Andhra Pradesh High Court - Amravati
Vemula Lakshminarayana vs Bolisetty Raja Shivaji Died on 18 June, 2024
APHC010382832002
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
SECOND APPEAL NO: 75/2002
Between:
Vemula Lakshminarayana and Others ...APPELLANT(S)
AND
Bolisetty Raja Shivaji Died and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. KRISHNA MOHAN SIKHARAM
Counsel for the Respondent(S):
1. GHANTASALA UDAYA BHASKAR
The Court made the following:
2
Dr. VRKS, J
S.A.No.75 of 2002
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.75 of 2002
JUDGMENT:
1. Original plaintiffs in O.S.No.73 of 1994 preferred this
appeal under section 100 CPC impugning the reversing judgment
of learned Senior Civil Judge, Bapatla in A.S.No.91 of 1997. The
original sole defendant in O.S.No.73 of 1994 is respondent No.1.
During the pendency of the appeal, he died and respondent
Nos.2 to 6 were brought on record as his legal representatives.
Appellant No.2 also died during the pendency of this appeal and
therefore appellant Nos.3 to 5 came on record as his legal
representatives. A learned Judge of this court on 12.01.2002
admitted the second appeal on formulating the following
substantial questions of law: -
1. Whether the lower appellate court is entitled to disbelieve
the decree passed in 1927 in favour of the appellants
without assigning any valid reason?
2. Whether is it proper for a lower appellate court to overlook
the categorical finding of the trial court that Ex.A1 is tallying
with the plaint plan boundaries and the appellants
established their possession over the suit schedule
property and reversed this finding without any cogent
reasons?
Dr. VRKS, J
2. Sri Krishna Mohan Sikharam, the learned counsel for
appellants and Sri Ghantasala Udaya Bhaskar, the learned
counsel for respondents submitted arguments. In essence,
learned counsel for appellants supports the judgment dated
02.09.1997 of learned Principal Munsif Magistrate, Bapatla in
O.S.No.73 of 1994 and argued that the learned first appellate
court erroneously reversed it. For respondents, the contention is
that the judgment dated 06.11.2001 of learned Senior Civil Judge,
Bapatla in A.S.No.91 of 1997 is correct on facts and law and it
rightly reversed the trial court's judgment.
3. The property in dispute is Ac.0.06 cents of vacant site
which is equivalent to 242.81 square meters situate in locality
No.10 of Bapatla Municipality. Specific boundaries on all four
sides are given. The prayer in the suit is for a permanent
injunction restraining the defendant from interfering with the
peaceful possession and enjoyment of the suit schedule site.
There was Sri Vemula Venkaiah and he had two sons by name
Vemula Venkata Krishnaiah and Vemula Rama Mohana Rao.
During earlier times, there was a suit among family members
concerning various properties and in O.S.No.179 of 1927 a
compromise decree was passed and by virtue of it, the plaint
schedule property fell to the share of the above referred father
and two sons. Over the period of time, all of them died. 1st plaintiff
is the son of the above referred Venkata Krishnaiah. The 2nd
plaintiff is the son of the above referred Rama Mohan Rao.
Together they filed the suit for permanent injunction on the
Dr. VRKS, J
premise that since the time of the compromise decree, their
ancestors and after their lifetime, these plaintiffs have been in
possession and enjoyment of the plaint schedule property and the
defendant being a chronic litigant is attempting to interfere with
their possession and occupy this property and therefore seeking
protection of their possession, the suit was laid.
4. The sole defendant put in his written statement wherein he
denied all these allegations. He states that Sri Bolisetty Seetha
Ramaiah is his father and he had filed O.S.No.162 of 1946 for
recovery of possession of property and District Munsif Court,
Bapatla decreed the suit in favour of him and against one Sri K.
Veera Swamy and others and thereafter the decree holder filed
E.P.No.528 of 1947 and obtained delivery of possession of the
said property which by then included a dilapidated thatched
house and this delivery was obtained on 15.11.1947. What was
obtained delivery of was the very suit schedule property herein.
