Late Mrs. Raheemunnissa Begum vs T. Yogiah Naidu
2023 Latest Caselaw 2097 Tel

      THE HONOURABLE SRI JUSTICE K. SARATH

                S.A.Nos.285 and 301 of 2022

COMMON JUDGMENT

      Heard the learned counsel for the appellants/plaintiffs

and the learned counsel for the respondents/defendants in

both the appeals.

2. Since both these appeals arise out of the common

judgment and decree dated 08.12.2021 in A.S.Nos.191 and

192 of 2014 on the file of II Additional Chief Judge, City Civil

Court at Hyderabad, they are being disposed of by this

common judgment.

3. For the sake of convenience, the parties hereinafter

are arrayed as plaintiffs and defendants.

4. The appellant in S.A.No.285 of 2022 has filed O.S.

No.638 of 2006 on the file of IV Senior Civil Judge, City Civil

Court, Hyderabad for permanent injunction restraining the

defendants, their workmen, agents, relatives or any such

person claiming through them from interfering with their 2 SK, J S.A.Nos.285 and 301 of 2022

possession and obstructing the passage to the suit schedule

property bearing premises No.8-2-708/7 in Sy.

No.129/26 (old), New No.303, admeasuring 915 sq. yds,

situated at Khaja Nagar, Near Road No.12, Banjara Hills,

Hyderabad. It is stated that initially one Major Gulam Jeelani

Saheb was the owner and possessor of land admeasuring

Ac.4-17 gts and after his death, the said property was

devolved to his only daughter Smt Ayesha Bee Saheba, who

has executed a registered General Power of Attorney in

favour of her husband Mr. Mohammed Roshan, who in turn

got the land plotted and later, Smt Ayesha Begum Saheba

has sold out the plotted landed property through the GPA

holder-her husband to various purchasers and also gifted the

open plot property to one Smt Ghousia Begum,

W/o Mohammed Jeelani, through oral gift with possession

under oral Hiba Bil Khabz in the year 1964 and subsequently

executed the Memorandum of Acknowledgment of Oral Hiba

Bil Khabz dated 18.01.1965. Thereafter, said Smt Ghousia

Begum has constructed rooms, obtained house No.8-2-708/7 3 SK, J S.A.Nos.285 and 301 of 2022

for the said plot in the year 1970 and also paid the property

tax. It is stated that since 1964, the plaintiff and his

predecessors in title were in continuous and uninterrupted

peaceful possession of the subject property. While so,

on 11.04.2006, the defendants being neighbours towards

western side premises bearing No.8-2-703/6, came with

unsocial elements and tried to interfere with the possession

of the plaintiff and also threatened that they will close the

passage situated on western side of plaintiff's house, which

is using for ingress and egress to the subject property.

5. The appellants in S.A.No.301 of 2022 have filed

O.S.No.639 of 2006 on the file of IV Senior Civil Judge, City

Civil Court, Hyderabad, for permanent injunction restraining

the defendants, their workmen, agents, relatives or any such

person claiming through them from interfering with their

possession and obstructing the passage to the suit schedule

property bearing premises No.8-2-703/7 in Sy.

No.129/26 (old), New No.303 admeasuring 400 sq. yds,

situated at Khaja Nagar, Near Road No.12, Banjara Hills, 4 SK, J S.A.Nos.285 and 301 of 2022

Hyderabad. It is stated that the plaintiff Nos.1 to 3 got the

subject property through registered gift deed bearing

document No.194/2006 from their mother, who got title from

her husband Mr. Mohd. Hassan Shareef through oral Hiba

on 20.06.1980 towards her Mehar and plaintiff No.4 got a

portion of house property on southern side of the subject

property. It is stated that the said Mohd Hassan Shareef got

the said plot from Smt Ayesha Bee through memorandum of

acknowledgment or Oral Hiba Yadahshe Zabani Hiba

dated 18.01.1977 and Smt Ayesha Bee has purchased the

said plot from the registered GPA holder, namely, Mohd.

