Bokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ...

Andhra High Court Andhra High Court Bokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ... SECOND APPEAL No.1360 of 2006 22.11.2011 Mandadi Sammi Reddy. Bokkala Ravinder Reddy and others. COUNSEL FOR PETITIONER: Sri M.S.Ramachandra Rao COUNSEL FOR RESPONDENT No.1: Sri T.Srikanth Reddy >Head Note: ? CITATIONS: 1. AIR 1940 MADRAS 113 (FB) 2. 2008(15) SUPREME COURT CASES 150 JUDGMENT: The appellant filed O.S.No.19 of 2000 in the Court of Junior Civil Judge, Huzurabad against the respondents for the relief of perpetual injunction in respect of the suit schedule property viz., an extent of 21 guntas in Survey No.124/A,B,C of Thummanapally Village. He filed I.A.No.221 of 2000 under Order 39 Rules 1 and 2 C.P.C. The I.A. was dismissed by recording a finding to the effect that the appellant is not in possession of the property. Therefore, he amended the plaint to incorporate the relief of recovery of possession by obtaining permission from the Court. The appellant pleaded the manner in which he acquired rights and title over the property. He pleaded that the 1st respondent, who is the immediate neighbour, encroached into the property and respondents 2 to 5 have purchased small bits out of the said land. The suit was contested by the 1st respondent. He pleaded that he is the owner of about Ac.5.37 guntas of land in Survey No.124/D and that the suit schedule property is part of it. The trial Court dismissed the suit, through judgment, dated 19.01.2005. Thereupon, the appellant filed A.S.No.1 of 2005 in the Court of Senior Civil Judge, Huzurabad and the same was dismissed on 07.01.2006. Hence, this second appeal. Sri M.S.Ramachandra Rao, learned counsel for the appellant submits that all the three grounds, on which the trial Court and the lower appellate Court dismissed the suit and the appeal, are untenable in law. He contends that the view taken by the Courts below that the suit for recovery of possession without there being any prayer to declaration of title is not maintainable cannot be sustained in law. He further submits that though the 1st respondent did not raise the plea of adverse possession, the suit was dismissed as barred by limitation. Learned counsel further submits that the appellant was not at all under obligation to pray for cancellation of documents, through which the suit schedule property is said to have been transferred. In support of each of his contentions, the learned counsel has placed reliance upon precedents. Sri T.Srikanth Reddy, learned counsel for the 1st respondent. on the other hand, submits that the appellant was not clear as to the exact location of the suit schedule property and the same is evident from the fact that even a Commissioner appointed by the Court has reported that the property cannot be localized. He submits that when there is a serious dispute as to the location and entitlement, the suit for mere recovery of possession is
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Bokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ...

not maintainable. Learned counsel further submits that atleast when the respondents pleaded that the property was the subject matter of various documents, the relief as to the cancellation of the said documents ought to have been prayed for. The trial Court in all framed the following four issues for its consideration, based upon the pleadings of the parties: 1) Whether the plaintiff is entitled to recovery the possession of the suit schedule property as prayed for in the plaint? 2) Whether the suit is barred by limitation? 3) Whether the suit is maintainable without seeking a relief of declaration that the documents which are registered sale deeds existing in favour of defendants null and void? 4) Whether the suit is maintainable without seeking the relief of declaration of plaintff's side title in the schedule property? On behalf of the appellant, P.Ws. 1 to 3 were examined and Exs.A.1 to A.8 were filed. On behalf of the respondents, D.Ws. 1 and 2 were examined and Exs.B.1 to B.7 were filed. The Commissioner was appointed by the trial Court with certain directions. The Commissioner and the Mandal Surveyor were examined as C.Ws.1 and 2 and the record pertaining to the survey was marked as Exs.C.1 to C.4. The suit was dismissed and in the appeal preferred by the appellant, the lower appellate Court has undertaken discussion with reference to the issues framed by the trial Court and did not frame any points independently. The appeal was dismissed. From a perusal of the judgments rendered by the trial Court and the lower appellate Court and on hearing the learned counsel for the parties, it becomes clear that one of the grounds, on which the relief was denied to the appellant, is that he did not seek the relief of declaration. That approach however does not appear to be correct. If an individual wants to seek the relief of recovery of possession of the property, the necessity for him to pray for the relief of declaration would arise, if only serious challenge is made by the defendant to his title. Such a challenge can be either before or after the suit is filed. For instance, if the plea of the defendant is only as to the adverse or permissive possession, the plaintiff need not claim the relief of declaration of title at all. On the other hand, if an independent or parallel title is pleaded by the defendant, an occasion would arise for a plaintiff to pray for the relief of declaration of title. Much would depend upon the perception of the plaintiff as to the existence of title in him, or the challenge thereto by others. No hard and fast rule can be laid to the effect that the relief of recovery of possession cannot be prayed for, unless the relief of declaration of title is also included. With some amount of certainty, it can be said that it is only in the suits for mandatory injunction that the necessity to pray for the relief of declaration would arise. Another ground, on which the appellant was denied the relief, is that the suit was barred by limitation. The question of limitation assumes significance in a suit for recovery of possession only when a plea of possession is raised. It was only before the present Limitation Act was enacted that an obligation rested upon the plaintiff in a suit for recovery of possession to show that he was in possession of the property 12 years prior to the institution of the suit. That necessity does not exist now. The question of limitation assumes significance, only when a plea of adverse possession is raised. Therefore, the view taken by the lower appellate Court on this aspect is also not correct. Now remains the last question on which the relief was rejected. It was observed that the appellant did not pray for the relief of cancellation of certain documents. It may be true that it is only a person who is not a party to the document that can file a suit for cancellation of such documents. However it is different from saying that any person who asserts the title in respect of a property must invariably pray for the relief of cancellation of documents, if any, executed by the third parties vis--vis the said property. Law on this aspect is very clear and reference can be made to the judgment of a Full Bench of the Madras High Court in Ramaswami vs.
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Bokkala Ravinder Reddy And ... vs Counsel For Petitioner: Sri ...

Rangachariar1. This view is supported by the the Hon'ble Supreme Court in Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma2. With the above discussion, it can be certainly said that the approach of the lower appellate Court or for that matter, that of the trial Court on the three aspects referred to above is not correct. All the same, the appellant cannot get any relief in the suit. The first reason is that C.Ws.1 and 2 appointed by the Court expressed their inability to localize the land. The dispute ultimately boils down to the one of boundaries for localization. The A.P. Survey and Boundaries Act and the rules made thereunder provide for comprehensive procedure for resolution of such disputes. An aggrieved party can not only avail the departmental remedies but also can file a suit under Section 14 thereof. Alternatively, the appellant can also institute proceedings for declaration of his rights vis--vis the property, in which event, there may be scope for the Court to examine the relative strength and weakness of the contentions of the parties. Hence, the second appeal is dismissed, however, leaving it open to the appellant to pursue his remedies under the A.P. Survey and Boundaries Act and the Rules made thereunder or by instituting comprehensive suit for the relief of declaration of title vis--vis the said property. In such an event, none of the observations made by the trial Court or the lower appellate Court shall be treated as the final pronouncement on any aspect and the proceedings shall be decided on their own merits. There shall be no order as to costs. _____________________ (L.NARASIMHA REDDY, J)

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