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Gokaraju Sambaiah Vs. Naralasetty Anasuyamma (Died) by Lrs. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSA No. 183 of 1995
Judge
Reported in2001(3)ALD696; 2001(4)ALT144
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 9
AppellantGokaraju Sambaiah
RespondentNaralasetty Anasuyamma (Died) by Lrs.
Appellant AdvocateMr. G. Dharma Rao, Adv.
Respondent AdvocateMr. P. Gopal Das, Adv.
Excerpt:
civil - necessary party - order 1 rule 9 of code of civil procedure, 1908 - certain suit for declaration of property decreed in name of defendant by fraud - suit should have been decreed in name of plaintiff - plea of fraud upheld and suit decreed - appellant-defendant's plea that suit bad for non-impleadment of 'wakf' board - 'wakf' board obtained sale deed - appeal to be set aside as 'wakf' board not necessary party to suit. - - a compromise petition was also filed by them and accordingly, a decree was also passed by the trial court on 16-2-1979. it is stated that as the plaintiff was not well, she went to her brother's house at ponnur, as there was none to look after her at guntur, and in the month of july, 1979, the 2nd defendant represented to the plaintiff that all the.....1. this second appeal is filed by the 2nd defendant in os no. 1393 of 1980 on the file of the iii additional district munsif, guntur in decreeing the suit of the sole plaintiff by judgment and decree dated 16-2-1987, which was confirmed on appeal filed by the appellant and two other defendants by judgment and decree dated 29-12-1994 in as no.62 of 1987 on the file of the i additional district judge, guntur.2. one naralasetty anasuyamma w/o venkaiah filed the suit against gokarajuvenkaiah. gokaraju venkaiah died pending the suit, and his two sons, namely, gokaraju satnbaiah (the appellant herein) and gokaraju hanumantha rao and also gokaraju kotamma, the mother of the appellant (gokaraju sambaiah) were brought on record as the legal representatives of the deceased defendant gokaraju.....
Judgment:

1. This second appeal is filed by the 2nd defendant in OS No. 1393 of 1980 on the file of the III Additional District Munsif, Guntur in decreeing the suit of the sole plaintiff by judgment and decree dated 16-2-1987, which was confirmed on appeal filed by the appellant and two other defendants by judgment and decree dated 29-12-1994 in AS No.62 of 1987 on the file of the I Additional District Judge, Guntur.

2. One Naralasetty Anasuyamma w/o Venkaiah filed the suit against GokarajuVenkaiah. Gokaraju Venkaiah died pending the suit, and his two sons, namely, Gokaraju Satnbaiah (the appellant herein) and Gokaraju Hanumantha Rao and also Gokaraju Kotamma, the mother of the appellant (Gokaraju Sambaiah) were brought on record as the legal representatives of the deceased defendant Gokaraju Venkaiah.

