HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.857 of 2011
JUDGMENT :
This Second Appeal is arising out of the judgment and decree dated 07.01.2011 in A.S.No.120 of 2008 on the file of II Additional District Judge, Warangal, which is arising out of the judgment and decree dated 15.04.2008, passed in O.S.No.1447 of 2003 on the file of Principal Junior Civil Judge, Warangal.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court. The appellants are the defendants.
3. Initially, the suit is filed by the plaintiffs for the relief of permanent injunction restraining defendant Nos.1 and 2 and their agents, workmen, heirs etc., from causing any interference and obstruction with the peaceful possession and enjoyment of plaintiffs over the suit schedule property, in any manner and to award costs of the suit. Plaintiff No.2 is the son of the plaintiff No.1. The husband of plaintiff No.1 namely K.Chandramouli migrated to Hanamkonda about 25 years ago from Chinakodepaka Village of Regonda Mandal and was managing the land acquired by one Sri B.Malla Reddy, 2 GAC, J S.A.No.857 of 2011 President of Jagruthi Cooperative Housing Society Limited. The brief averments of the plaint are that the said Chandramouli was permitted to erect a hut in an extent of 100 sq.yards of land and since then, he was residing in it with the plaintiffs. Except the land covered by the hut, the remaining land was allotted to the members of the society and further Malla Reddy has donated the said land (hut) under a deed dated 26.10.1998 to Chandramouli for the services rendered by him. It is the further case of the plaintiffs that they were running a tea stall in the front portion of the said hut and the Municipal Corporation also issued notice to the 1st plaintiff for payment of license fee, for running tea stall and thereafter, one K.Yashoda and others filed L.G.C.No.137/95 against the husband of the 1st plaintiff. The documents executed by late Malla Reddy and the proceedings in Land Grabbing Case would clearly prove that the plaintiffs are in possession of the suit schedule property and due to the interference of the peaceful possession by defendant Nos.1 and 2, the plaintiffs are constrained to file a suit for grant of perpetual injunction. It is also a specific plea taken by the plaintiffs that the 1st defendant being a Police Constable is causing interference and threatening them with dire consequences.
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4. Both the defendants have filed a common written statement denying all the averments made in the plaint. It is their specific contention that the Malla Reddy is not the owner of the property and one Bommineni Narayan Reddy has purchased the suit schedule property from whom the defendants have purchased the property under an agreement of sale dated 07.02.2000 and perfected title and possession over the property and therefore, prayed to dismiss the suit as it is devoid of merits.
5. Basing on the pleadings, the trial Court has framed the following issues:-
"1. Whether the plaintiffs are entitled for permanent injunction as prayed for?
2. To what relief?"
6. On behalf of the plaintiffs, P.Ws.1 to 5 were examined and got Exs.A-1 to A-30 marked. On behalf of the defendants D.W1 was examined and got marked Exs.B-1 to B-7.
7. Considering the oral and documentary evidence on record, the trial Court has come to a conclusion that the plaintiffs are in possession of the suit schedule property and decreed the suit with costs against defendant Nos.1 and 2, restraining them to interfere 4 GAC, J S.A.No.857 of 2011 with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property in any manner.
8. Being aggrieved by the judgment and decree passed by the trial court in O.S.No.1447 of 2003, the defendants have preferred an appeal vide A.S.No.120 of 2008 before the II Additional District Judge, Warangal.
9. The 1st appellate Court on hearing the appellants has framed the following points for determination:-
"1. Whether the Court was justified in granting perpetual injunction, decree in favour of one plaintiff against the defendants in respect of the suit property?
2. To what relief?"
10. On hearing the rival contentions of the parties, the 1st appellate Court has dismissed the appeal confirming the judgment and decree of the trial Court. It is the specific finding of the 1st appellate Court that plaintiffs' ancestor has been in possession since 1995 or prior to that and the said possession continued till the date of filing of the suit 5 GAC, J S.A.No.857 of 2011 i.e., the year 2003 and the defendants have no iota of right over the suit property.
11. Being aggrieved by the judgment and decree of the 1st appellate Court, the present Second Appeal is preferred raising the following substantial questions of law:-
"1. In the suit for grant of permanent injunction without a prayer for declaration that the suit schedule property belongs to respondents 1 and 2 is not maintainable.
2. Whether the judgment of the lower appellate Court decreeing the suit ignoring the material evidence on record is unsustainable?
3. The lower appellate Court should have accepted and acted upon the evidence oral and documentary produced by the appellants in a reference to the interest testimony produced by the respondents.
4. The lower appellate Court should have seen that the suit for mere injunction without prayer declaration of title is not maintainable.6
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5. The several objections made by the lower appellate Court, in the course of its judgment is untenable and besides being not supported by the evidence on record.
6. The reasoning adopted by the lower appellate Court in confirming and decreeing the suit for respondents is fallacious."
12. The Second Appeal is of the year, 2011 and it underwent numerous adjournments and is still coming up for admission.
13. Heard the learned counsel for the appellants and the learned counsel for the respondents. Perused the record.
14. On perusal of the substantial questions of law raised along with memorandum of grounds, it is evident that they are on the fact findings of the Courts below but not of law.
15. Both the Courts below have given concurrent findings that the plaintiffs are in possession of the suit schedule property. It is the further finding of the Courts below that the plaintiffs and their ancestors are in possession of the suit schedule property since 1995 or prior to that and said possession continued till the date of filing of 7 GAC, J S.A.No.857 of 2011 the suit i.e., the year 2003 and was in continuous possession of the property.
16. On perusal of the evidence, it is evident that there is no title for both the parties and it is also the specific finding of the trial court that there is no iota of material before the Court as to which party has title over the suit schedule property.
17. It is the specific contention in the plaint that the alleged hut which was in the possession of the plaintiffs was demolished by the Municipal Corporation and that the plaintiffs are in possession of the property. Ex.A-2 is the notice issued by Wrangal Municipality dated 19.09.1996 to the plaintiff. It is evident that the plaintiffs are in possession of the suit schedule property as on the date of filing of the suit. D.W1 also admitted about the location of the shed in the suit schedule property when photographs covered under Exs.A-25 and A- 26 were confronted. Further, the evidence of D.W.1 also discloses that his house appears on the right side of Ex.A-25 and the disputed property appears on the left side. Therefore, there is no dispute as to location of the suit schedule property. The record also discloses that shed constructed by D.W.1 was demolished by the Municipality. 8
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18. In a suit for injunction, the Courts have to see as to who was in possession of the property as on the date of filing of the suit but not the title or as to who was the owner of the property. The title of the parties will be looked into incidentally. In the present case, none of the parties have proved their ownership over the property. It is pertinent to mention that the suit was filed only for permanent injunction and the plaintiffs have to prove their possession over the suit schedule property as on the date of filing of the suit and further they are in continuous possession of the property. Both the Courts below have given concurrent finding that the plaintiffs were in possession of the suit schedule property.
19. It is pertinent to mention that there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, only then, this Court can interfere with the orders of the Courts below. On perusal of the entire material on record, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore in the absence of substantial 9 GAC, J S.A.No.857 of 2011 question of law, it is not proper to interfere with the concurrent fact findings of the Courts below. Therefore, the Second Appeal deserves to be dismissed.
20. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment and decree dated 07.01.2011 in A.S.No.120 of 2008 on the file of II Additional District Judge, Warangal. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 05.12.2022 dv