PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9837
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No.218 of 2013
03-04-2013
Chintalapati Subramanya Sarma S/o. late Madusudhana Sarma and another
Yalavarthi Pushapavathi W/o. Veeraiah Chowdary and another
Counsel for the Petitioners: Sri J. Prabhakar
Counsel for the Respondent: Sri N. Sriram Murthy
<Gist:
>Head Note:
?Cases referred:
JUDGMENET:
The dispute between the parties in the Second Appeal is a longstanding one and
the appellants and their father were successful in keeping the respondents away
from the suit schedule property, all along.
2. The facts in brief that lead to filing of the Second Appeal are as under:
The suit schedule property comprising of two items, was owned by one Smt.
Karasani Pullamma. She gave the said property, together with a thatched shed
thereon on lease, to one Sri Madhusudhana Sarma (for short 'Sarma'). The
appellants and three others, by name,
1) Chinthalapati Dinakar, 2) Chinthalapati Chinni and 3) Chinthalapati
Parvathamma are the children of Sarma. Pullamma died, leaving behind her two
daughters, namely, Samrajyamma and Parvathamma. Sarma is said to have requested
them to transfer the land in his favour. However, that did not happen. Those
two ladies executed a sale deed, dated 24-02-1986, in favour of the respondents
herein in respect of the suit property.
3. Sarma filed O.S No.434 of 1986 in the Court of the I Additional Junior Civil
Judge, Guntur, against the respondents and their vendors Samrajyamma and
Parvathamma, for the reliefs of specific performance of the agreement of sale
and perpetual injunction. The suit was decreed on 04-10-1990. A.S. No.224 of
1990 filed against the same was dismissed. Thereupon, the respondents and their
vendors Samrajyamma and Parvathamma filed S.A. No.314 of 1995. The Second
Appeal was allowed on 31-10-2006. The decree passed by the trial Court for
specific performance of agreement of sale was set aside. However, recognizing
the fact that the plaintiff in O.S. No.434 of 1986 was in possession of the
property as a lessee, it was left open to the respondents herein to recover
possession of the property by instituting the proceedings before the appropriate
Forum.
4. The respondents filed O.S. No.102 of 2009 in the Court of the
I Additional Junior Civil Judge, Guntur, for recovery of the suit schedule
property against the children of Sarma i.e. appellants and their brothers and
sisters (in all five). It was pleaded that the sale deed executed in their
favour in the year 1986 was registered in the year 2008 and being absolute
owners of the property, they are entitled to recover the same from the
defendants. Reference was also made to various proceedings that have ensued in
respect of the property. The appellants and other defendants in the suit, filed
written statement and opposing the same. According to them, the suit is not
maintainable since there is no relationship of lessor and lessee. The plea of
adverse possession was also taken. Several other grounds were advanced. One
brother and two sisters of the appellants remained ex parte. The trial Court
decreed the suit through judgment, dated 12-07-2010.
5. Aggrieved by that, the appellants filed A.S. No.326 of 2010 in the Court of
the VI Additional District Judge, (FTC), Guntur. The appeal was dismissed
through judgment, dated 18-12-2012. Hence, this Second Appeal.
6. Sri J. Prabhakar, learned counsel for the appellants, submits that the very
fact that the sale deed in favour of the respondents was executed in the year
1986, but it was registered only in the year 2008, shows the doubtful character
and weakness of their title. He contends that the respondents failed to
establish that there existed any relationship of lessor and lessee between them
and the appellants and there was absolutely no basis for the trial Court in
decreeing the suit and for the lower appellate Court in dismissing the appeal.
He contends that the observation made by this Court in S.A. No.314 of 1995 as to
the existence of relationship of lessor and lessee was not absolute, but was
made only in the context of granting the relief of injunction. Learned counsel
further submits that the plea of adverse possession was not only taken in the
written statement, but also was proved as required under law.
