Andhra Pradesh High Court - Amravati

Udatha Narasmiha Rao vs Thota Gangadhara Rao on 13 April, 2022

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                 SECOND APPEAL No.348 of 2021

JUDGMENT:

Assailing the judgment and decree dated 21.06.2021 in

A.S.No.123 of 2017 on the file of V Additional District Judge,

Nellore, confirming the judgment and decree dated 19.09.2017

in O.S.No.150 of 2011 on the file of III Additional Junior Civil

Judge, Nellore the above appeal is filed.

2. For the sake of convenience, the parties herein are

referred to as they are arrayed in the plaint.

3. Plaintiff filed the suit for permanent injunction restraining

the defendants, their men, agents and followers from interfering

with the plaintiff's peaceful possession and enjoyment over the

plaint schedule property.

4. The averments, in brief, in the plaint are that the

plaintiff's father acquired the plaint schedule property about 65

years back and ever since he had been in possession and

enjoyment of the same; that after the lifetime of father and

mother, the plaintiff came into possession and enjoyment of the

same, that during the lifetime of plaintiff's father, he

constructed asbestos sheeted house in four Ankanams leaving

remaining 20 Ankanams as vacant site, in which coconut trees,

Guava trees and other trees were planted along with open toilets

and kitchen; that property tax is being paid to the Panchayat

regularly vide assessment No.435 and mother of plaintiff also

obtained electricity service connection; that in the year 2004,

defendants, neighbours, highhandedly attempted to trespass

into the schedule property at X1 and X2 points by removing the

old collapsed brick wall, resulted in filing suit O.S.No.1148 of

2004 on the file of Principal Junior Civil Judge, Nellore by the

mother of plaintiff; that I.A.No.1110 of 2004 was filed to appoint

an Advocate Commissioner to note down the physical features;

that commissioner's report proved possession and enjoyment of

schedule property by the mother of plaintiff; that plaintiff's

mother died on 02.10.2005; that the plaintiff, who is only son, is

working at SHAR Centre, could not prosecute the suit; that the

suit O.S.No.1148 of 2004 was dismissed for non-prosecution;

that after death of his mother, plaintiff succeeded to the

schedule property and has been in possession and enjoyment of

the same uninterruptedly; that on 30.12.2020 when the plaintiff

came to the plaint schedule property from Sriharikota to

perform Annadanam to poor people in memory of his mother, he

found that 20 years old Guava tree situated on eastern side of

the schedule site was removed with its roots by the defendants

and their men in order to encroach the site at X1 and X2 points;

that defendants have their own way from the backside of their

house connected to the main road and the defendants have no

manner of right or title over ABCD site; that after seeing the

highhanded attempts of defendants, the plaintiff immediately

approached the Superintendent of Police, Nellore and lodged a

complaint on 31.12.2020, which was registered as Crime No.28

of 2010; but the defendants are openly proclaiming that they are

having muscle and manpower and hence, filed the suit.

5. 1st Defendant filed written statement and the same was

adopted by 2nd defendant. It was contended interalia that 1st

defendant got landed property of an extent of Ac.0.42 cents

settled by 2nd defendant; that mother of the plaintiff filed suit for

permanent injunction and later the same was dismissed for

non-prosecution; that temporary shed was constructed in the

road margin in front of plaint schedule property; that after

dismissal of the suit, 2nd defendant settled property in favour of

1st defendant and since then 1st defendant is in possession and

enjoyment property adjacent land of plaint schedule property;

that defendants paved way for ingress and egress from the patta

lands towards main road; that taking advantage of dilapidated

shed, the plaintiff fabricated the tax receipts; that the R & B

department is also necessary party to the suit and eventually,

prayed the Court to dismiss the suit.

6. During trial of suit, plaintiff examined himself as P.W.1

and got examined P.Ws.2 and 3. Exs.A-1 to A-15 were marked.

On behalf of defendants, 1st defendant examined himself as

D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 to B-4 were

marked.

7. Trial Court on consideration of oral and documentary

evidence decreed the suit vide judgment dated 19.09.2017 with

costs. Aggrieved by the said judgment and decree, defendants

filed A.S.No.123 of 2017 on the file of V Additional District

Judge, Nellore. The Lower Appellate Court, being final

factfinding Court, on consideration of oral and documentary

evidence and legal aspects, dismissed the appeal vide judgment

dated 21.06.2021. Assailing the same, the above second appeal

is filed.

