Without possession - no permanent injunction be granted - 2023:APHC:27507

Without possession - no permanent injunction be granted - 2023:APHC:27507

suit for permanent injunction - dismissed - appeal also dismissed - SA Held that  Since the plaintiff failed to establish his possession over the suit schedule property as on the date of suit and contrary to the case of the plaintiff, the defendant established his possession in the suit schedule property as on the date of filing of the suit. Therefore, the plaintiff ought to have file the suit for recovery of possession. Since the plaintiff failed to prove his possession as on the date of suit, he is not entitled for the relief of permanent injunction”

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI1

THE HON’BLE DR.JUSTICE K. MANMADHA RAO

SECOND APPEAL No.272 OF 2023

CHAPPIDI HARINATH REDDY
Versus

CHAPPIDI VENKATA REDDYJUDGMENT:

 The Second Appeal has been filed assailing the Judgment

and Decree dated 21.02.2022, passed in A.S.No.1 of 2017 by the III

Additional District Judge, Rajampet. The learned first Appellate

Court, while dismissing the appeal filed by the plaintiff, had

confirming the decree and Judgment dated 28.04.2014 of the

learned Junior Civil Judge, Nandalur, passed in O.S.No.50 of

2007.

 2. The parties will herein after be referred to as they are

arrayed in the Original Suit for the sake of convenience.

 3. The plaintiff filed suit in O.S.No.50 of 2007 on the file of

the Court of the Junior Civil Judge, Nandalur against the

defendant for grant of permanent injunction restraining the

defendant and his men from interfering with plaintiff’s peaceful

possession and enjoyment of the plaint schedule property. The

averments in the plaint, in brief are as under:-

 Originally Revenue Authorities assigned the plaint schedule

property to grandfather of the plaintiff by name Chappidi

Ankireddygari Pitchi Reddy on 16.09.1961, since then he has been

in possession and enjoyment of the same and after his demise, his

father and after him the plaintiff is the absolute owner of the plaint 

2

schedule property. During the life time of his father, the defendant,

who is having lands adjacent to the plaint schedule property tried

to nab the same and his father also made a complaint before the

revenue authorities also. The defendant has no way concerned

with the plaint schedule property. Hence the suit.

 4. Per contra, the defendant filed Written Statement denying

the material averments made in the plaint and contended that the

plaintiff’s grandfather and Ankireddygari Pitchi Reddy and

defendant’s father Chappidi Ankireddy are brothers and sons of

Chappidi Gangi Reddy and they were living as Hindu joint family

along with their another brother Chappidi Bali Reddy. It is further

contended that Ankireddygari Pitchi Reddy being the elder brother

and Kartha of joint family obtained DKT Patta in his favour in

respect of the plaint schedule property with joint funds of the

defendant’s father and the defendant. Since then defendant’s

father and plaintiff’s grandfather were in joint possession and

enjoyment of the suit schedule property till their death.

Subsequently, they got divided orally and respective shares were

allotted among them and the plaint schedule property fell to the

share of defendant’s father C. Ankireddy and after his death the

defendant is in possession and enjoyment of the same with

absolute rights till date. The father of the plaintiff moved mediation

during his lifetime and requested the defendant to pay some money 

3

to discharge his debts and plaintiff’s father himself executed an

agreement of sale dated 10.04.2004 in favour of the defendant

agreeing to sell the suit schedule property and received advance

amount from the defendant and he discharged the debts and died

in the year 2006. After death of father of plaintiff, the plaintiff with

a malafide intention made false representations to take possession

of the plaint schedule property. Therefore the plaintiff is not

entitled to claim any relief in the suit and same is liable to be

dismissed.

 5. Based on the above pleadings, the trial court eventually

framed the following issues for trial:

1. Whether the plaintiff is in possession and enjoyment of the suit schedule

property as on the date of filing of the suit?

2. Whether the agreement of sale dated 10.04.2004 is true and correct?

3. Whether the suit is bad for non-joinder of necessary parties and there is a

cause of action?

4. To what relief?

5. Whether the plaintiff is entitled for permanent injunction as prayed for?

(Issue No.5 is additional issue).

 6. During the course of trial PW-1 was examined on behalf of

the plaintiff and Exs.A1 to A6 were marked and on behalf of the

defendants, DW-1 was examined and marked Ex.B1 to B5. The

Tahsildar, Pullampeta is examined as CW-1 and Ex.C1 to C6 were

marked through him. 

4

 7. After full-fledged trial, the trial could hold that the plaintiff

has failed to prove his possession and enjoyment of the plaint

schedule property and that plaintiff is not entitled for permanent

injunction. Accordingly, the suit was dismissed.

 8. Assailing the said judgment and decree of the trial court,

the plaintiff has preferred an appeal in A.S.No. 1 of 2017. The first

appellate court has framed the following points for consideration in

the Appeal:

1. Whether the plaintiff is in possession and enjoyment of the plaint

schedule properties as on the date of suit with semblance of legal

right?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. Whether the decree and judgment of the trial court warrants any

interference by way of this appeal?

4. To what relief?

 9. The First Appellate Court after considering the facts and

circumstances of the case, held as follows:

29.Since the plaintiff failed to establish his possession

over the suit schedule property as on the date of suit and

contrary to the case of the plaintiff, the defendant established

his possession in the suit schedule property as on the date of

filing of the suit. Therefore, the plaintiff ought to have file the suit

for recovery of possession. Since the plaintiff failed to prove his

possession as on the date of suit, he is not entitled for the relief

of permanent injunction”.

and dismissed the appeal on merits on 21.02.2022, by confirming

the findings of the trial court. Assailing the Judgment of the First 

5

Appellate Court, the appellant herein, who is plaintiff before the

both courts below filed this Second Appeal, seeking to set aside the

decree and Judgment of the courts below.

 10. This court while admitting the Second Appeal has framed

the following substantial question of law, which are as under:-

1. Whether the appellate court is justified in dismissing the appeal by

confirming the Decree and Judgment in contrary to Sections 2(1)(6) and

3 of A.P.Assigned Lands (Prohibition of Transfers) Act, 1977?.