After the death of Sri Bolisetty Seetha Ramaiah, it is this
defendant being his son has been in possession and enjoyment
of this property. He sought dismissal of the suit. Learned trial
court framed following issues: -
1. Whether the plaintiffs are entitled to the permanent
injunction as prayed for?
2. To what relief?
Dr. VRKS, J
At the trail, plaintiff testified as PW.1 and a neighbour
testified as PW.2. The defendant testified as DW.1 and a
neighbour testified as DW.2 and a mandal surveyor testified as
DW.3. The certified copy of the decree with plan in O.S.No.179 of
1927 is Ex.A1. Ex.A2 dated 17.10.1987 is stated to be an
agreement between plaintiff and certain others. Certified copy of
plaint in O.S.No.162 of 1946 is Ex.B1. Certified copy of delivery
receipt in E.P.No.538 of 1947 In O.S.No.162 of 1946 is Ex.B2.
5. Learned trial court having considered the material placed
before it and after considering the rival submissions concluded
saying that the controversy revolved around plan contained in
Ex.A1 as against Ex.B2 delivery receipt and having considered
and described the properties mentioned therein, it came to
conclude that the plaint schedule property matches with property
found in Ex.A1 plan and thus it found that plaintiffs established
their title and possession and granted permanent injunction.
6. In the appeal, the learned first appellate court re-
appreciated the entire evidence on record and described the
boundaries mentioned in the plaint schedule and in Ex.A1 plan
and in Ex.B2 delivery receipt and at paragraph No.24, it held that
plaintiffs failed to prove their title and possession over the plaint
schedule property. At paragraph No.25 and 26, the learned first
appellate court held that defendant in the suit also failed to
establish his possession and title over the plaint schedule
Dr. VRKS, J
property. Consequently, it allowed the appeal and set aside the
trial court's judgment and dismissed the suit.
7. It is in the above backdrop, the learned counsel on both
sides endeavored to demonstrate the virtue of their respective
cases. Learned counsel for appellants submit that the plaintiffs
and defendant are not related to one another and the evidence of
defendant as DW.1 would indicate the property covered by his
Ex.B2 is different from property mentioned in Ex.A1 and therefore
learned trial court rightly concluded in favour of the appellants/
plaintiffs and the appellate court erroneously reversed its findings.
Learned counsel further argued that the defendant examined
DW.3/ the surveyor and it has to be noticed that he failed to
produce any survey report and therefore his evidence carries no
weight. Learned counsel also argued that in cross-examination
DW.1 admitted facts in favour of the plaintiffs.
8. Learned counsel for respondents argued that when the
property and its identity is in dispute a suit for mere injunction is
not maintainable and plaintiffs ought to have filed a suit for
declaration of title which they did not. That the approach of the
learned trial court was erroneous as it went on to presume the
case of the plaintiffs as true and tested their case on the touch-
stone of the evidence of defendants and such erroneous
judgment was rightly reversed by the appellate court which
appropriately considered the evidence led by both sides and
reached to correct conclusions. Learned counsel argued that the
Dr. VRKS, J
plaintiffs have to prove their own case and they cannot stand on
the weaknesses of the defendant. Learned counsel for
respondents for this purpose cited T.V. Ramakrishna Reddy V.
M. Mallappa1. In this ruling, their Lordships held
"Where plaintiff's title is not in dispute or under a cloud, a
suit for injunction could be decided with reference to finding
on possession. If matter involves complicated questions of
fact and law relating to title, Court will relegate parties to
remedy by way of comprehensive suit for declaration of
title, instead of deciding issue in a suit for mere injunction.
Where there are necessary pleadings regarding title and
appropriate issue relating to title on which parties lead
evidence, if matter involved is simple and straightforward,
Court may decide upon issue regarding title, even in a suit
for injunction, However, such cases are exception to
normal rule that question of title will not be decided in suits
for injunction. This is not a case where plaintiff can be said
to have a clear title over suit property or that there is no
cloud on plaintiff's title over suit property.
(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
AIR 2021 SC 4293
Dr. VRKS, J
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 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 [Annaimuthu Thevar v.
Alagammal, (2005) 6 SCC 202: (AIR 2005 SC 4004)]).
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,
Dr. VRKS, J
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."
