THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL No.333 OF 2016
JUDGMENT:
1. The present appeal has been directed against judgment and decree dated 19.06.2014 passed in A.S.No.9 of 2014 by the II Additional District Judge, Karimnagar, wherein and whereby the judgment and decree dt.02.08.2013 passed in O.S.No.111 of 2009 by the Principal Junior Civil Judge, Jagtial, was confirmed. The said suit was filed by the appellants herein for grant of perpetual injunction and the said suit was dismissed and it was confirmed in the first appeal.
2. The present appeal is at the instance of the plaintiffs in the suit. The respondents are defendants in the suit. For brevity, the ranks of the parties as they were referred in the suit, is maintained.
3. The sum and substance of the case of the plaintiffs is that their ancestor late Kola Venkati was the original owner of the land in Sy.No.372/A extent Ac.1-25 gts., The 1st plaintiff is his son, and the father of 2nd plaintiff i.e. Kola Thirupathi was another son. Out of the said land, Railways acquired an extent of Ac.0-34 gts., and the plaintiffs' ancestor sold out Ac.0-12 gts., and the plaintiffs are in possession of Ac.0-19 gts., On the basis of such claim and with the revenue records the present suit has been filed for perpetual injunction.
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4. The case of the defendants is that they are absolute owners and possessors of land in Sy.No.372/B and they are neighbouring landlords. The plaintiffs' land is located on the southern side of defendants' land, and if injunction is granted, there is likelihood of encroaching upon their land, which is located on the Northern side of the plaintiffs' land. The defendants also pleaded that plaintiffs suppressed the factum of acquisition of Ac.0-10 gts., by the Railways subsequent to acquisition of Ac.0-34 gts., and they also claimed that location of the plaintiffs' land is difficult and prayed to dismiss the suit.
5. Basing on the above pleadings, the Primary Court framed the following issues:
1. Whether the plaintiffs are entitled for relief of perpetual injunction as prayed for?
2. To what relief?
6. The plaintiffs in order to prove their case, got examined PWs.1 to 3, and relied upon Ex.A1 to A10. On behalf of defendants, DWs.1 and 2 were examined and relied upon Ex.B1 to B4.
7. The primary Court after appreciating the evidence on record found that the plaintiffs suppressed the factum of acquisition of Ac.0-10 gts., by the Railways subsequent acquisition of Ac.0-34 gts., and also found that Gift Deed allegedly executed by the owner Kola Venkati in favaour of 3 ML,J SA No.333 of 2016 plaintiffs under Ex.A7 whereunder Ac.0-16 gts., of land was gifted in favour of plaintiffs was not disclosed in plaint. Consequently, the suit was dismissed. Aggrieved by the same, the plaintiffs preferred the appeal and the first Appellate Court gave concurred finding with the findings of the trial Court.
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8. The contention of the learned Counsel for the appellants/plaintiffs is that even going by the pleadings of the defendants by excluding Ac.0- 34 gts., initially acquired by the Railway and Ac.0-10 gts., subsequent acquisition, admitted the case of plaintiffs was that Ac.0-12 gts., was sold by by late Kola Venkati. Still balance there is Ac.0-09 gts., of land and First Appellate Court ought to have considered granting of injunction for Ac.0-09 gts., Therefore, the findings suffer from perversity.
9. Learned Counsel for the respondents/defendants submitted that both the Courts below found that the location of the plaintiffs' land is also difficult in order to grant injunction. If the injunction is granted for Ac.0-09 gts., it is difficult to execute such decree without there being the actual location of the land out of the suit boundaries.
10. From the reading of the findings of both Courts, both the Courts below found that there is suppression of facts relating to acquisition of 4 ML,J SA No.333 of 2016 Ac.0-10 gts., by the Railways and also with regard to execution of Gift Deed by the original owner conveying Ac.0-16 gts., under Ex.A7. There is no doubt as per the pleadings of both parties and evidence on record, the plaintiffs got still left over land of Ac.0-09 gts., and it is difficult to locate Ac.0-09 gts., within the boundaries of Sy.No.372/A. The original owner was holding Ac.1-25 gts., out of which Ac.0-34 gts., of land was initially acquired by the railways, later Ac.0-10 gts., and Ac.0-12 gts., which was held by the original owner. If the injunction is granted for Ac.0-09 gts., without specific location of the land, it will have chance of abusing decree of injunction to locate the land anywhere at the choice of plaintiffs. Therefore, there is no perversity in the findings of both Courts below in refusing to grant injunction. There is no substantial question involved in the present second appeal, and the appeal is liable to be dismissed.
11. The learned Counsel for appellants/plaintiffs submits that still they have Ac.0-09 gts., of land and remedy shall be kept open. If the appellants/plaintiffs have got Ac.0-09 gts., they are at liberty to take up the issue with the concerned revenue officials for demarcation of the said land.
12. Accordingly, the appeal is dismissed. No costs.
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13. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________ M. LAXMAN, J DATE:17.08.2022 BDR