2. The first appellate court and trial court applied its mind while

dismissing the suit and appeal in contrary to Ex.A1 to A6 and C1 to C6

and relied on Ex.B1 and B2 dismissed the suit and first appeal?

11. Heard Mr.Nagaraju Naguru, learned counsel for the

appellant and Mr.G.Ramesh Babu, learned counsel for the

respondent.

12. The appellant herein is the plaintiff/ appellant before the

courts below.

13. During hearing learned counsel for the appellant

submitted that the plaintiff is the absolute owner of the plaint

schedule property, having acquired from his father. The revenue

authorities issued DKT Patta in favour of grandfather of the

plaintiff, after him his son and after him the plaintiff succeeded

the same, since then he has been inducted into possession and

that the defendant has no manner of any right, title or possession

trying to interfere with the plaint schedule property, for which the 

6

plaintiff resisted his attempts. The defendant has got nothing to do

with the plaint schedule property.

14. Whereas, learned counsel for the respondent vehemently

contended that in the oral settlement of the joint family, the plaint

schedule property fell to the share of the defendant’s father Anki

Reddy. After his demise, the defendant is in possession and

enjoyment of the same. The plaintiff obtained Pattadar Pass Book

by false representation, without physical possession in respect of

the plaint schedule property. The plaintiff’s father himself executed

an agreement of sale in favour of the defendant agreeing to sell the

suit schedule property and received advance amount. After demise

of plaintiff’s father, the plaintiff making attempts to take over the

possession of the plaint schedule property. No.3 adangal would

show that the name of the defendant in respect of plaint schedule

property. Hence the claim of the plaintiff is liable to be dismissed.

15. Perused the records.

16. From the evidence adduced by both parties, it is clear

that the oral evidence let in by the plaintiff as P.W.1 was

disbelieved by the trial Court. On the contrary, the respondent has

filed unregistered Agreement of Sale marked as Ex.B1 and No.3

Adangal as Ex.B2. Pitted against the documentary evidence

produced by the defendant, the oral evidence of the plaintiff

regarding possession paled into insignificance. Therefore, both the 

7

Courts below have held that the plaintiff failed to establish his

possession. Though the trial Court has held that the plaintiff is not

entitled to the equitable relief, this Court need not delve into the

said aspect.

17. Even assuming that the plaintiff alone is entitled to

maintain the suit, as he failed to establish his plea that he is in

possession of the property, he is not entitled to the relief of

injunction. Though the defendant has claimed ownership and title,

he has not produced the sale deed. Even if the defendant has no

title over the property, his possession is enough to non-suit the

plaintiff. Assuming that the plaintiff is the true owner of the

property, as he is not in possession of the same, he is not entitled

to the grant of injunction. The plaintiff, if so advised, can only file

a separate suit for declaration of title and recovery of possession of

the property. In “Vallabhneni Bangaraiah Vs. Panamala Peda

Musili”1 the learned Single Judge of unified High Court of A.P also

discussed the similar facts and liberty also given to the appellant

therein to file a separate suit for declaration of title and recovery of

possession of the property and dismissed the said appeal.

18. In view of the forgoing discussion, I find no merit to

interfere with the findings of the both courts, except granting

liberty to the plaintiff to approach proper fora for redressal of the

1

 S.A.No.974 of 2013, dated 05.06.2014 

8

title dispute between the parties, in respect of plaint schedule

property, if so advised.

19. Accordingly, the Second Appeal is dismissed. There shall

be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________

DR.JUSTICE K. MANMADHA RAO

Date: 08.08.2023.

KK 

9

THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

Second Appeal No.272 OF 2023

Date: 08.08.2023.

KK 

Whether declaration of title is necessary inrespect of public Roads for grantingMandatory injunction ? 2023:APHC:27415

Whether declaration of title is necessary inrespect of public Roads for grantingMandatory injunction ? 2023:APHC:27415

suit for mandatory injunction on the margin of public Road - decreed - appeal also allowed - Held that requirment of declaration is not necessary in respect of public Road - and also avaiability of other access points not necessary to be considered whiling granting decree for mandatory injunction -.  No person can be allowed to occupy a portion of a public road, a highway or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the specious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such a course cannot be permitted. 

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

SECOND APPEAL No.275 of 2023

SANABOINA SATYANARAYANA
Versus
CHERUKURI RAJESWARI

JUDGMENT:

The appellants are the defendants 6 to 9 in O.S.No.61

of 2012 on the file of Principal Junior Civil Judge, Palakol.

The 1st respondent is the plaintiff.

2. The 1st respondent had filed O.S.No.61 of 2012,

for mandatory injunction, for removal of the houses and other

structures constructed by the appellants herein on the road

margin and puntha in R.S.No.110/3 of Sangamcheruvu

Village adjoining the R & B road passing through

R.S.No.110/1 from Palakol to Myzarugunta. It is the case of

the 1st respondent that she had agricultural land in

R.S.No.112/2, 2-A and R.S.No.111/2C of Gorinthada Village

which is hamlet of Sangamcheruvu Village. The 1st

respondent contends that her access to the R & B road is

being affected by the constructions made by defendants 6 to

9. It is the further contention of 1st respondent that she had

approached the officials in the area, who are arrayed as

defendants 1 to 5 in the suit, for removal of these 

2

encroachments. As the defendants 1 to 5 did not take any

action, the 1st respondent moved the suit.

3. The appellants herein, who are defendants 6 to 9

filed their written statements and also participated in the trial

by being examined as D.Ws. 4 to 8.

4. The stand of the appellants had been that they

had not encroached into the road margin and that their

constructions were not illegal. The further defence taken by

the appellants is that the 1st respondent had access to her

land from various directions and that the alleged

encroachment by the appellants would not in any manner

affect her ingress and egress into her land from the road and

consequently there was no requirement to remove the

structures or houses of the appellants.

5. The trial Court, after completion of trial and

consideration of the respective submissions of the parties,

had allowed the suit by way of decree and judgment dated

11.10.2017.

