Mudidana Chinnababu 5 Others vs Bade Paparao Other
2022 Latest Caselaw 9224 AP

                                                                 BSS,J
                                                   S.A.No.129 of 2002

                                  1

           HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                          S.A.No.129 of 2002
JUDGMENT:

The legal representatives of deceased 1st defendant and 2nd

defendant in O.S.No.2 of 1995 on the file of Junior Civil Judge,

Amadalavalasa, are the appellants. The respondents 1 and 2 are

the plaintiffs in the suit.

2. The parties in this appeal hereinafter are referred to as

defendants and plaintiffs, as arrayed before trial Court.

3. The plaintiffs have filed suit against Mudidana Chinna Babu

(1st defendant) and Mudidana Dalibabu (2nd defendant) seeking

injunction simplicitor in respect of plaint schedule property, which

is land to an extent of Ac.0.28 cents called „ralladibba‟ in survey

No.184 of patta No.59 and tamarind tree situated in 2 cents with

specific boundaries. It is the contention of the plaintiffs that they

are the owners of plaint schedule land situated in Uppinivalasa

revenue village, which they purchased for Rs.200/- by way of sale

deed bearing No.1141 of 1953 dated 19.04.1953(Ex.A1) in the name

of Smt.B.Ammannamma @ B.Gangamma, who is grand-mother of

1st plaintiff and mother of 2nd plaintiff. They have stated that land BSS,J S.A.No.129 of 2002

covered under Ex.A1 sale deed is in their possession and

enjoyment. On northern side of said Ac.0.28 cents of land is high

in level, which is called „dibba‟ wherein they sowed the seeds of

several plants like tamarind, neem and Tadi etc. by their family

members and thereafter plants grown as trees and some plants

survived and tamarind tree which they raised on northern side of

their Ac.0.28 cents of land started giving yield which they have

been enjoying by harvesting tamarind fruit wherein defendants

have no manner of right. The plaintiffs alleged that defendants

with an evil design trying to take tamarind fruit from the tamarind

tree situated on the said dibba, which is covered by plaint „B‟

schedule and the said tamarind tree is situated in their land, which

exclusively belongs to them. It is alleged that D2 is working as

Village Revenue Officer of Cheedivalasa, who joined hands with

revenue people at Burja and trying to get some favours from them

to get right over tamarind tree. They also alleged that as threat is

imminent, they filed the suit for permanent injunction restraining

the defendants, their men, agents or servants from interfering with

their possession and enjoyment in respect of plaint schedule

properties and tamarind tree therein and for costs.

BSS,J S.A.No.129 of 2002

4. The defendants have resisted the claim of the plaintiffs and

filed written statement stating that the 1st defendant is the father

of 2nd defendant and 1st defendant purchased Ac.0.56 cents of land

under registered sale deed dated 07.04.1967 from one Natti

Ramaswamy and other and also purchased land to an extent of

Ac.0.25 cents in Sy.No.184 from Bugata Narasimhulu, under

registered sale deed dated 08.02.1961 with following boundaries:

      East        : Defendants land
      South       : Road
      West        : Defendants land
      North       : Chitrothu Lakshmamma‟s land

5. It is the contention of the defendants that in the land

purchased by D1, there are 35 teak trees, 4 mango trees and one

tamarind tree is situated, which produce they are enjoying without

any interruption, wherein plaintiffs have no manner of right,

interest or possession. They alleged that plaintiffs never in

possession and enjoyment of tamarind tree and they are also not

related to Smt.B.Gagamma or Ammanna and no such person is in

existence, which created by plaintiffs to knock away the plaint

schedule property. They further stated that as D1 is in possession

of the trees stands on their land, the Mandal Revenue Officer, BSS,J S.A.No.129 of 2002

Burja issued a tree patta No.3 dated 03.08.1994 to D1, wherein

plaintiffs have no right and they filed caveat petition anticipating

obstruction on the part of the plaintiffs. They pray to dismiss the

suit.

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

following issues:

1. Whether the plaintiffs are in possession of the plaint schedule property as on the date of the suit?

2. Whether the injunction prayed for can be granted?

3. To what relief?

7. The parties went to trial.

8. The plaintiffs have examined P.Ws.1 to 4 and got marked

Exs.A1 to Ex.A6. On behalf of the defendants, D.Ws.1 and 2 were

examined and Exs.B1 to Ex.B6 were marked.

9. On the material and evidence, the trial Court held that

plaintiffs are entitled to seek permanent injunction against the

defendants and decreed the suit.

