Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.8548 of 2009
P. ISHWARI BAI
.... Appellant(s)
Versus
ANJANI BAI & ANR.
…. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The Appellant is the 1st Plaintiff in the suit and the
Respondent No.1 is Defendant No.1. They are referred to as
arrayed in the suit for convenience.
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2. The 1 Plaintiff along with her husband Narsoji filed a
suit for declaration of title and for recovery of possession.
The suit was decreed by a judgement dated 25.04.1986
passed by the Additional Chief Judge, City Civil Court,
Hyderabad, declaring the title of the Plaintiffs to the suit
house and directing Defendant Nos.1 and 2 to deliver the
vacant possession of the suit house. A learned Single Judge
of the High Court of Andhra Pradesh reversed the judgement
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of the Trial Court and dismissed the suit. The Division Bench
of the High Court dismissed the LPA filed by the Plaintiffs on
05.08.2008 giving rise to this Appeal.
3. It is relevant to mention that Plaintiff No.2 Narsoji died
on 25.07.2008 during the pendency of the LPA before the
High Court. Leave was granted to file Appeal by this Court
on 14.02.2009. During the pendency of the Appeal in this
Court, Defendant No.2 died in the year 2013. On
04.07.2014, Plaintiff No.1 filed an application for bringing the
legal representatives of deceased Defendant No.2 on record.
It is to be noted that Defendant No.1 is the wife of Defendant
No.2. The Registry of this Court pointed out certain defects
in the application for bringing the remaining legal
representatives of the deceased Defendant No.2 on record.
Due to the default of not curing the defects pointed out by
the Registry, Defendant No.2 was deleted from the array of
parties by an order dated 28.10.2015. When the matter was
listed for hearing on 23.10.2019, learned counsel for
Defendant No.1 sought dismissal of the appeal as not being
maintainable in view of the deletion of Defendant No. 2 from
the array of parties. Thereafter, an application was filed by
the Plaintiff for setting aside the abatement and for
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restoration by condoning the delay in filing the application, in
which notice was issued.
4. During the course of hearing of the appeal, Ms. Prerna
Singh learned counsel for Defendant No.1 took a preliminary
objection to the maintainability of the appeal in view of the
abatement of the appeal insofar as Defendant No.2 is
concerned. She relied upon the judgement of this Court in
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Goli Vijayalakshmi & Ors. v Yendru Sathiraju & Ors. to
argue that there cannot be contradictory decrees in the
event of Plaintiff succeeding in the appeal.
5. Mr. A.T.M. Rangaramanujam, learned Senior Counsel
appearing for the Plaintiff countered the said submission and
argued that in terms of Order XLI Rule 4 of the Code of Civil
Procedure, 1908 the Appeal is still maintainable in spite of
death of one of the Defendants. He relied upon the
judgement of this Court in Mahabir Prasad v. Jage Ram &
2
Ors. in which it was held as follows: -
“Where in a proceeding a party dies and one of the legal
representatives is already on the record in another capacity,
it is only necessary that he should be described by an
appropriate application made in that behalf that he is also on
the record, as an heir and legal representative. Even if there
1 (2019) 11 SCC 352
2 (1971) 1 SCC 265
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are other heirs and legal representatives and no application
for impleading them is made within the period of limitation
prescribed by the Limitation Act, the proceeding will not
abate.”
6. As stated earlier, Defendant No.1 is the wife of
Defendant No.2, who died during the pendency of this
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appeal. As the legal representative of the 2 Defendant is on
record, we propose to hear this Appeal on merits.
7. The Plaintiffs’ case before the Civil Court is that the suit
property which is the house in survey No. 134, Malakpet,
Hyderabad was purchased from Defendant No.4. It was
averred in the plaint that Defendants No.1 and 2 trespassed
on the property in September, 1975. Defendants No. 1 & 2
denied the averments made in the plaint. According to
Defendants No.1 & 2, Mrs. Akbarunnissa Begum was the
owner of Survey No.108. She sold 490 sq. yards to Mr. B. N.
Chowlkar through a registered sale deed dated 26.07.1960.
Mr. B. N. Chowlkar sold the plot to Mrs. Pullasetty Maniamma
by a registered sale deed dated 21.08.1961. Defendant No.1
purchased the said plot on 18.09.1974 and a registered sale
deed was executed in her favour on 03.09.1975.
