Reddy Rajya Lakshmi, vs Jalathari Parvathi,
2022 Latest Caselaw 6953 AP

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

              SECOND APPEAL No.343 of 2022

JUDGMENT:

The plaintiff in O.S.No.10 of 2012 on the file of I

Additional Junior Civil Judge, Guntur, is the appellant

herein. The above second appeal is filed aggrieved by the

judgment and decree dated 05.01.2021 in A.S.No.261 of 2016

on the file of the Principal District Judge, Guntur, confirming

the judgment and decree dated 08.07.2016 in O.S.No.10 of

2012 on the file of I Additional Junior Civil Judge, Guntur.

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

judgment are referred to as they were arrayed in the plaint.

3. Suit O.S.No.12 of 2012 was filed by the plaintiff seeking

permanent injunction restraining the defendants and their

men from interfering with peaceful possession and enjoyment

of the plaintiff over the plaint schedule property.

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

plaintiff and defendants are sisters and daughters of late

Kagga Varamma; that said Kagga Varamma executed a

possessory agreement in favour of plaintiff on 08.12.2006

and delivered possession of the plaint schedule property after

receiving the sale consideration of Rs.1,20,000/-; that said

Varamma died prior to filing of suit; that the plaintiff has

been in possession and enjoyment of the plaint schedule

property from the date of purchase; that the name of plaintiff

was mutated in the Municipal records and she has been

paying property taxes since 2007; that defendants are trying

to disturb the possession of plaintiff; that the plaintiff got

issued a legal notice and filed the suit the relief stated supra.

5. 2nd Defendant filed written statement and the same was

adopted by 1st defendant. In the written statement, it was

contended inter alia that originally the plaint schedule

property is a Government poramboke land, which was

occupied by their father by name Subbarao; that said

Subbarao constructed a thatched house and after his death,

while the plaintiff, defendants and their mother Varamma

constructed a pucca house with four portions with an

understanding that one portion is for Varamma and

remaining three portions are for plaintiff and defendants 1 &

2; that after death of Varamma her portion shall be shared

equally between the plaintiff and defendants and accordingly,

Varamma settled schedule property including her portion in

favour of plaintiff and defendants on 31.10.2009 i.e.

Varamma settled 50 square yards to plaintiff, 60 square

yards to 1st defendant and 50 square yards to 2nd defendant

and rest of the site was left for joint nadava; that 2nd

defendant has been in possession and enjoyment of her share

by paying taxes under the assessment No.11598-B; that

plaintiff has been residing in one portion by paying house

taxes separately under assessment No.11598-A; that

Varamma portion was assessed bearing No.11598; that

Varamma never executed possessory agreement in favour of

plaintiff and eventually, prayed to dismiss the suit.

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

the following issues:

(1) Whether the possessory sale agreement dated 08.12.2006 executed by mother of plaintiff by name Varamma in favour of the plaintiff is true and valid?

(2) Whether the plaintiff is in possession and enjoyment of the plaint schedule property by the date of filing of the suit?

(3) Whether the plaintiff is entitled for permanent injunction restraining the defendant and their men from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property?

(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-6 were marked. On

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

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

marked. Pending suit, 2nd defendant died.

8. Trial Court on consideration of entire evidence, both

oral and documentary, dismissed the suit vide judgment and

decree dated 08.07.2016 by holding that plaintiff having

pleaded possessory agreement of sale dated 08.12.2006 failed

to mark the same as one of the exhibits. Trial Court recorded

findings that no steps were taken by plaintiff to pay deficit

stamp duty and penalty and plaintiff did not choose to

adduce any oral evidence regarding the said document,

except examining herself. Since document was not filed, no

finding regarding validity of the document is recorded.

9. Against the said judgment and decree, plaintiff filed

appeal A.S.No.261 of 2016 on the file of the Principal District

Judge, Guntur. Lower appellate Court being the final

factfinding Court dismissed the appeal vide judgment and

decree dated 05.01.2011. Assailing by the same, the present

second appeal is filed.