6. Aggrieved by the said judgment and decree, the

appellants had moved the Court of the X Additional District

Judge, Narasapur, by way of A.S.No.39 of 2017. This appeal 

3

came to be dismissed on 14.02.2023. Thereupon the

appellants have approached this Court, by way of the Second

Appeal.

7. Sri K.Chidambaram, learned Senior Counsel

appearing for Sri T. Sai Surya would contend that the suit as

framed by the 1st respondent is not maintainable as a

mandatory injunction cannot be granted without seeking a

declaration of title and a declaration that the rights of the

plaintiff are affected by the alleged encroachments. He would

further submit that there is no finding given by either the

trial Court or appellate Court that the appellants had

encroached into the road margin of the R & B road. He would

submit that in such circumstances, the judgments of both

the trial Court and the appellate Court require to be set

aside. He relied upon the judgment of a learned Single Judge

of the combined High Court of Andhra Pradesh in

L.Narasimha Reddy vs. L.Yella Reddy1 for the proposition

that a mandatory injunction cannot be sought without

seeking a declaration of rights.

1

2008 (2) ALD 142::2010(5) ALT 784

4

8. Sri M. Santosh Reddy, the learned counsel

appearing for the respondents would submit that there is a

finding by the appellate Court, on the basis of the admissions

made by the defendants, as D.Ws.4 to 8, that the defendants

(appellants herein) had encroached on to the road margin

while constructing their houses/structures. He would draw

the attention of this Court, paragraphs 25 to 55 wherein the

extracts of the said evidence has been set out.

9. Sri M. Santosh Reddy would also rely upon a

judgment of the learned Single Judge of the combined High

Court of Andhra Pradesh reported in Josyula Hanuma

Venkata Rao vs. Nandam Subbarayudu and others.,

2 and

the judgment of another learned Single Judge of the

combined High Court of Andhra Pradesh in Thummalapenta

Seetharamaiah vs. Ulchi Venkateswarlu and Others.,

3 to

contend that no person is entitled to encroach on to any

public road and it would be open to any person to seek relief

against such encroachments by way of seeking the relief of

mandatory injunction for removal of encroachments on the

2

1992 (3) ALT 375

3

2010(6) ALD 495

5

road margin. He would submit that the judgment relied upon

by the learned Senior Counsel arose in the case of a dispute

relating to a private passage whereas the present case arises

on the question of encroachment on to public roads and

public road margin. He would also point out that the learned

judge who had delivered the judgment in the case of

L.Narasimha Reddy vs. L.Yella Reddy had also delivered

the subsequent judgment relied upon by Sri M. Santosh

Reddy in the case of Thummalapenta Seetharamaiah vs.

Ulchi Venkateswarlu and Others., wherein the learned

Single Judge was pleased to hold, following the Full Bench

judgement of the combined High Court in Sataraboina

Someswara Rao vs Sangasetti Tirupathamma and others4,

that any citizen can move the Court for the relief of

mandatory injunction for removal of encroachments on road

margins. He would also draw the attention of this Court to

the paragraph in Sataraboina Someswara Rao vs

Sangasetti Tirupathamma and others case, wherein the

Full Bench had held that—

4

 1989(1) ALT 36

6

“In my opinion, the said principle also involves public

policy. No person can be allowed to occupy a portion of a

public road, a highway or even a public pathway, and

argue that even after his encroachment there is sufficient

space left for public to pass by. He cannot be the judge of

the requirements of the public, nor can he decide for

himself what extent must be left for public use and what

extent must be occupied by him. At this rate, anybody

will be free to occupy a portion of such public streets,

highways and roads with the specious argument that

there is still space left for public to pass by. Slowly these

encroachments may become permanent. It is evident that

such a course cannot be permitted. It is true that Section

39 expressly speaks of discretion in the Court in the

matter of granting a mandatory injunction; but, the said

discretion has to be exercised in accordance with law and

having regard to the facts and circumstances of a given

case. Maybe that granting a mandatory injunction would

result in eviction of the poor people living in the huts, or

the displacement of the school which is said to be

running there for the last several decades; but that can

be taken care of by making appropriate directions.”

10. In these circumstances, this Court would have to

accept the contentions of the learned counsel for the 1st

respondent that there is a clear finding of fact relating to the

encroachment of road margin by the appellants herein and

that a person can always seeks the relief of removal of

encroachments, by way of a mandatory injunction, in case 

7

where the encroachments take place on public roads or

public road margins.

11. Accordingly, this Court does not find any merits

in this Second Appeal and dismissed. No costs.

As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

 ____________________________

R. RAGHUNANDAN RAO, J.

08.08.2023

RJS

8

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

SECOND APPEAL No.275 of 2023

08-08-2023

RJS

Suit for specific performance - respondent terminated the agreement of sale and refund the advance amount due to his personal reasons - Plaintiff claimed that only 370 Sq.Yards avaialbe but not 672 Sq.Yards as mentioned in the agreement of sale and filed suit for specific performance for 370 Sq.Yards- trail court decreed - appeallant court set aside the trial court decree and judgment - SA Burden lies on the plaintiff to prove that the avaialbe extent is only 370 Sq.Yards and not 672 Sq.Yards as mentioned in the agreement of sale. 2023:APHC:25048

Suit for specific performance - respondent terminated the agreement of sale and refund the advance amount due to his personal reasons - Plaintiff claimed that only 370 Sq.Yards avaialbe but not 672 Sq.Yards as mentioned in the agreement of sale and filed suit for specific performance for 370 Sq.Yards- trail court decreed - appeallant court set aside the trial court decree and  judgment - SA

Burden lies on the plaintiff to prove that the avaialbe extent is only 370 Sq.Yards and not 672 Sq.Yards as mentioned in the agreement of sale. 2023:APHC:25048