3. The case of the plaintiff is that the suit plot bearing No.139 admeasuring 142 square yards is the part of the Sagothula Peerla Manyam belonging to Chinna Moula Ashurkhana, a Muslim Wakf Property, managed by its MuthavalHs, viz., Mohammed Afkhan, Rahim Ajkhan and Babu Afkhan. The plaintiffs husband encroached the suit schedule plot No.139 an extent of 142 square yards about 15 years earlier to the filing of the suit and constructed his own house therein, and the plaintiff and her husband were living therein. They had no issues and the plaintiff's husband died 6 years prior to the filing of the suit, and therefore, the plaintiff alone is the sole heir to the property. It is stated in the plaint that the defendants are related to the plaintiff's husband, and at the request of the defendants, the defendants were allowed to reside in the house by the plaintiff's husband and eke out their livelihood, and thus they have got into possession of the house of the plaintiff with the permission of the plaintiff's husband. After the death of the plaintiff's husband, the 2nd defendant gained confidence of the plaintiff by assisting her in domestic and Court matters. The Muthavatlis of Sagothula Peerla Manyam filed OS No.42 of 1972 on the file of the Principal Sub-Court, Guntur against the occupiers numbering more than 300 including the plaintiff's husband, who was figured as 83rd defendant in the said suit. While the suit was pending, a compromise was evolved between the A.P. Wakf Board, Hyderabad and the occupiers, and as per the terms of the compromise, which was also ratified by the Government, the Muthavallis were directed to sell their land to the occupiers at the rate of Rs.7/- per square yard. A compromise petition was also filed by them and accordingly, a decree was also passed by the trial Court on 16-2-1979. It is stated that as the plaintiff was not well, she went to her brother's house at Ponnur, as there was none to look after her at Guntur, and in the month of July, 1979, the 2nd defendant represented to the plaintiff that all the occupiers were getting their plots registered and asked her to pay Rs.2,000/-to get the suit plot registered in her name, and the plaintiff simply believed the 2nd defendant and paid Rs. 2,000/- to him. When the plaintiff came from Ponnur to live in her house at Guntur, the defendants drove her from the house saying that she has nothing to do with the house and the house was registered in their name. The plaintiff surprised and shocked for the way in which the defendants behaved, and on enquiry, the plaintiff came to know that the 2nd defendant deceived her by signing the compromise petition for himself, but not on be half of the plaintiff as represented earlier. The plaintiff came to know that the defendants cheated the plaintiff and the Muthavallis and all the concerned and got the suit site registered in the name of the 1st defendant. The defendants got registered the sale deed in the name of the 1st defendant by fraud and the sale deed No.4123 of 1979 dated 17-7-1979 is illegal, invalid and it is not binding on the plaintiff.

4. On the aforesaid averments, the suit is filed for a declaration that the defendants got registered the sale deed dated 17-7-1979 from the Muthavallis of Chinna Moula Ashurkhana in favour of the 1st defendant by fraud and misrepresentation, and thus, it is liable to be set aside, and also for the relief of possession of the suit site and the house therein. The suit was filed on 26-8-1980.

5. Written statement was filed on behalf of defendants 1 and 2 disputing the allegations made in the plaint and admitting the relationship of the defendants with the plaintiff. It is also admitted that the plaintiff's husband died 6 years back prior to the filing of the suit. In para 4 of the written statement, it is stated that the defendants are not aware that the plaintiff's husband was one of the defendants in OS No.47 of 1972 on the file of the Sub-Court, Guntur. It is stated that the 1st defendant is the actual occupier and the person in possession and enjoyment of the house in plot No. 139 and he was only called upon to pay the sale consideration, and accordingly, the 1st defendant paid the sale consideration and obtained the sale deed dated 12-7-1979 from Chinna Moula Ashur Khana represented by its Muthavallis. It is also denied that the 2nd defendant has received the amount of Rs.2,000/- from the plaintiff by representing that he would get the sale of the plot registered in her name. It is further stated that there is no need to the 2nd defendant to sign on the compromise on behalf of the plaintiff, as she is in no way connected with the property. The defendants further stated that it is false to state that the defendants have cheated the plaintiffs and all others concerned and got the registration of the sate deed in the name of the 1st defendant. The plaintiff is an uneducated issue less old lady, and except affixing her thumb impression, she does not know reading and writing. Defendants 3 and 4 adopted this written statement.

6. On the aforesaid pleadings, the trial Court framed the following issues for trial.

'1. Whether the plaintiff is entitled to the declaration as prayed for?

2. Whether the plaintiff is entitled to the possession?

3. To what relief?'

7. The plaintiff herself examined as PW1, and total 6 witnesses were examined on her behalf as PWs.1 to 6 and Exs.A1 to A12 and XI to X6 were marked on her behalf. On behalf of the defendants, only 2 witnesses were examined as DWs.1 and 2 and Exs.B1 to B8 were marked on their behalf.

