SURISETTI MAHALAKSHMAMMA Vs. SURISETTI GOWRI SANKARARAO

JUDGEMENT

(1.) The unsuccessful plaintiffs in both the Courts below are the appellants in the present Second Appeal. The said plaintiffs in yet another suit O.S.No.174/88 on the file of Junior Civil Judge, Bheemunipatnam filed I.A.No.1414 of 1998 under Section 10 r/w. Section 151 C.P.C. praying for the stay of proceedings on the ground that the subject matter of the property being one and the same and inasmuch as S.A.No.431/95 is pending on the file of this Court, the said suit has to be stayed at least till the disposal of the Second Appeal. The said application was dismissed and aggrieved by the same the Civil Revision Petition was preferred and that is how both the matters are coining up before this Court for final disposal.

(2.) Sri Srinivas Rao and Sri Veerabhadryya, counsel representing the respective parties had made elaborate submissions. The learned counsel for the appellants at the outset had submitted that the Civil Revision Petition was filed only with a view to have stay of suit till disposal of the Second Appeal and hence inasmuch as the Second Appeal is being disposed of, the relief prayed for in the Civil Revision Petition no longer survives. The learned counsel had made elaborate submissions about the oral and documentary evidence and also pointed out that the very approach of the Courts below cannot be said to be in accordance with law and definitely it is erroneous. The learned counsel also had pointed out that the Courts below had recorded certain unnecessary findings as though Surisetty family is not having title at all to the plaint A and B schedule property or at any rate the plaintiffs were unable to establish their title relating to both plaint A and B schedule property. The learned counsel pointed out that even according to the defendants, the plaintiffs are the owners of the Western side 50 1/2cents and they are disputing the plaintiffs claim over the Eastern side 50 1/2 cents shown as B schedule contending that the 1st defendant was entitled to half of the total of Ac.1-01 cents on the ground that Ac.1-01 cents belonged to Surisetty Rama Swamy, the husband of the 1st plaintiff and father of other plaintiffs and his brother Rajanna, the 1st defendant, as their joint family property and the 1st defendant and his son, the 2nd defendant, the contesting defendants purchased B schedule property. When that being so, the Courts below had totally erred in deciding that the plaintiffs have no title at all to the entire plaint A schedule property which is not the subject matter of dispute since B schedule property is only a portion of plaint A schedule property. In other words, the findings given by both the Courts relating to the rest of the extent of the plaint A schedule is not a matter of dispute of controversy between the parties at all and hence making out a new case and recording finding thereon definitely is impermissible in law. The learned counsel also had taken me through the findings recorded by both the Courts and also pointed out to Ex.A-1 to A-11, Ex.X-1, Exs.B-1 to B-9 and the oral evidence of P.W.I to P.W.3 and D.W.I to D.W.4 and had submitted that the approach of both the Courts below in appreciation of evidence is definitely unsustainable. The learned counsel also pointed out that the appellate Court also had totally erred in dismissing I.A.No.103/94 filed under Order 41 Rule 27 C.P.C. for reception of additional evidence.

(3.) On the contrary, Sri T. Veerabhadrayya, the learned counsel representing the respondents had contended that the respondents are concerned with only the plaint B schedule property and they are not concerned with the rest of the extent other than B schedule property. The learned counsel also submitted that the contesting defendants had purchased the property from the 1st defendant by virtue of registered sale deeds having detected that the total extent is not of the branch of the plaintiffs only and the half extent covered by plaint B schedule belonged to the 1st defendant's branch. The learned counsel also submitted that even otherwise it is a suit for declaration of title relating to plaint B schedule property as shown in A.E.F.D. in the plaint plan and for delivery of possession and in any event since the plaintiffs were unable to establish their case in view of several of the discrepancies and on the ground of want of evidence also, the suit was dismissed since the plaintiffs were unable to discharge the burden in a suit for ejectment of this nature and hence there is no question of law much less substantial question of law involved in the Second Appeal and in view of the concurrent findings recorded by both the Courts below, the Second Appeal is liable to be dismissed.