M Vasu vs G Subramanya Sastry
2021 Latest Caselaw 2207 AP

       THE HON'BLE SRI JUSTICE M.VENKATA RAMANA

                 SECOND APPEAL No.3 of 2019

JUDGMENT:

This second appeal is heard at the stage of admission,

since both the learned counsel agreed for this course to follow.

2. The appellant was the plaintiff in O.S.No.543 of 2015 on

the file of the Court of learned I Additional Junior Civil Judge,

Vijayawada. The respondent was the defendant. Claiming that

he is running a 'Gosala' in the plaint schedule property, since the

year 2009, with the funds provided by the public and alleging

that the respondent interfered with his possession thereon, he

laid the suit for relief of permanent injunction to restrain him

from interfering with his peaceful possession and enjoyment of

this property.

3. The appellant also claimed that by the date of suit he was

maintaining 12 cows and that he raised a hut to protect them in

all respects, after obtaining oral permission from Roads and

Buildings Department. He further alleged that when an attempt

was made on 06.05.2012 by the respondent to remove the hut,

he gave a complaint to the police on the same day and at their

intervention, the matter was settled on 28.05.2015.

4. The respondent resisted the claim of the appellant denying

the alleged possession and enjoyment of the plaint schedule

property of the appellant, his alleged intervention with the site

highhandedly and claiming that the suit could not have been

maintained, since the Roads and Buildings Department is not

made a party to the suit. Asserting that he is in-charge of

Sri Anjaneyaswamy temple, adjacent to the schedule property

viz., Sri Pratapa Veeranjaneyaswamy and other temples as

Archaka, he claimed that a false suit has been instituted against

him.

5. On the pleadings, upon settlement of the issues by the

learned trial Judge, both parties went to trial.

6. The appellant examined himself as PW.1 and another

witness as PW.2 to support his contention, while relying on

Exs.A1 to A5. The respondent examined himself as DW.1 and

relied on Exs.B1 to B6.

7. Upon such material, learned trial Judge, basing on the

statements of the appellant at the trial, pointing out the

deficiencies in this claim to establish his possession and

enjoyment of the plaint schedule property, rejected his

contention and ultimately, the suit was dismissed.

8. Learned trial Judge also held that possession claimed by

both the parties of respective sites is unlawful, since both of

them as per their contention have been the encroachers of the

Government site belonging to Roads and Buildings Department.

9. Aggrieved, the appellant presented A.S.No.64 of 2016 on

the file of the Court of learned II Additional District Judge,

Krishna at Vijayawada.

10. By the decree and judgment dated 22.11.2018, confirming

the decree and judgment of the trial Court, the appeal was

dismissed, upon reappraisal of the material.

11. This second appeal is preferred in these circumstances,

against the decree and judgment of the 1st appellate Court.

12. Sri E.V.V.S.Ravi Kumar, learned counsel for the appellant,

referring to pleadings set up by the parties and evidence let in

both documentary and oral, strenuously contended that both the

Courts below ignored a clear admission of the respondent in the

written statement of possession of the plaint schedule property

to rest with the appellant and in such circumstances, the burden

of proof cannot rest with him, in the suit of this nature.

13. Learned counsel for the appellant further contended taht

the findings recorded by the trial Court in this context in the

backdrop of such material cannot stand nor the appellate Court

took into consideration this fact in right perspective in

appreciation of the material. Further, contending that in case of

this nature, where there is scramble for possession by both the

parties, who have no right and title to the property in dispute,

the question of settled possession alone needs to be considered,

learned counsel pointed out that the material on record

including admissions of the respondent at the trial as DW.1

require consideration.

14. Referring to substantial questions of law set out in the

grounds of appeal, learned counsel for the appellant further

contended that upon consideration, the reasons of both the

Courts below cannot stand and necessary relief has to be granted

to the appellant decreeing the suit.

15. Sri V.V.K.Durga Prasada Rao, learned counsel for Sri

S.Murali Mohan, learned counsel for the respondent contended

that in view of the specific and concurrent findings recorded by

both the Courts below, on pure question of fact, there is no

necessity to interfere in the second appeal. Pointing out that the

appellant failed to produce any material that he was in

occupation of the plaint schedule property with the permission

of Roads and Buildings Department and when material produced

by him clearly disclosed that he was not in possession of the

plaint schedule property on the date of the suit, learned counsel

for the respondent contended that the version of the appellant

cannot be acceded to.

16. Learned counsel for the respondent further contended

that the burden being on the appellant in a suit for permanent

injunction, it is for him to establish the suit claim and that he

cannot rely on the material produced by the respondent, taking

advantage of any weakness in his case.

17. It is against this background, the maintainability of the

second appeal has to be considered and if intervention of this

Court is necessary applying Section 100 C.P.C.

18. In a suit for permanent injunction, it is settled proposition

of law that it is for the plaintiff to establish his claim against the

defendant. He cannot rely on any laches or weaknesses in the

case set up by the defendant. Settled possession of property,

has certain features of its own and sporadic instances of trivial

nature cannot characterise possession meeting such description.

19. Learned counsel for the appellant, in this context, relied

on Rame Gowda(D) by L.Rs v. M.Varadappa Naidu(D) by L.Rs1.

