MADDUKURI MASTAN RAO Vs. MADDUKURI VCNKATESWARLU

JUDGEMENT

(1.) Heard Sri N. Sriram Murthy, counsel for the appellant and Sri Chidambaram, counsel representing the respondent.

(2.) The unsuccessful defendant in A.S.No.52/82 on the file of Subordinate Judge, Chirala is the present appellant. The respondent/plaintiff instituted the suit O.S.No.690/80 on the file of I Additional District Munsif, Chirala for permanent injunction restraining the defendant from closing the passage of 15 links width and 41 links length which was shown in the plaint plan C Cl E F in any manner whatsoever. At the appellate stage, the plaint was amended seeking the relief of declaration of title as well. The trial Court on the strength of the respective pleadings of the parties had settled the Issues and had examined P.W.I to P.W.8 and D.W.I to D.W.3 and also marked Exs.A-1 to A-15, Exs.B-1 to B-5 and Ex.X-1 and had ultimately came to the conclusion that the plaintiff has neither possession nor title over the suit schedule site and had dismissed the suit and aggrieved by the said Judgment and decree made in O.S.No.690/80 on the file of I Additional District Munsif, Chirala, the plaintiff had carried the matter in Appeal in A.S.No.52/82 on the file of Subordinate Judge, Chirala and in Appeal additional evidence was received and a document, registration copy of the sale deed executed by the plaintiff in favour of the defendant dated 14-5-1974, was marked as Ex.A-16. It was also specifically observed in the operative portion of the Judgment of the appellate Court that in view of the additional evidence adduced in this Appeal, the Judgment and decree passed by the trial Court in O.S.No.690/80 dated 31-8-1982 are hereby set aside and the suit was decreed with costs as prayed for throughout. Aggrieved by the same, the present Second Appeal is preferred.

(3.) Sri Sriram Murthy, the learned counsel representing the appellant had drawn my attention to the substantial questions of law framed as GrouNd No.12(a) to (c) in the grounds of Second Appeal. The learned counsel had made elaborate submissions relating to the recitals in Ex.A-16 and also Ex.A-14 and had contended that the documents and the recitals therein were misconstrued or at any rate had not been properly construed which had definitely resulted in causing prejudice and injustice to the appellant. The learned counsel also had taken me through the other documentary evidence relied upon by the parties Ex.A-1- the plaint plan, Ex.A-2 dated 9-11-1978 - Photostat copy of mortgage deed executed by P.W.I, Exs.A-3 to A-10 - House tax receipts, Ex.A-11 - Report of the Commissioner dated 26-11-1980, Ex.A-13 - Gift deed, Ex.A-14 - Partition deed between Sankaraiah and P.W.I dated 12-5-1974, Ex. A-15 - Sale deed executed by Veeraiah in favour of Venkanna and also Ex.B-2 - Registration extract of Ex.A-14, Ex.B-3 - Plan filed by the defendant, Ex.B-1 - Registration extract of sale deed executed by Maddukuri Krishnavenamma in favour of Maddukuri Singayya and Sankaraiah and Ex.B-4 - Sale deed executed by Maddukuri Chimpiri in favour of Papaiah and Ex.B-5 - Registration extract of sale deed executed by Maddukuri Seetharamamurthy in favour of Ratniah. The learned counsel had referred to Ex.X-1, the settlement deed executed by Manduri Brahmaiah in favour of Manduri Krishnavenamma dated 10-8-1939. The learned counsel also had taken me through the oral evidence in general and the evidence of D.W.2 in particular. D.W.2 is none other than the uncle of the plaintiff. The learned counsel contended that the Judgment of the trial Court is a well considered Judgment and no doubt the appellate Court had made some discussion, but had not considered all the factual aspects and was mainly carried away by the recitals of Ex.A-16. The learned counsel further contended that the appellate Court having allowed Ex.A-16 to be brought on record by way of additional evidence had not afforded proper opportunity to the parties to let in evidence in this regard to explain their respective stands. The learned counsel also made elaborate submissions relating to Ex.A-1 - Plaint plan, Ex.B-3 - Plan filed by the defendant and Ex.A-11 - report of the Commissioner.