THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.343 of 2022
JUDGMENT:
The plaintiff in O.S.No.10 of 2012 on the file of I Additional Junior Civil Judge, Guntur, is the appellant herein. The above second appeal is filed aggrieved by the judgment and decree dated 05.01.2021 in A.S.No.261 of 2016 on the file of the Principal District Judge, Guntur, confirming the judgment and decree dated 08.07.2016 in O.S.No.10 of 2012 on the file of I Additional Junior Civil Judge, Guntur.
2. For the sake of convenience, the parties to this judgment are referred to as they were arrayed in the plaint.
3. Suit O.S.No.12 of 2012 was filed by the plaintiff seeking permanent injunction restraining the defendants and their men from interfering with peaceful possession and enjoyment of the plaintiff over the plaint schedule property.
4. The averments of the plaint, in brief, are that, the plaintiff and defendants are sisters and daughters of late Kagga Varamma; that said Kagga Varamma executed a possessory agreement in favour of plaintiff on 08.12.2006 2 and delivered possession of the plaint schedule property after receiving the sale consideration of Rs.1,20,000/-; that said Varamma died prior to filing of suit; that the plaintiff has been in possession and enjoyment of the plaint schedule property from the date of purchase; that the name of plaintiff was mutated in the Municipal records and she has been paying property taxes since 2007; that defendants are trying to disturb the possession of plaintiff; that the plaintiff got issued a legal notice and filed the suit the relief stated supra.
5. 2nd Defendant filed written statement and the same was adopted by 1st defendant. In the written statement, it was contended inter alia that originally the plaint schedule property is a Government poramboke land, which was occupied by their father by name Subbarao; that said Subbarao constructed a thatched house and after his death, while the plaintiff, defendants and their mother Varamma constructed a pucca house with four portions with an understanding that one portion is for Varamma and remaining three portions are for plaintiff and defendants 1 & 2; that after death of Varamma her portion shall be shared equally between the plaintiff and defendants and accordingly, 3 Varamma settled schedule property including her portion in favour of plaintiff and defendants on 31.10.2009 i.e. Varamma settled 50 square yards to plaintiff, 60 square yards to 1st defendant and 50 square yards to 2nd defendant and rest of the site was left for joint nadava; that 2nd defendant has been in possession and enjoyment of her share by paying taxes under the assessment No.11598-B; that plaintiff has been residing in one portion by paying house taxes separately under assessment No.11598-A; that Varamma portion was assessed bearing No.11598; that Varamma never executed possessory agreement in favour of plaintiff and eventually, prayed to dismiss the suit.
6. Basing on the above pleadings, the trial Court framed the following issues:
(1) Whether the possessory sale agreement dated 08.12.2006 executed by mother of plaintiff by name Varamma in favour of the plaintiff is true and valid?
(2) Whether the plaintiff is in possession and enjoyment of the plaint schedule property by the date of filing of the suit?4
(3) Whether the plaintiff is entitled for permanent injunction restraining the defendant and their men from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property?
(4) To what relief?
7. During the trial, plaintiff examined herself as P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-6 were marked. On behalf of defendants, 1st defendant examined herself as D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 and B-2 were marked. Pending suit, 2nd defendant died.
8. Trial Court on consideration of entire evidence, both oral and documentary, dismissed the suit vide judgment and decree dated 08.07.2016 by holding that plaintiff having pleaded possessory agreement of sale dated 08.12.2006 failed to mark the same as one of the exhibits. Trial Court recorded findings that no steps were taken by plaintiff to pay deficit stamp duty and penalty and plaintiff did not choose to adduce any oral evidence regarding the said document, except examining herself. Since document was not filed, no finding regarding validity of the document is recorded. 5
9. Against the said judgment and decree, plaintiff filed appeal A.S.No.261 of 2016 on the file of the Principal District Judge, Guntur. Lower appellate Court being the final factfinding Court dismissed the appeal vide judgment and decree dated 05.01.2011. Assailing by the same, the present second appeal is filed.
