Andhra Pradesh High Court - Amravati

P Dastagiri vs M Murali on 14 September, 2022

       HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              SECOND APPEAL No.352 of 2022

JUDGMENT:-

      Defendant No.1 in O.S.No.1189 of 2006 filed the above

second appeal against the judgment and decree, dated

04.04.2022 passed in A.S.No.73 of 2019 on the file of learned

Principal District Judge, Kurnool reversing the judgment and

decree, dated 30.08.2017 passed in O.S.No.1189 of 2006 on

the file of learned Principal Junior Civil Judge, Kurnool.


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

are referred to as they are arrayed in O.S.No.1189 of 2006.


3.    Plaintiff filed suit against the defendants for permanent

injunction restraining them, their men and agents from

illegally trespassing into the plaint schedule land and

dispossessing the plaintiff from the said land.


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

absolute owner of the suit schedule land; that he purchased

the same under registered sale deed, dated 31.01.2002 from

K. Sarojamma and K. Pancharatnamma; that vendors of the
                                 2

plaintiff purchased the same under registered sale deed,

dated    22.07.1980    from    N.   Lakshmidevamma   and   N.

Venkateswara Reddy; that N. Lakshmidevamma acquired the

said land from Bangar Reddy and Nadipi Rami Reddy under a

registered gift deed on 25.03.1940; that from the date of

purchase, plaintiff has been in possession and enjoyment of

the suit schedule property; that he also obtained pattedar

passbook and title deed and raised crops for sometime and

later he leased out the land to one Kurva Pedda Ayyanna of

Panchalingala Village; that on 23.08.2006, the defendants

with their men and agents came to the suit schedule land

and tried to trespass into the suit schedule land. Hence, the

suit was filed for relief stated supra.


5.      Defendant No.1 filed written statement and inter alia

contended that he along with defendant No.2 purchased suit

schedule land under agreement of sale, dated 02.01.1998

and paid entire sale consideration; that their vendors

delivered possession to defendant Nos.1 and 2 on the same

day; that later defendant No.2 executed registered sale deed,
                                   3

dated 19.12.2001 in respect of suit schedule land and since

then defendant No.1 has been in possession and enjoyment

of the property; that plaintiff with a malafide intention

created documents as also sale deed, dated 31.10.2002 and

came to the Court by suppressing material facts and thus,

prayed the Court to dismiss the suit.


6.      Defendant No.2 remained ex parte.


7.      Defendant No.3 filed written statement and inter alia

contended that she purchased suit schedule land of an extent

of Ac.1-80 cents from defendant No.1 for Rs.50,000/- on

28.11.2005; that the boundaries of the property purchased

by the plaintiff are different from the property purchased by

defendant No.3 and hence, eventually prayed to dismiss the

suit.


8.      Basing on the above pleadings, the trial Court framed

the following issues for trial:


     1. Whether the plaintiff was in lawful possession and
        enjoyment of the schedule property as on the date of
        filing of the suit?
                                          4

     2. Whether the defendants were tried to interfere with the
        plaintiff's   possession         and       enjoyment        over   plaint
        schedule property?

     3. Whether       the    plaintiff       is    entitled   for    permanent
        injunction?

     4. To what relief?

9.      During the trial, plaintiff examined himself as PW1

besides examining PW2, who cultivates land of the plaintiff as

a tenant and got marked Exs.A1 to A7. On behalf of

defendants, defendant No.1 is examined as DW1 and Exs.B1

to B4 are marked.


10.     Trial Court, by judgment, dated 30.08.2017, dismissed

the suit holding that plaintiff ought to have filed a suit for

declaration. Against the said judgment, plaintiff preferred

A.S.No.73 of 2019 on the file of learned Principal District

Judge, Kurnool. The Appellate Court being final factfinding

Court, on careful consideration of both oral and documentary

evidence     allowed        the   appeal.         Aggrieved   by     the   same,

defendant No.1 preferred this appeal.
                                  5

11.   Heard Sri M. Ram Mohan, learned counsel for the

appellant and Sri Ch. B.R.P. Sekhar, learned counsel for

respondent No.1.

