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Friday, April 11, 2014

Sec. 2 (b) of Specific relief Act - Settlement Deed / Will - Construction of Document - There is a recital in these two documents that they will come into force after the death of executants. Basing on this stray sentence the trial court had decided the nature of the documents as Wills. Mere using of the sentence that the deed will come into force after the death of the executant would not change the very nature of the document.- Whether the suit for declaration and injunction with out asking for possession maintainable ? - No= V.Nagamanemma & 2 Others...APPELLANTS V.Nagulu Naidu & Others....RESPONDENTS = 2014 ( March. Part ) http://judis.nic.in/judis_andhra/filename=11082

Sec. 2 (b) of Specific relief Act - Settlement Deed / Will - Construction of Document - There is a recital in these two documents that they will come into force after the death of executants.  Basing on this stray sentence the trial court had decided the nature of the documents as Wills. Mere using of the sentence that the deed will come into force after the death of the executant would not change the very nature of the document.- Whether the suit for declaration and injunction with out asking for possession maintainable ? - No=

whether Exs.A.2 and A.3 are settlement deeds or Wills in
the light of the principles enunciated in the cases referred supra.

26      There is a popular saying that devil does not know the mind of the human
being.  In order to ascertain the intention of the executant of the document,
the only course available to the Court is to scan the entire document word by
word apart from taking into consideration the surrounding circumstances. From a
perusal of Exs.A.2 and A.3 it is manifestly clear that there is no ambiguity in
the words used in them. It is not in dispute that these two documents are
registered as per the procedure in vogue. The nomenclature of the documents is
settlement deeds. A perusal of the recitals of these two documents clearly
indicates the intention of the executant to transfer the title in favour of the
beneficiaries.  The recitals of these two documents are crystal clear as to the
disposition of the interest in the property in praesenti.  There is no specific
recital in either of these two documents empowering the executants to revoke the
documents during their life time.  The possession of the property covered under
these two documents was delivered to the beneficiaries on the date of execution
itself.  Divesting and vesting of the title in the property forms an integral
part of the same transaction.
27      Section 2(b) of the Specific Relief Act defines "settlement" as an
instrument other than a Will or codicil whereby the destination or devolution of
successive interests in movable or immovable property is disposed of or is
agreed to be disposed of.  It should be noted that in "settlement" the property
is disposed of or is agreed to be disposed of.  So, agreement to dispose in the
manner as per the terms of the deed is also "settlement". The recitals of Exs.A2
and A3 satisfy the ingredients of settlement and the relationship of settlers
and beneficiaries is conspicuous ex facie.
28      There is a recital in these two documents that they will come into force
after the death of executants.  Basing on this stray sentence the trial court
had decided the nature of the documents as Wills.  Duty is cast on the Court to
read the entire document so as to ascertain the intention of the executant.  At
times there may be some overlappings or conflict between the sentences used in
the document.  It is needless to say while interpreting a document the court has
to keep in mind the purpose and object for which it was executed.  The court
shall not lose sight of this cardinal principle of interpretation of the
documents.  A perusal of the entire documents clearly indicates that the
executants intended to execute settlement deeds in favour of the beneficiaries.
Mere stray sentence in the document cannot defeat the very purpose of the
document.  Mere using of the sentence that the deed will come into force after
the death of the executant would not change the very nature of the document.
These two documents have passed various tests formulated by courts for
determining a document as settlement deed.  These two documents withstood the
judicial scrutiny so far as fulfilment of the ingredients of settlement deeds.
29      In the light of the foregoing discussion, I have no hesitation to hold
that Exs.A.2 and A.3 are settlement deeds.  Hence, I am agreeing with the
finding recorded by the first appellate court that Exs.A.2 and A.3 are
settlement deeds.  The finding of the trial court that Exs.A.2 and A.3 are Wills
is not legally sustainable.

Whether the suit for declaration and injunction with out asking for possession maintainable ?

Appellant court found that the plaintiff is out of possession not challenged 
The plaintiff being able to seek the relief of recovery
of possession omitted to do so.  Mere asking of the relief of injunction is not
a substitute to the relief of recovery of possession. The relief of recovery of
possession is a substantial right by itself. Suit for declaration with
inadequate or irrelevant consequential relief would undoubtedly fall within the
ambit of proviso to Section 34 of the Specific Relief Act.  In the present case,
the plaintiff instead of asking the relief of injunction ought to have asked the
relief of recovery of possession of the plaint schedule property.  The
appropriate and adequate consequential relief to be sought, in this suit, is
recovery of possession.
I have no hesitation to hold
that the suit is hit by proviso to Section 34 of the Specific Relief Act.  I am
fully agreeing with the finding recorded by the trial court that the plaintiff
is not entitled for the relief of declaration.  The finding of the first
appellate court that the plaintiff is entitled for the relief of declaration is
not legally sustainable.
2014 ( March. Part ) http://judis.nic.in/judis_andhra/filename=11082

THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY        

SECOND APPEAL No.192 OF 2005    

28-03-2014

V.Nagamanemma & 2 Others...APPELLANTS      

V.Nagulu Naidu & Others....RESPONDENTS  

Counsel for Appellants: Sri P.V.Vidyasagar

Counsel for Respondent: Sri M. Dorai Raj

<GIST:

>HEAD NOTE:  


?Cases referred:

1 AIR 1940 Madras 236
2 AIR 1972 Guj 74
3 AIR 1953 Travancore-Cochin 336
4 1980 (2) ALT 436
5 AIR 1996 A.P. 24
6 (2010) 4 SCC 161
7 AIR 1974 CALCUTTA 283  
8 AIR 1993 SC 957
9 AIR 1961 SC 808
10 AIR 1960 SC 335

1 AIR 1940 Madras 236
2 AIR 1972 Guj 74
3 AIR 1953 Travancore-Cochin 336
4 1980 (2) ALT 436
5 AIR 1996 A.P. 24
6 (2010) 4 SCC 161
7 AIR 1974 CALCUTTA 283  
8 AIR 1993 SC 957
9 AIR 1961 SC 808
10 AIR 1960 SC 335

THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY        

SECOND APPEAL No.192 OF 2005    

28-03-2014


JUDGMENT:

1       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 Rama Naidu, Kandala Peddi Naidu, Kandala Venkata Rama Naidu,    
Gurrappa Naidu and Kandala Jayamma.  
7       On the date of agreement of sale, the vendors received Rs.6,000/- and
agreed to receive the balance consideration of Rs.20,000/- in two instalments
i.e. a sum of Rs.18,000/- on or before 05.12.1975 and the remaining sum of
Rs.2,000/- at the time of registration of the document.  Vendors of this
defendant delivered possession of the plaint schedule property on the date of
agreement of sale.  In pursuance of the agreement of sale, this defendant
obtained a registered sale deed on 27.10.1981.  This defendant has been in
possession and enjoyment of the plaint schedule property from 06.06.1975 without
any interruption from any body.  The plaintiff is none other than the cousin of
the husband of this defendant.  Disputes arose between the plaintiff and the
husband of this defendant due to village politics. This defendant's husband is
Sarpanch of the village. This defendant is not aware of the settlement deeds
alleged to have been executed by Peddi Naidu in favour of his daughters and son.
The alleged beneficiaries under the settlement deeds were never in possession of
the property.  There is a recital in the alleged settlement deeds that those
deeds will come into force after the death of said Peddi Naidu.  The alleged
sale deed dated 18.08.1984 in favour of the plaintiff is not legally
enforceable, in view of the agreement of sale dated 06.06.1975 in favour of 6th
defendant.  This defendant obtained loan from Chandragiri Cooperative
Agricultural Development Bank Limited by mortgaging the plaint schedule
property.  This defendant perfected title to the plaint schedule property even
by adverse possession.  This defendant filed writ petition No.10504 of 1986
challenging the notification dated 08.05.1986 issued under Sections 4 and 6 of
the Land Acquisition Act and the said writ petition was allowed.  This defendant
submitted objections before the Special Deputy Collector, Land Acquisition,
TUDA, who made proposals to acquire the plaint schedule property.  There is no
cause of action to file the present suit and that the present suit is hit by the
provisions of Section 34 of the Specific Relief Act.  The suit as framed is
barred by limitation.  The suit for declaration of title and perpetual
injunction is not maintainable. Hence the suit may be dismissed.
8       Defendants 7 and 8 filed memo adopting the written statement filed by the
6th defendant.
9       Ninth defendant filed separate written statement inter alia stating that
an extent of Ac.4-27 cents in Sy.No.217 of Cherlopalle village originally
belongs to three families out of which half share belongs to this defendant's
family, 1/4th share to Peddi Naidu and another 1/4th share to Kandala Chengamma
who died on 25.12.1991.  Chengamma had two sons by name Gurrappa Naidu (D.1) and  
Venkata Rama Naidu. Venkata Rama Naidu also predeceased her mother and his  
successors are Sulochana (wife), Ramesh and Giridhar (sons) who are defendant
Nos.3, 4 and 5.  They had 1/4th share in the total extent of Ac.4-27 cents.  The
remaining 1/4th share was vested with Peddi Naidu who died after executing
settlement deed in favour his daughters and daughter-in-law in the year 1968 and
1969.  Thus Ac.4.27 cents was being enjoyed by three families referred above.
Anandamma, Jayamma and others have executed registered sale deed dated  
18.08.1984 in favour of plaintiff in respect of 1/4th share (plaint schedule
property). There were misunderstandings between plaintiff and the husband of the
6th defendant. Sixth defendant is in possession and enjoyment of Ac.3.21 cents
only.  This defendant is not proper and necessary party to the suit. Hence the
suit may be dismissed.
10      Basing on the rival contentions, the trial court framed the following
issues:
i.      Whether the plaintiff is entitled for permanent injunction, restraining
the defendants 1 to 9 and their men from interfering with his possession and
enjoyment over the plaint schedule property?

ii.     Whether there is no cause of action for the suit?

iii.    Whether the suit is hit by the provisions under Section 34 of the Specific
Relief Act?

iv.     Whether the suit is barred by limitation?

v.      Whether the 9th defendant (sic. 6th defendant) is not in possession of the
total extent of Ac.4-27 cents?

vi.     Whether the 9th defendant (sic. 6th defendant) is in possession of Ac.3021
cents.