Held that The agreement of sale stated that the extent of land in the plot was 672 sq yards. The appellant claimed that only 370 sq. yards was  available while the respondent claimed 672 sq. yards was available. The appellant filed a suit for specific performance calling upon the respondent to execute a deed of sale for the said plot by receiving sale consideration for an extent of 370 sq. yards. In such circumstances, the burden of demonstrating that the extent of land available was only 370 sq. yards, falls squarely on the appellant. Such burden had not been discharged by the appellant. The appellant never called upon the respondent to come forward for a joint measurement of the land. Further, the appellant did not demonstrate before the trial Court or the appellate Court that the land available in the plot was only 370 sq. yards and that he was entitled for a deed of sale on that basis. No attempt was made before the trial Court for adducing any evidence in relation to the actual extent of land available on the site. Consequently, it cannot be said that the appellant was ready and willing to perform her part of the agreement of sale, as the said offer is conditional on rejection of the extent of land available. 2023:APHC:25048

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.284 of 2023

ALAKA SATYAVATHI
Versus
MUDDIREDDIPALLI ANJANAPPA

JUDGMENT:

Heard Sri M.P.V.N.V. Sastry, learned counsel for the appellant.

2. The appellant is the plaintiff in the suit. The appellant had

entered into an agreement of sale with the respondent on 13.09.2011 for

purchase of a plot of land, situated in Eluru, said to be admeasuring 672

Sq. Yds., belonging to the respondent. It was to be purchased by the

appellant at the rate of Rs.2300/- per sq. yard. An advance of

Rs.1,00,000/- was paid. The agreement also stipulated that the appellant

was to keep the sale price ready within one month and 15 days from the

date of agreement and inform of the respondent. Upon such information,

the respondent was to get the plot of land measured after excluding

certain crosses, which were on the plot, and receive the sale consideration

at the rate of Rs.2300/- per sq. yard for the land which was actually

available on the site. The respondent was to execute and register

necessary deed of sale in the registrar office upon receipt of the sale

consideration.

3. On 03.10.2011, the respondent sent a letter to the appellant

stating that he was unable to sell the plot of land to the appellant due to

family reasons and enclosed a cheque for Rs.1,00,000/- towards

repayment of the advance taken by him. In reply to this letter, the 

RRR,J.

S.A.No.284 of 2023

2

appellant got a legal notice dated 13.10.2011 issued to the respondent,

stating that the respondent had got the site measured with the help of a

private surveyor, and this survey had revealed that the actual extent of

the land available for sale is only 370 sq. yards, after excluding the

crosses on all sides of the plot. The appellant also took the stand that

refusal of the respondent to go through with the sale transaction and

returning the advance amount was not permissible and was not

acceptable to the appellant.

4. After setting out her position, the appellant called upon the

respondent to be present on 15.10.2011 at the registrar office, Vatluru,

for receiving the sale consideration calculated on the basis of the extent of

land available being 370 sq. yards and to register necessary deed of sale

failing which the appellant would be constrained to file a suit for specific

performance of the agreement of sale.

5. In reply to this notice, the respondent stated that he had got

the land surveyed by the Mandal Surveyor and as per the said survey an

extent of 612 sq. yards is available in the plot of land for sale, while 60 sq.

yards had been given to the respondent for road widening; physical

possession of the land had never been given to the appellant; the

agreement of sale was signed by the respondent at his residence at

Gudimalkapur at Mehadipatnam, Hyderabad as the agreement of sale had

been brought to Hyderabad by the husband of the appellant.

RRR,J.

S.A.No.284 of 2023

3

6. The respondent took objection to the action of the appellant

in cutting the trees and bushes on the land and demolition of the cement

pillars which were erected by the respondent. The respondent also denied

the allegation of the appellant that the measurement of the site was done

jointly by the appellant and respondent with the help of a private surveyor

as the respondent had not visited Eluru from the date of the signing of

the agreement of sale.

7. After receipt of the said reply notice, the appellant filed

O.S.No.405 of 2011 before the Senior Civil Judge, Eluru for specific

performance of the agreement of sale, dated 13.09.2011. The respondent

had entered appearance and filed his written statement. After both sides

had adduced their evidence in the trial and after hearing both sides, the

trial Court allowed the suit by judgment and decree dated 05.03.2018.

Aggrieved by this judgment and decree, the respondent moved the

II Additional District Judge, Eluru, by way of A.S.No.45 of 2018. This

appeal was allowed by the appellate Court by judgment and Decree dated

23.02.2023. Aggrieved by the said judgment and decree, the appellant

has moved this Court by way of the present second appeal.

8. The trial Court accepted the contention of the appellant that

the termination of agreement by the respondent was untenable and that

the respondent was liable to execute necessary deed of sale after

receiving the sale consideration calculated on the basis of the extent of 

RRR,J.

S.A.No.284 of 2023

4

land being 370 sq. yards, as the appellant was always ready and willing to

perform her part of promise made in the agreement of sale.

9. The appellate Court took the view that in the absence of any

cogent evidence or proof that the actual extent of land available on the

site is only 370 sq. yards as opposed to the extent of 672 sq. yards

mentioned in the agreement of sale, the appellant was not entitled to

contend that only 370 sq. yards of land was available and to offer the sale

consideration on that basis. The appellate Court recorded that, as per the

pleadings of the appellant, the site was measured by the respondent in

the presence of the appellant and the actual extent of land was fixed at

370 sq. yards. The appellate Court also recorded that the legal notice

dated 10.10.2011, issued on behalf of the appellant, marked as Ex.A.4,

states that the appellant had measured the schedule land in the presence

of the respondent through a private surveyor. The appellate Court, while

holding that there was a contradiction in the version of the appellant, had

also taken the view that neither of these facts was elicited in the crossexamination of the witnesses of the respondent.

10. The appellate Court, thereupon, allowed the appeal on both

these grounds by holding that the appellant was not entitled for the relief

of specific performance of the agreement of sale.

11. Sri M.P.V.N.V. Sastry, learned counsel for the appellant

would argue that the burden of demonstrating the alleged shortfall in the 

RRR,J.