8. The plaintiff stated in her oral evidence that D2 is the son of D1, and D2 is the sister's husband of the plaintiff's husband. D3 is the wife of Dl and D4 is the brother of D2. She reiterated the contents of the plaint and stated that she has no children, and D2 was helping her in litigation in OS No.47 of 1972 on the file of the Subordinate Judge, Guntur, and the plaintiff's husband was impleaded as one of the defendants in the said suit, and during the pendency of the said suit, the matter was compromised for sale of the plots in favour of the encroachers, who are possessing and enjoying the lands of the Wakf. Ex.A1 is the certified copy of the decree in OS No.47 of 1972 on the file of the Subordinate Judge, Guntur. Ex.A2 is the certified copy of G.O. Ms. No. 1320, Revenue (Wakf) Department, dated 29-10-1977. As per the said order of the Government, the Government accorded permission and accepted the compromise proposal in OS No.47 of 1972 in respect of the wakf lands belonging to the Chinna Moula Ashur Khana of Guntur town as recommended by the Wakf Board in its resolution No.92 of 1976, to sell the land at the rate of Rs.7/- per square yard to the occupiers by the Wakf Board. She stated that as she was unwell at the relevant time, she had been to her brother's place at Ponnur and D2 informed the plaintiff that she has to pay Rs.2,000/- towards registration, and accordingly, she had parted the sale amount in the presence of Yekata Venkatramaiah. Thereafter, when she had come to Guntur, she was objected by D2 on the ground that she had no right in the house. Inspite of the attempt to settlethe matter by mediation, every thing proved futile. On enquiry, PW1 came to know about the fraudulent transaction and the fraud played by D2 by misrepresentation. Ex.A3 is the certified copy of the house tax demand register for the years 1974-75 to 1978-79 showing the name of the plaintiff's husband Narala Setti Venkaiah against the suit schedule plot. Exs.A4 to A7 are the special Notices demanding the house tax by the Guntur Municipality issued to the husband of the plaintiff. Exs.AS and A9 dated 12-1-1980 and 12-1-1981 are the house tax receipts issued in the name of the husband of the plaintiff. The plaintiff further stated that she paid the sale amount before Bapana Venkatramaiah.

9. PW2, who is the younger brother of the plaintiff, stated that D2 came to his house at Ponnur 6 years back and demanded the plaintiff for Rs. 2,000/- for the registration of the site, which was in her occupation in Guntur, and she parted with Rs. 2,000/- to D2 in his presence and Bapana Venkatramaiah. The plaintiff was in occupation of the suit site for the past 20 years. He stated that in 1972, D2 came to Ponnur and the cash was paid in hundred rupees denomination. He further stated that the plaintiff and her husband alone are the original encroachers and they are only in occupation of the suit site.

10. PW3, Bapana Venkatramaiah, stated that the amount of Rs.2,000/- was paid at the house of PW2 by the plaintiff 6 years back. (Their deposition was recorded in 1985. That means, the amount was paid in 1979).

11. PW4, Kode Veeraiah, stated that he is an encroacher of 107 square yards and encroached the said land 22 years ago, which belonged to Sagothula Peerla Manyam. He further stated that the plaintiff's husband also encroached the site alongwith him and raised a hut. The husband of the plaintiff died about 12 years back. The plaintiff and her husband stayed in the said house. D1 and the plaintiff are relatives. After the death of the husband of the plaintiff, D2 was staying with her, as she had no children. D1 did not encroach the suit property, and Union was also formed and he (PW4) was the President of the said Union from 1968 to 1972 and now one Jola Narasimhareddy is the President of the said Union. Ex.X1 is the minutes' book maintained by the Association, and Ex.X2 contains the thumb impression of the plaintiff's husband's clerk. Exs.X3 to X5 contains the signature of PW4 and the plaintiff's husband. Ex.X6 is the resolution signed by PW4 as President. He stated that the total extent of Peerla Manyam is Ac. 11 -00 and about 325 persons had encroached the entire extent in 1963.

12. PW5 stated that the plaintiffs husband was a tailor and he encroached the land of Peerla Manyam, which is opposite to the house of PW5, and the encroachment was made by PW5 and the husband of the plaintiff 23 years back. There was a compromise between the Wakf and the encroachers, and the proposal was accepted by the Government for the alienation of the land at the rate of Rs.7/- per square yard in favour of the encroachers.

13. PW6 also supported the case of the plaintiff and stated that the husband of the plaintiff alone was the encroacher and not the defendant.