7. Sri N. Sriram Murthy, learned counsel for the respondents, on the other hand,
submits that the appellants and their father have successfully dragged on the
matter for decades together, depriving the respondents of their right to enjoy
the property and that the concurrent findings, recorded by the trial Court and
the lower appellate Court, do not warrant any interference. He submits that the
delay in registration of the sale deed was on account of the fact that soon
after the sale deed came to be executed, the father of respondents filed a suit
for specific performance and it has taken two decades for the proceedings to
assume finality with the judgment of this Court, in the Second Appeal. He
contends that the document was registered soon after the uncertainty in the
matter was set at rest. Learned counsel further submits that neither the
appellants nor their father challenged the observation made by this Court as to
their status as lessees and it is not at all open to them to take a different
plea.
8. This is the second round of litigation between the parties or the persons
through whom they claim right in respect of the same item of property. The
first round of litigation was on the basis of the claim made by the father of
the appellants for specific performance of an agreement of sale. The first
round came to an end with the judgment of this Court in S.A. No.314 of 1995.
The decree for specific performance of an agreement of sale granted in favour of
the father of the appellant was set aside and the relief of perpetual injunction
was granted by recognising the possession of the father of the appellants as
lessee of the premises. Liberty was given to the respondents herein to recover
possession in accordance with law. It is in that context that the respondents
filed the present suit for recovery of possession and for arrears of rent.
9. The trial Court framed the following issues for its consideration:
1. Whether the plaintiffs are entitled for decree ejecting the defendant from
the plaint schedule property?
2. Whether the plaintiffs are entitled for decree of recovery of arrears of rent
for Rs.3,600/- together with damages for use and occupation @ Rs.5,000/- p.m.
from the date of suit?
3. Whether the suit is barred by limitation?
10. On behalf of the respondents PWs.1 to 5 were examined and Exs.A-1 to A-11
were filed. The 1st appellant alone deposed as D.W-1 and he filed Exs.B-1 to B-
29. The suit was decreed. In the appeal, preferred by the appellants, the
lower appellate Court framed the following points for its consideration:
1. Whether the suit is barred by limitation?
2. Whether the plaintiffs are entitled for ejecting the defendants from the
plaint schedule property?
3. Whether the judgment of lower Court is sustainable in law and on facts?
The appeal was dismissed.
11. The undisputed facts are that the properties were held by Smt.
Pullamma and, Sarma, the father of the appellants herein was the lessee thereof.
There were no disputes as such, during the lifetime of Pullamma. After her
death, her two daughters executed sale deeds in favour of the respondents in
1986. Immediately thereafter, Sarma filed O.S. No.434 of 1986 against the
respondents and their vendors for specific performance of an agreement of sale
and for perpetual injunction. The suit was decreed and the appeal, filed
against it, was dismissed. In S.A. No.314 of 1995, this Court set aside the
decree for specific performance, after undertaking extensive discussion. The
decree for perpetual injunction was sustained on the ground that Sarma was the
tenant of the premises. The judgment in the Second Appeal became final. Since
liberty was given to the respondents to recover possession in accordance with
law, the present suit was filed.
12. Learned counsel for the appellants stressed that
the sale deed Ex.A-
9, though executed on 24-02-1996, was registered only in the year 2008 and such a document cannot confer a valid title upon the respondents.
It is difficult to
accept this contention.
Law does not require that a sale deed must be
registered on the same day on which it was executed. While the execution
connotes the intention of the executant, registration brings about compliance
with law. Though by and large, the date of execution and registration are one
and the same, law does prohibit registration of a document, which was executed,
at an earlier point of time. In the instant case, the delay is almost two
decades. However, the only reason that contributed for the delay is the
institution of proceedings by Sarma the father of the appellants. The
appellants cannot be permitted to raise any grounds in this behalf,
particularly, when themselves or their father was responsible for the delay in
registration of the document. At any rate, there is no dispute as to the
transfer of title from the side of the vendors.
13. Another contention advanced by the appellants is that the respondents
failed to establish
the relationship of landlord and tenant between them and the
appellants.
The manner in which the appellants came into picture has already
been mentioned in the preceding paragraphs.
