THE HONOURABLE SRI JUSTICE K. SARATH
S.A.Nos.285 and 301 of 2022
COMMON JUDGMENT
Heard the learned counsel for the appellants/plaintiffs
and the learned counsel for the respondents/defendants in
both the appeals.
2. Since both these appeals arise out of the common judgment and decree dated 08.12.2021 in A.S.Nos.191 and 192 of 2014 on the file of II Additional Chief Judge, City Civil Court at Hyderabad, they are being disposed of by this common judgment.
3. For the sake of convenience, the parties hereinafter are arrayed as plaintiffs and defendants.
4. The appellant in S.A.No.285 of 2022 has filed O.S. No.638 of 2006 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad for permanent injunction restraining the defendants, their workmen, agents, relatives or any such person claiming through them from interfering with their 2 SK, J S.A.Nos.285 and 301 of 2022 possession and obstructing the passage to the suit schedule property bearing premises No.8-2-708/7 in Sy. No.129/26 (old), New No.303, admeasuring 915 sq. yds, situated at Khaja Nagar, Near Road No.12, Banjara Hills, Hyderabad. It is stated that initially one Major Gulam Jeelani Saheb was the owner and possessor of land admeasuring Ac.4-17 gts and after his death, the said property was devolved to his only daughter Smt Ayesha Bee Saheba, who has executed a registered General Power of Attorney in favour of her husband Mr. Mohammed Roshan, who in turn got the land plotted and later, Smt Ayesha Begum Saheba has sold out the plotted landed property through the GPA holder-her husband to various purchasers and also gifted the open plot property to one Smt Ghousia Begum, W/o Mohammed Jeelani, through oral gift with possession under oral Hiba Bil Khabz in the year 1964 and subsequently executed the Memorandum of Acknowledgment of Oral Hiba Bil Khabz dated 18.01.1965. Thereafter, said Smt Ghousia Begum has constructed rooms, obtained house No.8-2-708/7 3 SK, J S.A.Nos.285 and 301 of 2022 for the said plot in the year 1970 and also paid the property tax. It is stated that since 1964, the plaintiff and his predecessors in title were in continuous and uninterrupted peaceful possession of the subject property. While so, on 11.04.2006, the defendants being neighbours towards western side premises bearing No.8-2-703/6, came with unsocial elements and tried to interfere with the possession of the plaintiff and also threatened that they will close the passage situated on western side of plaintiff's house, which is using for ingress and egress to the subject property.
5. The appellants in S.A.No.301 of 2022 have filed O.S.No.639 of 2006 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad, for permanent injunction restraining the defendants, their workmen, agents, relatives or any such person claiming through them from interfering with their possession and obstructing the passage to the suit schedule property bearing premises No.8-2-703/7 in Sy. No.129/26 (old), New No.303 admeasuring 400 sq. yds, situated at Khaja Nagar, Near Road No.12, Banjara Hills, 4 SK, J S.A.Nos.285 and 301 of 2022 Hyderabad. It is stated that the plaintiff Nos.1 to 3 got the subject property through registered gift deed bearing document No.194/2006 from their mother, who got title from her husband Mr. Mohd. Hassan Shareef through oral Hiba on 20.06.1980 towards her Mehar and plaintiff No.4 got a portion of house property on southern side of the subject property. It is stated that the said Mohd Hassan Shareef got the said plot from Smt Ayesha Bee through memorandum of acknowledgment or Oral Hiba Yadahshe Zabani Hiba dated 18.01.1977 and Smt Ayesha Bee has purchased the said plot from the registered GPA holder, namely, Mohd. Roshan, s/o. Mohd. Ali vide document dated 21.11.1963. It is stated that the father of plaintiffs i.e., Mohd. Hassan Shareef, had constructed rooms, obtained Municipal No.8-2-703/7 and also paying the property tax. It is further stated that since 1963, the plaintiffs were in continuous and uninterrupted peaceful possession of the suit schedule property. While so, on 11.04.2006, the defendants being neighbours towards western side with premises bearing 5 SK, J S.A.Nos.285 and 301 of 2022 No.8-2-703/6, came with unsocial elements and tried to interfere with the possession of the plaintiffs and also threatened that they will close the passage situated on western side of plaintiff's house, which is the only passage to the plaintiffs for ingress and egress to the subject property.
6. The defendants in both the suits are one and the same. They filed separate written statements with similar averments stating that the plaintiffs have not filed any document to establish the identity of the subject premises. It is stated that there is a reference to certain registered document improvised from time to time traceable to the mother document initially brought into existence on 21.11.1963, which was the subject matter of O.S.No.158 of 1967 on the file of the II Assistant Judge, City Civil Court, Hyderabad, finally concluded on 20.04.1970 in favour of the predecessor in title of the defendants, who is the father of defendant No.2. It is stated that the defendants have nothing to do with the subject land, but on enquiry, it was revealed that the subject premises is in a low lying slum located in the South almost 6 SK, J S.A.Nos.285 and 301 of 2022 10 houses beyond the house of the defendants. It is stated that since the lineage of documents had fallen for consideration in the previous round of litigation have concluded between the predecessors in title of the plaintiffs and the defendants vide judgment and decree dated 20.04.1970 in O.S.No.158 of 1967, which has attained finality, the said decision equally applies to the successors in title and the subsequent documents do not concern the land now falsely claimed by the plaintiffs. It is stated that the plaintiffs have no manner of right on any premises within the gate installed at the entrance more than 3 and half decades ago by the defendants with a lawful bona fide sanction flagging on it and the suit for injunction simplicitor is not maintainable.
7. The trial Court after considering the pleadings framed the following issues for consideration:
1. Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for ?