In this ruling, referring to its earlier decision particularly in

Puran Singh v. State of Punjab2, in para-9, certain attributes for

settled possession are stated. They are:

" i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. "

20. The concurrent findings recorded by the Courts below

against the appellant in support of his claim of possession shall

be considered at this stage, when the same have significance.

21. It is also important to note that this is a fight between two

encroachers of Government land. The specific case set up by the

appellant in the plaint and at the trial has been that he is in

occupation of the plaint schedule site with the oral permission of

AIR 2004 SC 4609

(1975)4 SCC 518

Roads and Buildings Authorities. This site is of 100 Sq.yards in

Ajit Singh Nagar, Vijayawada in R.S.No.8/1-B within the

boundaries specified in the plaint schedule. No proof was

adduced for possession of this site by the appellant, though he

claimed that he has been there, since the year 2010.

Admittedly, Sri Anjaneyaswamy temple, where the respondent is

an Archaka is the Eastern Boundary of this site. It is the

contention of the respondent that his father raised this group of

temples in an extent of about Ac.1.41 cents belonging to Roads

and Buildings Department and after his demise in the year 2004,

the respondent claimed that he is continuing and managing the

temples as Archaka.

22. It is further to note that the suit was laid in the trial Court,

presenting a plaint on 29.06.2015. Documentary evidence

adduced by the appellant particularly Exs.A1 and A2 allege that

the respondent and his family members interfered with his

possession and enjoyment of this site removing the hut erected

by him therein in the year 2015. Thus, by the date of institution

of the suit, the appellant was no more in possession of this site.

23. When a representation was given by the appellant in this

context to the Tahsildar, Vijayawada, an endorsement was issued

on 01.05.2015, as seen from Ex.A4 that the encroachment made

by him on the land in R.S.No.8/1B of Mutyalampadu Village of

Vijayawada Urban Mandal, was once removed by the Municipal

Authorities and that it belonged to Roads and Buildings

Department. On such premise, his request for allotment of this

site was not considered by the Revenue Authorities.

24. When Ex.A4 was produced by the appellant himself, it runs

counter to the claim of the appellant that the hut in this site was

removed by the respondent and his family members. It cannot

be contended for the appellant that Ex.A4 could not have been

issued by the Tahasildar, when the site belonged to Roads and

Buildings Department.

25. Even otherwise, the documentary evidence so placed by

the appellant itself established that he was no more in possession

of the property by the date of institution of the suit.

26. There are also admissions by the appellant as PW.1 in the

cross examination in this context. One of them is to the effect

that after removal of the hut in this site, the Tahsildar,

Vijayawada Urban erected a sign Board threatening 'prosecution

for trespass into this site'.

27. In the light of such material, the contention of learned

counsel for the appellant referring to the version of defendant in

para-8 of the written statement is required to be considered.

28. It is stated in para-8 of the written statement that the

appellant entered the plaint schedule property in the year 2015,

which is a part and parcel of the site claimed by the group of

temples raised by the father of the respondent. His statement is

qualified by the allegation that the appellant entered into this

site with a further intention to grab, where he had raised a small

hut. If this statement is taken at its face value, it did not fit in

with the claim set up by the appellant in the plaint and at the

trial.

29. Therefore, this part of the written statement, cannot

strengthen the contention of the appellant to prove and establish

his possession of the plaint schedule property.

30. The respondent stated as DW.1 at the trial that he did not

have any objection to have 'Gosala' behind the temple and that

he has nothing to do with 'Gosala'. This statement cannot have

any bearing, having regard to the nature of the claim set up by

the appellant.

31. Thus, the material on record did not make out such

attributes of settled possession as stated in Ramegowda(referred

to supra).

32. Learned counsel for the appellant also relied on Podili

Kotamma v. Munepalli Desapathi3, to support his contention.

This ruling as such, cannot assist his claim. As observed in para-9

of this ruling, the representations of the appellant, Exs.A1 to A5

cannot lead to any inference in his favour. On the other hand,

they formed the basis to non-suit this claim.

33. Thus, on conspectus, the inference to draw is that the

appellant failed to discharge his burden to prove his possession

of the plaint schedule property by the date of the suit. Even the

alleged cause of action set up by him with reference to alleged

removal of the hut from the plaint schedule property, is

2011(5) ALD 35

rendered doubtful, in view of Ex.A4-endorsement of the

Tahasildar, Vijayawda Urban.

34. On any count, the claim of the appellant against the

respondent cannot lie for the relief of permanent injunction,

with reference to the plaint schedule property. The entire case

rests more on appreciation of facts than consideration of

substantial questions of law. Concurrent findings are staring at

the appellant in this regard particularly, with reference to his

possession and enjoyment of the plaint schedule property.

Hence, this Court should be slow in interfering in terms of

Section 100 C.P.C. Therefore, this Second Appeal has to be

dismissed.

35. In the result, the Second Appeal is dismissed at the stage

of admission, confirming the decrees and judgments of both the

Courts below. No costs.

36. Consequently I.A.No.1 of 2021 and I.A.No.2 of 2019, in the

circumstances, do not survive for consideration and accordingly,

they stand closed.

37. Interim orders granted earlier if any, stand vacated.

38. Miscellaneous applications pending if any, shall stand

closed.

_____________________ M.VENKATA RAMANA, J Date: 30.06.2021 Pab