KALINGA KANNA ALIAS KALI KONNA Vs. GOLLAPALLI APPALASWAMY

JUDGEMENT

(1.) The unsuccessful plaintiff, aggrieved by the reversing Judgment and decree had preferred the present Second Appeal, raising the following substantial questions of law:

(2.) The suit O.S.No.37/80 on the file of District Munsif, Palasa is one for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property and for costs of the suit. The 1st plaintiff died and the 2nd plaintiff is prosecuting the litigation. It is a case where the ownership is not in dispute. The stand taken by the plaintiffs is that they have been in possession and enjoyment of the plaint schedule property as on the date of the institution of the suit whereas the defendants have taken a stand that they have been the cultivating tenants and have been in possession and enjoyment of the plaint schedule property as such and hence the relief of permanent injunction cannot be granted. The Court of first instance after recording of evidence of P.W.1, the G.P.A. holder of the 2nd plaintiff, and P.W.2 and also D.W.1 and D.W.2 and after marking Exs.A-1 to A-5 and Exs.B-1 to B-26, and on appreciation of both the oral and documentary evidence had arrived at the conclusion that the defendants miserably failed in establishing that they are the cultivating tenants and one over-all consideration of the entire material placed before it, the Court of first instance came to the conclusion that the plaintiffs had been in possession and enjoyment of the plaint schedule property as on the date of the suit and accordingly decreed the suit with costs as prayed for. The defendants, aggrieved by the same, had preferred A.S.No.31/87 on the file of Subordinate Judge, Sompeta, and inasmuch as the 3rd appellant therein died appellants 7 to 14 therein were added as legal representatives of deceased 3rd appellant therein, in I.A.No.212/91 by the order dated 4-8-1992. The appellate Court after framing the points for consideration had arrived at the conclusion that the Court had got jurisdiction to try the suit, but however reversed the Judgment and decree of the Court of first instance holding that the appellants therein are the cultivating tenants as pleaded by them and aggrieved by the said Judgment and decree, the 2nd plaintiff had preferred the present Second Appeal.

(3.) Sri Subba Reddy, the learned counsel representing the appellant/2nd plaintiff in the Second Appeal had taken me through the oral and documentary evidence available on record and also the findings which had been recorded by the Court of first instance and also by the appellate Court and had contended that the approach of the appellate Court is totally erroneous since absolutely there is no evidence on record to establish that the respondents are the cultivating tenants, in relation to the plaint schedule property. The learned counsel also had contended that P.W.1, the G.P.A. holder, is a person having knowledge about the family affairs and his evidence is clear on this aspect and hence he is a competent person to speak about the facts and circumstances of the case and on such a ground the reversal is definitely bad. The learned counsel also had submitted that the appellate Court having held that the ownership of the appellant/plaintiff is not in dispute in relation to plaint schedule property in the light of the cist receipts and also the evidence of P.W.2 should have arrived at the conclusion that the appellant/ plaintiff is entitled to the relief of permanent injunction in stead of driving him to yet another litigation reversing the well considered Judgment and decree of the trial Court and on the ground that the respondents/defendants are the cultivating tenants. The learned counsel also had pointed out that when Kailash Chandra Padhi had ceased to be a co-sharer after partition, a boundary recital made by him cannot be held to be binding as admission on the appellant/plaintiff. The learned counsel also had made elaborate submissions relating to cist receipts relied upon by the other side and had commented that since the respondents/defendants had purchased the rest of the property they are taking this untenable stand only with a view to put the appellant/plaintiff into trouble by just complicating the litigation. The learned Counsel also had drawn my attention to Srichand Gupta v. Gulzar Singh and Pandurang v, Ramchandra.