11      The trial Court framed the following additional issue also:
Whether the plaintiff is entitled for the relief of declaration as prayed for?

12      Before the trial Court on behalf of the plaintiff, P.Ws.1 to 6 were
examined and Exs.A.1 to A.16 were marked. On behalf of defendants, D.Ws.1 to 5
were examined and Exs.B.1 to B.52 were marked.
13      After analyzing the oral, documentary evidence and other material
available on record, the trial Court arrived at a conclusion that the plaintiff
is not entitled for the relief of declaration and consequential perpetual
injunction and accordingly dismissed the suit.
14      Feeling aggrieved by the dismissal of his suit, the unsuccessful plaintiff
preferred A.S.No.132 of 1996 on the file of the first appellate court and the
same was allowed in part declaring the title of the plaintiff over the plaint
schedule property, but rejected the relief of perpetual injunction.
15      Aggrieved by the said decree and judgment passed by the first appellate
court, the defendants 6 to 8 filed the present second appeal.
16      After hearing the learned counsel for both the parties and after perusing
the grounds of appeal, the following substantial questions of law are framed for
consideration in this second appeal.
a.      Whether Exs.A.2 and A.3 are either settlement deeds or Wills?
b.      Whether the suit is hit by the provisions of Section 34 of the Specific
Relief Act?
c.      Whether the first appellate Court is justified in not deciding the issue
whether the suit is barred by limitation or not?

17      Heard Sri P.V.Vidyasagar, the learned counsel appearing for the appellants
/ defendants and Sri M. Dorai Raj, the learned counsel appearing for the
respondent / plaintiff.
18      Question No.1:  Before considering the substantial questions of law, I
am of the considered view that it is apposite to refer to the admitted facts of
the case on hand in order to avoid recapitulation of the facts and evidence.
19      An extent of Ac.4.27 cents in Sy.No.217 of Cherlopalle village originally
belongs to three families viz., K.Venkata Rama Naidu (1/2 share Ac.2.13 cents),
Yerram Naidu (1/4th share Ac.1-06 cents) and Kandala Peddi Naidu (1/4th share
Ac.1-06 cents).  The lawful owners of these three branches have executed an
agreement of sale in favour of 6th defendant on 06.06.1975 under original of
Ex.B.9 (photocopy). K.Venkata Rama Naidu branch and Yerram Naidu branch have  
executed a registered sale deed in favour of the 6th defendant on 27.10.1981
(Ex.B.8) in respect of Ac.4.27 cents.   Peddi Naidu executed a settlement deed
in favour of Anandamma, Neelamma and Sampoornamma on 11.04.1969 (Ex.A.3) to an    
extent of Ac.0-53 cents out of Ac.4.27 cents in Sy.No.217. On 06.11.1968
K.Venkata Rama Naidu executed a settlement deed dated 06.11.1968 (Ex.A.2) in  
favour of his wife Jayamma and his minor daughter Ratnamma for an extent of
Ac.1-06 cents out of Ac.4-27 cents in Sy.No.217.  The legal representatives of
Peddi Naidu and Venkata Rama Naidu have executed Ex.A.1 sale deed dated  
18.08.1984 in favour of the plaintiff for an extent of Ac.1-06 cents in
Sy.No.217 of Cherlopalle village. The successors in title of Peddi Naidu are not
parties to Ex.B.8 sale deed.
20      After considering the recitals of Exs.A.2 and A.3, the trial court arrived
at a conclusion that these two documents are Wills but not settlement deeds.
The first appellate Court after re-appreciating the documents arrived at a
conclusion that Exs.A.2 and A.3 are settlement deeds but not Wills.
21      The learned counsel for the respondents/plaintiff submitted that Exs.A.2
and A.3 are settlement deeds but not Wills. The learned counsel for the
defendant Nos. 6 to 8/ appellants  submitted that Exs.A.2 and A.3 are Wills.
22      To substantiate his arguments the learned counsel for the
plaintiff/respondent Nos.2 and 3 has drawn my attention to the following
decisions.
1.      Koraprolu Veerabhadrayya Vs. Jajala Seethamma and Others1, wherein at para
No.4 of the judgment, it was observed as under:
        4. I will now deal with the contention relating to the construction of Ex.
A and the validity of Ex. 9. The question is whether Ex. A is a will or a deed
of gift. The question whether a certain document is testamentary or a transfer
inter vivos depends not upon the mere form of the document but upon the
intention gathered from the document itself in the light of the surrounding
circumstances. Various tests are formulated by Courts for determining whether a
certain document is a deed of gift, or a will. The name by which a document is
styled, the registration of it, the reservation of a life estate, the
reservation of a power of revocation and the use of the present or future tense
are all circumstances which are taken into consideration in coming to one
conclusion or other; all these are indications to find out the intention taken
singly or cumulatively....."
2.      Amarsing Ratansing and Anr. Vs. Gosai Mohangir Somvargir and Others2  
wherein at para No.2 of the judgment, it was observed as under:
        ".....The question whether a certain document is a gift or a will depends
not merely upon the from of the document, but upon the intention gathered from
the words used in the document itself. The usual tests are the name by which the
document is styled, the registration of it, the reservation of the power of
revocation and the use of the present or future tense. All these are indications
to fine out the intention, taken singly or cumulatively. The mere reservation of
a life estate does not necessarily indicate that the document is testamentary
and that, therefore, the grant is revocable. Nor does the fact that the donor
revoked it within a few months indicate that his intention was to make a will
and not a gift. In construing a document the conduct of the parties subsequent
to its execution should not be taken into consideration when there is no
ambiguity in the words and expressions used in the document......"
3.      Esakkimadan Pillai Bhagavathiperumal Pillai Vs. Esakki Amma Mylu Pillai
and Others3 wherein it is held that:
        "In construing a deed, the entire document should be considered and not
merely particular words, terms or even clauses and this has to be done in the
light of the surrounding circumstances."