8. Heard Sri Challa Ajay Kumar, learned counsel for

appellants.

9. Learned counsel for the appellants would contend that the

Courts below ought not to have decided the title of plaintiff

basing on tax receipts and electricity bills. Further contended

that the alleged receipts do not prove possession of plaintiff and

hence suit ought to have been dismissed. He also would contend

that the shed which was said to have been constructed by the

father of plaintiff was removed by the Government authorities,

since it was constructed on road margin and the plaintiff also

did not file any document to show his right and title over the

schedule property. He further contended that the Courts below

did not appreciate the documentary evidence in proper

perspective and prayed the Court to set aside the judgments

and decrees of the Courts below.

10. The following substantial questions of law arise for

consideration in this appeal:

(1) Whether the respondent/plaintiff proved his possession over the schedule property on the day when the suit is filed?

(2) Whether the Courts below wrongly appreciated the evidence?

11. Undisputed facts, as per pleadings and evidence, are that

mother of respondent/plaintiff, Thota Ramanamma, filed suit

O.S.No.1148 of 2004 on the file of Principal Junior Civil Judge,

Nellore against the 2nd appellant herein and Kistaiah seeking

injunction in respect of plaint schedule property. In the said

suit, an advocate commissioner was appointed and the report

filed by Advocate Commissioner was marked as Ex.A-4 in the

present suit. A perusal of Ex.A-4 commissioner's report would

show existence of house and trees etc. Suit O.S.No.1148 of

2004 was dismissed for non-prosecution on 02.11.2008 and the

mother of respondent/plaintiff died on 02.10.2005.

12. Cause of action to file the present suit for injunction,

according to the plaintiff arose when the defendants tried to

interfere with the plaintiff's possession of the property by cutting

20 years old Guava tree situated on the Eastern side of plaint

schedule property at X1 and X2 points.

13. To prove the possession, plaintiff examined himself as

P.W.1 and got examined P.Ws.2 and 3. Plaintiff filed tax receipts

and electricity bills to show his possession over the schedule

property.

14. The prime consideration in a suit for injunction is

possession of the plaintiff on the day when the suit is instituted.

Exs.A-5 & A-6 are tax receipts and electricity bills respectively

filed by the plaintiff to prove possession. Though plaintiff did not

file any title document to prove his title over the plaint schedule

property, however by marking Exs.A-5 and A-6 he could

establish his possession over the plaint schedule property.

Apart from Exs.A-5 and A-6, Ex.A-4 Advocate Commissioner's

report in O.S.No.1148 of 2004 also strengthens the case of the

plaintiff with regard to possession of plaintiff's mother.

15. P.W.2 examined on behalf of plaintiff, supported the case

of plaintiff with regard to possession of the plaintiff over the

schedule property. A suggestion was put to P.W.2, which is

extracted as follows: "I do not know whether the plaintiff

obtained any permission from the municipality to construct

asbestos sheeted roof house". This suggestion put to P.W.2, in

the opinion of this Court establishes the existence of asbestos

sheeted house in the plaint schedule property.

16. Ex.B-1 is proceedings of the Joint Collector, Nellore.

According to 1st appellant, person filed petition before the Joint

Collector, in between their land and road, the mother of the

plaintiff encroached an extent of six Ankanams and hence,

representation was made to the Mandal Revenue Officer,

Nellore; that V.A.O provided way of 15 feet for ingress and

egress to reach their land; that the plaintiff in the suit was never

resided in the house and in fact the schedule property is

reserved for widening of road and thus prayed to issue

necessary directions. By order dated 10.03.2011, learned Joint

Collector, Nellore remanded the matter to the Tahsildar, Nellore

to conduct enquiry and for taking necessary action under

Section 7 of the A.P. Land Encroachment Act, 1905. A perusal of

the order also implies possession of the plaintiff over the plaint

schedule property.

17. In Leela Soni vs. Rajesh Goyal1, the Hon'ble Apex Court

held thus:

"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

18. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference by the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of

CPC has to confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

2001 (7) SCC 494

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Court are

manifestly perverse and contrary to the evidence on record.