The respondents are the purchasers
from the legal representatives of the original lessor.
It is only through
attornment, that the respondents assumed the role of lessors.
Though the father
of the appellants instituted proceedings for specific performance of agreement
of sale, he did not dispute that he was inducted into the property as a lessee.
Once, the agreement of sale pleaded by him was held to be not genuine, his possession over the property continues to be that of a lessee.
This aspect was
clarified by this Court in its judgment in Second Appeal No.314 of 1995.
Being
the legal representatives of the person, who was a lessee of the premises, the
appellants cannot canvas anything to the contrary.
Added to that, out of five
legal representatives, who are all arrayed as defendants in the present suit, it
is only the appellants herein that are resisting the claim of the respondents.
Here again, the 1st appellant alone deposed and his version was not supported by
his own brothers and sisters much less by any third party.
14. The plea of adverse possession raised by the appellants cannot at all be accepted.
When one takes into account, the fact that induction of Sarma into possession of the property was of the lessee or that he claimed rights over the property on the strength of agreement of sale, neither he nor his legal
representatives can claim adverse possession over the property.
15. One more contention advanced by the appellants is that
the very fact the
trial Court did not pass any decree for mesne profits,
it is an indication that
it was not satisfied that the appellants are the lessees.
This Court does not
intend to deal with that aspect because the respondents did not file any appeal
or cross-objections in relation thereto.
There are no merits in the Second
Appeal and accordingly, the same is dismissed.
16. Learned counsel for the appellants submits that his clients may be
granted time to vacate the premises. This, however, opposed by the learned
counsel for the respondents.
Having regard to the fact that the appellants have
to secure an alternative accommodation, four months time from today is granted
for them to vacate the premises subject to the condition that they shall file an undertaking before the trial Court within two weeks from today, to the effect that they shall put the respondents in vacant possession of the property on or before 2nd August 2013. There shall be no order as to costs.
17. The miscellaneous petitions filed in this revision shall also stand
disposed of.
____________________
L. NARASIMHA REDDY, J
April 03, 2013.
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No.218 of 2013
03-04-2013
Chintalapati Subramanya Sarma S/o. late Madusudhana Sarma and another
Yalavarthi Pushapavathi W/o. Veeraiah Chowdary and another
Counsel for the Petitioners: Sri J. Prabhakar
Counsel for the Respondent: Sri N. Sriram Murthy
<Gist:
>Head Note:
?Cases referred:
JUDGMENET:
The dispute between the parties in the Second Appeal is a longstanding one and
the appellants and their father were successful in keeping the respondents away
from the suit schedule property, all along.
2. The facts in brief that lead to filing of the Second Appeal are as under:
The suit schedule property comprising of two items, was owned by one Smt.
Karasani Pullamma. She gave the said property, together with a thatched shed
thereon on lease, to one Sri Madhusudhana Sarma (for short 'Sarma'). The
appellants and three others, by name,
1) Chinthalapati Dinakar, 2) Chinthalapati Chinni and 3) Chinthalapati
Parvathamma are the children of Sarma. Pullamma died, leaving behind her two
daughters, namely, Samrajyamma and Parvathamma. Sarma is said to have requested
them to transfer the land in his favour. However, that did not happen. Those
two ladies executed a sale deed, dated 24-02-1986, in favour of the respondents
herein in respect of the suit property.
3. Sarma filed O.S No.434 of 1986 in the Court of the I Additional Junior Civil
Judge, Guntur, against the respondents and their vendors Samrajyamma and
Parvathamma, for the reliefs of specific performance of the agreement of sale
and perpetual injunction. The suit was decreed on 04-10-1990. A.S. No.224 of
1990 filed against the same was dismissed. Thereupon, the respondents and their
vendors Samrajyamma and Parvathamma filed S.A. No.314 of 1995. The Second
Appeal was allowed on 31-10-2006. The decree passed by the trial Court for
specific performance of agreement of sale was set aside. However, recognizing
the fact that the plaintiff in O.S. No.434 of 1986 was in possession of the
property as a lessee, it was left open to the respondents herein to recover
possession of the property by instituting the proceedings before the appropriate
Forum.