Roshan, s/o. Mohd. Ali vide document dated 21.11.1963. It

is stated that the father of plaintiffs i.e., Mohd. Hassan

Shareef, had constructed rooms, obtained Municipal

No.8-2-703/7 and also paying the property tax. It is further

stated that since 1963, the plaintiffs were in continuous and

uninterrupted peaceful possession of the suit schedule

property. While so, on 11.04.2006, the defendants being

neighbours towards western side with premises bearing 5 SK, J S.A.Nos.285 and 301 of 2022

No.8-2-703/6, came with unsocial elements and tried to

interfere with the possession of the plaintiffs and also

threatened that they will close the passage situated on

western side of plaintiff's house, which is the only passage to

the plaintiffs for ingress and egress to the subject property.

6. The defendants in both the suits are one and the same.

They filed separate written statements with similar averments

stating that the plaintiffs have not filed any document to

establish the identity of the subject premises. It is stated that

there is a reference to certain registered document

improvised from time to time traceable to the mother

document initially brought into existence on 21.11.1963,

which was the subject matter of O.S.No.158 of 1967 on the

file of the II Assistant Judge, City Civil Court, Hyderabad,

finally concluded on 20.04.1970 in favour of the predecessor

in title of the defendants, who is the father of defendant No.2.

It is stated that the defendants have nothing to do with the

subject land, but on enquiry, it was revealed that the subject

premises is in a low lying slum located in the South almost 6 SK, J S.A.Nos.285 and 301 of 2022

10 houses beyond the house of the defendants. It is stated

that since the lineage of documents had fallen for

consideration in the previous round of litigation have

concluded between the predecessors in title of the plaintiffs

and the defendants vide judgment and decree

dated 20.04.1970 in O.S.No.158 of 1967, which has attained

finality, the said decision equally applies to the successors in

title and the subsequent documents do not concern the land

now falsely claimed by the plaintiffs. It is stated that the

plaintiffs have no manner of right on any premises within the

gate installed at the entrance more than 3 and half decades

ago by the defendants with a lawful bona fide sanction

flagging on it and the suit for injunction simplicitor is not

maintainable.

7. The trial Court after considering the pleadings framed

the following issues for consideration:

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

2. To what relief?

7 SK, J S.A.Nos.285 and 301 of 2022

8. The trial Court clubbed the suits in O.S.No.638 and

639 of 2006 as per the orders in I.A.No.527 of 2008 and the

evidence was recorded in O.S.No.638 of 2006.

9. During trial, P.Ws.1 to 4 were examined and Exs.A1 to

A90 were marked on behalf of the plaintiffs. D.Ws.1 to 3

were examined and Exs.B1 to B30 on behalf of the

defendants as well as Exs.X1 to X3 and Ex.C1 were marked.

10. After full-fledged trial, the trial Court dismissed both the

suits with a finding that the suit schedule properties in both

the suits are interwoven with title dispute having regard to

lineage of document relied upon by the plaintiffs as such the

possession and title of the plaintiffs come under cloud and

also held that the suits as laid for bare injunction are not

maintainable without seeking the relief of declaration of title.

11. Against the said common judgment, the

appellant/plaintiffs filed A.S.Nos.191 and 192 of 2014 before

the Appellate Court. The Appellate Court heard both the

appeals commonly and framed the following issues for

consideration:

8 SK, J S.A.Nos.285 and 301 of 2022

1. Whether the Appellants are entitled for the relief of perpetual injunction as prayed under the facts and circumstances narrated in the above said two suits?

2. To what relief?

12. The Appellate Court, after hearing both sides,

dismissed the appeals through the common judgment

dated 08.12.2021, wherein the Appellate Court held that in

both the suits, the relief of perpetual injunction is not in

respect of the house property which is shown in the suit

schedule property and the suit relief is in respect of passage

but in the suit schedule property, the house property was

shown by the plaintiffs and further held that the relief claimed

by the plaintiffs is totally misleading with the suit schedule

properties mentioned in the suits, if injunction is granted it

leads to miscarriage of justice and the plaintiffs failed to

show the correct schedule of property in the plaints.

