Telangana High Court

Penta Rajaiah vs Jangili Koteshwar Rao on 23 February, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

              SECOND APPEAL No.199 of 2023
JUDGMENT:

Aggrieved by the judgment and decree, dated

29.11.2022, passed in A.S.No.130 of 2022 on the file of the

Court of Principal District Judge, Mulugu, where under and

whereby the judgment and decree dated 22.9.2017 passed by

the Junior Civil Judge, Mulugu, in O.S.No.110 of 2011, was

confirmed, the present Second Appeal is filed.

2. The appellants are the defendants and the respondents

are the plaintiffs in the suit. For convenience, hereinafter the

parties are referred to as they are arrayed in the suit.

3. The facts of the case in brief, which led to filing of the

present Second Appeal, are that the suit was filed seeking

permanent injunction restraining the defendants, their

agents, workmen and all the persons acting on their behalf

from interfering with the peaceful possession and enjoyment

of the plaintiffs over the suit schedule property.

3.1. The second plaintiff is the father of first plaintiff.

Plaintiff Nos.1 and 2 have purchased the agricultural dry LNA, J

land to an extent of Acs.2.00 guntas and Acs.1.33 guntas in

Sy.No.838 through simple sale deeds in the years 1987 and

1984, respectively, from one Mohd.Mazar Hussain, who

succeeded to the said properties from his father -

Mohd.Gulam Moinuddin.

3.2. In the plaint, it was averred that the ever since the date

of the purchase of the said properties, the plaintiffs were in

peaceful possession and enjoyment of the same and they

were personally cultivating the said land. The names of the

plaintiffs were recorded in all the revenue records and they

were also issued pattadar pass books and title deeds in the

respect of the said properties.

3.3. It was further averred that the properties of the

plaintiffs are adjacent to each other forming one compact

block, but the revenue authorities, for the reasons best

known to them, assigned two survey numbers i.e.,

Sy.No.838/1/AA for an extent of Ac.1.00 guntas and

Sy.No.838/2/AA for an extent of Ac.1.00 guntas of land

purchased by plaintiff No.1 and gave a new Sy.No.838/2 for

an extent of Ac.1.33 guntas of land purchased by plaintiff

No.2.

LNA, J

3.4. It was also averred that on a complaint made by the

defendants to the Tahsildar, an enquiry was conducted and a

report was given, which clearly establishes that the plaintiffs

are in possession and enjoyment of the suit schedule

property. Aggrieved by the said report, the defendants

preferred an appeal before the Revenue Divisional Officer,

Mulugu and the same was dismissed stating that the

defendants failed to prove their case.

3.5. It was further averred that during the year 2009, and

on 17.10.2011 and 28.10.2011, the defendants, who have no

right and interest whatsoever over the suit schedule property,

tried to interfere with the peaceful possession and enjoyment

of the plaintiffs over the suit schedule property, but the

plaintiffs resisted their illegal activities. It was also averred

that again on 28.10.2011, the defendants along with some

unsocial elements came to the suit schedule property and

tried to occupy the same. Hence, the suit.

4. The defendants filed written statement denying the

plaint averments with regard to the possession and

enjoyment of the plaintiffs over the suit schedule property

and further pleaded that the pattadar pass books and title LNA, J

deeds alleged to have been issued in favour of the plaintiffs

are fabricated and created documents.

4.1. The defendants averred that Sy.No.838/1 to an extent

of Ac.1.00 guntas is only an empty land and Sy.No.838/2 to

an extent of Ac.1.00 guntas is in enjoyment of one

Kommineni Sanjeeva Rao, who constructed a house therein

and also cultivating the said land. It was further pleaded that

in Sy.No.838/2 to an extent of Ac.1.33 guntas, a cattle shed

exists which belongs to defendant No.3 and that plaintiff No.1

has only got bayana paper which is said to be in Urdu

language.

4.2. It was further averred that the vendor of the plaintiffs by

name Mohd. Mazhar Hussain along with three others filed

O.S.No.89 of 1982 against 15 members when they were

unlawfully interfering with the peaceful possession and

enjoyment of land, which is a part of the suit schedule

property, and the said suit was decreed on 23.02.1987.

4.3. It was further averred that the plaintiffs are no way

concerned with the suit schedule property and prayed to

dismiss the suit with costs.

LNA, J

5. To substantiate the case, on behalf of plaintiffs, P.Ws.1

and 2 were examined and Exs.A1 to A8 are marked. On

behalf of the defendants, defendant No.1 got himself

examined a DW.1 and got marked Exs.B1 and B2.

6. Heard Sri M.N.Narasimha Reddy, learned counsel for

the appellants, and Sri S.Chalapathi Rao, learned counsel for

the respondents. Perused the record.