14. As against the aforesaid evidence in proof of the contention of the plaintiff that her husband alone was the encroacher and he was one of the parties to the suit filed by the Wakf, the 2nd defendant was examined as DW1. DW1 stated that his father (the 1st defendant) died during the pendency of the suit. The suit site belongs to the Peerla Manyam and a thatched house was constructed by the 1st defendant. DW1is also a tailor by profession. He stated that the husband of the plaintiff never occupied that suit site and he did not construct any house. The 1st defendant requested the husband of the plaintiff to stay with DW1 to learn the tailoring work and he had learnt the tailoring work. The plaintiffs husband was not the encroacher, but the 1st defendant was the encroacher, and the plaintiff has no right to enter the house. He further stated that he alone paid the amount and obtained the sale deed executed under Ex.B3. Municipal Tax was also paid under Exs.B4 to B7, i.e., subsequent to the filing of the suit. In the cross-examination, DW1 stated that he does not know whether the suit is, decreed or not. He stated that the defendants alone are the judgment-debtors. He does not know to whom the decree is given. He does not know whether it is in his name or not. He did not engage an advocate. He is not a party to the suit. Naralasetty Venkaiah, the husband of the plaintiff, is his uncle. He did not apply to the Wakf Board to sell away the site to him His father was residing at Alapadu doing cooli work. There is no dispute between him and the plaintiff till the filing of the suit. He further stated that he does not know whether Ex.B3 was returned. He purchased the site at the rate of Rs.7/-per square yard. He paid Rs.2,000/- to Venkatratnam for 142 square yards. He did not pay any amount to the Wakf Board, as they did not ask. After filing of the suit only, the cist is being paid in his name. He does not know whether who was paying the tax prior to filing of the suit and in whose name.

15. The other witness examined on behalf of the defendants is DW2. He stated that the site occupied by the defendants belonged to Peerla Manyam. The plaintiff and her husband occupied the suit site, and DW2 went as an elder along with others and got constructed houses to the occupiers. He stated that Peerla Manyam filed a suit against the encroachers of about 300 persons and he does not know whether the husband of the plaintiff is also a defaulter or not. The Management of Peerla Manyam and the occupiers compromised the matter and the Management fixed the rate of Rs.7/-per square yard. In the cross-examination, DW2 stated that he does not know whether the defendants are also parties to the suit filed by the Management of the Peerla Manyam. He also does not know about the compromise decree in OS No.47 of 1972. He also does not know whether the husband of the plaintiff is entitled for the plot or not as per the compromise decree. The defendants never stayed in the house of Venkaiah.

