S.Kannam Naidu And 2 Others vs G.Ramanamma And Another
2022 Latest Caselaw 9218 AP

                                   1



      THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

            SECOND APPEAL Nos.89 AND 91 OF 2002

COMMON JUDGMENT

      As both appeals are arising out of Common Judgment passed by

Courts below, these appeals can be disposed of by Common Judgment.


2.    The plaintiffs in O.S.No.129 of 1999 and defendants in

O.S.No.98 of 1999 on the file of Junior Civil Judge's Court, Gajuwaka,

are the Appellants. Respondent No.1 is the plaintiff in O.S.No.98 of

1999 and Respondent Nos.1 and 2 are defendants in O.S.No.129 of

1999 on the file of Junior Civil Judge's Court, Gajuwaka. At the first

instance, Respondent No.1 Smt.Gollangi Ramanamma filed suit against

the Appellants herein for injunction simplicitor in respect of site

purchased by her from Smt.Sarada Ranganadham, who in turn

purchased from Friends Cooperative Society, whereas O.S.No.129 of

1999 filed by Appellants herein against Respondent Nos.1 and 2 for

permanent injunction in respect of two items of house sites. The

schedule in O.S.No.129 of 1999 (old O.S.No.363 of 1999) on the file of

Junior Civil Judge's Court, Visakhapatnam, which reads as under:-

"The Hon'ble Court of the Junior Civil Judge at Visakhapatnam O.S.No.363 of 1999

Between:

1.Saragadam Kannam Naidu and two others. Plaintiffs

And:

Gollangi Ramanamma and another ... Defendants

Plaint Schedule

Item No.I

Visakhapatnam District, Visakhapatnam Taluq, Gajuwaka Mandal, Vadlapudi Village.

S.No.24/4 part 317 square yards or 265.053 square meters with the following boundaries:

 East    :      Mojes Sekly and others vacant place.
 South   :      Vadlapudi R.H.Colony.
 West    :      Remaining vacant place of plaintiff.
 North   :      20 feet road.

Measurements:
 East :       67 square feet.
 South :      42.6 square feet.
 West :       57 square feet.
 North :      42.6 square feet.

Item No.II

Visakhapatnam District,
Visakhapatnam Taluq,
Vadlapudi Village,
Gajuwaka Mandal,

S.No.24/4 part 212 square yards or 177.255 square meters with the following boundaries:

 East    :      Mojes Sekly vacant place.
 South   :      20 feet road.
 West    :      Remaining vacant place of plaintiff.
 North   :      Vacant place sold by V.Papayamma.

Measurements:
 East :       50 feet or 15.25 meters.
 South :      38 feet or 11.59 meters.
 West :       50 feet or 15.25 meters.




      North :        38 feet or 11.59 meters.

                                        Sd/-Saragadam Kannam Naidu
                              Sd/- Saragadam Narasingarao/plaintiffs.
                                      Sd/---xxxx advocate for plaintiff.

The facts stated above are true to the best of my knowledge and belief.

Sd/-Saragadam Kannam Naidu Sd/- Saragadam Narasingarao/plaintiffs.

Visakhapatnam/Dt.09.02.1999."

3. The Appellants and Respondents herein after referred to as

defendants and plaintiffs as arrayed before the trial Court. Both sides

have filed suit for Permanent Injunction against each other whereas

suit filed by the plaintiff Smt.Gollangi Ramanamma is earlier one than

the suit filed by the defendants, who are Appellants herein. The trial

Court clubbed the both suits and conducted common trial on a joint

memo filed by the plaintiff's counsel in O.S.No.98 of 1999, for which,

counsel for the Appellants before trial Court reported no objection and

common Judgment pronounced on 05.03.2001 decreeing the suit filed

by the plaintiff Smt.Gollangi Ramanamma and dismissed the suit filed

by the Appellants herein.

4. Aggrieved by the Judgment and Decree passed by learned trial

Judge, the Appellants herein preferred two separate appeals i.e.,

A.S.No.5 of 2001 and A.S.No.6 of 2001 on the file of Senior Civil

Judge's Court, Gajuwaka wherein also common Judgment pronounced

confirming the Judgment and Decree of trial Court and dismissed the

appeal vide Judgment, dated 29.09.2001.