S.A.No.284 of 2023

5

extent of land was actually on the respondent and that the said burden

had not been discharged by the respondent in any manner as there was

no pleading on this issue. He further submitted that the appellate Court

ought to have appreciated that the respondent had initially taken the

stand that he was rescinding the agreement due to family reasons, while

this stand changed during the cross-examination that the respondent

stated that he had refused to execute the deed of sale on account of the

objections raised by the appellant in relation to the extent of land

available. He would submit that such a discrepancy is sufficient to show

that there was no valid reasons for refusal to execute necessary deed of

sale and the appellate Court instead of considering this issue, had gone

into the question of whether the appellant is entitled to specific

performance on account of the difference in extent of land.

12. A perusal of the pleadings and the evidence show that the

agreement required the appellant to indicate that the sale consideration

was made ready upon which the plot was to be measured for fixing the

actual sale consideration payable. This stage never occurred. The

respondent sent a letter dated 03.10.2011 for cancellation of the

agreement of sale, while the appellant, in reply to this letter, called upon

the respondent to execute sale deed for an extent of 370 sq. yards by

accepting sale consideration for that extent of land.

13. The agreement of sale stated that the extent of land in the

plot was 672 sq yards. The appellant claimed that only 370 sq. yards was 

RRR,J.

S.A.No.284 of 2023

6

available while the respondent claimed 672 sq. yards was available. The

appellant filed a suit for specific performance calling upon the respondent

to execute a deed of sale for the said plot by receiving sale consideration

for an extent of 370 sq. yards. In such circumstances, the burden of

demonstrating that the extent of land available was only 370 sq. yards,

falls squarely on the appellant. Such burden had not been discharged by

the appellant. The appellant never called upon the respondent to come

forward for a joint measurement of the land. Further, the appellant did not

demonstrate before the trial Court or the appellate Court that the land

available in the plot was only 370 sq. yards and that he was entitled for a

deed of sale on that basis. No attempt was made before the trial Court for

adducing any evidence in relation to the actual extent of land available on

the site. Consequently, it cannot be said that the appellant was ready and

willing to perform her part of the agreement of sale, as the said offer is

conditional on rejection of the extent of land available.

14. In the said circumstances, the finding of the appellate Court,

that the specific performance of the agreement cannot be ordered on

account of the appellant failing to demonstrate the extent of land, is in

accordance with law.

15. This Court does not find any question of law that needs to

be answered by this Court. In any event, this Court does not find any

defect or shortcoming in the judgment and decree of the appellate Court.

RRR,J.

S.A.No.284 of 2023

7

16. For all the aforesaid reasons, the second appeal is dismissed.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

__________________________

R. RAGHUNANDAN RAO, J.

______ July, 2023

Js.

RRR,J.

S.A.No.284 of 2023

8

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.284 of 2023

_____ July, 2023

Js.

“Whether a contemporary document - Ex.A10, which is a certified copy of the sale deed, can be used for comparing the signatures of the defendant on Exs.A1, A2, A3 to A8?” - 2023:APHC:21250

“Whether a contemporary document - Ex.A10, which is a certified copy of the sale deed, can be used for comparing the signatures of the defendant on Exs.A1, A2, A3 to A8?” - 2023:APHC:21250

Suit for recovery of amount - forgery plea taken by defendant - suit decreed - the defendant seeks to challenge the said concurrent findings of the two Courts on the ground that the signature of the defendant on the promissory note is compared with the signature on the certified copy of the sale deed, which is Ex.A10, and the finding of the trial Court is unsustainable under law.

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

THE HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH R0Y

Second Appeal No. 292 of 2023

THORATI VASANTHA RAO
Versus
PADALA NARAYANAMMA

JUDGMENT:

This Second Appeal is filed against the concurrent findings

recorded by the trial Court and the first appellate Court.

2) The Suit is filed for recovery of money on the foot of a

promissory note against the appellant, who is the defendant,

who has taken the plea of forgery of the suit promissory note.

The trial Court after considering the evidence that is adduced,

including the evidence of handwriting expert, held that the

defendant has signed the promissory note and executed the

same and that he is liable to pay the Suit amount. The first

appellate Court also on proper appreciation of evidence on

record, recorded a finding that the defendant has executed the

suit promissory note and that he is liable to pay the Suit

amount.

3) Now, the defendant seeks to challenge the said concurrent

findings of the two Courts on the ground that the signature of

the defendant on the promissory note is compared with the

signature on the certified copy of the sale deed, which is Ex.A10,

and the finding of the trial Court is unsustainable under law. 

2

CMR,J.

S.A.No.292 of 2023

Therefore, alleging that a substantial question of law involved in

this regard is whether the signature on the disputed document

can be compared with the signature on the certified copy of a

sale deed, the present Second Appeal is filed.

4) At the time of hearing, to a pointed question as to what is

the substantial question of law that is involved in this Second

Appeal filed against the concurrent findings of the two Courts,

learned counsel for the appellant would submit that the only

substantial question of law involved in this Second Appeal is:

“Whether a contemporary document - Ex.A10, which is a

certified copy of the sale deed, can be used for comparing the

signatures of the defendant on Exs.A1, A2, A3 to A8?”

5) However, when the Court has specifically directed him to

show the findings of both the trial Court and the first appellate

Court given to that effect in the two judgments alleging that the

signature of the defendant is proved on the disputed documents

on the basis of comparison made with the signature on Ex.A10,

certified copy of the sale deed, he failed to show the said findings

either in the judgement of the trial Court or in the judgement of

the first appellate Court.

3

CMR,J.

S.A.No.292 of 2023

6) Therefore, this Court absolutely do not find any

substantial question of law in this Second Appeal warranting

interference of this Court with the concurrent findings recorded

by the trial Court and the first appellate Court. The trial Court

as a first fact finding Court and the first appellate Court as a

second fact finding Court, have clearly recorded a finding that

the defendant has executed the disputed documents on the

basis of the evidence on record and on proper appreciation of the

same and held that he is liable to pay the Suit amount.

7) As the appellant miserably failed to substantiate that any

substantial question of law is involved in this Second Appeal

warranting interference of this Court with the concurrent

findings of the two fact finding Courts, this Second Appeal is

dismissed at the admission stage. No costs.