4.      In Tayi Rama Krishna Rao Vs. Pebbu Penchalamma4 it is held as follows:

        "The definition excludes testamentary disposition. Various tests are
reformulated by Courts for determining as to whether certain document is deed of
settlement or will.  The tests in distinguishing a settlement from a Will are
whether the instrument is revocable.  If the document is intended to have
immediate operation, it would be a settlement though it contains provisions
showing that its operation may extend beyond the life time of the owner.  A
reservation of a life estate by the settlement would not render the instrument
any the less a settlement.  If the document is revocable, it is a Will.  If it
is not revocable it is not a Will.  Here use of words in the future tense does
not necessarily mean that there is no present disposition of property. The
document which is not a Will in form may yet be a Will in substance and effect.
The line between a Will and a conveyance reserving a life estate is a fine one
and it would be hard to define.  If the document contains a term giving the
right to the executant to revoke it, or if one can gather from the terms of the
document the right to revoke, then it is a Will."

23      The learned counsel for the appellants / defendant Nos.6 to 8 relied upon
the judgment in G. Narasimhulu Chetti and Others Vs. S. Pandurangaiah Chetti and
others5 wherein their Lordships held at para No.20 as under:
        "From a reading of the above decisions cited across the bar what emerges
is that the construction of a document depends upon the language of recitals but
not upon its form or nomenclature.  The intention of the executant is to be
gathered from the words used in the document.  To find out whether a document is
a settlement or gift or a Will, the nature of the document has to be examined
whether it transferred any interest in property in praesenti or after the death
of the executant.  Mere delivery of possession cannot amount to transfer of
interest in the property......."
24      The Hon'ble Supreme Court in P.K.Mohanram v B.N.Ananthachary6, made the  
following observation as under.
"when there is an unequivocal right in creation of praesenti though the
beneficiaries were to become absolute owners of their shares after the death of
the settler, the language of the document clearly shows that all of them were to
enjoy the property along with settler during his lifetime and after his death,
each of the beneficiaries was to get a specified share and it cannot lead to an
inference that the document is a Will, if the document is read as a whole, it
becomes clear that it was a settlement deed".