5. Aggrieved by the Common Judgment passed in A.S.No.5 of

2001 and A.S.No.6 of 2001 on the file of Senior Civil Judge's Court,

Gajuwaka, Appellants have preferred two separate appeals before this

Court in S.A.No.89 of 2002 and S.A.No.91 of 2002.

6. The plaintiff Smt.Gollangi Ramanamma filed suit for injunction

simplicitor stating that she is the absolute owner of the plaint schedule

property, which is vacant land to an extent of 352.55 square yards in

Survey No.24/4 situated in Vadlapudi Village of Gajuwaka mandal,

Visakhapatnam District, which she purchased from Smt.Sarada

Ranganadham under Registered Sale Deed, dated 18.03.1997 (Ex.A.1)

for a valid consideration of Rs.88,200/- and ever since, she has been in

possession and enjoyment of her suit schedule property. She also

stated that her husband purchased plaint schedule property and

constructed a boundary wall and compound wall upto one foot from

the ground level in the month of April, 1997. She alleged that the 1st

defendant by name Vadapalli Surya Narayana Raju, who is doing real

estate business obtained Power of Attorney from the 2nd defendant

S.Kannam Naidu and 3rd defendant S.Narasinga Rao asked her to sell

her site which she refused due to that they tried to encroach upon her

site on 05.10.1998 and then she filed suit for injunction simplicitor. The

defendants, who are Appellants herein resisted the claim of the plaintiff

and filed written statement stating that defendant Nos.2 and 3 have

sold property under an agreement of sale coupled with delivery and

registered General Power of Attorney, dated 28.09.1998 to defendant

No.1 for the land in Survey No.24/4 to an extent of 317 square yards

and another 212 square yards (which is subject matter in O.S.No.129

of 1999=S.A.No.91 of 2002). They also stated that originally land in

Vadlapudi village purchased by three individuals namely Perindevi @

Chittemma, Papayamma and Atchumamba @ Ammajamma under

registered sale deed dated 09.08.1958 to an extent of Ac.38.84 cents

under different survey numbers. They submit that as per the said sale

deed, wife of the 2nd defendant i.e., Smt.Perindevi entitled to ½ share

in the entire extent of land and other two individuals each entitled to

¼ share, which property they partitioned on 13.08.1958 as per

partition list. They also stated that Smt.Perindevi got Ac.5.35 cents in

S.No.24/4 out of which she sold Ac.2.00 of land on 26.08.1982 and

Ac.1.65 cents of land on 31.07.1982 and Ac.80.00 cents of land and

Ac.60.00 cents of land under two documents on 21.09.1982 and still

she has got rest of the land in the said survey number. It is also the

contention of the defendants/Appellants that on 31.07.1982

Smt.Perindevi executed registered Will bequeathing all her properties

in favour of her husband i.e.,2nd defendant with a limited estate and

remainder to her two sons to enjoy in equal shares with absolute

rights. It is alleged that plaint schedule property in O.S.No.98 of 1999

is not a part of the property sold i.e., Ac.80.00 cents of land to the

Friends Cooperative House Building Society and the vendor of the

plaintiff i.e., Smt.Sarada Ranganadham, who purchased the site from

Friends Cooperative House Building society, but boundaries in the

document not tallying . They also stated that Friends Cooperative

House Building Society laid plots in S.R.No.24/4, which was also

approved by Visakhapatnam Urban Development Authority (VUDA) in

1983 and said Friends Cooperative Society sold plot No.15 to the

vendor of plaintiff by way of registered sale deed and in turn to the

plaintiff, but boundaries in plot No.15 mentioned in sale deed of

Smt.Sarada Ranganadham was not adopted in the sale deed of the

plaintiff. Thereby, they alleged that the plaintiff has not come to the

Court with clean hands.

7. The trial Court basing on the above pleadings, settled the

following issues in both suits.