13. The Appellate Court categorically held that the plaintiffs

filed the suit for permanent injunction basing on the

documents, as such oral evidence cannot over ride the

documentary evidence produced by both the parties. The 9 SK, J S.A.Nos.285 and 301 of 2022

documentary evidence produced by the plaintiffs is not

establishing the existence of public passage, on the other

hand the documents filed by the defendants are proving the

facts that the alleged passage is a private passage and the

plaintiffs are nothing to do with it.

14. Aggrieved by the said judgment of the Appellate Court,

the plaintiffs preferred the present second appeals.

15. Learned counsel for the appellants/plaintiffs submits

that a suit for bare injunction is maintainable when the

defendants have not taken any adverse plea of title in

respect of the suit schedule properties and there is no finding

with regard to the genuineness and relevancy of the

overwhelming documentary evidence filed by the plaintiffs to

at least prove their possession, but the said facts were not

considered by the trial Court as well as the Appellate Court

and requested to admit the Second Appeals for allowing the

same.

16. On the other hand, learned counsel for the

respondents/defendants submits that the appellants/plaintiffs 10 SK, J S.A.Nos.285 and 301 of 2022

have failed to prove their possession over the suit schedule

property, which is a private passage and there has been a

concurrent finding of both the Courts below on the basis of

the evidence that the appellants/plaintiffs have failed to prove

their case and therefore, there is no error in the judgment of

the trial Court as well as the Appellate Court and the second

appeals should not be admitted and requested to dismiss the

appeals in limini.

17. Learned counsel for the respondents/defendants has

relied on the following judgments:

1. Chandrabhan (deceased) through Lrs and others vs. Saraswati and others 1;

2. Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor 2;

3. Tirumala Tirupati Devasthanams vs. K.M.Krishnaiah 3;

4. Veerayee Ammal vs. Seeni Ammal 4 ; Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs. 5 ;

5. Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others 6.

2022 SCC OnLine SC 1273

(1999) 2 SCC 471

(1998) 3 SCC 331

(2002) 1 SCC 134

(2001) 3 SCC 179

(1999) 3 SCC 722 11 SK, J S.A.Nos.285 and 301 of 2022

Learned counsel has also relied on the judgments of this

Court in S.A.Nos.155 of 2019 dated 17.07.2019 and S.A.

No.1714 of 2018 dated 17.07.2019.

18. After hearing both sides and perused the records this

Court is of the considered view that there was a concurrent

finding of fact by the trial Court as well as the Appellate

Court, which is based on proper appreciation of evidence

and both the Courts below have rightly held that the suit for

bare injunction is not maintainable without seeking the relief

of declaration of title and the documents relied on by the

plaintiffs.

19. The trial Court and the Appellate Court categorically

held that the plaintiffs filed suits for injunction showing House

properties as the suit schedule properties but their prayers in

the suits are perpetual injunction against the defendants

from interfering with the possession and obstruction of

passage. Moreover, the possession and the title of the

plaintiffs basing on the documents produced by them are not

established the existence of public passage and held that the 12 SK, J S.A.Nos.285 and 301 of 2022

alleged passage is a private passage and the plaintiffs are

nothing to do with it, the earlier suits filed by the vendors of

the plaintiffs were dismissed as such those were relevant

under Section 43 of the Evidence Act.. Therefore, the

findings of both the Courts below are based on proper

appreciation of evidence, which cannot be treated as

erroneous and should not be interfered with on re-

appreciation of the evidence in the second appeals.

20. The judgments relied on by the learned counsel for the

respondents/defendants are squarely apply to the instant

case. There is no question of law much less substantial

question of law is involved in these second appeals. None of

the contentions of the learned counsel for the

appellants/plaintiffs can be sustained.

21. In view of the same, this Court finds that no substantial

question of law arises in this appeal and hence, both the

appeals are liable to be dismissed at the admission stage

itself.

13 SK, J S.A.Nos.285 and 301 of 2022

22. Accordingly, the Second Appeals are dismissed. No

order as to costs.

23. Miscellaneous petitions, if any pending in these

appeals, shall stand dismissed.

_________________ SRI K. SARATH, J Date:08.09.2023

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