ALTERNATIVE RELIEF FOR POSSESSION IF NOT FOUND IN POSSESSION BY COURT = DOES NOT MEAN THAT THE PLAINTIFF IS OUT OF POSSESSION =It is no doubt true that the suit was initially filed for the relief of declaration of title and perpetual injunction. However, when the appellants pleaded that they are in possession of the property, the 1st respondent filed an application seeking amendment of the relief in the plaint. Alternative relief of recovery of possession was also claimed. In clear terms, the 1st respondent prayed that if the Court comes to the conclusion that she is not in possession as on the date of filing of the suit, the defendants may be directed to deliver possession of the property.

REPORTED /PUBLISHED IN http://judis.nic.in/judis_andhra/filename=8279

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        
Second Appeal  No.747 of 2010

25.07.2011
       
Uppuluri Koteswara Reddy and others

Mogulluri Indira Devei and others

Counsel for the appellants:Sri Nimmagadda Satyanarayana

Counsel for respondents:

JUDGMENT:  

        The 1st respondent herein filed O.S.No.162 of 1993 in the Court of Junior
Civil Judge, Giddalur against the appellants and respondents 2 and 3 initially
for the relief of declaration of title and perpetual injunction in respect of
the suit schedule property i.e., an extent of Ac.4.16 cents of land in Survey
No.96/1 of Vondutla Village, Besthavaripet Mandal, Prakasam District.
According
to her, the property was purchased from the 2nd respondent, through a sale deed,
dated 11.08.1983 (Ex.A.1) and that ever since then, she is in possession and
enjoyment of the property.
The cause of action for filing of suit is said to be
the interference by appellants 1 and 2 (defendants 1 and 4) and respondents 2
and 3 (defendants 2 and 3) with her possession and enjoyment of the property.

        Separate written statements were filed by the 1st appellant and 2nd
respondent and a common written statement, by the 2nd appellant and 3rd
respondent.
The gist of their contention was that the 2nd respondent is the
owner of the suit schedule property and certain other items and that he executed
the sale deed-Ex.A.1 in favour of the 1st respondent,
being under the impression
that he was selling an extent of Ac.3.62 cents of land in Survey No.37/2 of the
Village.  
It was urged that the father-in-law of the 1st respondent played fraud
upon the 2nd respondent by inserting the particulars of another piece of land
viz., Ac.4.16 cents in Survey No.96/1.  
It was also their case that in respect
of the suit schedule property, there existed an agreement of sale, dated
04.01.1983 (Ex.B8) in favour of the 1st appellant and that the resultant sale
deed was executed on 29.08.1992 (Ex.B.1) by the 2nd respondent.  

        During the pendency of the suit, the 1st respondent filed an application
to permit her to amend the prayer in the suit to claim the alternative relief of
recovery of possession, in case her plea as to possession over the property is not accepted.  It was ordered.

        The trial Court dismissed the suit through its judgment, dated 30.07.2001.
The 1st respondent filed A.S.No.152 of 2007 in the Court of VI Additional
District Judge, Markapur.
During the pendency of the appeal, appellants 3 to 8
herein were added as respondents 5 to 10 in the appeal.
The lower appellate
Court allowed the appeal on 22.04.2010.  A finding was recorded to the effect
that the 1st respondent is in possession and enjoyment of the suit schedule
property.  Accordingly, a decree, declaring her title over the suit schedule
property and perpetual injunction in respect thereof, was passed.  Hence, this
second appeal. 

        Sri Nimmagadda Satyanarayana, learned counsel for the appellants submits
that though there existed a sale deed in favour of the 1st respondent, executed
by the 2nd respondent herein, there was no consensus-ad-idem and by making
misrepresentation to him, the particulars of the suit schedule property were
inserted for another piece of land.
He submits that being sure and certain that
he sold the land in Survey No.37/2 admeasuring Ac.3.62 cents, the 2nd respondent
has entered into an agreement of sale and thereafter executed a sale deed in
respect of Ac.4.16 cents in Survey No.96/1 in he year 1992 and ever since then,
the appellants are in possession and enjoyment of the property.
Learned counsel
submits that when the suit itself was for the relief of declaration of title and recovery of possession, there was no basis or justification for the lower appellate Court in passing the decree for declaration and perpetual injunction.

        The suit was initially filed by the 1st respondent for the relief of
declaration of title and perpetual injunction. The suit was opposed mainly by
the appellants 1 and 2 herein.  The trial Court framed the following issues for
its consideration:
1. whether the sale deed dated 11.08.1983 in favour of plaintiff is true, valid
and binding on D-1 in respect of suit land?
2. whether the agreement dated 04.01.1983 is true, valid and binding on
plaintiff?
3. whether the plaintiff is entitled for declaration and injunction as prayed for?
4. whether the plaintiff is entitled for alternative relief of possession as prayed for?