4. The respondents filed O.S. No.102 of 2009 in the Court of the
I Additional Junior Civil Judge, Guntur, for recovery of the suit schedule
property against the children of Sarma i.e. appellants and their brothers and
sisters (in all five). It was pleaded that the sale deed executed in their
favour in the year 1986 was registered in the year 2008 and being absolute
owners of the property, they are entitled to recover the same from the
defendants. Reference was also made to various proceedings that have ensued in
respect of the property. The appellants and other defendants in the suit, filed
written statement and opposing the same. According to them, the suit is not
maintainable since there is no relationship of lessor and lessee. The plea of
adverse possession was also taken. Several other grounds were advanced. One
brother and two sisters of the appellants remained ex parte. The trial Court
decreed the suit through judgment, dated 12-07-2010.
5. Aggrieved by that, the appellants filed A.S. No.326 of 2010 in the Court of
the VI Additional District Judge, (FTC), Guntur. The appeal was dismissed
through judgment, dated 18-12-2012. Hence, this Second Appeal.
6. Sri J. Prabhakar, learned counsel for the appellants, submits that the very
fact that the sale deed in favour of the respondents was executed in the year
1986, but it was registered only in the year 2008, shows the doubtful character
and weakness of their title. He contends that the respondents failed to
establish that there existed any relationship of lessor and lessee between them
and the appellants and there was absolutely no basis for the trial Court in
decreeing the suit and for the lower appellate Court in dismissing the appeal.
He contends that the observation made by this Court in S.A. No.314 of 1995 as to
the existence of relationship of lessor and lessee was not absolute, but was
made only in the context of granting the relief of injunction. Learned counsel
further submits that the plea of adverse possession was not only taken in the
written statement, but also was proved as required under law.
7. Sri N. Sriram Murthy, learned counsel for the respondents, on the other hand,
submits that the appellants and their father have successfully dragged on the
matter for decades together, depriving the respondents of their right to enjoy
the property and that the concurrent findings, recorded by the trial Court and
the lower appellate Court, do not warrant any interference. He submits that the
delay in registration of the sale deed was on account of the fact that soon
after the sale deed came to be executed, the father of respondents filed a suit
for specific performance and it has taken two decades for the proceedings to
assume finality with the judgment of this Court, in the Second Appeal. He
contends that the document was registered soon after the uncertainty in the
matter was set at rest. Learned counsel further submits that neither the
appellants nor their father challenged the observation made by this Court as to
their status as lessees and it is not at all open to them to take a different
plea.
8. This is the second round of litigation between the parties or the persons
through whom they claim right in respect of the same item of property. The
first round of litigation was on the basis of the claim made by the father of
the appellants for specific performance of an agreement of sale. The first
round came to an end with the judgment of this Court in S.A. No.314 of 1995.
The decree for specific performance of an agreement of sale granted in favour of
the father of the appellant was set aside and the relief of perpetual injunction
was granted by recognising the possession of the father of the appellants as
lessee of the premises. Liberty was given to the respondents herein to recover
possession in accordance with law. It is in that context that the respondents
filed the present suit for recovery of possession and for arrears of rent.
9. The trial Court framed the following issues for its consideration:
1. Whether the plaintiffs are entitled for decree ejecting the defendant from
the plaint schedule property?
2. Whether the plaintiffs are entitled for decree of recovery of arrears of rent
for Rs.3,600/- together with damages for use and occupation @ Rs.5,000/- p.m.
from the date of suit?
3. Whether the suit is barred by limitation?
10. On behalf of the respondents PWs.1 to 5 were examined and Exs.A-1 to A-11
were filed. The 1st appellant alone deposed as D.W-1 and he filed Exs.B-1 to B-
29. The suit was decreed. In the appeal, preferred by the appellants, the
lower appellate Court framed the following points for its consideration:
1. Whether the suit is barred by limitation?
2. Whether the plaintiffs are entitled for ejecting the defendants from the
plaint schedule property?