Issues in O.S.No.98 of 1999:-

1)Whether the plaintiff is entitled for permanent injunction as prayed

for?

2)To what relief?

Issues in O.S.No.129 of 1999:-

1)Whether the plaintiffs 1 and 2 were in possession of the suit property

and whether the plaintiffs 1 and 2 delivered the suit property to the 3rd

plaintiff and whether the 3rd plaintiff is in possession and enjoyment of

schedule property?

2)Whether the plaintiffs are entitled for permanent injunction as

prayed for?

3.To what relief?

8. The parties went to trial and in order to establish the case on

behalf of plaintiff, five witnesses were examined as PWs.1 to 5 and got

marked Exs.A.1 to A.4. On behalf of defendants/Appellants, three

witnesses were examined as DWs.1 to 3 and got marked Exs.B.1 to

B.12.

9. In the appendix of evidence, learned trial Judge has shown that

in O.S.No.98 of 1999, PWs.1 to 5 were examined and DWs.1 to 6 were

examined and in O.S.No.129 of 1999, PWs.1 to 6 were examined and

DWs.1 to 5 were examined. On behalf of plaintiff, Exs.A.1 to A.5 were

marked whereas Exs.B.1 to B.14 were marked on behalf of

defendants/Appellants herein. On appreciation of evidence, the trial

Court held that the plaintiff established her right and possession over

plaint schedule property and decreed the suit and dismissed the suit

filed by Appellants herein. Against the Decree and Judgment passed by

trial Court, the Appellants have preferred two separate appeals on the

file of Senior Civil Judge's Court, Gajuwaka, which were dismissed

confirming the Judgment and Decree passed by trial Court. In these

circumstances, the present Second Appeals are presented.

10. I have heard learned counsel for the Appellants

Mr.K.Subrahmanyam, representing on behalf of Mr.M.Kesava Rao as

well as learned counsel Ms.S.A.V.Ratnam, representing for the

respondents/plaintiffs.

11. Learned counsel for the Appellants would submit that under

Ex.B.2 Smt.Perindevi got property and then the same was partitioned

on 13.08.1958 wherein she has got Ac.5.35 cents in S.No.24/4 out of

which she sold Ac.5.05 cents retaining Ac.30.00 cents and the property

now claimed by the plaintiff is in possession and enjoyment of the

defendants/appellants, who are husband and son of Smt.Perindevi,

who got the property under Registered Will. He would further submit

that if there is any dispute with regard to identity of the property, this

Court also can appoint an Advocate/Commissioner to demarcate the

property. He relied on ratio laid down by this Court in Chukka

Venkatadri and another Vs. Mallavarapu Mahalakshmamma

and another 2006(3) ALD 87 wherein this Court while discussing

Appeal Suit after considering the facts and circumstances in that case

appointed Advocate/Commissioner and directed the trial Judge to

submit report of Advocate/Commissioner as per procedure laid down

under law.

12. Learned counsel for Appellants argued that though Perindevi

sold the property to Friends Cooperative Society still she has got

Ac.30.00 cents of land in S.R.No.24/4 due to that her legal heirs filed

suit for injunction simplicitor, which erroneously dismissed by trial

Court and confirmed by Appellate Judge. He prays to appoint an

Advocate/Commissioner to demarcate the remaining land of

Smt.Perindevi after taking into consideration four sale deeds executed

by her.

13. Learned counsel for the respondents/plaintiffs would submit that

appointment of an Advocate/Commissioner at the stage of Second

Appeal is unknown to law, which amounts to collection of evidence,

which is not permissible under law. She would further submit that

findings of trial Court clearly shows that land in S.R.No.24/4 is having

only Ac.5.00 cents, which Smt.Perindevi already sold to Friends

Cooperative Society, thereby, she has not left any piece of land in the

suit survey number as claimed by the Appellants. It is the contention of

learned counsel for the respondents that trial Court also observed that

there is another son to Smt.Perindevi, who not joined to file a suit and

a person, who has got limited estate cannot file a suit for injunction.

She prays to dismiss the appeals.

