Kola Shankar vs Permalla Anjaneyulu
2022 Latest Caselaw 4174 Tel

             THE HON'BLE SRI JUSTICE M. LAXMAN

                  SECOND APPEAL No.333 OF 2016

JUDGMENT:

1. The present appeal has been directed against judgment and decree

dated 19.06.2014 passed in A.S.No.9 of 2014 by the II Additional District

Judge, Karimnagar, wherein and whereby the judgment and decree

dt.02.08.2013 passed in O.S.No.111 of 2009 by the Principal Junior Civil

Judge, Jagtial, was confirmed. The said suit was filed by the appellants

herein for grant of perpetual injunction and the said suit was dismissed

and it was confirmed in the first appeal.

2. The present appeal is at the instance of the plaintiffs in the suit.

The respondents are defendants in the suit. For brevity, the ranks of the

parties as they were referred in the suit, is maintained.

3. The sum and substance of the case of the plaintiffs is that their

ancestor late Kola Venkati was the original owner of the land in

Sy.No.372/A extent Ac.1-25 gts., The 1st plaintiff is his son, and the

father of 2nd plaintiff i.e. Kola Thirupathi was another son. Out of the

said land, Railways acquired an extent of Ac.0-34 gts., and the plaintiffs'

ancestor sold out Ac.0-12 gts., and the plaintiffs are in possession of

Ac.0-19 gts., On the basis of such claim and with the revenue records

the present suit has been filed for perpetual injunction.

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4. The case of the defendants is that they are absolute owners and

possessors of land in Sy.No.372/B and they are neighbouring landlords.

The plaintiffs' land is located on the southern side of defendants' land,

and if injunction is granted, there is likelihood of encroaching upon their

land, which is located on the Northern side of the plaintiffs' land. The

defendants also pleaded that plaintiffs suppressed the factum of

acquisition of Ac.0-10 gts., by the Railways subsequent to acquisition of

Ac.0-34 gts., and they also claimed that location of the plaintiffs' land is

difficult and prayed to dismiss the suit.

5. Basing on the above pleadings, the Primary Court framed the

following issues:

1. Whether the plaintiffs are entitled for relief of perpetual injunction as prayed for?

2. To what relief?

6. The plaintiffs in order to prove their case, got examined PWs.1 to

3, and relied upon Ex.A1 to A10. On behalf of defendants, DWs.1 and 2

were examined and relied upon Ex.B1 to B4.

7. The primary Court after appreciating the evidence on record found

that the plaintiffs suppressed the factum of acquisition of Ac.0-10 gts., by

the Railways subsequent acquisition of Ac.0-34 gts., and also found that

Gift Deed allegedly executed by the owner Kola Venkati in favaour of 3 ML,J SA No.333 of 2016

plaintiffs under Ex.A7 whereunder Ac.0-16 gts., of land was gifted in

favour of plaintiffs was not disclosed in plaint. Consequently, the suit

was dismissed. Aggrieved by the same, the plaintiffs preferred the appeal

and the first Appellate Court gave concurred finding with the findings of

the trial Court.

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8. The contention of the learned Counsel for the appellants/plaintiffs

is that even going by the pleadings of the defendants by excluding Ac.0-

34 gts., initially acquired by the Railway and Ac.0-10 gts., subsequent

acquisition, admitted the case of plaintiffs was that Ac.0-12 gts., was sold

by by late Kola Venkati. Still balance there is Ac.0-09 gts., of land and

First Appellate Court ought to have considered granting of injunction for

Ac.0-09 gts., Therefore, the findings suffer from perversity.

9. Learned Counsel for the respondents/defendants submitted that

both the Courts below found that the location of the plaintiffs' land is

also difficult in order to grant injunction. If the injunction is granted for

Ac.0-09 gts., it is difficult to execute such decree without there being the

actual location of the land out of the suit boundaries.

10. From the reading of the findings of both Courts, both the Courts

below found that there is suppression of facts relating to acquisition of 4 ML,J SA No.333 of 2016

Ac.0-10 gts., by the Railways and also with regard to execution of Gift

Deed by the original owner conveying Ac.0-16 gts., under Ex.A7. There

is no doubt as per the pleadings of both parties and evidence on record,

the plaintiffs got still left over land of Ac.0-09 gts., and it is difficult to

locate Ac.0-09 gts., within the boundaries of Sy.No.372/A. The original

owner was holding Ac.1-25 gts., out of which Ac.0-34 gts., of land was

initially acquired by the railways, later Ac.0-10 gts., and Ac.0-12 gts.,

which was held by the original owner. If the injunction is granted for

Ac.0-09 gts., without specific location of the land, it will have chance of

abusing decree of injunction to locate the land anywhere at the choice of

plaintiffs. Therefore, there is no perversity in the findings of both Courts

below in refusing to grant injunction. There is no substantial question

involved in the present second appeal, and the appeal is liable to be

dismissed.

11. The learned Counsel for appellants/plaintiffs submits that still they

have Ac.0-09 gts., of land and remedy shall be kept open. If the

appellants/plaintiffs have got Ac.0-09 gts., they are at liberty to take up

the issue with the concerned revenue officials for demarcation of the said

land.

12. Accordingly, the appeal is dismissed. No costs.

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13. As a sequel, pending miscellaneous applications, if any, shall stand closed.

_______________ M. LAXMAN, J DATE:17.08.2022 BDR