10. Against the judgment and decree passed by the trial Court,

the defendants presented A.S.No.56 of 2001 before Principal Senior

Civil Judge, Srikakulam (old A.S.No.8 of 1998 on the file of District

Court, Srikakulam), which was dismissed confirming the decree and BSS,J S.A.No.129 of 2002

judgment dated 19.01.1998 in O.S.No.2 of 1995 on the file of

District Munsif, Amudalavalasa.

11. In these circumstances, the present second appeal is

presented.

12. I have heard learned counsel for the appellants

Mr.M.S.R.Subrahmanyam. None appeared for respondents 1 and 2

though served notices.

13. This second appeal was admitted on the following substantial

questions of law raised at ground No.5 of grounds of appeal, which

reads as under:

"(a) Whether, on the facts and in the circumstances of the case, on the true interpretation of the boundaries of item No.1 of Ex.A.1 sale deed, the Courts below are right in correlating it with the suit schedule property, especially when the existing suit schedule boundaries does not tally with the boundaries of item No.1 of Ex.A.1 and the sketch prepared by the Mandal Surveyor at the instance of the Advocate Commissioner, coincide with the boundaries mentioned in the Written Statement.

(b) Whether, on the facts and in the circumstances of the case, the Courts below, especially the trial Court, having held that the plaintiff has not shown the existing boundaries, yet decreed the plaintiff‟s suit, since BSS,J S.A.No.129 of 2002

defendant failed to produce his title deed, is sustainable in law;

(c) Whether, on the facts and in the circumstances of the case, the Courts below are not wrong in relying on the statements of P.W.2 & P.W.3, who do not have any interest in the subject matter of the suit and or on any legally admissible evidence, to conclude that the tamarind tree is part of the schedule property belonging to plaintiff especially when there is no mention about the existence of trees in the Ex.A1 sale deed."

14. Both Courts gave concurrent finding in respect of issue Nos.1

and 2 with regard to possession of plaintiffs in respect of plaint

schedule property. Now, it would be beneficial to extract plaint

schedule item No.1 of the sale deed - schedule of the plaint extent

Ac.0.28 cents called Ralla Dibba and wet land in S.No.184 and

patta No.59 at the end of which on north the dibba is located and

the extent of dibba is 2 cents and tamarind tree situated at dibba

is with following boundaries:

       East        : Nethi Papi Naidu‟s land now his L.Rs.
       South       : Hillock.
       West        : Wet of Donka Kistamma
       North       : Wet of Donka Kistamma.
                                                                  BSS,J
                                                   S.A.No.129 of 2002

15. During the pendency of the suit, an advocate commissioner

was appointed in I.A.No.8 of 1997 at the instance of plaintiffs, who

also visited the suit disputed property and filed his report on

30.07.1997. Both sides have filed objections to the Commissioner‟s

report and plan. It is an admitted fact that the advocate

commissioner has not measured the suit schedule property basing

on title deeds produced by both sides, though it is stated in the

work memo submitted by both counsels. It is observed by learned

Advocate Commissioner that Ralladibba is situated on northern side

of the suit schedule property, which is to an extent of Ac.0.05

cents and defendants land was bounded by East: Defendants;

South: Road, West: Defendants land and North: Chitrotu

Lakshmamma‟s land. The learned trial Judge also observed that

advocate commissioner not taken into consideration registered sale

deeds on both sides while visiting the suit schedule property and

prepared plan basing on the plan prepared by Mandal Surveyor and

prepared report dated 30.07.1997 by mentioning the boundaries

tallying with the written statement, due to that, it is observed by

learned trial Judge that Commissioner‟s report not throwing any

light to appreciate the existence of northern side Ralladibba

belongs to the defendants. It is no doubt true that learned trial BSS,J S.A.No.129 of 2002

Judge observed that plaintiffs have mentioned old boundaries in

the plaint schedule, which is as per Ex.A1 and also discussed that

P.W.1 explained reason for change of boundaries on the land as

road was laid on the southern side of their land as such suit

schedule property is at present bounded by East: Netti Papinaidu at

present 1st defendant; North: Rallagutta at present road; West:

Donka Kistamma thereafter Mugata Narasimhulu(P.W.2) at present

1st defendant and South: Ralladibba at present road. The learned

trial Judge as well as appellate Judge appreciated the fact of

explanation given by P.W.1 with regard to non-mentioning of

present boundaries in the plaint schedule, but fact remains is that

claim of plaintiffs is based on Ex.A1 registered sale deed stands in

the name of Smt.Ammannamma in the year 1953. It is the

contention of the plaintiffs that they have raised plants on

northern side of land including tamarind tree, which now grown up

and they are harvesting the fruits which objected by the

defendants. It is the contention of the defendants that D1

purchased the land in Survey No.184 under two registered sale

deeds, which they admittedly not produced before the trial Court.