25      Let me consider whether Exs.A.2 and A.3 are settlement deeds or Wills in
the light of the principles enunciated in the cases referred supra.
26      There is a popular saying that devil does not know the mind of the human
being.  In order to ascertain the intention of the executant of the document,
the only course available to the Court is to scan the entire document word by
word apart from taking into consideration the surrounding circumstances. From a
perusal of Exs.A.2 and A.3 it is manifestly clear that there is no ambiguity in
the words used in them. It is not in dispute that these two documents are
registered as per the procedure in vogue. The nomenclature of the documents is
settlement deeds. A perusal of the recitals of these two documents clearly
indicates the intention of the executant to transfer the title in favour of the
beneficiaries.  The recitals of these two documents are crystal clear as to the
disposition of the interest in the property in praesenti.  There is no specific
recital in either of these two documents empowering the executants to revoke the
documents during their life time.  The possession of the property covered under
these two documents was delivered to the beneficiaries on the date of execution
itself.  Divesting and vesting of the title in the property forms an integral
part of the same transaction.
27      Section 2(b) of the Specific Relief Act defines "settlement" as an
instrument other than a Will or codicil whereby the destination or devolution of
successive interests in movable or immovable property is disposed of or is
agreed to be disposed of.  It should be noted that in "settlement" the property
is disposed of or is agreed to be disposed of.  So, agreement to dispose in the
manner as per the terms of the deed is also "settlement". The recitals of Exs.A2
and A3 satisfy the ingredients of settlement and the relationship of settlers
and beneficiaries is conspicuous ex facie.
28      There is a recital in these two documents that they will come into force
after the death of executants.  Basing on this stray sentence the trial court
had decided the nature of the documents as Wills.  Duty is cast on the Court to
read the entire document so as to ascertain the intention of the executant.  At
times there may be some overlappings or conflict between the sentences used in
the document.  It is needless to say while interpreting a document the court has
to keep in mind the purpose and object for which it was executed.  The court
shall not lose sight of this cardinal principle of interpretation of the
documents.  A perusal of the entire documents clearly indicates that the
executants intended to execute settlement deeds in favour of the beneficiaries.
Mere stray sentence in the document cannot defeat the very purpose of the
document.  Mere using of the sentence that the deed will come into force after
the death of the executant would not change the very nature of the document.
These two documents have passed various tests formulated by courts for
determining a document as settlement deed.  These two documents withstood the
judicial scrutiny so far as fulfilment of the ingredients of settlement deeds.
29      In the light of the foregoing discussion, I have no hesitation to hold
that Exs.A.2 and A.3 are settlement deeds.  Hence, I am agreeing with the
finding recorded by the first appellate court that Exs.A.2 and A.3 are
settlement deeds.  The finding of the trial court that Exs.A.2 and A.3 are Wills
is not legally sustainable.
Question No.2:
30      As seen from the testimony of P.W.1, he obtained sale deed Ex.A.1 on
18.08.1984 in respect of the plaint schedule property.  P.W.2 is the attestor
and P.Ws.4 to 6 are executants of Ex.A.1 sale deed.  As per the testimony of
these witnesses, the plaintiff has been in possession and enjoyment of the
plaint schedule property with effect from 18.08.1984.  D.W.1 also supported the
version of the plaintiff.  As per the testimony of D.W.2, they have been in
possession and enjoyment of an extent of Ac.4-27 cents in Sy.No.217 of
Cherlopalle village, which includes the plaint schedule property by virtue of
agreement of sale, original of Ex.B.9 dated 06.06.1975 and sale deed Ex.B.8
dated 27.10.1981.  One Muniratnam Naidu who is the scribe of agreement of sale,
is no more. D.W.4 who is the own brother of Muniratnam Naidu identified the
signature of his brother on agreement of sale.  D.W.5 is the scribe of Ex.B.8
sale deed. A perusal of the testimony of D.W.3 reveals that he was present at
the time of payment of money by the 6th defendant to Jayamma and others.   In
the cross-examination of these witnesses, nothing is elicited to shake their
testimony. By examining D.Ws.3 and 4, 6th defendant proved the agreement of sale
as well as part payments.  The recitals of Ex.B.12 to B.17 also support the
version of D.W.2 with regard to part payments as per the terms of agreement of
sale. The Courts below recorded a finding that the agreement of sale, original
of Ex.B.9, is a valid one.  As per the recitals of the agreement of sale, the
6th defendant was put in possession of the entire extent of Ac.4.27 cents in
Sy.No.217 of Cherlopalle village.  In Ex.B.1, the certified copy of No.II
Adangals, Ex.B.2, the certified copy of ROR register, Ex.B.3 10 (I) account of
1364 fasli to 1390 fasli, Ex.B.49 - 10 (I) account for fasli 1400 and Ex.B.50
copy of 10 (2) adangal the name of 6th defendant is shown as owner and possessor
to an extent of Ac.4.27 cents in Sy.No.217 of Cherlopalle village. A perusal of
Ex.B.25 to B.32 clearly reveals that the 6th defendant herein has mortgaged the
property to Chittoor District Central Cooperative Bank and availed loan.  A
perusal of Ex.B.39 to B.43 reveals that she also availed loan by mortgaging the
plaint schedule property to Chandragiri Cooperative Development Bank.  A perusal
of Ex.B.35 Gazette notification clearly reveals that in the Notification and
Declaration issued under Section 4(1) and Section 6 of the Land Acquisition Act,
1894 respectively, the name of the 6th defendant is shown as owner and possessor
of an extent of Acs.4.27 cents in Sy.No.217 of Cherlopalle village.  A perusal
of Ex.B.37 reveals that the 6th defendant along with others filed W.P.No.10504
of 1986 before this Court challenging the validity of the notification and the
same was allowed.  This Court also passed an interim order in W.P.M.P.No.13848
of 1986 (Ex.B.36).   In Form No.III notice issued by the Special Officer TUDA
(Ex.B.33), the name of the 6th defendant is shown as owner and possessor of an
extent of Ac.4-27 cents of Cherlopaalle village. A perusal of Ex.B.34 reveals
that 6th defendant submitted a representation objecting for acquiring an extent
of Ac.4-27 cents in Sy.No.217 of Cherlopalle village.
31      A perusal of Exs.A12, A13 and A14 reveals that the plaintiff submitted
representation to the Special Deputy Collector, TUDA to inform him about the
result of acquisition proceedings.  The plaintiff having come to know about the
Land Acquisition proceedings did not take any steps to protect his interest, if
any, in the suit schedule property.  The plaintiff did not take any steps to
ascertain why the name of the 6th defendant is shown as owner and possessor of
Acs.4-27 cents even though he claims to be the owner of an extent of Acs.1.06
cents.  An ordinary prudent man on seeing such a notification will rush to the
concerned authority with a request to issue errata to the notification in order
to protect his right.  Inaction on the part of the plaintiff to challenge the
Gazette Notification (Ex.B.35) and Form-III Notice (Ex.B.33) creates a doubt
whether the plaintiff is in possession of the plaint schedule property.  Ex.A.4
to A.11 are cist receipts standing in the name of vendors of the plaintiff.
These documents are no way helpful to the plaintiff to establish his possession
over the plaint schedule property.  The burden of proof lies on the plaintiff to
establish that he has been in possession and enjoyment of the plaint schedule
property much less as on the date of filing of the suit.  The material placed
before the court falls short to establish that the plaintiff was in possession
of the plaint schedule property as on the date of the filing of the suit.
Various documents filed by the 6th defendant clinchingly established that she
has been in possession and enjoyment of the plaint schedule property from
06.06.1975 onwards.  I am in full agreement with concurrent finding of fact
recorded by the courts below that the plaintiff was not in possession of the
property at any point of time.  As observed supra, the plaintiff has not
challenged the specific finding of the first appellate court that he was not in
possession of the plaint schedule property.
32      The crucial question that falls for consideration is whether the first
appellate Court is justified in granting the relief of declaration having held
that the plaintiff was not in possession of the property.
33      The learned counsel for the appellants/defendant Nos.6 to 8 has drawn my
attention to the ratio laid down in Shri Radha Gobinda Jew v Smt. Kewala Devi
Jaiswal7 wherein it was held in paras 34, 35 and 36 as under:
        34. The appellants are out of possession of these two properties and yet
they did not ask for recovery of possession in the plaint. The suit therefore
does not appear to be maintainable under Section 34 of the Specific Relief Act,
1963. A Division Bench of this Court in the case of Anilabala Debi v. Madhabendu
Narain Roy, reported in 46 Cal WN 20 at p. 28 = (AIR 1942 Cal 245) of the
report, says this:--
"..... Where the plaintiff whose title is denied by the Defendant is out of
possession and the Defendant is in possession, the 'further relief (under
Section 42 of the Specific Relief Act 1877 which corresponds to Section 34 of
the present Act) would be recovery of possession and a suit for declaration of
