Boei Rama Devi vs Suggu Ammaji @ Suggu Ammojamma
2022 Latest Caselaw 9921 AP

       HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                SECOND APPEAL No.504 of 2022
   Between:

   Boei Rama Devi, W/o Venkata Ramana,
   Hindu,   Aged    47    years,  residing   at
   Boravanpalem      village,    Paradesipalem
   Panchayat, Visakhapatnam District.
                                        ... Appellant/Plaintiff.
              Versus

   Suggu Ammaji @ Suggu Ammojamma, W/o
   late Venkata Rao, Hindu, aged 67 years,
   residing at D.No.7-9-34, Geetha Nivas, 7th
   Ward, Chittivanipalem, Dasimmikonda area,
   Gajuwaka, Visakhapatnam.
                                  ... Respondent/Defendant.


Counsel for Appellant                  : Sri K.Siva Ramakrishna

Counsel for respondents                : ---


                            JUDGMENT

Plaintiff in the suit filed above second appeal aggrieved

by the judgment and decree dated 05.07.2022 in A.S.No.100

of 2016 on the file of Special Sessions Judge for SC & ST

Cases-cum-XI Additional District & Sessions Judge,

Visakhapatnam, confirming the judgment and decree dated

11.03.2016 in O.S.No.269 of 2007 on the file of I Additional

Junior Civil Judge, Bheemunipatnam.

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2. For the sake of convenience, the parties to this

judgment are referred to as per their array in plaint.

3. Plaintiff filed the suit O.S.No.269 of 2007 for permanent

injunction.

4. In the plaint, it was contended interalia that plaintiff is

the absolute owner of the land admeasuring 220 square

yards in S.No.188/1 of Madhurawada village having

purchased the same under a registered sale deed dated

30.12.2002; that vendor of plaintiff got the property under a

registered sale deed bearing document No.675 of 2002 from

one R.Prabhakar Rao, GPA Holder; that plaintiff constructed

two shop rooms within the schedule property in the year

2003; that plaintiff filed C.O.P.No.242 of 2005 on the file of

Junior Civil Judge, Bheemunipatnam and the counsel for

defendant issued reply on 07.10.2005 with false allegations;

that in October, 2005 defendant illegally demolished the

structures i.e. two shop rooms; that plaintiff filed complaint

before Bheemunipatnam police, who in turn admonished the

defendant for his illegal and high handed act; that

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Bheemunipatnam police issued letter dated 23.03.2006 to

the MRO for identification of property and its boundaries in

order to settle the dispute; while the matter is pending before

the MRO, defendant high handedly tried to construct

compound wall and the same was resisted and hence, filed

the suit for perpetual injunction.

5. Defendant filed written statement and contended

interalia that mother-in-law of defendant by name Suggu

Narasayamma purchased property in S.No.188/1 under Patta

No.678 of an extent of Ac.0.05 cents in the year 1977 under a

registered document No.1252 of 1977 from V.V.L.Krishna

Rao; that Narasayamma executed a registered gift deed in

favour of her son Atchiraju in the year 1983; that Atchiraju

died on 26.01.1989 leaving behind defendant, Narasayamma,

his two daughters and one son as his legal heirs; the

schedule property purchased by Narasayamma came into

possession and enjoyment of defendant and her family

members jointly and they have been in peaceful possession

and enjoyment of schedule property; that in the year 2000,

defendant started to construct a pucca house in the property;

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that on 27.11.2000 one Pothina Venkata Ramana @ Potti

Ramana and Rudraraju Markendeya Raju and their men tried

to interfere with the possession of defendant; that suit

O.S.No.387 of 2000 was filed on the file of Junior Civil Judge,

Bheemunipatnam seeking permanent injunction and the

same was decreed on 13.06.2005; that defendant completed

compound wall and two rooms in the property; while

constructing the compound wall, defendant left two feet site

on the western side and later stopped construction as per

Vastu; that defendant demolished the compound wall and at

that stage, plaintiff and her husband including Pothina

Venkata Ramana and their men threatened the defendant;