When Ex.A1 is dated 1953 and the suit is filed in the year 1995,

there is no strange in not mentioning existence of tamarind tree BSS,J S.A.No.129 of 2002

within the land purchased by Smt.Ammannamma under Ex.A1 as

the contention of plaintiffs is that they have raised plants in the

lands purchased by Smt.Ammannamma being her legal heirs out of

which tamarind tree grown up which ripe for yielding fruit. There

is also explanation on the part of P.W.1 with regard to boundaries

as stated in Ex.A1 shown in plaint schedule, which is said to be not

tallied as per Advocate Commissioner‟s report dated 30.07.1997. It

appears that dispute is in respect of tamarind tree, which plaintiffs

are claiming that it is within their land and their claim is based on

Ex.A1 registered sale deed, whereas claim of defendants is based

on registered sale deeds and also tree patta said to be granted to

D1 by revenue authorities. As rightly observed by learned trial

Court that when D1 actually derived title in respect of tamarind

tree situated on Ralladibba by virtue of sale deed from P.W.2,

which they ought to have filed into the Court, which not filed and

when they are claiming right under a title deed, it is not known

why D1 again obtained tree patta from revenue authorities in

respect of tamarind tree. It is not in dispute that plaintiffs have

produced Ex.A2 dated 09.07.1995 which shows Revenue Divisional

Officer, Srikakulam cancelled true patta granted to D1 under Ex.B2

as plaintiffs have instituted civil suit against the defendants, any BSS,J S.A.No.129 of 2002

findings in Ex.B6 final report of Station House Officer, Burja Police

Station in Crime No.14 of 1995 and observations therein cannot be

considered, which rightly observed by Courts below. It is also

observed by Courts below that Ex.B3 adangal also contains

endorsement that litigation is pending which is not useful for court

purpose. There is no explanation on the part of the defendants

why they have not filed their title deeds when they are claiming

that the said tamarind tree is situated within their land, purchased

by D1. It is no doubt true that plaintiffs who filed suit seeking

equitable relief of injunction, they have to establish breach of an

obligation or infringement of legal right as a person seeking relief

of injunction should prove violation of his right by the act

complained of and if that act is carried 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 plaintiffs have to establish that

they have got legal right to get equitable relief of injunction

against the defendants. The plaintiffs have to establish that they

have got legal right to get equitable relief of injunction against the

defendants. The plaintiffs shall also establish that the defendants BSS,J S.A.No.129 of 2002

are not justified in interfering with their legal right and possession

over the suit property.

16. The plaintiffs have filed Ex.A1 dated 19.04.1953 true extract

of sale deed under which Smt.Ammannamma purchased land,

which shows that land in Sy.No.184 with specific boundaries. The

learned trial Judge rightly observed that recitals of Ex.A1 disclose

that Smt.Ammannamma, is the wife of Bade Surya Narayana, who

is the father of second plaintiff, which was not denied by the

defendants during the course of evidence of plaintiffs. It is not in

dispute that 1st plaintiff is brother‟s son of 2nd plaintiff and

description of 2nd plaintiff as son of Suryanarayana is not disputed

during the course of cross-examination of P.W.1 Bade Ramachandra

Rao (2nd plaintiff). It is also not in dispute that Bade

Suryanarayana, shown as husband of Smt.Ammannamma, who is

vendee under original of Ex.A1. Though defendants have denied

title of plaintiffs in respect of Ralladibba and on which tamarind

tree is situated on northern side of the land said to be purchased

by plaintiffs, which is to an extent of Ac.0.28 cents and the

contention of plaintiffs is supported by Ex.A1 and also the oral

evidence of P.Ws.1 to 4, who supported the contention of plaintiffs BSS,J S.A.No.129 of 2002

and accepted by both the Courts, which can be taken into

consideration to consider the possession of the plaintiffs in respect

of plaint schedule property and tamarind tree. In those

circumstances, the Hon‟ble Apex Court in Anathula Sudhakar Vs.

