Kilaru Jaganmohan Rao, Khammam ... vs Sakhamuri Vamsi Vijetha, Khammam ...
2022 Latest Caselaw 6409 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.265 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 09.12.2014 in A.S.No.110 of 2013 on the file of

Principal District Judge, Khammam, which is arising out of the

judgment and decree dated 11.10.2013, passed in O.S.No.117 of

2010 on the file of Principal Junior Civil Judge, Khammam.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The plaintiff is the appellant.

3. The suit is filed by the plaintiff for perpetual injunction. The

brief averments of the plaint are that the plaintiff is the owner and

possessor of the house plot consisting of 100 sq.yards situated at

Nehrunagar locality, of Khammam town, which was purchased by

him through a registered sale deed dated 31.12.2001 for valid

consideration from one Mittapalli Venkateshwarlu and others. It is

the specific averment of the plaintiff that ever since the date of

purchase, he was in peaceful possession and enjoyment of the suit

scheduled property without interference and the father of the

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vendors of the plaintiff by name Mittapalli Satyanarayana had

purchased the schedule house plot from one Boggavarapu Ranga

Rao through registered sale deed vide document No.1790/85,

dt.10.06.1985 and the said B.Ranga Rao had purchased the house

plot consisting of 300 sq.yards, from one R.Ramakrishna Reddy

through registered sale deed bearing document No.3496/1971 and

thus title, ownership and possession of the schedule property has

been validly transferred from one to others through valid and legal

documents for the last 40 years. It is the further case of the

plaintiff that he raised a small shed in the suit schedule plot about 2

years ago for the purpose of keeping material and a watchman, as

he intends to start construction. The Municipality of Khammam

District has also assessed municipal tax and issued assessment

notice dated 27.01.2010 to the plaintiff by allotting a No.11-5-1/B.

The defendant is the stranger and had an evil eye, tried to grab the

property of the plaintiff, came to the suit schedule property along

with henchmen on 18.03.2010 and tried to dispossess the plaintiff

for which the present suit was filed for restraining the defendants

from interfering with the peaceful possession of the plaintiff, over

the suit schedule property.

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4. The defendant has filed a detailed written statement denying

the entire averments of the plaint. It is the contention of the

defendant that he is the absolute owner and possessor house

bearing plot No.14, admeasuring 670.53 sq.yards, having

Municipal No.6-4(3) situated at Mekalabanda area, Khammam

Town. The said property was purchased by his grand father, by

name Shakamuri Suryaprakash Rao in the name of the defendant,

when the defendant was aged about 2 years, through registered

document No.2400/1979 dated 05.10.1979 from one P.Rajeswari.

Since then, the defendant was in peaceful possession and

enjoyment of the suit schedule property. It is the further plea of the

defendant that he has constructed a temporary shed for the limited

purpose of keeping the watchman of the said apartment. The

defendant further got the electricity supply to the shed and the

watchman of the neighbouring apartment was living in the said

shed and therefore prayed to dismiss the suit filed for perpetual

injunction.

5. Based on the pleadings available on record, the trial Court

framed the following issues:-

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"1. Whether the plaintiff is entitled for permanent injunction?

2. To what relief?"

6. During the course of trial, P.Ws.1 to 6 were examined and

got Exs.A-1 to A-6 marked and on behalf of the defendants D.Ws.1

and 2 were examined and got Exs.B-1 to B-5 marked. P.W6 is the

Advocate Commissioner appointed by the Court and Exs.C-1 to C-

6 were got marked.

7. Considering the entire oral and documentary evidence on

record, the trial Court has dismissed the suit with a specific finding

that the plaintiff was unable to say/disclose the names of the

neighboring land owners though admitted all the surrounding

boundaries of the defendants and further gave a finding that the

plaintiff failed to locate his site, failed to prove the construction of

shed and also failed to prove his possession over the same and

therefore, the plaintiff is not entitled for the relief as prayed for.

8. Being aggrieved by the same, the unsuccessful plaintiff has

preferred an appeal vide A.S.No.110 of 2013 before the Principal

District Judge at Khammam.

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9. The 1st appellate Court after hearing the appellant have

framed the following points for consideration:-

"1. Whether the plaintiff has made out his possession by the date of filing of the suit and entitled for permanent injunction as prayed?

2. To what relief?"

9. On hearing the rival contentions of the parties, the 1st

appellate Court has dismissed the appeal confirming the judgment

and decree dated 11.10.2013 in O.S.No.117 of 2010 on the file of

Principal Junior Civil Judge at Khammam. It is the specific finding

of the 1st appellate Court that the plaintiff failed to prove his

positive case i.e., by making out the identity of the plaint schedule

property connecting Ex.A-1 and his possession in the suit schedule

property, by the date of filing of the suit. On the other hand, the

defendant has got electricity connection and got the meter and

figured them as Exs.B-2 and B-5 and paid electricity consumption

charges and proved the same through Exs.B2 to B-4. Ex.C-1 is the

Commissioner's report, Exs.B-2 and B-5 are the photographs, the

existence of electricity meter are in the name of defendant.