Learned counsel for respondents further argued that the
memorandum of grounds of appeal and the contentions raised in
and the arguments submitted for appellants do not really give rise
to any substantial questions of law and that the substantial
questions of law that are formulated really do not arise and that
there is no warrant for interference with the impugned judgment
of the learned first appellate court.
9. This court considered the rival submissions and the
material on record. The pleadings, the evidence and the
impugned judgments make it at once clear that the matter at
controversy is one related to identity of the property. In other
words, whether this is a property over which plaintiffs are able to
show their claim through Ex.A1 or whether the defendant is able
to lay his claim over the plaint schedule property through Ex.B2.
Strictly speaking this is not a litigation where questions of title
have arisen and need any deliberation. Ex.A1 is antecedent in
point of time as it emerged in the year 1929. If it is assumed that
Ex.A1 mentioned property and the plaint schedule property are
one and the same, it can be said that plaintiffs being undisputed
descendants of the original owners hold possession over the
plaint schedule property. On the other hand If it is assumed that
Ex.B2 delivery receipt issued by the executing court also pertains
Dr. VRKS, J
to this very plaint schedule property, then the delivery that was
affected on 15.11.1947 in favour of the father of the defendant put
him in possession and thereafter the defendant has been in
possession of the plaint schedule property. If that supposition is
correct, the plaintiffs' mere suit for perpetual injunction is not right
since they can be said to have lost their possession over the
property way back in the year 1947. While considering such a
supposition, it is to be demonstrated by the defendant that the
plaintiffs were legally and really dispossessed from the property
during Ex.B2 proceedings.
10. The pleadings and evidence on both sides do not indicate
any further enquiry behind Ex.A1 proving title and possession of
plaintiffs over this property earlier to Ex.A1. Similar is the case
with the defendant who except exhibiting Ex.B1 and B2, he did
not endeavor to show how and in what manner his father owned
and got this property. Therefore, the rival titles and evidence in
that regard were not actually placed before the trial court. Their
claims for possession based on title are dependent on Ex.A1 by
plaintiffs and Ex.B2 by defendant. Therefore, the controversy
boils down to one single fact namely whether the plaint schedule
property can be identified through Ex.A1 or it can be identified
through Ex.B2. The finding of the fact by the learned first
appellate court is that after very serious scrutiny of all the
descriptive parts of properties he was convinced to say that the
property described in Ex.A1 and property described in Ex.B2 and
property described in the plaint schedule do not match with each
Dr. VRKS, J
other in many respects. Thus, the final court on facts, which is the
first appellate court, recorded that the plaint schedule property
cannot be said to be in possession of either of the parties.
Learned first appellate court also held that neither party produced
any other document such as tax receipts to show that they have
been exercising control over the plaint schedule property. It may
be stated here that neither party produced any other documents
of any of the neighbours wherein one may find some reference to
boundaries referring to the plaint schedule property. The
evidence of PW.2 and DW.2 who are neighbours is of no
consequence since their evidence disclosed that they know the
affairs only for the last 20 to 25 years and their evidence was also
very vague. The observations of the first appellate court
concerning PW.2 and DW.2 are correct. Coming to the evidence
of DW.3/ the surveyor. It is seen from the record that he was only
speaking out of his memory and no documents are filed. In his
cross-examination he stated that he could not confidently say
whether what he inspected and measured and localized the
property during the year 1984 and subsequently is the plaint
schedule property or not. Thus, his evidence helps none.
11. It is in the backdrop of these facts and circumstances I shall
now examine the substantial questions of law that have been
framed. The first substantial question of law is that the lower
appellate court is incorrect in disbelieving Ex.A1 without assigning
any valid reasons. I must say that the learned first appellate court
did not disbelieve Ex.A1. It took pains in comparing the Ex.A1
Dr. VRKS, J
mentioned plan and considered the plaint schedule and
considered the oral evidence and then concluded that plaint
schedule property is not the one that is covered by Ex.A1. It is a
matter of record that both courts considered Ex.A1 and have not
condemned Ex.A1.
