Pinnamaneni Ratheesh Kumar, vs Sathuluri Parasuramudu,
2023 Latest Caselaw 4288 AP

                                   1


        THE HON'BLE DR.JUSTICE K. MANMADHA RAO

             SECOND APPEAL Nos.260 and 262 of 2023

COMMMON JUDGMENT:

      Second Appeal No. 260 of 2023 has been filed assailing the

Judgment and Decree dated 21.03.2023, passed in A.S.No.78 of

2015 by the learned XII Additional District Judge, Vijayawada (in

short "the first appellate court") in dismissing the Appeal by

confirming    the   Judgment   and     decree   dated   24.03.2015   in

O.S.No.586 of 2014 passed by the learned I Additional Junior Civil

Judge, Vijayawada (in short "the trial court)".

      Second Appeal No. 262 of 2023 has been filed assailing the

Judgment and Decree dated 21.03.2023, passed in A.S.No.83 of

2015 by the learned XII Additional District Judge, Vijayawada (in

short "the first appellate court") in dismissing the Appeal by

confirming    the   Judgment   and     decree   dated   08.04.2015   in

O.S.No.587 of 2014 passed by the learned VI Additional Junior

Civil Judge, Vijayawada (in short "the trial court)".


      2. The parties will herein after be referred to as they are

arrayed in the Original Suit for the sake of convenience.


      3. Since the facts and issue involved in all the Second

Appeals are one and the same, I find it expedient to decide these

matters by a Common Judgment.
                                           2


       4. For the sake of convenience, S.A.No. 260 of 2023 is taken

as leading case.


       5.    The     appellant    herein       is   the   appellant/    plaintiff;

respondent is the respondent/ defendant in the courts below. The

appellant/ plaintiff is different and respondent/ defendant is

common in both the Appeals and also before the courts below.

6. Initially the appellant/ plaintiff before the court below has

filed the suit for permanent injunction against the respondent/

defendant in respect of the plaint schedule property contending

that the suit schedule property was purchased by one

Pinnamaneni Venkata Ratnam under a Sale Agreement dated

11.05.1973 from the defendant and his father S. Yesudasu. Later

said Venkata Ratnam executed a Will dated 21.11.1984 in favour

of his two sons namely Pinnamaneni Ranga Rao and Pinnamaneni

Krishna Rao bequeathing his properties to them. Later he died on

19.06.2000. Therefore the said Will came into operation.

Subsequently P. Krishna Rao gifted his properties to his two sons

namely plaintiff and Babji under Registered Gift Deed dated

30.04.2015, since then they have been possession and enjoyment

of the suit schedule property. While so, the defendant and his men

developed an evil eye to knock away the said property and

threatened with dire consequences. Hence the suit.

7. The defendant filed Written Statement denying all material

averments made in the plaint and contended that the father of the

defendant has leased out an extent of Ac. 1.00 cents in

R.S.No.117/2D of Gunadala Village in 1970 to one Pinnamaneni

Venkata Ratnam on monthly makta at Rs. 1,000/- to Yesudasu till

1976 till his death. Later his sons Ranga Rao and Krishna Rao

used to continue the tenancy by paying makta at Rs. 3,000/- till

2012. Later they stopped to pay makta. The defendant and or his

father never sold their land including the plaint schedule rpoeprty

to the plaintiff or his ancestors, the alleged agreement of sale is

forged, which is not referred to in the alleged Will also. The said

land was assigned by Government noted in Resettlement Register

of Gunadala Revenue Village, as such it cannot be alienated. The

plaintiff has no right over the plaint schedule property. Therefore

the suit is liable to be dismissed.

8. Based on the above pleadings, the trial court eventually

framed the following issues for trial:

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

(2) Whether the plaintiff is in wrongful possession of the plaint schedule property without having title?

(3) To what relief?

9. During the course of trial PWs-1 to 3 were examined on

behalf of the plaintiff and Ex.A1 to A7 were marked and on behalf

of the defendant, Dws-1 and 2 were examined and Ex.B1 to B13

were marked.

10. After thorough enquiry, the trial court holding that the

plaintiff is in possession of the schedule property, but his

possession is wrongful and at the same time he cannot be

protected by way of permanent injunction and hence the trial court

dismissed the suit of the plaintiff on 24.03.2015.