As a sequel, miscellaneous applications, pending if any,

shall also stand closed.

________________________________________________

JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 28-06-2023.

cs

Whether Even if the property is treated as coparcenary property, the plaintiff, being the wife of a deceased coparcener of the third generation, does not have any right to claim partition as her father-in-law, who is the 2 nd generation coparcener, is still alive and his share has not yet been crystallized. ? -2023:APHC:32588

Whether Even if the property is treated as coparcenary property, the plaintiff, being the wife of a deceased coparcener of the third generation, does not have any right to claim partition as her father-in-law, who is the 2 nd generation coparcener, is still alive and his share has not yet been crystallized. ?

held that The second incident of Mitakshara law enumerated above, states that the descendents up to the third generation can, at any time, claim partition. In the present case, the 1st defendant is the first generation, the 2nd defendant is the second generation and late Sri Pulla Rao and defendants 3 and 5 to 7 are the third generation of the coparcenary. There is no impediment for late Sri Pulla Rao to make a  claim for partition nor any impediment for the plaintiff to make such a claim. 

whether the properties transferred under the deeds of settlement executed by the 1st defendant cannot be included in the suit schedule as the deeds of settlement have not been challenged?

held that the deeds of settlement are void as they have been executed by a person, who does not have the right or authority to execute such deeds and consequently, no declaration is necessary in this regard, especially since the plaintiff is not a party to the documents.

suit for partition - 

 Both the trial Court and the appellate Court held that the 3rd defendant in his deposition, as DW.1, had admitted that there was a joint family and the suit schedule properties are coparcenary properties. On this basis, both the Courts had held that the suit schedule properties are joint family properties in which the plaintiff, as the widow and sole legal heir of her husband late Sri Pulla Rao, would be entitled to have a share. On question of settlement deeds, both the Courts below held that in view of the above finding, the 1st defendant did not have any right or authority to execute any deeds of settlement and the same are void. The Courts below, on the ground that the deeds of settlement are void, had held that there was no need for the plaintiff to seek any further declaration that the deeds are void or that the deeds of settlement do not affect the rights of the plaintiff over the suit schedule property.  2023:APHC:32588

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.318 of 2023

SRI KEDASU VENKATA SRINIVAS
Versus

SMT. KEDASU DEVI SUBBALSKHMI

JUDGMENT:

Heard Sri K.A. Narasimham, learned counsel appearing for Sri V. Sai

Kumar, learned counsel appearing for the appellants and Sri M.R.S.

Srinivas learned counsel appearing for the 1st respondent/plaintiff.

2. Defendants 3 and 6 in the original suit are the appellants

herein. For ease of reference, the parties are being referred to as they

have been arrayed in the suit.

3. The 1st defendant is the common ancestor. He was married

to the 9th defendant. The 1st defendant had two children, viz., the 2nd

defendant-son and the 8th defendant-daughter. The 2nd defendant had

two sons and three daughters, viz., the 3

rd defendant and late Sri Pulla

Rao, who is the husband of the plaintiff, who are sons; and defendants 5

to 7, who are the daughters of the 2nd defendant. The 4th defendant is the

son of the 3rd defendant. The plaintiff is the wife of late Sri Pulla Rao, who

was the other son of the 2nd defendant. In addition to this, the plaintiff is

also the daughter of the 8th defendant. The 1st defendant, 2nd defendant

and 9th defendant have passed away. The wife of the 2nd defendant had

also died and the date of her death is not available.

4. It is the case of the plaintiff that she was married to her first

cousin, i.e., late Sri Pulla Rao. She had given birth to a daughter on 

RRR,J.

S.A.No.318 of 2023

2

16.05.1990, who unfortunately passed away within three months after her

birth. Late Sri Pulla Rao, the husband of the plaintiff passed away

intestate on 11.05.2003 leaving the plaintiff as his only legal heir. The

plaintiff is said to have continued to reside in the matrimonial home along

with defendants 1 to 4 and 9 after the death of her husband. However,

the 2nd defendant started behaving badly with her and quarrelled with her

and demanded her to go to her parents house stating that she had no

share in the plaint schedule property. The plaintiff also came to know that

defendants 2 and 3 had made the 1st defendant to execute certain

settlement deeds in the names of defendants 3 and 4 in respect of some

of the plaint schedule properties as if they are his exclusive and absolute

properties. Having come to know of these facts, the plaintiff had filed

O.S.No.226 of 2005 before the Principal Senior Civil Judge, Kovvur for

partition of the suit schedule properties on the ground that they were joint

family properties on which every coparcener had a share and that she

would be entitled to a separate share amounting to 1/3 in the properties

as the legal heir of her husband late Sri Pulla Rao.

7. Defendants 8 and 9 remained ex-parte. The written

statement filed by the 1st defendant was adopted by defendants 2 to 7.

the case of the 1st defendant was that the properties shown in the suit

schedule were his self acquired properties and were not amenable to

partition. The 1st defendant also stated that one of the properties had

been purchased by him along with the daughter-in-law of his uncle and 

RRR,J.

S.A.No.318 of 2023

3

the said daughter-in-law had relinquished her share in favour of the 1st

defendant by receiving necessary consideration.

8. After trial and after hearing the submissions on all sides, the

trial Court passed a preliminary decree ordering partition of the plaint

schedule properties into 12 equal shares with the plaintiff being given one

share out of the 12 equal shares. Defendants 3 and 5 and 7 were also

declared to have one share. The 2

nd defendant being entitled to 4 shares

and the 8th defendant being entitled to 3 shares.

9. Aggrieved by this preliminary decree dated 17.12.2017,

defendants 2 to 7 moved A.S.No.34 of 2017 before the IX Additional

District Judge, Kovvur. This appeal was dismissed on 18.01.2023.

Aggrieved by the said order of dismissal, defendants 3 and 6 have moved

this Court by way of the present second appeal.

