THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.348 of 2021
JUDGMENT:
Assailing the judgment and decree dated 21.06.2021 in A.S.No.123 of 2017 on the file of V Additional District Judge, Nellore, confirming the judgment and decree dated 19.09.2017 in O.S.No.150 of 2011 on the file of III Additional Junior Civil Judge, Nellore the above appeal is filed.
2. For the sake of convenience, the parties herein are referred to as they are arrayed in the plaint.
3. Plaintiff filed the suit for permanent injunction restraining the defendants, their men, agents and followers from interfering with the plaintiff's peaceful possession and enjoyment over the plaint schedule property.
4. The averments, in brief, in the plaint are that the plaintiff's father acquired the plaint schedule property about 65 years back and ever since he had been in possession and enjoyment of the same; that after the lifetime of father and mother, the plaintiff came into possession and enjoyment of the same, that during the lifetime of plaintiff's father, he constructed asbestos sheeted house in four Ankanams leaving remaining 20 Ankanams as vacant site, in which coconut trees, Guava trees and other trees were planted along with open toilets and kitchen; that property tax is being paid to the Panchayat regularly vide assessment No.435 and mother of plaintiff also obtained electricity service connection; that in the year 2004, 2 defendants, neighbours, highhandedly attempted to trespass into the schedule property at X1 and X2 points by removing the old collapsed brick wall, resulted in filing suit O.S.No.1148 of 2004 on the file of Principal Junior Civil Judge, Nellore by the mother of plaintiff; that I.A.No.1110 of 2004 was filed to appoint an Advocate Commissioner to note down the physical features; that commissioner's report proved possession and enjoyment of schedule property by the mother of plaintiff; that plaintiff's mother died on 02.10.2005; that the plaintiff, who is only son, is working at SHAR Centre, could not prosecute the suit; that the suit O.S.No.1148 of 2004 was dismissed for non-prosecution; that after death of his mother, plaintiff succeeded to the schedule property and has been in possession and enjoyment of the same uninterruptedly; that on 30.12.2020 when the plaintiff came to the plaint schedule property from Sriharikota to perform Annadanam to poor people in memory of his mother, he found that 20 years old Guava tree situated on eastern side of the schedule site was removed with its roots by the defendants and their men in order to encroach the site at X1 and X2 points; that defendants have their own way from the backside of their house connected to the main road and the defendants have no manner of right or title over ABCD site; that after seeing the highhanded attempts of defendants, the plaintiff immediately approached the Superintendent of Police, Nellore and lodged a complaint on 31.12.2020, which was registered as Crime No.28 of 2010; but the defendants are openly proclaiming that they are having muscle and manpower and hence, filed the suit. 3
5. 1st Defendant filed written statement and the same was adopted by 2nd defendant. It was contended interalia that 1st defendant got landed property of an extent of Ac.0.42 cents settled by 2nd defendant; that mother of the plaintiff filed suit for permanent injunction and later the same was dismissed for non-prosecution; that temporary shed was constructed in the road margin in front of plaint schedule property; that after dismissal of the suit, 2nd defendant settled property in favour of 1st defendant and since then 1st defendant is in possession and enjoyment property adjacent land of plaint schedule property; that defendants paved way for ingress and egress from the patta lands towards main road; that taking advantage of dilapidated shed, the plaintiff fabricated the tax receipts; that the R & B department is also necessary party to the suit and eventually, prayed the Court to dismiss the suit.
6. During trial of suit, plaintiff examined himself as P.W.1 and got examined P.Ws.2 and 3. Exs.A-1 to A-15 were marked. On behalf of defendants, 1st defendant examined himself as D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 to B-4 were marked.
7. Trial Court on consideration of oral and documentary evidence decreed the suit vide judgment dated 19.09.2017 with costs. Aggrieved by the said judgment and decree, defendants filed A.S.No.123 of 2017 on the file of V Additional District Judge, Nellore. The Lower Appellate Court, being final factfinding Court, on consideration of oral and documentary 4 evidence and legal aspects, dismissed the appeal vide judgment dated 21.06.2021. Assailing the same, the above second appeal is filed.