11. Assailing the said Judgment and decree of the trial court,

the defendants therein have preferred an appeal in A.S.No. 78 of

2015. The first appellate court has framed the following points for

determination in the Appeal:

1. Whether plaintiff has got legal title and lawful possession over the plaint schedule property, so as to seek relief of injunction against the defendant, who is real owner?

2. Whether learned trial judge appreciated both facts and law properly or committed serious error in dismissing plaintiff's suit filed for bare injunction?

3. Whether judgment of learned trial judge suffers from any illegality or perversity and same is liable to be set aside in this appeal?

12. The First Appellate Court after considering the facts and

circumstances of the case dismissed the appeal on merits on

21.03.2023 by confirming the decree and judgment of the trial

court.

13. Assailing the Judgment of the First Appellate Court, the

appellants herein, who are defendants before the trial court has

filed these Second Appeals, seeking to set aside the decree and

Judgment of the courts below.

14. The appellant raised the following question of law in the

grounds of Appeal, which are as under:

a) Whether in law the First Appellate Court is right in confirming the Judgment and the Decree of the Trial Court when it is proved, and also admitted by the respondent, as to the appellant/ plaintiff's possession in the Plaint Schedule Property?

b) Whether in law the First Appellate Court is right in not taking into consideration of the well settled legal position that a suit for mere injunction is maintainable if the Plaintiff is in possession of the property as on date of filing of the suit?

c) Whether the First Appellate Court is right in not taking into consideration of the Legal Position settled by the Hon'ble Supreme Court in AIR 1996(SC) 1807 wherein it was held that the mere suit for injunction can't be converted into suit for probation of Will and direct parties to adduce evidence, be it primary or Secondary.

d) Whether the First Appellate Court is right in dismissing the Appeal and confirming the Trial Court Judgment without there being any specific finding about the Title of the Defendant, particularly when defendant has failed to establish his title either by producing documentary evidence or through oral evidence.

e) Whether the 1st Appellate Court is right in relying upon the principle of law evaluated in Balram Singh VS Kelo Devi (2022(6) ALD 200 (SC)] to the present facts of the case, and whether the finding in Balram Singh VS Kelo Devi (2022(6) ALD 200 (SC)| suffers per-incuraim. For, the basis for the observation is that the plaintiff cannot file the suit for specific performance,

as the sale agreement is an unregistered one. There is no reference in the said Judgment about the proviso under Section 49 of the Registration Act. It is submitted that the three bench judgment of the Hon'ble Supreme Court, reported in 2018 (7) SCC- Pg. 639 held that "An unregistered Agreement of Sale can be admitted as evidence of a contract in a suit for specific performance in view of proviso to Section 49 of the Registration Act." The Judgment considered by the first appellate court is rendered by a bench consisting of two judges only. The earlier larger bench judgment or the proviso to Section 49 of the Registration Act is not referred to in the said Judgment. The Hon'ble Supreme Court in a recent judgment reported in 2022(5) Supreme- Pg. 412 held that a decision or judgment can be per- incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. It can also be per- incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger bench?

f) Whether the Appellate Court is right in making observation that Will Deed, dated 21.11.1984, which was marked as Ex A6 has never seen day light as the same was not filed, when the said Document is Marked as Ex A6?

g) Whether the Courts below right in observing as to non- filing of link documents in a Suit for Permanent Injunction is a ground to dismiss the suit, when more particularly when the possession over the property is undisputed and admitted.

h) Whether the first appellate court is right in not even mentioning about the Additional Evidence Petition filed under m Order. 41 Rule 27 of CPC in I.A. No. 1356/2019?

15. Heard Mr. P. Rajasekhar, learned counsel representing

Mr. T.V.P. Sai Vihari, learned counsel for the appellant and Mr.

V.L.N.Sarma, learned counsel for the respondent.

16. During hearing learned counsel for the appellant would

contend that the first appellate court failed to consider very crucial

circumstance as to the pleading of the respondent/defendant that

the plaint schedule property was let out to the father of the

plaintiff and his brother, and that they did not pay the Maktha,

and that the respondent/ defendant has been demanding them to

vacate the land. Although the said contention of respondent/

defendant is totally false, baseless and untruthful and without any

iota of proof, yet in view of the said plea of the respondent/

defendant, it cannot be held that the appellant's possession is

illegal in the plaint schedule property. Thus, the 1st Appellate court

has totally gone into a serious confusion as to the appreciation of

the facts, pleadings and evidence on record.

