BANDARU SATYANARAYANA Vs. GANJI SURYANARAYANA MURTHY

JUDGEMENT

(1.) THIS appeal is filed against the Judgment and Decree dated 16-1-1998 in A. S. No. 45 of 1992 on the file of the Senior Civil Judge at Narsapur confirming the Judgment and Decree dated 15-7-1992 in O. S. No. 364 of 1989 on the file of the Principal District Munsif, Narsapur. The 1st defendant in the suit is the appellant.

(2.) AC. 0-98 cents of land situated in R. S. Nos. 217/5, 217/6, 217/7 and 224 in Kontheru village is plaint 'a' schedule property. The total extent in R. S. No. 217/5 is Ac. 0-16 cents. Plaint 'b' schedule property forms part of plaint 'a' schedule property. Ac. 0-08 cents of land in R. S. No. 217/5 is plaint 'b' schedule property. There is a thatched house bearing assessment No. 87 and door No. 3-87 in 'b' schedule property. Originally Ganji Ganga Raju and Nalam Subba Rao are the joint owners of plaint 'a' schedule property. Ganji Ganga Raju died. After his death, Nalam Subba Rao filed a suit in O. S. No. 102 of 1953 against the legal heirs of G. Ganga Raju for partition of plaint 'a' schedule property into equal shares and for allotment of half a share to him. A preliminary decree for partition was granted in favour of Nalam Subba Rao. However, no petition for final decree was filed by any of the parties to the partition suit. Therefore, there was no division of plaint 'a' schedule property between the two families of Ganga Raju and Nalam Subba Rao by meets and bounds. These are all undisputed and admitted facts. There is also no dispute that after the death of Nalam Subba Rao, his son Nalam Papa Rao sold his undivided half share in plaint 'a' schedule property to P. Rama Murthy under a registered sale deed dated 16-3-1966. According to the plaintiff in O. S. No. 364 of 1989, as the 1st defendant-appellant was related to Ganga Raju, in or about 1979-80, he was permitted to reside in plaint 'b' schedule property. It is also their case that they constructed a thatched house in plaint 'b' schedule property and in that thatched house the 1st defendant was permitted to reside. They contend that plaintiff and defendants 2 to 6 wanted to effect a partition of plaint 'a' schedule property and asked the 1st defendant-appellant to vacate and deliver vacant possession of plaint 'b' schedule property but the 1st defendant-appellant did not oblige and vacate the same. The suit was filed for declaration, that the plaintiffs 1 to 5 and defendants 2 to 6 are the absolute owners of plaint 'b' schedule property and also for possession of plaint 'b' schedule property after evicting the 1st defendant. For the sake of convenience in the course of this judgment, reference to plaintiffs 1 to 5 as well as defendants 2 to 6 will be made as plaintiffs. The plaintiffs further pleaded that they have perfected their title to the suit property by adverse possession. The 1st defendant contested the suit taking various pleas. He did not dispute that G. Ganga Raju and Nalam Subba Rao were the original joint owners of entire plaint 'a' schedule property. During the course of the trial, he admitted that a preliminary decree for partition was passed in O. S. No. 102 of 1953 instituted by Nalam Subba Rao. He also admits that on 16-3-1996 Nalam Papa Rao sold his undivided half share in plaint 'a' schedule property to P. Rama Murthy. It is his plea that P. Rama Murthy and himself jointly purchased undivided half share in plaint 'a' schedule property from Nalam Papa Rao and however, the registered sale deed dated 16-3-1966 was obtained in the name of P. Rama Murthy alone. It is also his contention that himself as well as P. Rama Murthy paid separately sale consideration amount to N. Papa Rao under the registered sale deed dated 16-3-1966. He pleaded that during the year 1966 itself, there was a partition and in that partition eastern half of plaint 'a' schedule property fell to the share of the sons of G. Ganga Raju and western half fell to the share of himself and P. Rama Murthy. It is also his further plea that after the said division, the western half was again divided between himself and P. Rama Murthy and about Ac. 0-10 cents of land on the north-east corner including plaint 'b' schedule property fell to his share. According to him Ac. 0-39 cents of land was taken by P. Rama Murthy and he took only Ac. 0-10 cents of land. He also pleaded that after the said division he constructed a thatched house and is residing in the thatched house in his own right from the year 1966 onwards. He denied that the plaintiff perfected the title to plaint 'b' schedule property. He denied that he was in permissive possession of plaint 'b' schedule property. He also pleaded that he perfected his title to plaint 'b' schedule property by adverse possession also. He did not take a specific plea in his written statement, that the suit is bad for non-joinder of necessary parties namely the legal heirs of Nalam Subba Rao without taking such a plea he contended before the trial court that the suit is bad for non-joinder of legal heirs of Nalam Subba Rao. Both parties adduced oral and documentary evidence before the trial Court. On a consideration of the entire evidence adduced before him, the learned District Munsif disbelieved the version of the plaintiffs, that the 1st defendant was inducted into possession of the entire plaint 'b' schedule property. He also disbelieved the version of the 1st defendant about the plea of partition set up by him. He held that the legal heirs of Nalam Subba Rao are necessary parties to the suit and therefore, their non-joinder is fatal to the case of the plaintiffs. He disbelieved the plea of the plaintiffs that they perfected by adverse possession their title to the suit property. Simultaneously, the trial Court disbelieved the version of the 1st defendant the he perfected his title to the suit property by adverse possession. According to the learned District Munsif, the plaintiffs are entitled for declaration of title regarding plaint 'b' schedule property excluding the thatched house situated in plaint 'b' schedule property. He accordingly, decreed the suit of the plaintiffs partially excluding the thatched house in plaint 'b' schedule property. Aggrieved by the said Judgment and Decree of the trial Court, the 1st defendant preferred an appeal before the Senior Civil Judge, Narsapur. The lower appellate Court concurred with all the findings given by the District Munsif. Accordingly, the learned Senior Civil Judge dismissed the appeal filed by the 1st defendant. Aggrieved by the Judgment and Decree of the lower appellate Court, the 1st defendant preferred the present appeal before this Court.

(3.) IN the memorandum of grounds of appeal some grounds were raised by the appellant as substantial questions of law, which arise for determination in the present appeal. At the time of admission of this appeal, the learned admission Judge merely passed an order admitting the appeal. As required under Section 100 (4) C. P. C. no substantial question of law was formulated at the time of admission of this appeal. It is mandatory for the Court to formulate a substantial question of law in a second appeal and then decide the appeal. In my considered opinion, the following substantial question of law arises for consideration in the present appeal. Whether in the circumstances and facts of the case whereunder the learned District Munsif gave conflicting findings of fact which were affirmed by the lower appellate Court without formulating necessary points for determination in the appeal, the judgments of the two Courts are liable to be set aside and the entire suit is liable to be remitted back to the trial Court for fresh disposal in accordance with law?