Telangana High Court

Vutla Venkanna, vs Kamini Krishna Murthy, on 5 July, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

        THE HONOURABLE DR.JUSTICE G. RADHA RANI

                     SECOND APPEAL No.12 of 2003


JUDGMENT:

This Second Appeal is filed by the appellant - respondent - defendant

aggrieved by the judgment and decree dated 29.10.2002 passed in A.S.No.48 of

1997 by the III Additional District Judge, Warangal District reversing the

judgment and decree dated 09.06.1997 passed in O.S.No.206 of 1990 by the

Principal District Munsif, Warangal.

2. The respondent is the plaintiff.

3. The parties are hereinafter referred as arrayed before the trial court.

4. The case of the plaintiff was that he was the absolute owner and

possessor of plot Nos.16 and 17 in Survey No.147 admeasuring 520 square

yards situated at erstwhile Somidi Village, presently being called as Venkatadri

Nagar, Kazipet. He purchased the suit land in the year 1969 through a sada sale

deed dated 28.04.1969 from the joint owners Mohd. Tajuddin Sahib and Sri V.

Suryanarayana Rao for a valuable sale consideration of Rs.5,000/- paid by the

plaintiff in two installments of Rs.3,000/- on 30.03.1969 and balance amount of

Rs.2,000 on 20.04.1969. Since the date of purchase, he was in exclusive

possession of the suit land without any interference from any quarter. He was

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managing the suit land and was taking steps for constructing a house over the

suit land off late. After purchase of suit land, as he was not having sufficient

means, he did not proceed with the construction of the house. For the said

reason, the suit land was kept vacant. In the surrounding plots owned by

different persons, some of them had constructed houses. The plaintiff was

working as a teacher at Mahabubabad. But his family was set up at Mahendra

Nagar, Kazipet. The plaintiff often used to come to Kazipet from Mahabubabad

to look after the suit land. The defendant, who did not have any interest or right

over the suit land taking advantage that the plaintiff was working away at

Mahabubabad laid his evil eye over the suit land and tried to interfere with the

possession of the plaintiff. On 26.02.1990, while the plaintiff was trying to dig

trenches to proceed with the construction, the defendant came to the spot and

tried to interfere. The plaintiff resisted the attempts made by the defendant. On

the intervention of the surrounding people, the defendant left the place, but

threatened the plaintiff that he would see that the plaintiff was evicted from the

suit land by use of brutal force. As the plaintiff was working elsewhere, he was

apprehending that he might not be in a position to safe-guard his interest over

the suit land continuously in future, as such preferred the suit.

5. The defendant filed written statement contending that the suit land

belonged to him and it was in his exclusive possession. Mohd. Tajuddin Sahib

and Sri V.Suryanarayana Rao were not the owners of the said plot to convey

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any title. The said persons were completely strangers. They had no right or

interest in the suit plot. The plaintiff was not in possession at any point of time

and the alleged possession was far from truth. On the strength of an ex-parte

injunction, the plaintiff was trying to make construction in the suit land, which

was stopped by the defendant. Infact, it was the plaintiff, who was interfering

with his possession.

5.1. He further submitted that he purchased the suit land from its real owner

Sri Khaja Shakeer Hussain on 02.02.1965. Since then, he and his father were in

peaceful possession. The defendant obtained permission for construction of

house from the Gram Panchayat, Somidi. But due to unfortunate death of

defendant's father, the construction could not be proceeded with. The suit plot

was situated in the compound of the defendant's owner adjacent to his

residential house. The relief of injunction simpliciter was not maintainable

without seeking the relief of declaration of title and prayed to dismiss the suit.

6. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff is entitled for injunction?

ii) To what relief.

7. The plaintiff examined himself as PW.1 and got marked the sada sale

deed dated 28.04.1969 as Ex.A1. The defendant examined himself as DW.1

and got examined a mason, who alleged to have constructed the basement in the

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suit land as DW.2 and a neighboring owner by name Sri B.Venkaiah as DW.3

and another neighbor by name Sri K.Narayana as DW.4 to identify the signature

of the vendor of the defendant, Sri Khaja Shakeer Hussain. The defendant got

marked Exs.B1 to B4. Ex.B1 was the simple sale deed dated 02.02.1965,

Exs.B2 and B3 were the certified copies of the pahanies for the year 1965-66

and 1970-71 respectively and Ex.B4 was the urban land ceiling permission

dated 25.08.1994. An Advocate Commissioner was appointed during the

course of trial and the Commissioner's report was marked as Ex.C1 and the

photos taken by the Commissioner pertaining to the suit property were marked

as Exs.C2 and C3.