that on 04.10.2005 plaintiff filed caveat and defendant sent a

suitable reply on 17.10.2005; that plaintiff issued paper

publication on 25.10.2005 and in response, defendant also

issued paper publication on 27.10.2005; that defendant also

placed the matter before the Police Commissioner,

Visakhapatnam in Spandana programme, who in turn

directed the MRO to depute Mandal Surveyor to resolve the

problem; that MRO deputed Mandal Surveyor, who surveyed

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the land basing on documents and also handed over property

of schedule property to defendant vide proceeding in

L.Dis.No.206/06/A; that defendant obtained approval from

GVMC; that as per the plan, defendant started construction

of house in schedule property; that on 07.07.2007, defendant

dug a well in north-east corner of property and further

attended the construction work; that defendant constructed

compound wall around the schedule property by investing

Rs.1,30,000/- by 26.07.2007; that plaintiff, her husband and

their men visited the schedule property on 27.07.2007 and

demolished the walls highhandedly; since the police failed to

take any action, defendant filed a private complaint under

Section 190 (3) and 200 of Cr.P.C on the file of IV Additional

Metropolitan Magistrate, Bheemunipatnam on 05.09.2007;

that defendant filed E.P.No.55 of 2007 in O.S.No.328 of 2000

against the plaintiff and her men; that boundaries shown by

the plaintiff are different from that of decree in O.S.No.328 of

2000 dated 13.06.2005 and thus, prayed to dismiss the suit.

6. Basing on the pleadings, trial Court framed the

following issues:

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(1) Whether the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?

(2) Whether the defendant without any manner of right or title is interfering with the plaintiff's possession?

(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

(4) To what relief?

7. During the trial, plaintiff examined herself as P.W.1 and

got examined P.Ws.2 to 4. Exs.A-1 to A-9 were marked. On

behalf of defendant, defendant examined herself as D.W.1

and got examined as D.Ws.2 and 3. Exs.B-1 to B-14 were

marked.

8. Trial Court by judgment and decree dated 11.03.2016

dismissed the suit. Aggrieved by the same, plaintiff filed

A.S.No.100 of 2016. Lower appellate Court being final fact

finding Court, framed the following points for consideration

as contemplated under Order 41 Rule 31 CPC.

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(1) Whether the plaintiff has been in possession and enjoyment of the schedule property as on the date of filing of the suit?

(2) Whether the plaintiff is entitled for permanent injunction as prayed for?

(3) Whether the suit is liable to be dismissed for want of declaration of title?

(4) To what relief?

9. Lower appellate Court on appreciation of both oral and

documentary evidence, dismissed the appeal vide judgment

and decree dated 05.07.2022. Aggrieved by same, the above

second appeal is filed.

10. Sri K.Siva Ramakrishna, learned counsel for appellant

would submit that boundaries mentioned in Ex.A-1 sale deed

relied upon by plaintiff and boundaries mentioned in Ex.B-1

sale deed are different and distinct and the Courts below

failed to consider the same in proper perspective. He would

also submit that no issue was framed regarding boundaries,

which is relevant to determine the dispute between the

parties. He would submit that D.W.1 during the cross

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examination admitted about plaintiff's possession over the

schedule property and hence, the Courts below ought to have

decreed the suit instead of dismissing the same. He would

submit that findings of the Courts below are contrary to

Sections 91 and 92 of the Indian Evidence Act. He would

also submit that plaintiff proved possession over the schedule

property by examining P.W.4 and also by placing Exs.A-7 to

A-9.

11. In view of pleadings and material available on record,

the following substantial questions of law arise for

consideration:

(1) Whether the suit for injunction simplicitor is maintainable when there is dispute regarding title or cloud over the schedule property?

(2) Whether, in the suit filed for injunction, plaintiff has to prove possession over the schedule property as on the date of filing of suit?

(3) Whether in a suit filed for injunction, plaintiff approaching the Court with unclean hands is entitled for discretionary relief of injunction?