14. This Court at the time of admitting Second Appeal observed that

in view of substantial question of law arisen in this appeal, on the facts

and circumstances of this case, it is necessary to go into the question

of law especially when the suit is filed for injunction simplicitor.

15. The substantial question of law stated in the Grounds of Second

Appeal are similar in both appeals, which reads as under:-

"1).Whether the Courts below have not committed a grave error of law in deciding the title finally in the suits for mere injunction.

2).Whether the Courts below have not committed a serious error of law in not taking into consideration the description of boundaries in all the registered documents prior to Ex.A.1 sale deed dated 18.03.1997 under which G.Ramanamma purchased her plot when the said description of boundaries establish that Pernidevi under whom these appellants are claiming is having her property there.

3).Whether the Courts below have not committed a serious error of law in not understanding the scope and in interpreting the settlement operations after estate is notified leading to preparation of settlement Register, and whether they did not fail to understanding that reputed extents are mentioned in settlement adangal for purpose of fixing the revenue only and that extent is not a measured extent under Survey and Boundaries Act.

4).Whether the Courts below have not committed a serious error of law in drawing adverse inference against the appellants version regarding the extent got by Pernidevi, simply because the partition list with her other partners could not be produced though the entire evidence including Ex.B.2 sale deed of 21.05.1958 clearly establish the claim of Pernidevi."

16. As per Section 100 Civil Procedure Code, this Court can interfere

with the Judgment of Appellate Court if it is satisfied that case involves

a substantial question of law. On finding of fact recorded by Appellate

Court binding of this Court unless there is any error of law in such

finding. The Hon'ble Apex Court in Narayan Sitaramji Badwaik

(Died) through LRs Vs. Bisaram and others in Civil Appeal

No.6124 of 2011, Judgment dated 17.02.2021, explained

circumstances under which High Court determine issue of fact.

17. The Hon'ble Apex Court in Chandrabhan (Deceased)

Through LRs and Ors .... Appellant(s) Vs. Saraswathi and Ors

... Respondent (s) in S.L.P.(C) No.8736 of 2016, Judgment Dated

22.09.2022. After elaborately discussing precedent law enunciated

following principles relating to Section 100 of Civil Procedure Code at

para No.33 of Judgment, which reads as under:-

"33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding

precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

18. It is the contention of learned counsel for the Appellants that in

a suit for injunction simplicitor, trial Court went on to decide title of the

parties, which is not permissible and possession has to be considered

on the date of filing of the suit. Now, it would be beneficial to extract

ratio laid down by Hon'ble Apex Court in Anathula Sudhakar ...

Petitioner Vs. P.Buchi Reddy (Dead) By LRs & Ors in Civil Appeal

No.6191 of 2001, Judgment Dated 25.03.2008 wherein the Hon'ble

Apex Court at Para Nos.14 and 17 held as under:-

"14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."

"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there

is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven

to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

19. The ratio laid down by Hon'ble Apex Court in Anathula

Sudhakar referred supra is that when the disputed land is vacant site,

which is not physically possessed, principle possession follows title can

be applied and equitable relief of injunction can be granted in favour of

person, who proves better title.

20. In the present case, there is no dispute that originally property

in the suit S.R.No.24/4 is belongs to Smt.Perindevi and she sold

different extents of site under four registered sale deeds, which

includes to Friends Cooperative Society, who admittedly laid plots

obtained approved plans from VUDA and sold plot to Smt.Sarada

Ranganadham from whom the plaintiff Smt.G.Ramanamma purchased

under Ex.A.1 registered sale deed. The contention of the Appellants

herein is that Smt.Perindevi has sold only Ac.5.05 cents of land under

four sale deeds by retaining Ac.30.00 cents of land, which site now the

plaintiff Smt.G.Ramanamma interfering with their possession. It is

pertinent to note that at the first instance, Smt.G.Ramanamma filed

suit against Appellants herein for injunction simplicitor in respect of site

purchased by her under Ex.A.1. After she filed suit Appellants herein

have filed suit in O.S.No.129 of 1999 against Smt.G.Ramanamma and

Smt.Sunanda Annamalai for injunction simplicitor and on perusal of

averments of the plaint in O.S.No.129 of 1999, which not discloses

filing of O.S.No.98 of 1999 by Smt.G.Ramanamma against them

wherein they also filed written statement resisting her claim. The fact

remains is that both parties have filed suit for injunction simplicitor in

respect of house site which shows that both are claiming equitable

relief of injunction. When a person claiming equitable of relief of

injunction has to establish breach of an obligation and infringement of

their legal right, as person seeking relief of injunction should prove

violation of his right by the Act complaining of and if that Act is

carryout into effect, it must result in infringement of their legal right.