P.Buchi Reddy (dead) by Lrs. And others, in Civil Appeal No.6191

of 2001, judgment dated 25.03.2008, wherein the Hon‟ble Apex

Court elaborately discussed and explained under what

circumstances suit for injunction simplicitor shall lie and under

what circumstances the suit for declaration has to be filed. It

would be beneficial to quote paras 14 and 17 of the said judgment,

which reads as follows:-

"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 BSS,J S.A.No.129 of 2002

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." (Emphasis supplied)

"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 simplicitor.

(b) As a suit for injunction simplicitor 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.

BSS,J S.A.No.129 of 2002

(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."

BSS,J S.A.No.129 of 2002

17. In the present case also, dispute is mainly in respect of

tamarind tree situated on the bar to an extent of Ac.0.05 cents and

as rightly held by Courts below, plaintiffs able to prove their lawful

possession of plaint schedule property and tamarind tree by

producing Ex.A1, whereas, defendants who pleaded that D1

purchased site under two registered sale deeds which they failed to

produce. The contention of defendants is inconsistent, which

rightly pointed out by learned trial Judge that if D1 really

purchased the property who is Village Revenue Officer, certainly

there is no necessity for obtaining tree patta from revenue

authorities. Admittedly, Revenue Divisional Officer, Srikakulam

cancelled Ex.B2 tree patta granted to D1 as per Ex.A2 proceedings,

wherein it is clearly held that trees are situated in Zirait land, due

to that patta issued in favour of D1 is irregular as true patta can

only be granted in poramboke lands, but not trees located in Zirait

lands and thereby said patta is cancelled. The plaintiffs able to

prove their lawful possession and they are able to demonstrate

that defendants are not justified in interfering with their

possession and enjoyment of Dibba wherein tamarind tree is

situated, which rightly held by Courts below.

BSS,J S.A.No.129 of 2002

18. The Hon‟ble Apex Court in Chandrabhan (Deceased)

Through LRs. And Others - Appellants Vs. Saraswati and Others

- Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of

S.L.P.(C) No.8736 of 2016) Judgment dated 22.09.2022

explained principles relating to Section 100 CPC at para 33 of the

judgment, which reads as under:

"33. The principles 5relating to Section 100 of CPC relevant for this case may be summarized 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 7 (2001) 3 SCC 179 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 BSS,J S.A.No.129 of 2002

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- recognized 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."

19. It is also held that right of opinion is not automatic as right

of appeal is confirmed by statute and when statute confers a

limited right, right of appeal restricted only to cases which involve

substantial question of law. It is not open to High Court to sit in

appeal over the factual finding arrived at by the first appellate

Court. In the present case, this Court did not find any reason to

interfere with the concurrent findings of Courts below as the BSS,J S.A.No.129 of 2002

findings of Courts below based on evidence placed before them.

As discussed supra, P.W.1 explained reasons for which boundaries

shown in Ex.A1 not tallying with the present boundaries and it is

the specific contention of plaintiffs that they have sowed seeds of

several plants in the land purchased under Ex.A1. Due to that

there is no possibility of showing tamarind tree in Ex.A1. It is also

discussed by learned trial Court that P.W.2 sold Ac.0.25 cents of

land, which is situated on the southern side of suit schedule

property to D.W.1 under registered sale deed and D.W.1

admittedly purchased another extent of Ac.0.56 cents of land from

N.Rama Swamy under registered sale deed, but it is not abutting to

the suit schedule property. It is also discussed by trial Court that

P.W.2 vendor of D1 deposed that land to an extent of Ac.0.25 cents

sold to D1 was abutting to the Ralladibba, which belongs to the

plaintiffs, wherein himself nor his father-in-law enjoyed the fruits

of tamarind tree which is situated on the northern side of

Ralladibba of suit schedule property. Both Courts have rightly

appreciated the oral and documentary evidence and came to right

conclusion and decreed the suit filed by the plaintiffs.

20. In these circumstances, finding no such questions that

require consideration in this second appeal, much less substantial BSS,J S.A.No.129 of 2002

question of law as pointed out by the appellants, this second

appeal has to be dismissed.

21. This Court is satisfied that this is not an instance where

Section 100 CPC has to be applied nor interference is warranted

with the decree and judgment of the trial Court as well as first

appellate Court.

22. In the result, the second appeal is dismissed confirming the

judgment and decree passed by Courts below. In the

circumstances, there shall be no order as to costs.

23. As a sequel, pending miscellaneous petitions if any, shall

stand closed. Interim orders granted if any, shall stand vacated.

_____________________ BANDARU SYAMSUNDER, J Dt:07.12.2022.

Rns BSS,J S.A.No.129 of 2002

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

S.A.No.129 of 2002

Date: 07.12.2022

Rns