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12. Undisputed facts, as per pleadings are that, plaintiff

purchased plaint schedule property admeasuring 220 square

yards in S.No.188/1 of Madhurawada village under a

registered sale deed dated 3.12.2002. The vendor of plaintiff

purchased the property under a registered document No.675

of 2022 from one R.Prabhakar Rao, GPA Holder. The

defendant's mother-in-law purchased the property under a

registered document No.1252 of 1977 and later she gifted the

property under Ex.B-2 registered gift deed in favour of her

son Atchiraju. The defendant filed suit O.S.No.387 of 2000

against Pothina Venkata Ramana @ Potti Ramana and

Rudraraju Mankendeya Raju seeking perpetual injunction

and the same was decreed on 13.06.2005.

13. Plaintiff, being P.W.1 while reiterating the contents in

plaint deposed that she constructed two shop rooms in the

schedule property in the year 2003 and in October, 2005,

defendant illegally demolished the structures. P.W.1 also

lodged a complaint with Bheemunipatnam police. After

examination of P.W.3, I.A.No.88 of 2015 was filed and as per

order dated 08.12.2015, Exs.A-7 to A-9 were marked subject

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to proof and relevancy by recalling P.W.1. Ex.A-7 is copy of

tax pass book from 2007 to 2015. Ex.A-8 is demand notice

dated 13.10.2015 and Ex.A-9 is copy of house tax receipt

dated 20.11.2015. P.W.1 also examined P.W.3, whose

evidence is in the lines of P.W.1.

14. On 01.05.2015 P.W.4 was examined, alleged tenant of

schedule property. P.W.4 deposed that two rooms surrounded

by compound wall are existing and he took the premises in

the year2008 and paying the rent every month.

15. Suit, as stated supra, is filed for perpetual injunction.

Plaint schedule is shown as 220 square yards of vacant site

in S.No.188/1 of Madhurawada village. P.W.1 was re-called

and reexamined on 08.12.2015. P.W.1 deposed that she

applied for tax assessment in the year 2007, but she does not

remember the date or month. Till P.W.4 was examined, it is

not the case of plaintiff that structure exists in the schedule

property and it was leased out to P.W.4 and he has been

paying rents to P.W.1. In fact, in the plaint, it was averred

that two rooms were constructed in the year 2003 and in the

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year 2005, defendant illegally demolished the structures.

P.W.1 further deposed that she does not remember the

names of her tenants of schedule property and she does not

remember whether she issued paper publication on

24.10.2005 and whether she mentioned in paper publication

about the constructions made by her in the suit schedule

property. She further deposed that she does not remember

whether she mentioned in her counter in E.P.No.55 of 2005

in O.S.No.387 of 2000 on the file of Junior Civil Judge,

Bheemili that she constructed two rooms and compound wall

in the year 2005 or not.

16. It is pertinent to mention here that nowhere in the

plaint, it was pleaded about structures or rooms in the

schedule property. Plaintiff in the affidavit filed in lieu of chief

examination on 07.06.2013, it was not mentioned about

subsequent demolition of two rooms by defendant or

construction of new rooms and lease out to P.W.4. P.Ws.2

and 3 also did not depose in chief examination about the

existence of two rooms or any structures in the suit schedule

property and they did not reveal in the chief examination

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about letting out the premises to third parties or to P.W.4.

P.W.4 was brought into witness box as tenant of P.W.1

without any pleading to that effect. Thus, plaintiff by

examining P.W.4 tried to establish possession over the

schedule property without there being a pleading to that

effect in the plaint.

17. In Bachhaj Nahar Vs. Nilima Mandal and Ors.1, the

Hon'ble Apex Court highlighted the importance of pleadings

and reiterated the object of pleadings and held thus:

"9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.

10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not

AIR 2009 SC 1103 = (2008) 17 SCC 491

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found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."

18. In Nirod Baran Banerjee Vs. Dy. Commissioner of

Hazaribagh2, the Hon'ble Apex Court held that it is well

settled that no evidence can be looked into by the Court for

which there is no foundation in the pleadings.

19. In Ram Sarup Gupta Vs. Bishun Narain Inter

College3, the Hon'ble Apex Court held thus:

"6. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should

AIR 1980 SC 1109 = (1980) 3 SCC 5

AIR 1987 SC 1242 = (1987) 2 SCC 555

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be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal".