10. The defence raised before the trial Court and the appellate

Court were that the suit schedule property was the self acquired property

of the 1

st defendant; the 1st defendant, during his life time, had settled

northern half of item No.4 and Item No.1 in favour of the 3rd defendant

and items 2 and 3 in favour of the 4th defendant under two separate

registered settlement deeds dated 06.09.2005 and the suit would not be

maintainable against the said properties because the plaintiff had not

chosen to challenge these two deeds of settlement.

RRR,J.

S.A.No.318 of 2023

4

11. The plaintiff disputed the contention of the defendants that

the suit schedule property was the self acquired property of the 1st

defendant. She also contended, by way of a rejoinder, that the said deeds

of settlement are void as the 1st defendant had no right or title to execute

any settlement deeds and in any event these settlement deeds are hit by

the doctrine of lis pendens.

12. Both the trial Court and the appellate Court held that the 3rd

defendant in his deposition, as DW.1, had admitted that there was a joint

family and the suit schedule properties are coparcenary properties. On this

basis, both the Courts had held that the suit schedule properties are joint

family properties in which the plaintiff, as the widow and sole legal heir of

her husband late Sri Pulla Rao, would be entitled to have a share. On

question of settlement deeds, both the Courts below held that in view of

the above finding, the 1st defendant did not have any right or authority to

execute any deeds of settlement and the same are void. The Courts

below, on the ground that the deeds of settlement are void, had held that

there was no need for the plaintiff to seek any further declaration that the

deeds are void or that the deeds of settlement do not affect the rights of

the plaintiff over the suit schedule property. Both the Courts below also

held that the deeds of settlement were not proved, as the attestors to the

said documents were not examined and no statement was made that the

attestors are not alive or available to be examined.

RRR,J.

S.A.No.318 of 2023

5

13. Sri K.A. Narasimham, learned counsel appearing for the

appellants raised the following grounds of appeal as the questions of law.

1. The plaintiff could not have claimed any partition as her father-inlaw, viz., the 2nd defendant, was alive at the time of filing of the

suit and she cannot claim any share till the share of the 2nd

defendant is crystallized.

2. The wife of the 2nd defendant, who is the mother-in-law, of the

plaintiff, was also entitled to a share along with the plaintiff and she

was not arrayed as a party which is fatal to the case of the plaintiff.

3. The calculation of shares made by the trial Court and affirmed by

the appellate Court is wrong as the share of the mother-in-law of

the plaintiff was not taken into account.

4. Late Sri Pulla Rao, who is the grand-son of the 2

nd defendant, could

not have claimed partition during the life time of his father-the 2nd

defendant, and as such the plaintiff as the legal heir of late Sri Pulla

Rao cannot raise such a claim.

5. The deeds of settlement, under which the 1st defendant had

transferred certain properties to defendants 3 and 4 have not been

challenged and the claim of the plaintiff, to the extent of these

properties, would have to be negatived, as the deeds of settlement

have not been set aside.

RRR,J.

S.A.No.318 of 2023

6

6. The burden of proving that there is a Hindu Undivided Family (HUF)

and that the coparcenary of this family has any property, is on the

plaintiff and the same has not been discharged.

14. Sri K.A. Narasimham, learned counsel for the appellants

relies upon the judgment of the learned Single Judge of the erstwhile High

Court of Andhra Pradesh in Sundaragiri Ramulu vs. Sundaragiri Siddi

Rajaiah1

. He also relied upon the a judgment of the Hon‘ble Supreme

Court in Shasidhar and Ors., vs. Smt. Ashwini Uma mathad and

Anr.,

2

and Vineeta Sharma vs. Rakesh Sharma and Ors.

3

.

15. Sri M.R.S. Srinivas, learned counsel appearing for the 1st

respondent/plaintiff relying upon the judgment of the Hon‘ble Supreme

Court in State Bank of India vs. Ghamandi Ram4

, would contend that

there is no bar for any member of the coparcenary to claim partition and

that there is no specific bar that such claim cannot be made while the

members of the preceding generation of the joint family are alive. He

would further contend that the judgment of the Hon‘ble Supreme Curt in

Uttam vs. Saubhag Sing and Ors.,5

relied upon by Sri K.A.

Narasimham would not be applicable to the present case.

Consideration of the Court:

1

2008 (6) ALT 314 (S.B.)

2

2015 (3) ALT (SC0 7 (D.B.)

3

(2020) 9 SCC 1 : 2020 SCC OnLine SC 641

4

AIR 1969 SC 1330

5

(2016) 4 SCC 68

RRR,J.

S.A.No.318 of 2023

7

16. The grounds raised by Sri K.A. Narasimham can be

summarised as follows:

1) Whether the suit schedule properties are amenable to

partition as coparcenary property. The subsidiary grounds raised on this

question are – (i) the burden of proving, that the property in question is

coparcenary property, is on the plaintiff which has not been discharged;

(ii) the details of the acquisition of property, given by the 1st defendant,

makes it clear that all the suit properties are self acquired properties.

2) Even if the property is treated as coparcenary property, the

plaintiff, being the wife of a deceased coparcener of the third generation,

does not have any right to claim partition as her father-in-law, who is the

2

nd generation coparcener, is still alive and his share has not yet been

crystallized.

3) The 1st defendant, had already transferred some of the

properties enumerated in the suit schedule and these properties cannot be

partitioned as the plaintiff has not chosen to challenge the validity of these

deeds of settlement.

Ground No.1:

17. The trial Court and the appellate Court have held that the

properties are coparcenary properties on the basis of the admissions made

by the 3rd defendant, who had examined himself as DW.1. Apart from this,

both the courts had also held that the description of the source of the 

RRR,J.

S.A.No.318 of 2023

8

property, in the revenue records, shows that this is ancestral property and

consequently would have to be treated as coparcenary property. This

Court has not been shown anything to arrive at any contrary conclusion.

In any event, these are findings of fact, which are plausible and cannot be

disturbed by this Court. In that view of the matter, the burden of proving

that the suit schedule property is coparcenary property has been

discharged by the plaintiff.

