MUMMIDI RAGHAVENDRA RAO Vs. MALLADI GOLLAMMA

JUDGEMENT

(1.) Appellants are the plaintiffs; and the respondents are the defendants in O.S. No. 130 of 1990 on the file of the Principal Subordinate Judge, Kakinada, filed for declaration of plaintiffs' title to the plaint schedule property; for possession of the same after evicting the 1st defendant therefrom; and for recovery of Rs.23,490/- towards past profits for the years, 1986-87, 1987-88 and 1988-89; for future profits; and for costs, and the same was dismissed by judgment and decree, dated 31-10-1996, with an observation that the plaintiffs are at liberty to receive the balance sale consideration due under Ex.B.1-agreement of sale subject to their executing the sale deed in performance of the said agreement of sale. Aggrieved thereby, the present appeal suit has been filed by the plaintiffs.

(2.) Parties are hereinafter referred to as they are arrayed in the trial Court.

(3.) Plaintiffs 1 to 3 and the 2nd defendant are the sons; Plaintiffs 5, 6 and 3rd defendant are the daughters; and the 4th plaintiff is the wife of late Veera Raghavulu. 1st defendant is the holder of Ex. B. 1-agreement executed by late Veeraraghavulu and the Plaintiffs 1 and 3; and the 4th defendant is the sister of the 4th plaintiff. It is stated that the Plaintiffs 1 to 3, the 2nd defendant, and their father are the owners of the plaint schedule property and when they required money the Plaintiffs 1, 3 and their father late Veeraraghavulu agreed to sell the property for a sum of Rs.43,000/- in favour of the 1st defendant through a mediator-Bhaskararaju but the said Bhaskararaju played fraud on the plaintiffs' back in collusion with the 1st defendant. However, as per the understanding of the said agreement, the lands are to be delivered at the time of registration of the sale deed but contrary to the terms of the said Ex.B. 1-agreement the 1st defendant could not obtain the sale deed and the sale agreement was cancelled within two months. As the plaintiffs could not repay the said amount of Rs. 5,000/- to the 1st defendant it was agreed upon that the 1st defendant should take the income of the said land, and appropriate the same for adjusting the amounts due to her and accordingly one V. Tatarao was allowed to cultivate the said land on an yearly rental of 58 bags of paddy during 1974-75, and 1975-76 and to pay away the said rent to the 1st defendant and accordingly the said Tatarao cultivated the said land and paid the rent of 58 bags of paddy per year to the 1st defendant towards adjustment of the said Rs.5,000/- but the 1st defendant represented that due to failure of crops the rents were not properly paid by the said Tatarao and she sustained loss and therefore, she asked the said Tatarao to continue to cultivate and pay the rent and accordingly the said Tatarao continued to pay the same for subsequent years i.e., 1976-77 and 1977-78 as well and thereafter the said Tatarao vacated the land after harvesting the first crop and the Plaintiffs 1 and 2, and their father and brothers took over possession of the plaint schedule land and raised second crop during the year, 1979 and harvested the same. It is stated that the 1st defendant failed to account for the income on the land paid from time to time by the said Tatarao and therefore, a dispute was raised by the father of the plaintiffs before the mediators for the settlement of accounts but without settling the same the 1st defendant began to instigate the said Tatarao to trespass into the land and cause troubles to the father of the plaintiffs even though they have no right or any authority to be in possession of the said land. Thereupon, the father of the plaintiffs filed O.S. No.783 of 1979 on the file of the District Munsif, Kakinada, for grant of permanent injunction restraining the 1st defendant and the said Tatarao from interfering with their possession and enjoyment of the plaint schedule property and temporary injunction was granted and the said suit was transferred and re-numbered as O.S. No.406 of 1983 on the file of the Subordinate Judge, Kakinada, and later temporary injunction was vacated under Ex. B. 1. The 1st defendant also filed a suit in O.S. No.33 of 1980 on the file of the Subordinate Judge, Kakinada, for grant of temporary injunction contending that he was in possession of the said property and thereafter the father of the plaintiffs died on 5-10-1980. It is stated that the suit in O.S. No.406 of 1983 was dismissed for default and on an application to restore the same it was restored and thereafter the said suit was withdrawn with a permission to file a comprehensive suit for declaration of title and recovery of possession and the present suit has been filed. It is further stated by the plaintiffs that with regard to the possession proceedings under Section 145 Cr.P.C. were initiated and the 1st defendant managed to enter into possession by initiating proceedings under Section 145 Cr.P.C., with the help of the police and therefore as the defendant was found in possession of the plaint schedule property there was no other go except to file the suit for declaration of title and recovery of possession alleging that the 1st defendant trespassed into the said property and illegally continued in possession.