        On behalf of the 1st respondent, P.Ws.1 to 6 were examined and Exs.A.1 to
A.26 were filed.  On behalf of the appellants, D.Ws.1 to 7 were examined and
Exs.B.1 to B.8 were filed.
The report submitted by the Commissioner was taken
on record as Ex.X.1.
The trial Court held that the 1st respondent is not
entitled for the declaration of her title over the suit schedule property, much
less, for any other consequential relief.
In A.S.No.152 of 2007 filed by the
1st respondent, the lower appellate Court framed only one point for its
consideration viz.,
whether the 1st respondent has established substantial
grounds to set aside the decree and judgment of the trial Court and to decree
the suit as prayed for.
The appeal was allowed as observed earlier.

        At the outset, the objection raised on behalf of the appellants as to the
nature of the decree passed by the lower appellate Court needs to be dealt with.

It is no doubt true that the suit was initially filed for the relief of
declaration of title and perpetual injunction. 
However, when the appellants
pleaded that they are in possession of the property, the 1st respondent filed an
application seeking amendment of the relief in the plaint. 
Alternative relief of
recovery of possession was also claimed. 
In clear terms, the 1st respondent
prayed that if the Court comes to the conclusion that she is not in possession as on the date of filing of the suit, the defendants may be directed to deliver possession of the property.  
The trial Court dismissed the suit.
The lower
appellate Court has reassessed the evidence and recorded a finding to the effect
that the 1st respondent is in possession of the property.
Therefore, it cannot
be said that there is any defect in the form of the decree.

        The undisputed facts are that the 2nd respondent executed a sale deed in
favour of the 1st respondent on 11.08.1983 marked as Ex.A.1.
As long as that
sale deed stands, there is no question of the tile of the 1st respondent over
that property being doubted.
The main grounds pleaded by the appellants
questioning title of the 1st respondent are that (a) the original owner of the
property, 2nd respondent executed
Ex.A.1 under the impression that he is transferring Ac.3.62 cents of land in
Survey No.37/2; (b) he executed an agreement of sale- Ex.B.8 on 04.01.1983 in
respect of the suit schedule property i.e. Ac.4.67 cents of land in Survey
No.96/1 in favour of the 1st appellant; and (c) Ex.B.8 was followed by the sale
deed, dated 29.08.1992 marked as Ex.B.1.
Even if the assumption of the 2nd
respondent, who deposed as D.W.2, was that he sold a totally different item of
property through Ex.A.1., at least when he came to know that it is with
reference to the suit schedule property, he ought to have filed a suit for
cancellation of Ex.A.1.  by pleading necessary grounds.

        It was urged that the father-in- law of the 1st respondent, who negotiated
the deal, played fraud upon the 2nd respondent.  If that were to be so, a suit,
by specifically raising the plea of fraud, ought to have been filed for the
relief of cancellation of Ex.A.1
 it is fundamental that a plea as to fraud or
misrepresentation must be specifically raised in a properly constituted suit and
it cannot be urged in any other manner, such as in the form of a deposition of a
witness.
There was not even an attempt by the 2nd respondent to claim such
relief in the form of a counter claim in the suit filed by the 1st respondent.
Hence, there was absolutely no basis for the defence offered by the appellants.

        The appellants rested their claim on Exs.B.8 and B.1, the agreement of
sale and sale deed respectively executed in their favour in relation to the very
property i.e., the subject matter of Ex.A.1.  By the time Ex.B.1 was executed,
the vendor therein i.e., 2nd respondent ceased to be the owner of the property.
The so- called ignorance or uncertainty feigned by him is absolutely of no help
to the appellants.  If such a course is permitted, anyone, who is already parted
with the property, can execute sale deed with impugnity, by pleading that he was
under the impression that the sale deed executed by him is in respect of a
different item of property.

        The appellants pleaded that they are in possession of the property on the
strength of Ex.B.8.  
The facts pertaining to the case clearly disclose that
Ex.B.8 is brought into existence at the instance of appellants 1 and 2 to defeat
the claim of the 1st respondent under Ex.A.1.  
Its origin itself is tainted with
illegality. 
No recital of that document can be taken into account.  
In addition
to that, the 1st respondent has placed before the trial Court, oral and
documentary evidence to prove her possession over the suit schedule property.
Ex.A.2 is a receipt, dated 27.01.1984 given by the Natural Resources Development
Cooperative Society, for causing survey on ground water over the suit schedule
property. Exs.A.3 and A.4 are the letters addressed by the Branch Managers of
different Banks in relation to the loan transactions.  Ex.A.5 to A.7 are the
lease agreements executed in favour of the 1st respondent for the same land for
the periods between 1986 and 1993.  Ex.A.8 is the Electricity slab pass book for
the property.  Exs.A.9 to A.12 are cist receipts up to the year 1993.  Other
evidence, in the form of the receipts issued by the cooperative societies, where
reference is made to the possession of the 1st respondent over the land was also
adduced.  The witnesses pertaining to these documents were also examined.  With 
this preponderance of evidence, the lower appellate Court has rightly arrived at
a conclusion that the 1st respondent is in possession of the property.

        Thus, it is evident that the 1st respondent has proved not only her title
to the suit schedule property by filing Ex.A.1, the sale deed, but also her
possession over the property spread over several decades. Hence, no exception
can be taken to the decree passed by the lower appellate Court.

        The second appeal is accordingly dismissed.  There shall be no order as to
costs.
__________
25.07.2011