17. It is further contended that the first Appellate court

finding as to the title of the appellant is quite erroneous, both on

fact and in law. For, the suit is filed only for a permanent

injunction and the primary question to be considered while

granting or refusing the injunction is possession as on date of the

filing of the suit, and whether such possession is lurking or

settled. Question of title is only incidental and even without giving

a finding as to the title, the court has to decide the possession

independently. The first Appellate court has failed to note that any

finding on title in a suit for permanent injunction does not operate

as res-judicata in a subsequent suit between the same parties as

to the title of the property.

18. It is further contended that the first appellate court has

failed to take into consideration several admissions made by the

respondent/defendant (DW-1) apart from his pleading that the

land has been let out to the father of the plaintiff, as to possession

of the appellant/ plaintiff as on the date of the filing of the suit

and much prior to that. The first appellate court ought to have

held that on facts of the case that the appellant/plaintiff is entitled

to be protected his possession in the plaint schedule property, as

per the doctrine of part-performance. Therefore the findings of the

first appellate court are based on mere surmises and the same is

liable to be set aside.

19. Learned counsel for the appellant relied on a decision of

Hon'ble Apex Court in "Nagindas Ramdas vs. Dalpatram

Locharam @ Brijaramand and Others"1 wherein it was held as

follows:

"26. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings

AIR 1974 SC 471

or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong".

In the case of "State of Rajsthan and Others vs. Shiv

Dayal and Another"2 wherein the Hon'ble Apex Court held as

follows:

"13. We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.

14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). However, this rule of law is subject to certain well-known exceptions mentioned infra.

15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the Page: 640 appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called "concurrent finding of fact"

(2019) 8 SCC 637

whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.

16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar para 43.)

17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."

The Hon'ble Supreme Court has categorically discussed the

principles relating to Section 100 CPC in "Nazir Mohamed vs. J.

Kamala and Others"3 which reproduced hereunder:

" 37. The principles relating to Section 100 CPC relevant for this case may be summarized thus:

(iv) The general rule is, that High Court will not interfere with the concurrent findings of 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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence,

Civil Appeal Nos. 2843-2844 of 2010, dated 27.08.2020

taken as a whole, is not reasonably capable of supporting the finding".

20. Whereas learned counsel for the respondent reiterated

the defence taken before the courts below and vehemently opposed

to allow the Second Appeals and relied on catena of decisions of

various High Courts and also Hon'ble Supreme Court.

21. During the course of arguments, learned counsel for the

respondents relied on a decision of Hon'ble Apex Court in

"Padhiyar Prahladji Chenaji (deceased) through L.Rs vs.

Maniben Jagmalbhai (deceased) through L.Rs and Others"4

wherein it was held as follows:

"13. Therefore, the short question, which is posed for the consideration of this Court is, whether, in case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.

....

24....Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law."

(2002) 12 SCC 128

In "K. Ankaiah vs. Tirumala Tirupati Devasthanams"5,

wherein this Court held as follows:

"21. Their possession is prima facie unlawful inasmuch as the alleged licence in their favour already expired. They had not shown that they have got any right to be in lawful possession of the plaint schedule property. Therefore, they cannot seek temporary injunction against the defendants-TTD, who are the true owners of the suit property.

.....

23......Therefore, on the date of the suit they have no prima facie right to be in lawful possession of the disputed property. Their possession cannot be treated as settled possession or long or continuous possession. Further, they are not entitled to seek injunction against the true owner on the basis of their sole unlawful possession or possession without any right to be lawfully in possession of the disputed property.... "

The above case i.e K. Ankaiah's case has been discussed in

the case of "Syed Jameel vs. K.V.V.Nageshwara Rao and

Another"6. Further in "Smt. Rohini Devi @ Rajeswari Dasi vs.