Ground No.2:

18. Sri K.A. Narasimham, learned counsel appearing for the

appellants had contended that neither late Sri Pulla Rao nor the plaintiff as

his heir can claim partition of the coparcenary property as late Sri Pulla

Rao would be the third generation o f the member of the coparcenary and

would not be entitled to claim partition and secondly neither the plaintiff

nor the legal heir of late Sri Pulla Rao claim such partition.

19. Hon‘ble Supreme Court in State Bank of India vs.

Ghammandi Ram, had set out , in paragraph 7 of the judgment, the law

in relation to the property of Hindu Undivided Family, in the following

manner, –

According to the Mitakshara School of Hindu Law all the

property of a Hindu joint family is held in collective ownership

by all the coparceners in a quasi-corporate capacity. The

textual authority of the Mitakshara lays down in express

terms that the joint family property is held in trust for the

joint family members then living and thereafter to be born 

RRR,J.

S.A.No.318 of 2023

9

(see Mitakshara, Chapter I, 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal

male descendants of a person up to the third generation,

acquire on birth ownership in the ancestral properties of such

person; secondly, that such descendants can at any time

work out their rights by asking for partition; thirdly, that till

partition each member has got ownership extending over the

entire property, conjointly with the rest; fourthly, that as a

result of such co-ownership the possession and enjoyment of

the properties is common; fifthly, that no alienation of the

property is possible unless it be for necessity, without the

concurrence of the coparceners, and sixthly, that the interest

of a deceased member lapses on his death to the survivors. A

coparcenary under the Mitakshara School is a creature of law

and cannot arise by act of parties except in so far that on

adoption the adopted son becomes a co-parcener with his

adoptive father as regards the ancestral properties of the

latter. In Sundaranam Maistri v. Harasimbhulu Maistri [ILR 25

Mad 149 at 154]

Mr Justice Bhashyam Ayyangar stated the legal position

thus:

―The Mitakshara doctrine of joint family property is

founded upon the existence of an undivided family, as a

corporate body (Gan Savant Bal Savant v. Narayan Bhond

Savant) [ILR 7 Bom 467] and Mayne's Hindu Law and Usage,

(6th Edn para 270) and the possession of property by such

corporate body. The first requisite therefore is the family unit;

and the possession by it of property is the second requisite.

For the present purpose, female members of the family may

be left out of consideration and the conception of a Hindu

family is a common male ancestor with his lineal descendants

in the male line, and so long as that family is in its normal

condition viz. the undivided state — it forms a corporate 

RRR,J.

S.A.No.318 of 2023

10

body. Such corporate body, with its heritage, is purely a

creature of law and cannot be created by act of parties, save

in so far that, by adoption, a stranger may be affiliated as a

member of that corporate family.‖

Adverting to the nature of the property owned by such

a family the learned Judge proceeded to state:

―As regards the property of such family, the

‗unobstructed heritage‘ devolving on such family, with its

accretions, is owned by the family, as a corporate body, and

one or more branches of that family, each forming a

corporate body within a larger corporate body, may possess

separate ‗unobstructed heritage‘ which, with its accretions,

may be exclusively owned by such branch as a corporate

body.‖

Having regard to the juristic nature of the Hindu joint

family, according to the doctrine of Mitakshara, we are of the

opinion that the Hindu joint family firm of Ghamandi Ram

Gurbax Rai cannot be treated as an ‗individual‘ within the

meaning of the notification of the Pakistan Government,

dated 19th February, 1952, but the said firm must be treated

as ‗a body of individuals whether incorporated or not‘ within

the meaning of that notification.‖

20 The second incident of Mitakshara law enumerated above,

states that the descendents up to the third generation can, at any time,

claim partition. In the present case, the 1st defendant is the first

generation, the 2nd defendant is the second generation and late Sri Pulla

Rao and defendants 3 and 5 to 7 are the third generation of the

coparcenary. There is no impediment for late Sri Pulla Rao to make a 

RRR,J.

S.A.No.318 of 2023

11

claim for partition nor any impediment for the plaintiff to make such a

claim.

21. Sri K.A. Narasimham, learned counsel for the appellant had

contended that the mother-in-law of the plaintiff had not been included in

the array of parties and she would also have a share in view of the demise

of the 2nd defendant. It is contended that the absence of the mother-inlaw of the plaintiff, in the suit, is fatal to the maintainability of the suit.

This contention has not been raised either before the trial Court or before

the first appellate Court and has been raised for the first time before this

Court. A perusal of the pleadings and the orders of the trial Court and the

appellate Court would show that the mother-in-law of the plaintiff had

passed away and no date of her passing away has been set out anywhere.

In view of the absence of any pleading about the necessity of including

the mother-in-law of the plaintiff, this Court cannot countenance such an

argument at this stage. It is also not clear as to whether the mother-inlaw of the plaintiff had passed away before the filing of the suit or after

the filing of the suit.

22. The contention of the defendants that the properties

transferred under the deeds of settlement executed by the 1st defendant

cannot be included in the suit schedule as the deeds of settlement have

not been challenged, has been negatived by both the trial Court and the

first appellate Court. This contention was negatived on two grounds –

firstly, the deeds of settlement have not been proved in accordance with 

RRR,J.

S.A.No.318 of 2023

12

law and cannot be taken into account; and secondly, the deeds of

settlement are void as they have been executed by a person, who does

not have the right or authority to execute such deeds and consequently,

no declaration is necessary in this regard, especially since the plaintiff is

not a party to the documents. This Court does not find any reason to

differ with the said findings of the trial Court and the first appellate Court.

23. For all the aforesaid reasons, there are no grounds for this

Court to interfere, and further, there are no question of law, much less

substantial questions of law, requiring any adjudication by this Court.

24. Accordingly, the second appeal is dismissed. There shall be

no order as to costs. As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

__________________________

R. RAGHUNANDAN RAO, J.

12th September, 2023

Js.

RRR,J.

S.A.No.318 of 2023

13

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

Second Appeal No.318 of 2023

12th September, 2023

Js.