Though in a suit for injunction, preliminary question to be considered is

one of the possession on the date of filing of the suit, the plaintiff has

to establish that they have got legal right to get equitable relief of

injunction against the defendants. The plaintiff shall also establish that

the defendants are not justified in interfering with their legal right and

possession over the suit property. It is settled law that relief of

injunction is an equitable relief when the parties approached the Court

must come to the Court with clean hands without suppressing the

material facts. The Appellants herein for the reasons best-known to

them have not stated in their plaint in O.S.No.129 of 1999 about filing

of the suit in O.S.No.98 of 1999 by the plaintiff/respondent and sought

for injunction simplicitor. It is also not stated in the plaint in

O.S.No.129 of 1999 how much sites Smt.Perindevi left after selling site

in suit survey number and contents of the plaint are vague. This Court

in Krishna (Died) and another Vs. Indian Institute of Academic,

Hyderabad and others 2011(6) ALT 447 D.B. held that it is bounded

duty of the plaintiff to establish the identity of the property in dispute

when party claiming the relief must be in a position to know where his

property is located. Learned trial Judge at Para No.14 of the Judgment

discussed with regard to the possession of both parties with reference

to their title deeds and oral evidence adduced by both sides and also

observed that Smt.Perindevi sold Ac.5.00 cents of vacant land to

Friends Cooperative House Building Society under four documents and

retained some more property, which is on the western side of the land

to sickly brothers but nowhere in the pleading or in the evidence DW.2

deposed how much extent of land retained by them, but claimed that

they retained Ac.0.35 cents of land in S.R.No.24/4. It is also observed

by trial Court that total extent of land in S.R.No.24/4 is only Ac.5.00

cents which already sold by Smt.Perindevi during her lifetime

but no document is produced to show that still Smt.Perindevi retained

Ac.0.35 cents of land in suit Survey Number. The said findings of

learned trial Judge based on oral and documentary evidence, which

confirmed by Appellate Judge, which is final Court of fact. Though

there is no bar for appointing an Advocate/Commissioner at appeal

stage, which depends upon facts and circumstances of the case, it is

only in extreme circumstances when dispute is with regard to the

identity of the property between the parties and to arrive just

conclusion in the suit, Advocate/Commissioner can be appointed to

localize property. But in the present case, both parties are claiming

equitable relief of injunction claiming that they are in possession

enjoyment of the plaint schedule property on the date of filing of the

suit. In those circumstances, it is not permissible to appoint an

Advocate/Commissioner to identify the property as person, who is not

in a possession to identify his own property cannot claim that he was

in possession of property on the date of filing of the suit, thereby, not

entitled to seek equitable relief of injunction.

21. Learned trial Judge as well as Appellate Judge after elaborately

discussing the oral and documentary evidence came to the right

conclusion dismissing the suit filed by Appellants and decreed the suit

filed by respondents/plaintiffs. In these circumstances, finding no such

questions that require consideration in the Second Appeal much less

substantial question of law has pointed out for the Appellant, these

Second Appeals have to be dismissed. This Court is satisfied that this is

not an instance where Section 100 of Civil Procedure Code has to be

invoked.

22. In the result, these Second Appeals are dismissed, confirming

the Judgment of Appellate Court. In the circumstances, there shall be

no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

The interim orders granted earlier, if any, shall stand vacated.

__________________________ JUSTICE BANDARU SYAMSUNDER Date :01.12.2022 Chb

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

S.A. Nos.89 AND 91 OF 2002

Date :01.12.2022

Chb