 15.06 cents of land of which appellant was the owner—Dismissed by Trial Court—Appeal—Allowed—Second Appeal—Assuming that there existed an agreement of sale in favour of respondent, possession of suit schedule property was delivered to her and that appellant was trying to invade her rights, principal relief she ought to have persuaded was the one for specific performance of agreement of sale—Perpetual injunction could have been sought for as an ancillary relief—Once the respondent treated appellant as the absolute owner of property, question of seeking relief of injunction against true owner did not arise—As long as respondent recognize appellant as true owner of property, suit filed for mere injunction was totally untenable—Decree passed by lower Court set aside—Appeal allowed. (Para 15).
(ii) Civil Procedure Code, 1908—Order 32, Rule 15—Filing of suits by persons of unsound mind—Whether suit filed in the name of a person who does not have the mental capacity to give instructions for filing of the same can be entertained—Once it emerges that in suit in the name of a person of unsound mind was filed, the Court cannot permit the adjudication thereof notwithstanding the failure on the part of appellant to raise the plea—When PW1 stated that respondent, sole plaintiff was of unsound mind and was not in a position to give instruction at the time of filing of suit, trial Court ought to have insisted of compliance with Order 32 CPC—Since such an important step was not taken, very suit became untenable—Appeal allowed. (Paras 25 and 26)
Result: Appeal allowed.
L. Narasimha Reddy, J.— The appellant is the owner of Acs. 15.06 cents of land in R.S. No. 310/2 of West Godavari District. The respondent filed O.S.No. 293 of 1990 in the Court of I Additional District Munsiff, Kovvur, for the relief of perpetual injunction in respect of Acs. 5.06 cents of land (hereinafter referred to as ‘the suit schedule property’) out of the aid Acs. 15.06 cents of land. It was pleaded that the appellant, who is the cousin of the husband of the respondent, offered to sell the land for a sum of Rs.45,000 and the respondent agreed to purchase the property; and that an agreement of sale was entered into in the year 1978. Advance of Rs. 20,000 and subsequently, the sums of
Rs. 10,000 and Rs.14,000 were said to have been paid. She pleaded that the appellant executed two sale deeds dated 23.l2.1981 covering an area of Acs. 5.00 and another sale deed on 24.12.1981 covering another extent of Acs. 5.00, but has refused to execute the sale deed in respect of the suit schedule property. It was her case that on the date of agreement itself, the possession of the entire extent of Acs. 15.06 cents of land was delivered and she continued to be in possession thereof.
2. According to the respondent, the appellant demanded higher amount stating that there is escalation of prices and a sum of Rs.10,000, in addition to what was paid already was kept with one of the close relations of the appellant so that it can be paid, once the sale deed in respect of the suit schedule property is executed. She pleaded that the appellant did not execute the deed but tried to interfere with her possession over the suit schedule property.
3. The appellant filed a written statement disputing the existence of any agreement with the respondent. He stated that in the year 1981 when he was in need of money, the husband of the respondent came forward to purchase the land and since consideration was paid for an extent of Acs. 10.00 sale deeds for that extent were executed. He stated that he never parted with the possession of the suit schedule property and that he is in enjoyment thereof.
4. The trial court dismissed the suit through judgment dated 31.10.1997. Thereupon, the respondent filed AS. No. 94 of 1997 in the Court of the Senior Civil Judge, Kovvur. The appeal was allowed on 24.9.2004. Hence, this second appeal.
5. Sri K. Sarvabhouma Rao, learned counsel for the appellant submits that the lower appellate Court has reversed the decree passed by the trial Court on the basis of certain assumptions and conjectures. He contends that the respondent was so uncertain that she was not clear as to whether there existed oral or written agreement. He submits that the witnesses examined on behalf of the respondent stated that a written agreement was entered into, but it was not filed into the Court at all. He submits that a vital statement from PW1 to the effect that the respondent herein was not mentally sound and that she was not in a position to give instructions, as on the date of filing of the suit, was totally ignored by the lower appellate Court. Learned counsel submits that the suit filed by the respondent for the relief of permanent injunction by pleading agreement of sale was totally untenable and at the best the respondent could have filed a suit, for specific performance and for any other ancillary reliefs. He contends that the so called refusal to execute the sale deed was in December, 1981, whereas the suit was filed in the year 1990. He raised several other contentions also.
6. Sri S. Sree Rama Chandra Murthy, learned counsel for the respondent, on the other hand, submits that no substantial question of law arises for consideration and the well considered judgment of the lower appellate Court does not warrant interference at the stage of second appeal. He submits that the consideration for three sale deeds executed by the appellant aggregates Rs.20,000, whereas the appellant clearly admitted that he received Rs. 30,000. Learned c