2. To what relief?
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8. The trial Court clubbed the suits in O.S.No.638 and 639 of 2006 as per the orders in I.A.No.527 of 2008 and the evidence was recorded in O.S.No.638 of 2006.
9. During trial, P.Ws.1 to 4 were examined and Exs.A1 to A90 were marked on behalf of the plaintiffs. D.Ws.1 to 3 were examined and Exs.B1 to B30 on behalf of the defendants as well as Exs.X1 to X3 and Ex.C1 were marked.
10. After full-fledged trial, the trial Court dismissed both the suits with a finding that the suit schedule properties in both the suits are interwoven with title dispute having regard to lineage of document relied upon by the plaintiffs as such the possession and title of the plaintiffs come under cloud and also held that the suits as laid for bare injunction are not maintainable without seeking the relief of declaration of title.
11. Against the said common judgment, the appellant/plaintiffs filed A.S.Nos.191 and 192 of 2014 before the Appellate Court. The Appellate Court heard both the appeals commonly and framed the following issues for consideration:
8 SK, J S.A.Nos.285 and 301 of 2022
1. Whether the Appellants are entitled for the relief of perpetual injunction as prayed under the facts and circumstances narrated in the above said two suits?
2. To what relief?
12. The Appellate Court, after hearing both sides, dismissed the appeals through the common judgment dated 08.12.2021, wherein the Appellate Court held that in both the suits, the relief of perpetual injunction is not in respect of the house property which is shown in the suit schedule property and the suit relief is in respect of passage but in the suit schedule property, the house property was shown by the plaintiffs and further held that the relief claimed by the plaintiffs is totally misleading with the suit schedule properties mentioned in the suits, if injunction is granted it leads to miscarriage of justice and the plaintiffs failed to show the correct schedule of property in the plaints.
13. The Appellate Court categorically held that the plaintiffs filed the suit for permanent injunction basing on the documents, as such oral evidence cannot over ride the documentary evidence produced by both the parties. The 9 SK, J S.A.Nos.285 and 301 of 2022 documentary evidence produced by the plaintiffs is not establishing the existence of public passage, on the other hand the documents filed by the defendants are proving the facts that the alleged passage is a private passage and the plaintiffs are nothing to do with it.
14. Aggrieved by the said judgment of the Appellate Court, the plaintiffs preferred the present second appeals.
15. Learned counsel for the appellants/plaintiffs submits that a suit for bare injunction is maintainable when the defendants have not taken any adverse plea of title in respect of the suit schedule properties and there is no finding with regard to the genuineness and relevancy of the overwhelming documentary evidence filed by the plaintiffs to at least prove their possession, but the said facts were not considered by the trial Court as well as the Appellate Court and requested to admit the Second Appeals for allowing the same.
16. On the other hand, learned counsel for the respondents/defendants submits that the appellants/plaintiffs 10 SK, J S.A.Nos.285 and 301 of 2022 have failed to prove their possession over the suit schedule property, which is a private passage and there has been a concurrent finding of both the Courts below on the basis of the evidence that the appellants/plaintiffs have failed to prove their case and therefore, there is no error in the judgment of the trial Court as well as the Appellate Court and the second appeals should not be admitted and requested to dismiss the appeals in limini.
17. Learned counsel for the respondents/defendants has relied on the following judgments:
1. Chandrabhan (deceased) through Lrs and others vs. Saraswati and others 1;
2. Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor 2;
3. Tirumala Tirupati Devasthanams vs. K.M.Krishnaiah 3;
4. Veerayee Ammal vs. Seeni Ammal 4 ; Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. 5 ;
5. Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others 6. 1 2022 SCC OnLine SC 1273 2 (1999) 2 SCC 471 3 (1998) 3 SCC 331 4 (2002) 1 SCC 134 5 (2001) 3 SCC 179 6 (1999) 3 SCC 722 11 SK, J S.A.Nos.285 and 301 of 2022 Learned counsel has also relied on the judgments of this Court in S.A.Nos.155 of 2019 dated 17.07.2019 and S.A. No.1714 of 2018 dated 17.07.2019.
18. After hearing both sides and perused the records this Court is of the considered view that there was a concurrent finding of fact by the trial Court as well as the Appellate Court, which is based on proper appreciation of evidence and both the Courts below have rightly held that the suit for bare injunction is not maintainable without seeking the relief of declaration of title and the documents relied on by the plaintiffs.
19. The trial Court and the Appellate Court categorically held that the plaintiffs filed suits for injunction showing House properties as the suit schedule properties but their prayers in the suits are perpetual injunction against the defendants from interfering with the possession and obstruction of passage. Moreover, the possession and the title of the plaintiffs basing on the documents produced by them are not established the existence of public passage and held that the 12 SK, J S.A.Nos.285 and 301 of 2022 alleged passage is a private passage and the plaintiffs are nothing to do with it, the earlier suits filed by the vendors of the plaintiffs were dismissed as such those were relevant under Section 43 of the Evidence Act.. Therefore, the findings of both the Courts below are based on proper appreciation of evidence, which cannot be treated as erroneous and should not be interfered with on re- appreciation of the evidence in the second appeals.
20. The judgments relied on by the learned counsel for the respondents/defendants are squarely apply to the instant case. There is no question of law much less substantial question of law is involved in these second appeals. None of the contentions of the learned counsel for the appellants/plaintiffs can be sustained.
21. In view of the same, this Court finds that no substantial question of law arises in this appeal and hence, both the appeals are liable to be dismissed at the admission stage itself.
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22. Accordingly, the Second Appeals are dismissed. No order as to costs.
23. Miscellaneous petitions, if any pending in these appeals, shall stand dismissed.
_________________ SRI K. SARATH, J Date:08.09.2023 sj