16. The trial Court held that the oral and documentary evidence adduced on behalf of the plaintiff is not rebutted by the defendants, and DW1 being the close relative of the plaintiff and taking advantage of the relationship and helpless position of the plaintiff, played fraud on the plaintiff and obtained the sale deed, as if the 1st defendant is the original encroacher and occupier of the suit site and owner of the house. The defendants have no proof by any evidence that the 1st defendant is the original encroacher. No documents prior to the filing of the suit were also filed. As per Ex.A1, which is the certified copy of the decree dated 18-6-1976 in OS No.47 of 1972 on the file of the Subordinate Judge, Guntur, the plaintiff's husband's name was described as 83rd defendant. As the suit was decreed ex parte, the matter was compromised on the advice of the Management and the elders for sale of the land in favour of the original encroachers. In that decree, the name of the husband of the plaintiff is stated as 'Naralasetti Venkaiah; S/o Veeraiah, aged 40; tailor; Hindu; R/o Guntur'. The suit was filed by the Management for a direction to the defendants to deliver the possession of the plaint schedule property to the plaintiff and to pay certain damages for illegal use and occupation. The said ex parte decree and judgment dated 18-6-1976 was set aside and the suit was restored subsequently and a compromise was entered into. As per the compromise, the land was agreed to be sold to the encroachers. In this case, it is proved that the husband of the plaintiff alone is the original encroacher, as stated by the other encroachers in their depositions and also as is evident from the demand notices and the entries entered in the Guntur Municipality that the husband was residing in the said suit schedule property, and also the President of the encroachers association, who was examined as PW4. It is proved that the husband of the plaintiff was one of the members of the said association, and Exs.X1 to X6 make it clear that the association was in existence and the encroachers including the plaintiff and her husband was in possession of the suit schedule property. PWs.4 and 6 also support the case of the plaintiff. With regard to the payment of Rs.2,000/- by the plaintiff to the 2nd defendant, it is stated that the said amount was paid by the plaintiff, which was advanced by the brother of the plaintiff and the said amount was paid in the presence of PW3. As against the said evidence, there is no other evidence adduced by the defendants and the defendants have not proved the capacity and the source for the said payment of Rs.2,000/- for obtaining the sale deed. The 2nd defendant also confessed in his cross-examination supporting the case of the plaintiff, and there is no other independent oral or documentary evidence in proof of the contention of the defendants. Considering the oral and documentary evidence, the trial Court held that the 2nd defendant, by misrepresentation and fraud, obtained Rs.2,000/- from the plaintiff; and instead of getting the sale deed in favour of the plaintiff, obtained the sale deed in favour of the father of the 2nd defendant Venkaiah, The name of the 1st defendant and the name of the husband of the plaintiff is also Venkaiah. Taking advantage of the common name, the 2nd defendant managed certain things. The III Additional District Munsif decreed the suit as prayed for by the plaintiff by the judgment and decree dated 16-2-1987. Questioning the same, the 2nd defendant Sambaiah and his mother and other brother filed As No.62 of 1987 on the file of the I Additional District Judge, Guntur. The lower Appellate Court also, considering elaborately the oral and documentary evidence, dismissed the appeal filed by the defendants and confirmed the judgment and decree of the trial Court. Questioning the judgment and decree of the lower Appellate Court dated 29-12-1994, the 2nd defendant alone filed this second appeal.

17. Neither the mother of the appellant, i.e., the wife of Gokaraju Venkaiah, nor the other brother of the appellant, i.e., Gokaraju Hanumantha Rao, has chosen to file any appeal. Thus, the judgment of the trial Court as upheld by the lower Appellate Court has become final, insofar as two other defendants, namely, Gokaraju Kotamma and Gokaraju Hanumantha Rao are concerned. Only one defendant, namely, Gokaraju Sambaiah, who is said to have played fraud in getting the sale deed registered in favour of his father Venkaiah alone, filed this second appeal.

18. According to the appellant (2nd defendant), the 1st defendant, i.e., the father of the 2nd defendant alone occupied the suit schedule property and the 2nd defendant got the sale deed registered in the name of the 1st defendant and the 1st defendant died, and therefore, the property devolves on his legal heirs, i.e., appellant, his brother and the mother of the appellant. Insofar as the shares of the other two defendants in the suit schedule property are concerned, they have no grievance and they are bound by the judgment and decree of the trial Court as confirmed by the lower Appellate Court.

19. The question that arises for consideration in this second appeal is only with regard to the 1/3rd share in the suit schedule property belonging to the appellant herein, and the only question of law raised by the appellant is that as per the documentary evidence Exs.B9 and B10, which are marked by the lower Appellate Court, it cannot be said that any fraud has been played by the appellant and the suit filed by the plaintiff is liable to the dismissed.