8. The trial court i.e. the learned Principal District Munsif, Warangal on

considering the oral and documentary evidence on record, dismissed the suit

with costs.

9. Aggrieved by the said dismissal of the suit, the plaintiff preferred an

appeal. The appeal was heard by the learned III Additional District Judge,

Warangal vide A.S.No.48 of 1997. Vide judgment and decree dated

29.10.2002, the Appellate Court i.e. the learned Additional District Judge,

Warangal reversed the judgment of the trial court setting aside the judgment and

decree of the trial court in O.S.No.206 of 1990 dated 09.06.1997 and decreed

the suit with costs of suit and the appeal throughout.

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10. Aggrieved by the said reversal judgment, the defendant preferred this

Second Appeal raising certain substantial questions of law. This Court on

08.01.2003 admitted the Second Appeal formulating the question of law as to

"whether the First Appellate Court was correct in reversing the well considered

judgment of the trial court and whether the same would amount to substantial

question of law?"

11. Heard Sri O.Manoher Reddy, the learned Senior Counsel representing Sri

Akkam Eshwar, the learned counsel for the appellant - defendant on record and

Sri S.Balchand, the learned Senior Counsel for the respondent - plaintiff.

12. Learned Senior Counsel for the appellant contended that on considering

the material on record, the trial court came to the conclusion that the plaintiff

was not in possession and enjoyment of the property. There was no valid title in

his favor. The Appellate Court failed to see that the appellant - defendant

established that he got valid title and was in possession and enjoyment of the

suit schedule property since the date of his purchase and by examining DWs.2

to 4 besides examining himself as DW.1 and by marking Exs.B1 to B4 was able

to prove his title and possession. The Appellate Court failed to note that Ex.A1,

on which the plaintiff relied, did not confer any title upon him. It was the sole

document filed by the plaintiff, which was executed by one Mohd. Tajuddin

Sahib and Sri V.Suryanarayana Rao, who were no way connected with the

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schedule property. PW.1 himself admitted in his cross-examination that Sri

Khaja Shakeer Hussain was the pattedar of the schedule land. When the said

sole document was executed, which was not a valid document, there was no

other evidence to support the case of the plaintiff. As such, the plaintiff was not

entitled for permanent injunction. The Appellate Court ignored the evidentiary

value of Ex.A1 and erroneously amplified certain discrepancies in Ex.B1, which

were not material for the present suit. The Appellate Court decided the matter

as if the burden lied upon the defendant to establish his title and possession,

ignoring the settled principle that a person who approached the Court of Law

for equitable relief of permanent injunction had to establish his case. The

findings of the Appellate Court were contrary to the recitals of Ex.B1. The

Appellate Court failed to see that the plaintiff took contradictory pleas.

According to the plaint averments, Mohd.Tajuddin Sahib and Sri

V.Suryanarayana Rao were the pattedars of the suit land. But when the

defendant put forth the real facts, PW.1 admitted that Sri Khaja Shakeer

Hussain was the original vendor from whom his vendor purchased the schedule

land. The said admission contradicts the plea taken by the plaintiff in his plaint

and would dilute the evidentiary value of Ex.A1. No document was filed by the

plaintiff to show that his vendors purchased the property from Khaja Shakeer

Hussain. As such, the Appellate Court ought to have concluded that there was

no valid title conveyed by the vendors of the plaintiff in his favor.

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13. Learned Senior Counsel further contended that as the appellant -

defendant challenged in his written statement about the title of the plaintiff and

raised a cloud over his title, the plaintiff ought to have filed a suit for

declaration of title, possession and injunction, but not a suit for injunction

simpliciter and relied upon the judgment of the Hon'ble Apex Court in

Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and others1.