title will not be maintainable unless the plaintiff prayed for possession also."
(Words in brackets are supplied by me).
35. In that case Madhabendu was not in possession of the suit properties which
were in possession of Anilabala. He claimed for a declaration that he was the
full owner of those properties and asked for an injunction restraining Anilabala
from managing them and from interfering with his management of the same. He did
not claim for possession of those properties in the plaint and his prayer for
injunction was rejected by the Division Bench. The appellants before us are not
in possession of these two properties and they not having claimed recovery of
possession must fail in this action because their prayer for injunction cannot
be granted in view of the above decision of the Division Bench of this Court.
36. Assuming, however, that the appellants are in possession of that portion of
the Calcutta property which is still under occupation of Gopinath, but being out
of possession of the remaining portion of this property, they cannot maintain
this action under Section 34 of, the Specific Relief Act, 1963 on the principles
laid down by the Supreme Court in the case of Ram Saran v Smt.Ganga Devi, of the
report. In that case Smt. Ganga Debi was in possession of some of the suit
properties and the plaintiffs did not ask for possession of those properties;
the decision of the Supreme Court was that the said suit was hit by Section 42
of the Specific Relief Act 1877. In the instant case the appellants are out of
possession of the major portion of the Calcutta property which is in the
exclusive possession of the respondent No. I and furthermore, the appellants had
never been nor are in possession of the Nabadwip property. In the premises we
overrule the contentions of Mr. Ghose and hold that this suit is not
maintainable.
34      In Vinay Krishna v Keshav Chandra8 wherein their Lordships held in para 13
as under:
        "13. From the reading of the plaint it is clear that the specific case of
the plaintiff Jamuna Kunwar was that she was in exclusive possession of property
bearing No. 52 as well She thought that it was not necessary to seek the
additional relief of possession. However, in view of the written statement of
both the first and the second defendant raising the plea of bar under Section
42, the plaintiff ought to have amended and prayed for the relief of possession
also. In as much as the plaintiff did not choose to do so she took a risk. It is
also now evident that she was not in exclusive possession because admittedly
Keshav Chandra and Jagdish Chandra were in possession. There were also other
tenants in occupation. In such an event the relief of possession ought to have
been asked for. The failure to do so undoubtedly bars the discretion of the
Court in granting the decree for declaration."
(emphasis suspplied)
35      As per the principle enunciated in the cases 7 and 8 cited supra, a person
who is not in possession of immovable property is not entitled to file a suit
for declaration and consequential perpetual injunction. Initially the plaintiff
filed the suit for perpetual injunction only.  Pending suit, he filed a petition
for amendment of the plaint seeking the relief of declaration and the same was
allowed.  The plaintiff has filed the suit for declaration and perpetual
injunction despite the fact that he was not in possession of the plaint schedule
property.  The 6th defendant has taken a specific plea in the written statement
that the suit is hit by Section 34 of the Specific Relief Act. The facts of the
case on hand are almost identical to the facts of Shri Radha Gobinda Jew (7
supra) and Vinay Krishna (8 supra).
36      The learned counsel for the respondent Nos.2 and 3/ legal representatives
of the plaintiff submitted that the suit is not hit by Section 34 of the
Specific Relief Act, as the plaintiff filed the suit for declaration and
perpetual injunction.  At this juncture, the crucial question that falls for
consideration is whether the present suit falls outside the purview of proviso
to Section 34 of the Specific Relief Act.  The Supreme Court had an occasion to
deal with the nature of consequential relief to be sought for in a suit for
declaration in C.Mohammad Yunus v Syed Unnissa9, wherein it was observed as
under:
        "A suit for declaration with a consequential relief for injunction, is not
a suit for declaration simpliciter; it is a suit for declaration with further
relief. Whether the further relief claimed in a particular case as consequential
upon a, declaration is adequate must always depend upon the facts and
circumstances of each case."
37      As per the principle enunciated in the case cited supra, the consequential
relief to be sought by the plaintiff in a suit for declaration depends upon the
facts and circumstances of each case.  In the present case, 6th defendant has
been in possession and enjoyment of an extent of Acs.4.27 cents in Sy.No.217 of
Cherlopalle village, which includes the plaint schedule property from 06.06.1975
onwards.  The plaintiff was never in possession of the property much less as on
the date of filing of the suit.  Initially, the plaintiff filed the suit as if
the relief sought by him will fall within the parameters of Section 38 of the
Specific Relief Act.  After realising the strength of his case, he has sought
for the relief of declaration as postulated under Section 34 of the Specific
Relief Act.  Establishment of the possession over the plaint schedule property
is sine qua non to grant the relief of perpetual injunction.  Establishment of
title over the plaint schedule property is a condition precedent to grant the
relief of recovery of possession in favour of the plaintiff.  The finding of the
trial that the plaintiff was not in possession of the plaint schedule property
was fully endorsed by the first appellate court.  Be that as it may, the
plaintiff did not choose to challenge the finding of the first appellate court
that he was out of the possession of the plaint schedule property.  The first
appellate court granted the relief of declaration in favour of the plaintiff on
the sole ground that the legal representatives of Peddi Naidu are not parties to
the sale deed (Ex.A1).  The plaintiff being able to seek the relief of recovery
of possession omitted to do so.  Mere asking of the relief of injunction is not
a substitute to the relief of recovery of possession. The relief of recovery of
possession is a substantial right by itself. Suit for declaration with
inadequate or irrelevant consequential relief would undoubtedly fall within the
ambit of proviso to Section 34 of the Specific Relief Act.  In the present case,
the plaintiff instead of asking the relief of injunction ought to have asked the
relief of recovery of possession of the plaint schedule property.  The
appropriate and adequate consequential relief to be sought, in this suit, is
recovery of possession.
38      Having regard to the facts and circumstances and also the principle
enunciated in the cases 7th to 9th cited supra, I have no hesitation to hold
that the suit is hit by proviso to Section 34 of the Specific Relief Act.  I am
fully agreeing with the finding recorded by the trial court that the plaintiff
is not entitled for the relief of declaration.  The finding of the first
appellate court that the plaintiff is entitled for the relief of declaration is
not legally sustainable.
Question No.3:
39      The predominant contention of the learned counsel for the defendants 6to 8
/appellants is that the suit claim is barred by limitation.
40      The trial court framed an issue i.e. "Whether the suit is barred by
limitation" and answered the said issue affirmatively. Suffice to say, the first
appellate Court has to reassess the oral and documentary evidence available on
record and arrive at its own findings without being influenced by the findings
recorded by the trial court since the appeal is continuation of the suit. Order
XLI Rule 31(1)(a) CPC mandates that the first appellate Court has to frame the
points for determination covering all the issues framed by the trial court.  As
rightly pointed out by the learned counsel for the appellants/defendant Nos.6 to
8, the first appellate Court has not framed the point for determination with
regard to the maintainability of the suit on point of limitation. A perusal of
the record reveals that both parties have adduced oral and documentary evidence
on the point of limitation. The material available on record is sufficient to
decide this issue by this Court.
41      The plaintiff filed the suit for declaration and consequential injunction.
The plaintiff has to file the suit within three years from the date the right to
sue first accrues to him in view of Article 58 of the Limitation Act, 1963,
which corresponds to Article 120 of the old Act. A perusal of the same at a
glance clearly indicates that the word 'first' is incorporated in the Article
58. The Legislature in its wisdom incorporated the word "first" in Article 58 on
a public policy that one should be more diligent and careful about his right to
sue.  The apex Court had an occasion to deal with Article 120 of the Limitation
Act in MST Rukhmabai v Lala Laxminarayan10 wherein at para No.54 of the judgment
it is held as under:
        "The legal position may be briefly stated thus: The right to sue under
Art. 120 of the Limitation Act accrues when the defendant has clearly and
unequivocally threatened to infringe the right asserted by the plaintiff in the
suit. Every threat by a party to such a right, however ineffective and innocuous
it may be, cannot be considered to be a clear and unequivocal threat so as to
compel him to file a suit. Whether a particular threat gives rise to a
compulsory cause of action depends upon the question whether that threat
effectively invades or jeopardizes the said right."