8. Heard Sri Challa Ajay Kumar, learned counsel for appellants.
9. Learned counsel for the appellants would contend that the Courts below ought not to have decided the title of plaintiff basing on tax receipts and electricity bills. Further contended that the alleged receipts do not prove possession of plaintiff and hence suit ought to have been dismissed. He also would contend that the shed which was said to have been constructed by the father of plaintiff was removed by the Government authorities, since it was constructed on road margin and the plaintiff also did not file any document to show his right and title over the schedule property. He further contended that the Courts below did not appreciate the documentary evidence in proper perspective and prayed the Court to set aside the judgments and decrees of the Courts below.
10. The following substantial questions of law arise for consideration in this appeal:
(1) Whether the respondent/plaintiff proved his possession over the schedule property on the day when the suit is filed?
(2) Whether the Courts below wrongly appreciated the evidence?5
11. Undisputed facts, as per pleadings and evidence, are that mother of respondent/plaintiff, Thota Ramanamma, filed suit O.S.No.1148 of 2004 on the file of Principal Junior Civil Judge, Nellore against the 2nd appellant herein and Kistaiah seeking injunction in respect of plaint schedule property. In the said suit, an advocate commissioner was appointed and the report filed by Advocate Commissioner was marked as Ex.A-4 in the present suit. A perusal of Ex.A-4 commissioner's report would show existence of house and trees etc. Suit O.S.No.1148 of 2004 was dismissed for non-prosecution on 02.11.2008 and the mother of respondent/plaintiff died on 02.10.2005.
12. Cause of action to file the present suit for injunction, according to the plaintiff arose when the defendants tried to interfere with the plaintiff's possession of the property by cutting 20 years old Guava tree situated on the Eastern side of plaint schedule property at X1 and X2 points.
13. To prove the possession, plaintiff examined himself as P.W.1 and got examined P.Ws.2 and 3. Plaintiff filed tax receipts and electricity bills to show his possession over the schedule property.
14. The prime consideration in a suit for injunction is possession of the plaintiff on the day when the suit is instituted. Exs.A-5 & A-6 are tax receipts and electricity bills respectively filed by the plaintiff to prove possession. Though plaintiff did not file any title document to prove his title over the plaint schedule property, however by marking Exs.A-5 and A-6 he could 6 establish his possession over the plaint schedule property. Apart from Exs.A-5 and A-6, Ex.A-4 Advocate Commissioner's report in O.S.No.1148 of 2004 also strengthens the case of the plaintiff with regard to possession of plaintiff's mother.
15. P.W.2 examined on behalf of plaintiff, supported the case of plaintiff with regard to possession of the plaintiff over the schedule property. A suggestion was put to P.W.2, which is extracted as follows: "I do not know whether the plaintiff obtained any permission from the municipality to construct asbestos sheeted roof house". This suggestion put to P.W.2, in the opinion of this Court establishes the existence of asbestos sheeted house in the plaint schedule property.
16. Ex.B-1 is proceedings of the Joint Collector, Nellore. According to 1st appellant, person filed petition before the Joint Collector, in between their land and road, the mother of the plaintiff encroached an extent of six Ankanams and hence, representation was made to the Mandal Revenue Officer, Nellore; that V.A.O provided way of 15 feet for ingress and egress to reach their land; that the plaintiff in the suit was never resided in the house and in fact the schedule property is reserved for widening of road and thus prayed to issue necessary directions. By order dated 10.03.2011, learned Joint Collector, Nellore remanded the matter to the Tahsildar, Nellore to conduct enquiry and for taking necessary action under Section 7 of the A.P. Land Encroachment Act, 1905. A perusal of 7 the order also implies possession of the plaintiff over the plaint schedule property.
17. In Leela Soni vs. Rajesh Goyal1, the Hon'ble Apex Court held thus:
"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:
"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,
(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."
22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."
18. In the light of the law laid down by the Hon'ble Apex Court on the scope of interference by the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of CPC has to confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and 1 2001 (7) SCC 494 8 interfere with the concurrent findings of the Court below where the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.
19. The findings of fact recorded by the Courts below with regard to the possession of the respondent/plaintiff are based on both oral and documentary evidence. There is no perversity in appreciation of either oral or documentary evidence. As indicated earlier, the Courts below are not deciding the title between the parties, except possession. Since the respondent/ plaintiff established his possession over the schedule property, the trial Court decreed the suit granting injunction and the same was confirmed in the appeal. There are no grounds to interfere with the findings of the fact recorded by the Courts below under Section 100 of CPC. Hence, the appeal is liable to be dismissed, however, without costs.
20. Accordingly, the second appeal is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 13th April, 2022 PVD 9 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL No.348 of 2021 13th April, 2022 PVD