Vemuri Narendra Chary, vs Kanuri Vanamala,
2022 Latest Caselaw 6410 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.857 of 2011

JUDGMENT :

This Second Appeal is arising out of the judgment and decree

dated 07.01.2011 in A.S.No.120 of 2008 on the file of II Additional

District Judge, Warangal, which is arising out of the judgment and

decree dated 15.04.2008, passed in O.S.No.1447 of 2003 on the file

of Principal Junior Civil Judge, Warangal.

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

arrayed before the trial Court. The appellants are the defendants.

3. Initially, the suit is filed by the plaintiffs for the relief of

permanent injunction restraining defendant Nos.1 and 2 and their

agents, workmen, heirs etc., from causing any interference and

obstruction with the peaceful possession and enjoyment of plaintiffs

over the suit schedule property, in any manner and to award costs of

the suit. Plaintiff No.2 is the son of the plaintiff No.1. The husband

of plaintiff No.1 namely K.Chandramouli migrated to Hanamkonda

about 25 years ago from Chinakodepaka Village of Regonda Mandal

and was managing the land acquired by one Sri B.Malla Reddy,

GAC, J S.A.No.857 of 2011

President of Jagruthi Cooperative Housing Society Limited. The

brief averments of the plaint are that the said Chandramouli was

permitted to erect a hut in an extent of 100 sq.yards of land and since

then, he was residing in it with the plaintiffs. Except the land

covered by the hut, the remaining land was allotted to the members

of the society and further Malla Reddy has donated the said land

(hut) under a deed dated 26.10.1998 to Chandramouli for the services

rendered by him. It is the further case of the plaintiffs that they were

running a tea stall in the front portion of the said hut and the

Municipal Corporation also issued notice to the 1st plaintiff for

payment of license fee, for running tea stall and thereafter, one

K.Yashoda and others filed L.G.C.No.137/95 against the husband of

the 1st plaintiff. The documents executed by late Malla Reddy and

the proceedings in Land Grabbing Case would clearly prove that the

plaintiffs are in possession of the suit schedule property and due to

the interference of the peaceful possession by defendant Nos.1 and 2,

the plaintiffs are constrained to file a suit for grant of perpetual

injunction. It is also a specific plea taken by the plaintiffs that the 1st

defendant being a Police Constable is causing interference and

threatening them with dire consequences.

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4. Both the defendants have filed a common written statement

denying all the averments made in the plaint. It is their specific

contention that the Malla Reddy is not the owner of the property and

one Bommineni Narayan Reddy has purchased the suit schedule

property from whom the defendants have purchased the property

under an agreement of sale dated 07.02.2000 and perfected title and

possession over the property and therefore, prayed to dismiss the suit

as it is devoid of merits.

5. Basing on the pleadings, the trial Court has framed the

following issues:-

"1. Whether the plaintiffs are entitled for permanent injunction as prayed for?

2. To what relief?"

6. On behalf of the plaintiffs, P.Ws.1 to 5 were examined and got

Exs.A-1 to A-30 marked. On behalf of the defendants D.W1 was

examined and got marked Exs.B-1 to B-7.

7. Considering the oral and documentary evidence on record, the

trial Court has come to a conclusion that the plaintiffs are in

possession of the suit schedule property and decreed the suit with

costs against defendant Nos.1 and 2, restraining them to interfere

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with the peaceful possession and enjoyment of the plaintiffs over the

suit schedule property in any manner.

8. Being aggrieved by the judgment and decree passed by the

trial court in O.S.No.1447 of 2003, the defendants have preferred an

appeal vide A.S.No.120 of 2008 before the II Additional District

Judge, Warangal.

9. The 1st appellate Court on hearing the appellants has framed

the following points for determination:-

"1. Whether the Court was justified in granting perpetual injunction, decree in favour of one plaintiff against the defendants in respect of the suit property?

2. To what relief?"

10. On hearing the rival contentions of the parties, the 1st appellate

Court has dismissed the appeal confirming the judgment and decree

of the trial Court. It is the specific finding of the 1st appellate Court

that plaintiffs' ancestor has been in possession since 1995 or prior to

that and the said possession continued till the date of filing of the suit

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i.e., the year 2003 and the defendants have no iota of right over the

suit property.

11. Being aggrieved by the judgment and decree of the 1st

appellate Court, the present Second Appeal is preferred raising the

following substantial questions of law:-

"1. In the suit for grant of permanent injunction without a prayer for declaration that the suit schedule property belongs to respondents 1 and 2 is not maintainable.

2. Whether the judgment of the lower appellate Court decreeing the suit ignoring the material evidence on record is unsustainable?

3. The lower appellate Court should have accepted and acted upon the evidence oral and documentary produced by the appellants in a reference to the interest testimony produced by the respondents.

4. The lower appellate Court should have seen that the suit for mere injunction without prayer declaration of title is not maintainable.

GAC, J S.A.No.857 of 2011

5. The several objections made by the lower appellate Court, in the course of its judgment is untenable and besides being not supported by the evidence on record.

6. The reasoning adopted by the lower appellate Court in confirming and decreeing the suit for respondents is fallacious."

12. The Second Appeal is of the year, 2011 and it underwent

numerous adjournments and is still coming up for admission.

13. Heard the learned counsel for the appellants and the learned

counsel for the respondents. Perused the record.

14. On perusal of the substantial questions of law raised along

with memorandum of grounds, it is evident that they are on the fact

findings of the Courts below but not of law.

15. Both the Courts below have given concurrent findings that the

plaintiffs are in possession of the suit schedule property. It is the

further finding of the Courts below that the plaintiffs and their

ancestors are in possession of the suit schedule property since 1995

or prior to that and said possession continued till the date of filing of

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the suit i.e., the year 2003 and was in continuous possession of the

property.

16. On perusal of the evidence, it is evident that there is no title for

both the parties and it is also the specific finding of the trial court that

there is no iota of material before the Court as to which party has title

over the suit schedule property.

17. It is the specific contention in the plaint that the alleged hut

which was in the possession of the plaintiffs was demolished by the

Municipal Corporation and that the plaintiffs are in possession of the

property. Ex.A-2 is the notice issued by Wrangal Municipality dated

19.09.1996 to the plaintiff. It is evident that the plaintiffs are in

possession of the suit schedule property as on the date of filing of the

suit. D.W1 also admitted about the location of the shed in the suit

schedule property when photographs covered under Exs.A-25 and A-

26 were confronted. Further, the evidence of D.W.1 also discloses

that his house appears on the right side of Ex.A-25 and the disputed

property appears on the left side. Therefore, there is no dispute as to

location of the suit schedule property. The record also discloses that

shed constructed by D.W.1 was demolished by the Municipality.

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18. In a suit for injunction, the Courts have to see as to who was in

possession of the property as on the date of filing of the suit but not

the title or as to who was the owner of the property. The title of the

parties will be looked into incidentally. In the present case, none of

the parties have proved their ownership over the property. It is

pertinent to mention that the suit was filed only for permanent

injunction and the plaintiffs have to prove their possession over the

suit schedule property as on the date of filing of the suit and further

they are in continuous possession of the property. Both the Courts

below have given concurrent finding that the plaintiffs were in

possession of the suit schedule property.

19. 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

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

findings of the Courts below. Therefore, the Second Appeal deserves

to be dismissed.

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

admission confirming the judgment and decree dated 07.01.2011 in

A.S.No.120 of 2008 on the file of II Additional District Judge,

Warangal. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 05.12.2022 dv