10. Heard Sri Narra Srinivasa Rao, learned counsel for

appellant.

11. Learned counsel for appellant would submit that the

plaintiff established possession over the schedule property on

the date of filing of the suit and hence, the Courts below

ought to have granted injunction. He would submit that

evidence was let in by the plaintiff regarding to constructing

the house and staying in the house and thus, there is no

cloud over the schedule property.

12. Basing on the pleadings and contentions the following

substantial question of law arise for consideration.

Whether the appellant/plaintiff proved possession over the plaint schedule property on the date of filing of the suit? If so, the judgments of courts below are vitiated?

13. Undisputed facts are that plaintiff and defendants are

sisters and daughters of Kagga Subbarao and Varamma.

Kagga Subbarao and Veramma are also having four sons by

name, Sivaiah, Venkateswarlu, Butchi Venkaiah and Konda

Srinivasu. The said Sivaiah and Venkateswarlu were

examined as D.Ws.2 and 3. It is also undisputed fact that

originally the schedule property was occupied by father of

plaintiff and defendants and it is a government poramboke

land.

14. Plaintiff filed suit basing on possessory agreement of

sale contending that she purchased the schedule property

under possessory agreement of sale dated 08.12.2006 from

her mother and since then she has been residing in the

schedule property. In view of the same, plaintiff must prove

possessory agreement of sale and her possession pursuant

thereto. During the cross- examination plaintiff as P.W.1

deposed that she cannot say the assessment number. She

also deposed that she cannot say the names of attestors and

scribe of agreement executed in her favour. P.W.2 deposed

during the cross examination that plaintiff and her two

sisters and four brothers are having right in the property.

However, he deposed that brothers' of plaintiff executed

relinquishment deed, relinquishing their share in the

property, which was not even pleaded or deposed by the

plaintiff.

15. On behalf of defendants, 1st defendant examined herself

as D.W.1 and reiterated the contents of written statement.

D.Ws.2 and 3, brothers of plaintiff and defendants, attestors

of Ex.B-2, deposed that their mother Varamma executed

Ex.B-2. D.W.2 in his cross examination deposed that 1st

defendant resided in the schedule property for some time and

since the plaintiff started quarreling, she is residing in a

rented house.

16. Plaintiff having claimed exclusive possession over the

suit schedule property by virtue of possessory agreement of

sale could not mark the alleged document before the trial

Court. Going by the pleadings, the plaintiff came to the

Court with unclean hands and hence, not entitled for the

equitable relief of permanent injunction against the

defendants. Defendants established that they are co-owners

of the schedule property, and no injunction can be granted

against the co-owners. Unless the plaintiff established her

exclusive possession over the schedule property, she is not

entitled for the equitable relief of permanent injunction. As

narrated supra, brothers also supported the case of

defendants qua possession and execution of document by

mother.

17. Unless, the appellant satisfies the High Court that

second appeal involved substantial questions of law,

admitting the second appeal does not arise. 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.

18. The case on hand, both the Courts discussed the

evidence both oral and documentary evidence on record

elaborately and recorded findings. Plaintiff having pleaded

possessory agreement of sale failed to prove same. Thus,

plaintiff came to the Court with unclean hand. Equitable

relief of injunction will not be granted in favour of person

approached with the Court with unclean hands. This Court

dealt with the aspect as to whether a plaintiff comes to Court

with unclean hands is entitled to equitable relief of injunction

in Second Appeal No. 463 of 2019. By relying upon various

judgments of Hon'ble Apex Court as well as other high courts

this Court concluded that plaintiff who came to the Court

with unclean hands is not entitled to equitable relief of

injunction.

19. The findings of facts recorded by the Courts below are

based on evidence and they do not call for interference of this

Court under Section 100 of CPC. No questions of law much

less substantial questions of law involved in the appeal.

Hence, the second appeal is liable to be dismissed, however,

without costs.

20. Accordingly, the second appeal is dismissed at

admission stage. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 14th September, 2022

PVD