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10. Being aggrieved by the concurrent findings of both the

Courts below, the present Second Appeal is preferred by the

appellant herein raising the following substantial questions of law:-

"a. Whether the Courts below are justified in holding that the identity of the suit schedule property not proved by the plaintiff/appellant herein when both the courts below just discussed the evidence the each witness on either side in isolation and without property considering the entire evidence in its proper perspective?

b. Whether the Courts below are justified in giving credence to the photographs filed by the respondent/defendant instead of considering the registered sale deeds and oral evidence adduced on behalf of plaintiff/appellant herein? c. Whether the Lower Appellate Court is justified in holding at para 35 of its judgment that as per Ex.A-1, registered sale deed Mittapally Venkateshwarlu and others (heirs of late Mittapally Satyanarayana) who purchased the property in Ex.A-2, sale deed, from

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Ranga Rao, conveyed 100 sq.yards of site under (Ex.A1) and this 100 sq.yards site is towards nother of H.No.11-5-1/1 but in a wise manner in the plaint the northern boundary is referred as the plot of Narasimha Rao because when Mittapally Venkateswarly and others sold 100 sq.yards from the land purchased by them on the northern side of the house of B.Ranga Rao, certainly the H.No.11-5-1/1 of B.Ranga Rao will be the southern boundary to the suit schedule property and that as per Exs.A- 1 and A-2, the northern boundary is the plot of P.Narasimha Rao and on the date of filing of the suit the plaintiff/appellant is not aware who is on the northern side of the suit schedule property and subsequently it cane to light that it was the plot purchased by the defendant/respondent herein?

d. Whether the courts below are justified in not considering the Ex.A-4 which is the certificate issued by the Municipal Corporation, Khammam showing that H.No.11-5-1/B situated at Nehrunagar

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locality of Khammam stands in the name of the plaintiff/appellant herein?

e. Whether the Courts below are justified in not appreciating the fact that the identity and location of the suit schedule property is traced through the certificate issued by the MRO, Khammam dt.08.12.2001 which is enclosed to Ex.A-1?

f. Whether the Courts below are justified in holding that plaintiff/appellant herein did not locate the suit schedule land when the evidence of PWs 1 to 6 and Exs.A1 to A6 and the report of the Advocate Commissioner, Ex.C2, would clearly show that the plaintiff/appellant herein proved the identify, location and boundaries of the site?"

11. Heard the learned counsel for the appellant. Perused the

record.

12. It is contended by the learned counsel for the appellant that

the flow of title was admitted by the Courts below and therefore,

both the Courts ought to have granted perpetual injunction in his

favour and therefore prayed to grant a decree for perpetual

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injunction, by setting aside the judgment and decree of the Courts

below.

13. On perusal of the entire evidence on record, it is evident that

Ex.C-1 is the Commissioner's report where the suit schedule

property was shown as Item No.1 and land of the defendant was

shown as Item No.2. Initially, northern boundary was shown as

'Vennela Apartments' and it was struck off and entered as the land

of the defendant. P.W-6 was examined before the Court and

Ex.C-2 is the rough sketch prepared by the surveyor. But on

perusal, it is evident that Ex.C-2 did not bear either signature of the

surveyor or the official stamp of the surveyors office. It is the

specific admission of the Commissioner that she cannot say who

has prepared the rough sketch and also admitted that she has noted

down measurements personally on a paper, but has not filed it

before the court and that she did not enquire the neighbouring

property owners of suit schedule property.

14. The evidence of D.W-1, watchman of apartment by name

Bhaskar Rao discloses that the apartment is being constructed by

one Kishore, which is corroborated with the evidence of PW-4.

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Plaintiff was unsuccessful to establish that he was in possession of

the property as on the date of filing of the suit, though he tried to

establish his ownership over the property, but could not identify it.

In a suit for perpetual injunction or permanent injunction, it is for

the Courts to look into who is in possession of the suit schedule

property as on the date of filing of the suit but need not look who is

the owner of the property. The title deeds can be looked into

incidentally. Admittedly, this is a suit for perpetual injunction but

not a suit for declaration of title. There is no substantial question

of law involved in the appeal.

15. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court

can interfere with the orders of the Courts below. On perusal of the

entire material on record, this Court is of the considered view that

the orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

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findings of the Courts below. Therefore, the Second Appeal

deserves to be dismissed.

16. In the result, the Second Appeal is dismissed at the stage of

admission confirming the judgment and decree dated 09.12.2014 in

A.S.No.110 of 2013 on the file of Principal District Judge,

Khammam. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 05.12.2022 dv