42      In C. Mohammad Yunus case (9 supra) the principle enunciated is that there
can be no right to sue until there is an accrual of right asserted in the suit
and its infringement, or at least a clear and unequivocal threat to infringe
that right by the defendant against whom the suit is filed.
43      In view of the principle enunciated in the cases cited above, one has to
file the suit for declaration with consequential relief within three years from
the date when the right to sue first accrues.
44      Let me consider the factual position of this case in the light of the
above principle in touch stone with Article 58 of the Limitation Act.
45      The plaintiff purchased the plaint schedule property under Ex.A.1
registered sale deed dated 18.08.1984, thereby he got right over the property.
The plaintiff is entitled to protect his property from others. As per the
averments in the plaint, right to sue first accrued to the plaintiff on
25.08.1991.  The suit is filed in the year 1991 itself.  If the contention of
plaintiff is accepted, the right to sue first accrued to him on 25.08.1991
undoubtedly the suit is within the period of limitation.
46      The most significant question that falls for consideration is on which
date the right to sue first accrued to the plaintiff.  A perusal of Ex.A.16
reveals that on 24.09.1984, the Plaintiff lodged a report with the Sub-Inspector
of Police, Chandragiri.  For better clarification, it is apposite to refer the
unnumbered para No.2 of the complaint, which reads as hereunder:
        "Immediately after purchase made by me, my vendors put me in possession of
the land covered by Sy.No.217 and I took possession of the same.  I ploughed the
land and again on 22.09.1984 there was a rain when I was ploughing the land on
23.09.1984. Then a big mob with the support of V. Reddeppa Naidu came to me and
threatened me with the help of rowdies and I resisted them with the help of
other villagers."
47      The Taluq Magistrate cum Tahsildar of Chandragiri passed the following
orders in M.C.No.5 of 1984 (EX.A.15).
        "Pending disposal of this case under Section 145 (1) Cr.P.C, I hereby
restrain both parties not to interfere with the possession and enjoyment of the
disputed land."