20. The learned Counsel for the appellant mainly argued that though as per the original suit filed by the Management of Sagothula Peerla Manyam, the name of the plaintiff's husband was at serial No.83, but the ex parte decree was set aside, and there was a compromise, and as per the compromise, it was decided to get the sale deeds registered in the names of the occupiers only, and neither the husband of the plaintiff nor the plaintiff was in possession and occupation of the suit schedule property and they are not entitled to the sale deed, and therefore, their names are not included in the compromise decree and the plaint in OS No.47 of 1972 (Exs.B9 and B10). It is stated that according to Ex.B9 compromise decree dated 19-2-1979, it was decided to sell the plots to the respective defendants and the plaintiffs will have only right to withdraw the amount deposited by the defendants and the plaintiffs will have to register the plots only in the name of those only who approached the plaintiffs through the Union advocate Sri N. Venkata Ratnam, and the plaintiffs have right to sell to those who approach them even otherwise, the name of the father of the appellant is mentioned at Sl.No.82. At SI.No.82 of Ex.B9, his father's name is mentioned as 'Gokaraju Venkaiah'. It is not explained as to how the name of the husband of the plaintiff disappeared at Sl.No.83 and the name of the father of the appellant alone appeared in Ex.B9. The said document was not marked by any witness, and there was no chief-examination or cross-examination of any witness explaining the circumstances as to how the name of the father of the appellant was found in the compromise decree and how the name of the husband of the plaintiff was removed. Another document relied upon by the appellant's Counsel is Ex.B10, which is said to be the plaint copy filed by the Management of Sagothula Peerla Manyam. In that exhibit also, the name of the father of the appellant is found, but the name of the husband of the plaintiff is not found. It is clear from the ex parte decree (Ex.A1) that the name of the husband of the plaintiff is at Sl.No.83. Ex.B10 was not marked though any witness, and no reasons are forthcoming as to how the name of the father of the appellant is found place as one of the defendants in the compromise decree. In those circumstances, the lower Appellate Court rightly refused to accept the contentions of the appellant basing on Exs.B9 and B10 and no importance is given to Exs.B-9 and B10 as against Ex.A1.

21. As per the resolution of the Wakf Board and the Government Order, the land was agreed to be transferred at confessional rate in favour of the original encroachers only and there is abundant oral and documentary evidence like Exs.X1 to X6 and Ex.A1 that the husband of the plaintiff was the original occupier of the site and the plaintiff and her husband were alone in possession of the said site. The other co-occupants also supported the case of the plaintiff. Even according to the evidence of the appellant, he has no knowledge about the suit OS No.47 of 1972 and whether the name of the husband of the plaintiff was found as one of the defendants in the said suit. In the absence of any explanation and reasons shown by the appellant the facts and circumstances under which the name of the husband of the plaintiff was deleted and the name of the father of the appellant was added in Exs.B9 and B10, the lower Appellate Court rightly held that no credence can be given to the said exhibits in view of the oral and documentary evidence and Ex.A1. The only substantial question of law argued by the learned Counsel for the appellant is that the contents of Ex.B9 and B10 ought to have been accepted by the lower Appellate Court is devoid of any merits, as the said documents were not explained properly by any witness subjecting to chief and cross-examinations explaining the reasons and circumstances under which the name of the husband of the plaintiff was deleted and the name of the appellant was added in the said exhibits.

22. It is further contended by the learned Counsel for the appellant that the vendor of the sale deed was not added as defendants, and therefore, the plaintiff is not entitled for any relief in the suit. It is the case of the plaintiff that the appellant has played fraud and by misrepresentation taking advantage of the illiteracy of the plaintiff and her helplessness being widow without any issue, misused the confidence deposed by her in favour of the plaintiff. The plaintiff has not sought for any relief against the Management of Sagothula Peerla Manyam and only contended that the appellant misrepresented and played fraud on the plaintiff and also on the Management in obtaining the sale deed and the appellant has no right to continue in possession of the encroached land. Even otherwise, it has to be stated that no such contention has been taken by the appellant in the written statement. There was no pleading either in the written statement or there is any issue. Only at the appellate stage, the plaintiff has taken such a plea, which cannot be allowed at the appellate stage. The plaintiff has not sought for any relief against the Wakf Authorities. The plaintiff only filed the suit for a declaration that the father of the appellant is not entitled to get the sale deed from the Management and continue in occupation of the suit schedule property. In the absence of any specific contentions of the defendant in the written statement before the trial Court, the trial Court, rightly decreed the suit for recovery of possession.