3. Whether the judgment of lower Court is sustainable in law and on facts?
The appeal was dismissed.
11. The undisputed facts are that the properties were held by Smt.
Pullamma and, Sarma, the father of the appellants herein was the lessee thereof.
There were no disputes as such, during the lifetime of Pullamma. After her
death, her two daughters executed sale deeds in favour of the respondents in
1986. Immediately thereafter, Sarma filed O.S. No.434 of 1986 against the
respondents and their vendors for specific performance of an agreement of sale
and for perpetual injunction. The suit was decreed and the appeal, filed
against it, was dismissed. In S.A. No.314 of 1995, this Court set aside the
decree for specific performance, after undertaking extensive discussion. The
decree for perpetual injunction was sustained on the ground that Sarma was the
tenant of the premises. The judgment in the Second Appeal became final. Since
liberty was given to the respondents to recover possession in accordance with
law, the present suit was filed.
12. Learned counsel for the appellants stressed that
the sale deed Ex.A-
9, though executed on 24-02-1996, was registered only in the year 2008 and such a document cannot confer a valid title upon the respondents.
It is difficult to
accept this contention.
Law does not require that a sale deed must be
registered on the same day on which it was executed. While the execution
connotes the intention of the executant, registration brings about compliance
with law. Though by and large, the date of execution and registration are one
and the same, law does prohibit registration of a document, which was executed,
at an earlier point of time. In the instant case, the delay is almost two
decades. However, the only reason that contributed for the delay is the
institution of proceedings by Sarma the father of the appellants. The
appellants cannot be permitted to raise any grounds in this behalf,
particularly, when themselves or their father was responsible for the delay in
registration of the document. At any rate, there is no dispute as to the
transfer of title from the side of the vendors.
13. Another contention advanced by the appellants is that the respondents
failed to establish
the relationship of landlord and tenant between them and the
appellants.
The manner in which the appellants came into picture has already
been mentioned in the preceding paragraphs.
The respondents are the purchasers
from the legal representatives of the original lessor.
It is only through
attornment, that the respondents assumed the role of lessors.
Though the father
of the appellants instituted proceedings for specific performance of agreement
of sale, he did not dispute that he was inducted into the property as a lessee.
Once, the agreement of sale pleaded by him was held to be not genuine, his possession over the property continues to be that of a lessee.
This aspect was
clarified by this Court in its judgment in Second Appeal No.314 of 1995.
Being
the legal representatives of the person, who was a lessee of the premises, the
appellants cannot canvas anything to the contrary.
Added to that, out of five
legal representatives, who are all arrayed as defendants in the present suit, it
is only the appellants herein that are resisting the claim of the respondents.
Here again, the 1st appellant alone deposed and his version was not supported by
his own brothers and sisters much less by any third party.
14. The plea of adverse possession raised by the appellants cannot at all be accepted.
When one takes into account, the fact that induction of Sarma into possession of the property was of the lessee or that he claimed rights over the property on the strength of agreement of sale, neither he nor his legal
representatives can claim adverse possession over the property.
15. One more contention advanced by the appellants is that
the very fact the
trial Court did not pass any decree for mesne profits,
it is an indication that
it was not satisfied that the appellants are the lessees.
This Court does not
intend to deal with that aspect because the respondents did not file any appeal
or cross-objections in relation thereto.
There are no merits in the Second
Appeal and accordingly, the same is dismissed.
16. Learned counsel for the appellants submits that his clients may be
granted time to vacate the premises. This, however, opposed by the learned
counsel for the respondents.
Having regard to the fact that the appellants have
to secure an alternative accommodation, four months time from today is granted
for them to vacate the premises subject to the condition that they shall file an undertaking before the trial Court within two weeks from today, to the effect that they shall put the respondents in vacant possession of the property on or before 2nd August 2013. There shall be no order as to costs.
17. The miscellaneous petitions filed in this revision shall also stand
disposed of.
____________________
L. NARASIMHA REDDY, J
April 03, 2013.
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