48      A perusal of Ex.A.15 reveals that the Plaintiff herein has received a copy
of the same. A perusal of Exs.A.15 and A.16 clearly reveals that the husband of
the 6th defendant denied the title of the Plaintiff over the plaint schedule
property on 25.09.1984 itself.  The then Tahasildar of Chandragiri had
recognized the seriousness of the land dispute between the plaintiff and the
husband of the 6th defendant which prompted him to invoke the jurisdiction under
Section 145 Cr.P.C. in order to maintain the peace and public tranquillity in
the village.
49      According to the plaintiff the 6th defendant and her husband
unauthorisedly and illegally interfered with his possession and enjoyment of
plaint schedule property in the month of September, 1984.  The material placed
before the court clinchingly establishes that the 6th defendant and her husband
openly proclaimed that they are the absolute owners of an extent of Ac.4.27
cents which includes the plaint schedule property in Sy.No.217 of Cherlopalle
village.  The claim made by the 6th defendant and her husband is nothing short
of an act of threat effectively invaded or jeopardised right of the plaintiff,
if any, over the plaint schedule property.  On the other hand, the 6th defendant
and her husband in unequivocal terms denied the title of the plaintiff over the
plaint schedule property, which amounts to infringement of the right of the
plaintiff.  The act of the 6th defendant and her husband undoubtedly created
cause of action in favour of the plaintiff.
50       Basing on the material available on record, the irresistible conclusion
that can be drawn is that the right to sue to the plaintiff had first accrued on
25.09.1984.  The plaintiff ought to have filed the suit on or before 24.09.1987.
As seen from the record, the present suit was filed on 03.09.1991 i.e. nearly
seven years after the right to sue first accrued to the plaintiff.
51      Having regard to the facts and circumstances of the case and also the
ratio laid down in Rukhmabai case (10 supra) and C. Mohammad Yunus case (9  
supra), I have no hesitation to hold that the suit claim is barred by
limitation.  If the court comes to a conclusion, basing on the material
available on record, the suit filed by the plaintiff is hopelessly barred by
limitation; the question of granting of relief of any nature does not arise. I
am in complete agreement with the findings recorded by the trial court so far as
the issue of limitation is concerned. Inadvertently, the first appellate Court
has not considered this vital aspect.
52      For the foregoing reasons, I have no hesitation to hold that there is a
question of law much less substantial question of law in this second appeal.
Therefore, the finding of the first appellate court that the plaintiff is
entitled for the relief of declaration only is not sustainable.
53      In the result, this second appeal is allowed, setting aside 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, so far as the relief of declaration is
concerned.  No order as to costs.  As a sequel, miscellaneous applications, if
any pending, shall stand closed.
__________________________  
T. SUNIL CHOWDARY, J.  
Date: 28-03-2014

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