Babaji Jagannath Das and Others"7, wherein it was held as

follows:

"7. Perusal of the records, i.e the judgments of the Courts below, the plaint, the written statements, documents exhibited by both parties and evidence shows that there are neither any pleadings or nor any evidence of the appellant with regard to declaration of title. This question has been raised for the first time before this Court. Where a point of law has not been pleaded or is found to be arising between the parties in the

2002 LawSuit(AP) 485

2004(2) ALT 499 (S.B)

AIR 2006 Orissa 141

absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal......"

Learned counsel for the respondent further relied on a

decision of Hon'ble Apex Court in "Balaram Singh vs. Kelo

Devi"8 wherein it was held that the plaintiff cannot get relief

indirectly, which otherwise he/she cannot get in suit for

substantive relief. Further, plaintiff cannot get relief of permanent

injunction on basis of such unregistered document/ agreement to

sell, more particularly, when defendant specifically filed counter-

claim for getting back possession which was allowed by trial court.

Learned counsel for the respondent further contended that

the case succeeds only on the strength of his own title and not on

the weakness of case of the defendants. The defendants need not

plead and prove possible defects in plaintiff's title. Even if

defendants to establish their own title, plaintiff must be non-suited

if he fails to establish his title as per decision of erstwhile High

Court of Andhra Pradesh in "Sajana Granites, Madras and

Another vs. Manduva Srinivasa Rao and Others"9.

22. Perused the record.

23. Learned counsel for the plaintiff drawn the attention of

this Court with regard to Para 18 of the Judgment of the first

2022(6) ALD 200 (SC)

2002(1) ALT 466 (D.B)

appellate court that the plaintiff came and traced his right under

unregistered agreement of sale, thereupon unregistered Will, those

documents also have not seen the light of the day and claiming

injunction against his landlord, who is the real owner by setting

up false title and that the plaintiff is not entitled the equitable

relief of permanent injunction against the defendant, who is a

rightful owner, which is incorrect. Further it is contended that

there is no need or necessity to investigate the title, it can be

incidentally gone when the defendant denied the title of plaintiff.

But the first appellate court held that the plaintiff is bound to

show his prima facie right and title or he has to amend the suit for

declaration but, plaintiff having failed to do so, claiming injunction

without having legal title and lawful possession, thereby not

entitled injunction against the defendant. Therefore, the first

appellate court has dismissed the appeal.

24. In Ex.A2, which is copy of Adangal would show that the

plaintiff though he has been in possession of the schedule

property, but it was stands in the name of father of the defendant.

Ex.A3 is the tax receipt would show that the land tax was paid by

Pinnamaneni Venkata Ratnam. In fact, the tax can be paid either

by the land owner or any person on behalf of the land owner and

the person who paid the amount and whose name is to be noted.

Ex.A7 is the demand notice, it was issued in the name of the

plaintiff, but in fact the schedule property is a vacant site and the

question of payment of house tax does not arise as held by the

trial court.

25. Upon perusal of the Judgment of the first appellate court

have discussed at length on the decisions relied by the appellant

and given finding that the plaintiff came and traced his right under

unregistered sale agreement, thereupon unregistered Will, those

documents have also not seen in the light of the day and claiming

injunction against his landlord, who is the real owner by setting

up a false title. Therefore the plaintiff is not entitled to permanent

injunction against true owner i.e defendant. Further the plaintiff is

bound to show his prima facie right and title or he has to amend

the suit for declaration, but the plaintiff has not to do so.

Therefore the first appellate court dismissed the appeal.

26. There is some force in the argument of learned counsel

for the respondent and that the decisions submitted by the learned

counsel for the respondent, cited supra are applicable to the facts

of this case and would enable the Court to come to a just

conclusion and as the pleadings of the parties have crystallized the

questions in dispute. Therefore, the observations made by the

courts below are very specific and finds no impropriety or

irregularity in its Judgments. As the appellant raised the

substantial question of law is not satisfactory, the Second Appeals

are deserves to be dismissed.

27. Since common issues were involved in the both the

suits, the discussion made in S.A.No.260 of 2023 is adopted in

S.A.No.262 of 2023 also.

28. After close scrutiny of the findings of the both trial court

as well as first appellate court, this Court opines that the both

Second Appeals are dismissed.

29. Accordingly, the Second Appeals are dismissed, at the

stage of admission, by a common order. There shall be no order as

to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 15.09.2023.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

SECOND APPEAL Nos.260 and 262 of 2023

Date: 15.09.2023.

KK