10. Heard Sri Narra Srinivasa Rao, learned counsel for appellant.
11. Learned counsel for appellant would submit that the plaintiff established possession over the schedule property on the date of filing of the suit and hence, the Courts below ought to have granted injunction. He would submit that evidence was let in by the plaintiff regarding to constructing the house and staying in the house and thus, there is no cloud over the schedule property.
12. Basing on the pleadings and contentions the following substantial question of law arise for consideration.
Whether the appellant/plaintiff proved possession over the plaint schedule property on the date of filing of the suit? If so, the judgments of courts below are vitiated?
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13. Undisputed facts are that plaintiff and defendants are sisters and daughters of Kagga Subbarao and Varamma. Kagga Subbarao and Veramma are also having four sons by name, Sivaiah, Venkateswarlu, Butchi Venkaiah and Konda Srinivasu. The said Sivaiah and Venkateswarlu were examined as D.Ws.2 and 3. It is also undisputed fact that originally the schedule property was occupied by father of plaintiff and defendants and it is a government poramboke land.
14. Plaintiff filed suit basing on possessory agreement of sale contending that she purchased the schedule property under possessory agreement of sale dated 08.12.2006 from her mother and since then she has been residing in the schedule property. In view of the same, plaintiff must prove possessory agreement of sale and her possession pursuant thereto. During the cross- examination plaintiff as P.W.1 deposed that she cannot say the assessment number. She also deposed that she cannot say the names of attestors and scribe of agreement executed in her favour. P.W.2 deposed during the cross examination that plaintiff and her two sisters and four brothers are having right in the property. 7 However, he deposed that brothers' of plaintiff executed relinquishment deed, relinquishing their share in the property, which was not even pleaded or deposed by the plaintiff.
15. On behalf of defendants, 1st defendant examined herself as D.W.1 and reiterated the contents of written statement. D.Ws.2 and 3, brothers of plaintiff and defendants, attestors of Ex.B-2, deposed that their mother Varamma executed Ex.B-2. D.W.2 in his cross examination deposed that 1st defendant resided in the schedule property for some time and since the plaintiff started quarreling, she is residing in a rented house.
16. Plaintiff having claimed exclusive possession over the suit schedule property by virtue of possessory agreement of sale could not mark the alleged document before the trial Court. Going by the pleadings, the plaintiff came to the Court with unclean hands and hence, not entitled for the equitable relief of permanent injunction against the defendants. Defendants established that they are co-owners of the schedule property, and no injunction can be granted 8 against the co-owners. Unless the plaintiff established her exclusive possession over the schedule property, she is not entitled for the equitable relief of permanent injunction. As narrated supra, brothers also supported the case of defendants qua possession and execution of document by mother.
17. Unless, the appellant satisfies the High Court that second appeal involved substantial questions of law, admitting the second appeal does not arise. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In 9 the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
18. The case on hand, both the Courts discussed the evidence both oral and documentary evidence on record elaborately and recorded findings. Plaintiff having pleaded possessory agreement of sale failed to prove same. Thus, plaintiff came to the Court with unclean hand. Equitable relief of injunction will not be granted in favour of person approached with the Court with unclean hands. This Court dealt with the aspect as to whether a plaintiff comes to Court with unclean hands is entitled to equitable relief of injunction in Second Appeal No. 463 of 2019. By relying upon various judgments of Hon'ble Apex Court as well as other high courts this Court concluded that plaintiff who came to the Court with unclean hands is not entitled to equitable relief of injunction.
19. The findings of facts recorded by the Courts below are based on evidence and they do not call for interference of this 10 Court under Section 100 of CPC. No questions of law much less substantial questions of law involved in the appeal. Hence, the second appeal is liable to be dismissed, however, without costs.
20. Accordingly, the second appeal is dismissed at admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 14th September, 2022 PVD