Chandra Bai vs Channaram

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned counsel for the respondents.

These appeals are disposed of together having regard to the circumstances of the case.

The appeal in RFA No. 1388/2009 arises out of a suit in O.S. No. 8076/2000 filed by one Channaram against the present appellants which was tried along with O.S. No. 3134/2001 filed by the brother of the plaintiff in O.S. No. 8076/2000, against the very same appellants, wherein the 1st appellant is now represented by a legal representative. It transpires that there is a dispute between the present appellants and the respondents who are the respective plaintiffs in the above said suit, as regards the very same property wherein both the plaintiffs as well as the appellants are claiming the same suit schedule property as their own. In that, the plaintiff in O.S. No. 8076/2000 is claiming himself as the joint owner along with his brother of the suit property whereas the appellants are claiming the entire property as their own and initially filed a suit for injunction in O.S. No. 154/2001. It thereafter transpires that since they were dispossessed during the pendency of the suit, the suit was ultimately converted into a suit for declaration and possession and is now pending consideration before the Court below. Though it is stated that there was an order directing the suit filed by the appellants to be transferred to the Court in which the suits filed by the respondents were pending, but even after transfer, they were not clubbed together and therefore, there has been an independent decision taken in these suits. Consequently, the suits filed by the respective respondents have been decreed, whereas the suit filed by the appellants is pending consideration even as on date. It is in this background that the present appellants are heard.

The learned counsel for the appellants would straightaway point out the serious incongruity. In that, the learned counsel for the appellants would point out that the history of title to the suit property would indicate that the original vendor''s title at Ex. D13 which is dated 24.1.1980, significantly the eastern boundary of the suit property is shown as land belonging to one Murugan. A subsequent transfer under Ex. D14 dated 26.6.1980 also indicates the eastern boundary of the suit property as land belonging to Murugan. So also, the transfer in favour of the appellants at Ex. D11 dated 7.3.1994 shows the eastern boundary of the suit property as land belonging to one Murugan. Whereas Ex. P1, the sale deed dated 26.3.1980, relied upon by the respondents shows the eastern boundary as a site. Curiously the appellants are said to have obtained a certified copy of the same, namely Ex. P1, and produced at Ex. D7, which indicates the eastern boundary as a road. The learned counsel would submit that the very documents produced by the respondents in support of their claim was not consistent and it certainly is not consistent with the property that is claimed by the appellants and therefore it was very much necessary for the three suits to be tried together in order to arrive at the true facts and circumstances.

The unfortunate circumstance that the suits have not been tried together has left the incongruities unanswered, such as, whether the property claimed by the respective parties is one and the same.

The learned counsel for the respondents would candidly admit that there was no spot inspection conducted at the trial.

Therefore, this Court is of the opinion that two circumstances stand out, namely, that the three suits ought to have been tried together having regard to the serious controversy between the parties. Secondly, in such a situation as the present case on hand, it was mandatory that a spot inspection be conducted. It is not necessary for the parties to approach the Court in this regard, as the provisions under the Code of Civil Procedure, 1908 in this regard are enabling provisions which enable the Court in its discretion, to seek assistance of an expert in a situation such as this. Therefore, this Court allows these appeals by setting aside the judgment and decree in the respective suits and the matter is remanded to the Court below to be tried along with O.S. No. 154/2001. Secondly, the Trial Court shall appoint a Commissioner to visit the suit property in the respective suits and to file a report with reference to the respective title deeds set up by the respective parties, to enable the Court to decide the matter finally.

Insofar as the further proceedings are concerned, the respondents herein in the respective appeals are at liberty to tender additional evidence, if any, and the Court below shall permit the same and thereafter proceed to decide the case in terms as above.

With those observations, the appeals are allowed. The judgment and decree under challenge in these appeals are set aside. The evidence tendered by the respondents, however, shall remain intact as well as the evidence tendered by the appellants in their respective suits.

In view of the disposal of the appeals, I.A. 1/2010 filed in RFA No. 1388/2009 and I.A. 2/2010 filed in RFA No. 1389/2009 do not survive for consideration and are accordingly disposed of.