12. Learned counsel for the appellant/defendant No.1

would contend that when the defendants denied title of the

plaintiff, plaintiff ought to have filed suit for declaration and

he cannot maintain the suit for injunction simplicitor. He

would also contend that possession was delivered to

defendant Nos.1 and 2 under Ex.B1 and since then they

continued in possession of suit schedule land and later

defendant No.2 executed sale deed in favour of defendant

No.1 and thus, suit for injunction simplicitor is not

maintainable. 1st respondent filed caveat and counsel

appearing for the respondent supported the judgement of

Appellate Court.

13. In view of the above contentions raised by learned

counsel for the appellant/defendant No.1, the following

substantial question of law would arise for consideration:

1. Whether, in the facts and circumstances of the case, a suit for permanent injunction is not maintainable?

2. Whether the defendants prima facie made out right over the plaint schedule land and denied title of the plaintiff and thus plaintiff has to file suit for declaration?"

14. Suit schedule land is an extent of Ac.1-80 cents, out of

which Ac.0-90 cents is situated in survey No.310/1A and

other Ac.0-90 cents is situated in survey No.310/A of

Panchaingala village of Kurnool Mandal.

15. Plaintiff purchased the same under registered sale deed,

dated 31.01.2002 from his vendors by name K. Sarojamma

and K. Pancharatnamma. Plaintiff also filed revenue records

i.e. pattedar passbook and title deed. Plaintiff pleaded that

defendants, on 23.08.2006, tried to trespass into the suit

schedule land and hence, plaintiff filed the suit.

16. The pleaded case of defendant No.1 is that he along

with defendant No.2 purchased the suit schedule land under

agreement of sale dated 02.01.1998 and that later defendant

No.2 executed registered sale deed, dated 19.12.2001.

17. The case of defendant No.3 is that she purchased suit

schedule land under registered sale deed, dated 28.11.2005.

18. As narrated supra, suit was filed for injunction

simplicitor and plaintiff pleaded title of the property by way of

Ex.A1, registered sale deed. Defendant Nos.1 and 2 pleaded

initially joint possession under agreement of sale under

Ex.B1 and further plea of defendant No.1 is that defendant

No.2 executed sale deed in favour of defendant No.1 under

Ex.B3. In a suit for injunction, the Court must record a

finding with regard to possession of the parties as on the date

of filing of the suit.

19. In the instant case, a perusal of the judgment of the

trial Court indicates that the trial Court neither discussed

nor recorded a finding regarding possession over the suit

schedule land.

20. Plaintiff filed Ex.A1/sale deed, Ex.A4/pattedar

passbook and Ex.A5/title deed. Plaintiff examined PW2, who

is tenant cultivating the suit schedule land. DW1 also

claimed that Ayyenna is tenant of the suit schedule land. In

the written statement, no such plea was raised by the

defendants. Defendants filed Exs.B2 and B4, adangal pahani

for fasli 1414 and 1423 respectively. Ex.B4 adangal for fasli

1414 pertains to the year, 2013, which is post litem motam

document. Thus, Ex B-4 may not serve purpose of the

defendants to prove their possession. Apart from that in

Ex.B4, name of Sarojamma is mentioned in the column

'possessor', but not the name of defendant No.1.

Ex.B2/adangal fasli 1414 pertains to the year, 2004 i.e. prior

to filing of the suit. The observation of the Appellate Court is

that Ex.B2 is not visible and the writings on Ex.B2

disappeared for vision. Defendants having pleaded agreement

of sale of the year 1998 and sale deed of 2001, no adangal

was filed for the years from 2001 to 2004.

21. Plaintiff filed Ex.A1, registered sale deed, dated

31.01.2002 and also vendors' documents under Exs.A2 and

A3. Ex.A2 is link document of Ex.A1 and Ex.A3/gift deed, the

link document of Ex.A2. The trial Court though observed that

Exs.A1 to A3 indicate flow of title over the suit schedule land,

for the reasons best known, concluded that plaintiff ought to

have filed suit for declaration but not for injunction.

22. Per contra defendants pleaded that the documents

pleaded by the plaintiff are created and fabricated.