7. Learned counsel for appellants argued that the trial

Court decreed the suit without proper appreciation of the

evidence and the first Appellate Court also committed an

error in confirming the judgment and decree passed by the

trial Court.

8. A perusal of the record discloses that both the Courts

below concurrently held that the plaintiffs proved their actual

and physical possession over the suit schedule property as on

the date of filing of the suit and granted the relief of perpetual

injunction in favour of the plaintiffs.

9. The trial Court, upon considering the oral and

documentary evidence and the contentions of both the parties LNA, J

in its judgment dated 22.9.2017 made the following

observations:

(i) The defendants failed to file any document showing that they purchased the suit schedule property from the vendor of the plaintiffs. It is further observed that during the cross-examination, DW.1 admitted that as per Ex.B2 the defendant no.1 and Lavudya Bojya, Penta Odelu were leaseholders of Md.Mazar Hussain and further deposed that after passing the judgment i.e., Ex.B2 in February, 1987, Kommineni Sanjeeva Rao, Lavudya Bojya and Penta Odelu purchased the suit schedule property from Md.Madar Hussaib, but the defendants had not filed any document showing that they were purchased the property from the vendor of the plaintiffs and they have been in possession of the suit schedule property.

(ii) Except Ex.B1 and B2, no documents are filed to show that they are in possession of the suit schedule property.

D.W.1 and defendant no.1 made a requisition to Tahsildar, Mulugu on 28.04.2009 with regard to the suit schedule property and that though the defendant no.1 disputed that the Tahsildar, Mulug enquired the matter and reported to the Sub-Collector, Mulug dated 30.10.2009 vide Rc.No.B1/2666/2009 stating that the suit schedule property belongs to the plaintiffs and they made a requisition to the Sub-Collector, Mulug and also enquired by submitting the report that the suit schedule property belongs to the plaintiffs. But, DW.1 admitted that the orders passed by the Sub-Collector, Mulug made an appeal before the Joint Collector, Warangal, vide RC.No.E5/ 2414/2010 and the Joint Collector, LNA, J

Warangal, dismissed the appeal against which they preferred an appeal before the Hon'ble High Court, but in this regard no documents are filed.

(iii) As seen from Exs.A1 to A6, which show that the plaintiffs are in possession of the suit schedule property as on the date of suit. Ex.B2 shows that the defendants were a leaseholder to the suit schedule property to prove their possession, no documents are filed. Therefore, as seen from Exs.A1 to A6, which are pattadar pass book, title deed and certified copies of pahanies, show that the plaintiffs are in possession of the suit schedule property and accordingly, decreed the suit.

10. On appeal being filed, the first Appellate Court, being

the final fact-finding Court, re-appreciated the entire evidence

and the material available on record and observed as under:

(i) The grant of relief of perpetual injunction is discretionary and is an equitable relief. In a suit for perpetual injunction, the important points to be considered are whether the respondents/plaintiffs are in possession and enjoyment of the suit schedule property as on the date of filing of the suit and whether there is any interference in such possession by the defendants and if so, whether it is legal. The possession and enjoyment over the suit schedule property has been proved by the respondents/plaintiffs by examining P.Ws.1 and 2 by producing Exs.A1 to A8.

The present suit was filed for perpetual injunction. As per the evidence of P.Ws.1 and 2, and on perusal of Exs.A1 to A8, it could be seen that the plaintiffs are in LNA, J

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

(ii) That upon considering the oral documentary evidence i.e., P.W.1, P.W.2, DW.1 and DW.2, coupled with Exs.A1 to A8 and Ex.B1 and B2, grounds of appeal and submissions made by both the counsels and for the reasons stated in the preceding paragraphs, the first Appellate Court of the considered opinion that the trial Judge has rightly held that the plaintiffs proved their actual and physical possession over the suit schedule property as on the date of filing of the suit and rightly decreed the suit by granting perpetual injunction in favour of the plaintiffs and when the finding of the trial Court was based on the oral and documentary evidence, it needs no interference. If really the appellants/ defendants are having any right or title or possession over the suit schedule property, their remedy is otherwise. The first Appellate Court accordingly dismissed the appeal.

11. The learned counsel for appellant failed to raise any

substantial question of law to be decided by this Court in this

Second Appeal. In fact, all the grounds raised in this appeal

are factual in nature and do not qualify as the substantial

questions of law in terms of Section 100 C.P.C.

12. It is well settled principle by a catena of decisions of the

Apex Court that in the Second Appeal filed under Section 100

C.P.C., this Court cannot interfere with the concurrent LNA, J

findings on facts arrived at by the Courts below, which are

based on proper appreciation of the oral and documentary

evidence on record.

13. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held