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8. The Trial Court held that Defendant No.4 had title to the
said house. The Plaintiff purchased the property from
Defendants No.3 and 4. Defendant Nos.1 and 2 were
declared to be trespassers. In the appeal filed by Defendants
No. 1 and 2, a learned Single Judge of the High Court allowed
the application filed under Order XLI Rule 27 and accepted
the judgement dated 18.06.1987 in CCCA No.146 of 1979 as
additional evidence and marked it as Exhibit B-14. CCCA
No.146 of 1979 arose out of a judgment dated 30.12.1978 in
O.S. No.22 of 1970 on the file of the Additional Chief Judge,
City Civil Court, Hyderabad. The learned Single Judge held
that the suit house is not in Plot No.14 forming part of Survey
No.134 at Malakpet, Hyderabad but it is part of plot No. 213-
A forming part of Survey No. 108 at Malakpet as pleaded by
Defendant Nos. 1 & 2. The reasons given by the High Court
for such conclusion is that Defendants No.3 and 4, the
vendors of the Plaintiff were not examined. The evidence of
the son of Defendant No.4 was scrutinised by the learned
Single Judge and found him to be unreliable for the following
reasons: -
a) He did not know the contents of the power of attorney
though he executed the sale deed in favour of the
Plaintiff as attorney to his father, Defendant No.4.
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b) He did not have any clue as to when his father made an
oral gift of the suit house to Defendant No.3, and
c) He did not have any knowledge about the house
number of the suit house.
9. On the basis of the findings in an earlier judgement of
the civil Court (Exhibit B-8), the learned Single Judge held
that the son of Defendant No.4 used to indulge in speculative
litigation claiming property worth lakhs of Rupees by filing
suit as an indigent person. The evidence of PW-2 and PW-4
were also examined by the learned Single Judge to hold that
it was not of much help to the Plaintiff. One strong
circumstance, which was noted by the learned Single Judge is
Exhibit A-1 in which it was mentioned that Defendant No.4
conveyed the suit premises in favour of Defendant No.3 by
way of oral gift but the said recital was found struck off and
initialled by Defendant No.3. The relationship, if any
between Defendants No.3 and 4 was not proved. The
learned Single Judge of the High Court disbelieved the
averments of the Plaintiff that Defendant No.4 gifted valuable
land measuring 490 sq. yards in Malakpet to Defendant No.3.
Finally, the learned Single Judge held that the Plaintiff failed
to establish her title over the suit house and possession of
the same from 07.11.1974.
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10. A Division Bench of the High Court upheld the
judgement of the learned Single Judge and held that the suit
plot is not forming part of plot in new Survey No.134
corresponding to old Survey No. 107 as pleaded by the
Plaintiffs.
11. The main contention of the learned Senior Counsel for
the Plaintiff is that the application filed under Order XLI Rule
27 by Defendant Nos. 1 and 2 was wrongly allowed by the
learned Single Judge. The application filed under Order XLI
Rule 27 by Defendant Nos. 1 and 2 was for placing a
judgement of the High Court in CCCA No.146 of 1979 dated
18.06.1987 on record. CCCA No. 146 of 1979 arose out of the
judgment dated 30.12.1978 in O.S. No.22 of 1970, which was
not a part of the record in the Civil Court. No prejudice is
caused to the Plaintiff by the judgment of the Appellate Court
in CCCA No. 146 of 1979 being permitted to be adduced as
additional evidence in the appeal.
12. We do not find any substance in the submission made
by Mr. A.T.M. Rangaramanujam, learned Senior Counsel for
the Plaintiff that the High Court committed an error in setting
aside the judgement of the Trial Court. We are in agreement
with the well-considered judgement of the High Court in
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which there is a detailed discussion of all the issues. The
High Court thoroughly discussed the entire evidence to come
to a conclusion that the Plaintiff has not made out any case
for declaration of title over the disputed property in her
favour. The judgement of the learned Single Judge was
upheld by the Division Bench of the High Court on
appreciation of the evidence, with which we agree.
Accordingly, the Appeal is dismissed.
..............................J.
[L. NAGESWARA RAO]
............................J.
[B. R. GAVAI]
New Delhi,
September 01, 2021.
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