12. The second substantial question of law raised is that the
learned first appellate court committed error in upsetting the trial
court's judgment with reference to this property. At paragraph
No.24 of the impugned judgment, the learned first appellate court
stated that there is title dispute over the subject matter property
and the plaintiffs ought to have sought for title declaration and
their suit for mere injunction is not maintainable. It disbelieved the
possession asserted by plaintiffs. At paragraph No.25 and 26, the
learned first appellate court agreed with the trial court's judgment
and held that the defendants failed to prove their title and
possession over the plaint schedule property. That makes it clear
that the concurrent findings of both the courts below is that
defendants failed to show either title or possession over the plaint
schedule property. That finding attained finality as no cross
objections or appeal is preferred by the defendants.
13. Assertion of title by plaintiffs through Ex.A1, is the
pleadings. The genuineness of Ex.A1 and title derived by
plaintiffs through Ex.A1 is the pleaded case. The validity of Ex.A1
and deriving title by plaintiffs through Ex.A1 is not the dispute
raised in the suit. The dispute raised in the suit is the de jure
Dr. VRKS, J
possession claimed by plaintiffs based on Ex.A1. Therefore, the
only question for consideration before the courts below is to see
whether from the material on record the plaintiffs are able to
probabalise their case of de jure possession. In that view of the
matter, the observations of the learned first appellate court that
plaintiffs ought to have filed a suit for declaration of title is
certainly incorrect. In the ruling cited and referred in the earlier
parts of this judgment it was held that where there is no dispute
over the title and where de jure possession is claimed through the
title, the suit for mere injunction is maintainable. This principle
governs the case at hand. Therefore the impugned judgment of
first appellate court that plaintiffs could not maintain a suit for
injunction without a prayer for declaration of title is a clear error in
law on the available facts and thus it requires interference.
14. The learned trial court at paragraph No.7 of its judgment
stated that the plaint plan filed along with decree in O.S.no.179 of
1927 (Ex.A1) shows that the properties of the plaintiff were shown
giving A mark specifically. The boundaries given therein tally with
the boundaries given in the plaint schedule so far as North,
South, West and some vemula people on Eastern side. It stated
that on consideration of Ex.B2 of defendant as against plaint
schedule the extent, the measurements and the boundaries do
not find resemblance. It is in those circumstances, it found de jure
possession over the plaint schedule properties by the plaintiffs.
Learned counsel for appellant is right in contending that on an
overall view of surrounding properties and the persons owning
Dr. VRKS, J
those properties with their surnames similar to the surnames of
appellants clearly show high probability of the case set out by the
plaintiffs in their plaint. This was upset by the learned first
appellate court for the reasons mentioned in paragraph Nos.16,
17 and 18 of the impugned judgment. The learned first appellate
court, lingering under the thought of title dispute erroneously
appreciated the material and incorrectly reversed the well
reasoned finding of possession recorded by the learned trial
court. It has to be noticed in this long drawn litigation for thirty
years no one else came up with a claim of possession or title over
the plaint schedule property. Dispute of possession cropped up
only between parties to the suit. Finding of the first appellate court
to the affect that neither of the parties proved their possession
leaves the litigants in utter disappointment and without any relief
and therefore the cause of justice suffered.
15. Record indicates that before the trial court no issue was
settled with reference to title of the plaintiff. While so, the
appellate court framed points concerning title for its consideration.
As stated earlier, the pleaded cases on both sides indicate
neither side questioned the title of the opposite party. In that view
of the matter, the very approach of the first appellate court suffers
from perversity and cannot be supported. From the material
placed on record, this court holds that the finding of the trial court
that from the evidence plaintiffs established their possession is
right on facts and law. The reversing judgment of the learned first
appellate court being perverse at law cannot be supported and
Dr. VRKS, J
has to be set aside. Therefore, the substantial question of law
raised in point No.2 is held in favour of the appellants.
16. In the result, this appeal is allowed. Consequently,
judgment dated 06.11.2001 of learned Senior Civil Judge,
Bapatla is set aside. Therefore, the judgment dated 02.09.1997 of
learned Principal Munsif Magistrate, Bapatla stands restored.
Both parties to this appeal do bear their own costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 18.06.2024
Dvs
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL NO: 75 of 2002
Date: 18.06.2024
Dvs