23. It is contended by the learned Counsel for the appellant that as per the compromise, only the occupants are entitled to get the sale deeds registered. As proved by the oral and documentary evidence, the possession of the appellant-defendant is only permissive possession, and the original occupiers and encroachers are only the husband of the plaintiff and the plaintiff, and the defendants came into possession with the permission of the plaintiff and her husband only. Therefore, the defendants are not entitled for the sale deed even as per the compromise decree and the resolution of the Wakf Board and as per the permission accorded by the Government. The defendants are in the permissive possession, and therefore, they are not encroachers and they are not entitled for the sale deed as per the compromise and the compromise decree. As it is not explained as to how the name of the father of the appellant is added in Exs.B9 and B10 and how the name of the plaintiffs husband was deleted in the said documents, the lower Appellate Court rightly gave weight and credence to Ex.A1 and other earlier documents, holding that the husband of the plaintiff alone is the occupier and the father of the appellant is not the original occupier.

24. The learned Counsel for the appellant placed reliance on a decision of the Supreme Court in Aliji Momonji and Company v. Lalji Mavji and others, 1996 (4) ALD (SCSN) P65, and submitted that without making the Management of the Wakf Board as party to the suit, the plaintiff is not entitled for the relief. The plaintiff has not prayed for any relief against the Management. The only allegation is that the appellant has misrepresented and played fraud not only on the plaintiff but also the Management. The appellant has not taken such a plea before the trial Court, and the, suit is only for recovery of possession and to set aside the sale deed obtained in the name of the father of the appellant, as the property does not belong to the appellant or his father but belongs to the plaintiff. The plaintiff has not sought for any relief against the Peerla Manyam or the vendor. The Court also has not passed any decree against the vendors of the sale deed. The Court only decreed that the sale deed obtained in the aforesaid circumstances by the father of the appellant is illegal and contrary to the resolutions of the Wakf Board, as the original encroachers alone are entitled to get the alienation, but not the defendants, as the continuance of the defendants was only a permissive possession but not as encroachers. Therefore, the facts of the case cited by the learned Counsel for the appellant have no relevance to the facts of the instant case.

25. The other case cited by the learned Counsel for the appellant is a decision of a learned single Judge of this Court in Y. Subba Rao v. K. V. Subbaiah and others, 1997 (5) ALD 345. In the said case, the plaintiff filed the suit for injunction against the neighbour for interfering with his right in respect of the suit site, which was proved that the suit site was the Government land, and therefore, the plaintiff is not entitled for any relief without impleading the Government, which is the real owner. In the instant case, there is no dispute with regard to the real owners, as the real owners have decided to transfer the suit land in favour of the encroachers, and as proved by the oral and documentary evidence, the husband of the plaintiff was alone the real encroacher but not the appellant and his father, and therefore, the said case cited by the learned Counsel for the appellant has no application to the facts of the case on hand.

26. Another case cited by the learned Counsel for the appellant is Kshitish Chandra Purkait v. Santosh Kumar Purkait, : AIR1997SC2517 , wherein the Honourable Supreme Court held that in the absence of any specific plea taken before the trial Court and in the absence of any issue framed by it, it is not open for the Appellate Court to allow the appellant to raise the questions and it has the duty to formulate the substantial question of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. In the instant case, the lower Appellate Court, though received the documents (Exs.B9 and B10) improperly, it rightly did not give any weight to the said documents, as the documents are not proved though witnesses in the trial Court. Therefore, this case is also not helpful to the appellant.

27. Lastly, the learned Counsel for the appellant cited a decision of a learned single Judge of this Court in Poluru Narayana v. Bekkan Potta Reddy, 1997 (6) ALD 171. As already stated, though the lower Appellate Court received Exs.B9 and B10 and though no notice was given to the plaintiff to explain the said documents or the alleged plaint, the lower Appellate Court considered the said documents Exs.B9 and B10 and rightly held that the said documents cannot be given credence in view of the abundant oral and documentary evidence that the husband of the plaintiff alone was the original encroacher and it is proved beyond all reasonable doubt that the appellant misrepresented and played fraud on the plaintiff. Fraud vitiates all transactions and the appellant is not entitled to continue the possession or derive right under the sale deed.

28. For the foregoing reasons, I do not see any merit in this second appeal. The second appeal is accordingly dismissed. No costs.


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