20. In Bhagwati Prasad Vs. Chandramaul4, the

constitution Bench of the Hon'ble Apex Court observed thus:

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the

AIR 1966 SC 735 = (1966) 2 SCR 286

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substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

21. Thus, a perusal of the evidence on record would

manifest plaintiff on the date of filing of the suit failed to

prove possession over the schedule property. Evidence of

P.W.4 is no way helpful to the plaintiff to prove possession of

the plaint schedule property on the date of possession of

property.

22. Plaintiff cannot depend/rely upon the weakness on the

part of defendant. The deposition of D.W.1 that after galata,

plaintiff forcibly evicted them, pending the suit, and occupied

the schedule property and leased out the same will not

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improve the case of plaintiff. It is also settled law that plaintiff

has to rely on the strength of her own case, but not on the

weakness/latches on the part of defendant. Till the

examination of P.W.4 i.e. 06.05.2015 there is no reference as

to the door number of premises as 8-3/2 by any of the

witness including P.W.1. Exs.A-7 to A-9 were not supported

by pleadings.

23. Before filing the suit, plaintiff filed Ex.A-2 caveat and

Ex.A-3 is notice issued by defendant. As per the pleadings,

plaintiff issued paper publication and thereafter defendant

also issued paper publication. When there is serious dispute

or cloud over title, plaintiff instead of filing suit for

declaration of title, filed the suit for permanent injunction. In

fact, Ex.A-6 letter addressed by Bheemunipatnam police to

the MRO makes it clear that there is serious dispute

regarding title over the schedule property. Defendant is

claiming property under Ex.B-1 dated 19.08.1977, whereas

plaintiff is claiming property under Ex.A-1 sale deed dated

30.12.2002. Both are claiming title through V.V.L.Krishna

Rao.

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24. The Hon'ble Apex Court in Anathula Sudhakar Vs.

P.Buchi Reddy (Dead) by LRs. and Ors.5 held thus:

"(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

AIR 2008 SC 2033

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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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

25. In view of expressions of Hon'ble Apex Court, suit filed

for perpetual injunction by plaintiff, when there is cloud over

title is not maintainable. Plaintiff failed to produce even link

documents, however defendant produced link document.

Ex.B-7 is link document executed by one Raghupatruni

Prabhakar Rao, GPA Holder of original owner V.V.L.Krishna

Rao in favour of Nagothu Chinna Rao, vendor of plaintiff.

Ex.B-6 GPA is executed by V.V.L.Krishna Rao dated

31.08.1998 subsequent to Ex.B-1.

26. The relief of injunction is discretionary and equitable.

In a given set of facts, injunction may be granted to protect

the possession of owner or a person in lawful possession. A

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party seeking discretionary relief has to approach the Court

with clean hands and supposed to disclose the facts, which in

one way or other effect the decision. A person seeking the

relief of injunction is required to be honest and disclose the

statement of facts, otherwise it would amount to abuse of

process of Court.

27. As discussed supra, plaintiff pleaded vacant possession,

however after examination of P.W.4, plaintiff set up a new

plea of structures and tenant, which was not even pleaded

initially. That apart, even prior to filing of the suit, notices

were exchanged and in fact, paper publications were also

made. Parties to the suit approached the police officials, who

in turn addressed letter to MRO to depute the Mandal

Surveyor to resolve the dispute. In the light of the material

available on record, the conduct of plaintiff in framing the

suit for perpetual injunction, disentitles him in getting

equitable relief of injunction.

28. This Court while exercising jurisdiction under Section

100 of the CPC must confine to the substantial question of

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law involved in the appeal. This Court cannot re-appreciate

the evidence and 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 substitute its own opinion

unless the findings of the Court are manifestly perverse and

contrary to the evidence on record. Moreover, unless the

appellant establishes that the Courts below mis-read the

evidence and misconstrued the documents, the High Court

normally will not interfere with the findings of fact recorded

by the Courts below.

29. The concurrent findings of the Courts below are based

on appreciation of both oral and documentary evidence. The

appellant failed to satisfy this Court about substantial

questions of law involved in this case. No question of law

much less substantial question of law involved in this second

appeal warranting interference of this Court under Section

100 of CPC.

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30. Accordingly, the second appeal is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 30th December, 2022

PVD

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