Presumption as of valid execution arises for every registered

document as held by the Hon'ble Apex Court in Viswanath

Bapuran Sabale vs. Shalinibai Nagappa Sabale and

Others1.

23. Defendant Nos.1 and 2 pleaded possessory agreement

of sale, dated 02.01.1998 under Ex.B1, which is printed on

stamp paper of Rs.30/- and it was not registered. As per the

record, in view of the objection raised by the plaintiff, stamp

duty and penalty were paid. The Appellate Court observed

2009 12 SCC 101

that a perusal of Ex.B1 indicates that there is no recital

about further executing registered sale deed and hence it is

unregistered sale deed but not possessory agreement of sale.

24. Under Section 54 of the Transfer of Property Act, 1881,

a sale deed shall be affected by registered document. DW1,

in his cross-examination deposed that he did not give any

notice to his vendors demanding them to execute registered

sale deed. No paper publication was issued. He did not obtain

registered sale deed. He had Ac.50-00 of land in

Panchalingala Village. Thus, evidence of DW1 shows that he

has no money to get the document registered is unbelievable.

The link documents of vendors are not filed by the

defendants, whereas link document of the vendors is with the

plaintiff. Neither defendant No.1 nor defendant No.2 filed suit

for specific performance against their vendors.

25. It is pertinent to mention here that Ex.B3/registered

sale deed was executed by defendant No.2 in favour of

defendant No.1. A perusal of Ex.B3 would indicate about

purchasing of property by defendant No.2 and his executing

document in favour of defendant No.1. Whereas a perusal of

Ex.B1 shows that defendant Nos.1 and 2 are joint owners.

26. By filing registered document, link documents and

revenue records, plaintiff proved possession over the schedule

property from the date of purchase of schedule property.

Defendant could not prove possession over the schedule

property pursuant to Ex B-1.

27. Defendant No.3 filed written statement and claimed title

and possession over the suit schedule land by virtue of

registered sale deed, dated 28.11.2005. However, no such

document was exhibited.

28. Learned counsel for the appellant would contend that

in view of the denial of the title of the defendants, plaintiff

could have asked for declaration. In Anathula Sudhakar v.

P. Buchi Reddy (Dead) By Lrs. and Others2, the Hon'ble

Apex Court held as under:

2008 (4) SCC 594

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

(a) Where a cloud is raised over the 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 the 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 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 Tevar3). Where the

(2005) 6 SCC 202

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 straightforward, 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. (emphasis is mine)

29. As discussed supra, plaintiff is claiming title and

possession basing on Ex A1 registered sale deed. Defendant

Nos.1 and 2 are claiming possession by virtue of Ex.B1.

However, defendant No.2 executed Ex.B3/sale deed as if he is

owner of the property. Both plaintiff on one side and

defendant Nos.1 and 2 on the other side are claiming title

from the same vendors. Plaintiff filed link documents and

defendants failed to file any other link document. Thus,

plaintiff prima facie proved title of the property as well as

possession. The Hon'ble Apex Court also observed that

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 to the title and

where it will refer to the plaintiff to a more comprehensive

declaratory suit, depending upon the facts of the case.

30. In Jharkhand State Housing Board v. Didar Singh

and Another4, held as under:

2019 (17) SCC 692

"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

31. Thus, the alleged denial of title by the defendants in the

light of Exs.A1 to A3 coupled with Ex.A4, is for the sake

denial and hence plaintiff need not be driven to the costlier

and cumbersome remedy of suit for declaration. The lower

appellate Court being final factfinding Court, on appreciation

of legal position, allowed the appeal.

32. The scope section 100 CPC is no longer res integra.

The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal5,

held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived

AIR 2009 SC 1481

at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision

of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v.

Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(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."

33. In second appeal, this Court while exercising

jurisdiction under Section 100 of the CPC, must confine to

the substantial question of law involved in the appeal. This

Court cannot re-appreciate the evidence and interfere with

the findings of the Courts below where the Courts below

recoded the findings judicially by appreciating both oral and

documentary evidence. 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.

34. As observed supra, in the case on hand, findings