14. Learned Senior Counsel for the respondent - plaintiff on the other hand

contended that the First Appellate Court is the final court on findings of fact and

the said findings could not be disturbed in the Second Appeal except in

exceptional cases that is when the findings were based on either inadmissible or

no evidence. It was well settled that while exercising jurisdiction under Section

100 of Code of Civil Procedure (for short "CPC), the High Court could not

reverse the findings of the Lower Appellate Court on facts merely on the ground

that another view was possible and relied upon the judgment of the Hon'ble

Apex Court in Suresh Lataruji Ramteke v. Sau.Sumanbai Pandurang

Petkar and Others 2, wherein it was held that:

"If the findings returned are to be upturned on perversity, the same should unmistakably be reflected from record. If this is not so done, the Court of first appeal being the "final Court of fact", would be reduced to a mere saying, of no

(2008) 4 SCC 594

2023 Live Law SC 821

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actual effect. After all, a second appeal is not a "third trial on facts", and so, for re-appreciation of evidence to be justified, and for the same to be required as well as being demonstrably, at a different threshold from merely, a "possible different view", perversity or the other conditions of "no evidence" or "inadmissible evidence" ought to be urged, and subsequently, with the Court being satisfied on the arguments advanced, of such a possibility, the Court would then, proceed to call for the record. That is to say that accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the Court of first appeal.

15. He further submitted that the defendant after filing Ex.B1 document

before the Court took return of Ex.B1 from the Court and subsequently re-

submitted it and got it marked. There were several obliterations made in the

document raising suspicion. The trial court also observed the same in its

judgment in para Nos.23 and 24. The First Appellate Court in its detailed

judgment by mentioning 18 points, stated as to why Ex.B1 could not be

considered. Ex.A1 stood the test of truth, reasonableness and belief as pointed

out by the First Appellate Court, whereas Ex.B1 failed in such tests and prayed

to dismiss the Second Appeal.

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16. The jurisprudence on Section 100 of CPC is reiterated by the Hon'ble

Apex Court in Suresh Lataruji Ramteke v. Sau.Sumanbai Pandurang

Petkar and Others (cited supra) as:

13.1 The requirement, most fundamental under this section is the presence and framing of a "substantial question of law". In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki [(2007) 1 SCC 546] (Two Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court's jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that:

"At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the

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amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the section is that the appeal shall be heard only on that question."Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors.

[(2019) 17 SCC 71]

13.3 In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:

a) Not previously settled by law of land or a binding precedent.

b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.

Therefore, it will depend on facts of each case.

Such principles stand followed in Government of Kerala v. Joseph [2023 SCC Online SC 961] and Chandrabhan v. Saraswati [2022 SCC Online SC 1273].

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13.4 Non-formulation of substantial question(s) of law renders proceedings "patently illegal". This Court's decisions in Umerkhan v. Bimillabi [(2011) 9 SCC 684] and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. [(2011) 9 SCC 678] indicate this position.

14. Substantial questions of law, as framed by the High Court must be answered in light of the contentions raised therein.

14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties.

14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad [(2020) 11 SCC 114] where the following principles were observed:

a) The substantial question of law framed by the High Court must be answered, with reasons.

Disposing off the appeal without answering the same cannot be justified.

b) If a need is felt to modify, alter or delete a question, a hearing must be provided to the parties in respect thereof.

14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal.

15. In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd [(2009) 16 SCC 280], it was observed:

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"4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted "to argue that the case does not involve such question" i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law."

16. Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in U.R. Virupakshappa v. Sarvamangala [(2009) 2 SCC 177] held:

"15. ... It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents.

[See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)].

16. The High Court, in this case, however, formulated a substantial question of law while dictating the judgment in open court. Before such a substantial question of law could be

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formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same. Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil Procedure were required to be met.

16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani; [(2019) 19 SCC 415], observed in respect of application of Section 100(5) CPC as under:

a) It is not rule under proviso to subsection (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC.

b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court.

16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj [(2007) 15 SCC 387].

16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not qualify for substantial question of law and neither wrong application of facts.

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16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai [(2020) 16 SCC 255].

This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722], observed-

"6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law..."

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] referring to various other cases held:

a) It is not permissible for High Court to re-

appreciate evidence as if it was the first appellate court unless findings were perverse.

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b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity.

c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

17. Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil [(2001) 5 SCC 30]:

7. ...The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible."

This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors. [(2021) 13 SCC 816].

17.1. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a "third appeal" is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala [(2020) 19 SCC 57], as under:

"33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized exceptions are

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where: (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or

(iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

17.2 The extent of the same may be underscored by the observation that:

"32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302]. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."

17. In the light of the above principles reiterated by the Hon'ble Apex Court,

the substantial question of law needs to be answered. The substantial question

of law admitted by this Court is as under:

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"Whether the First Appellate Court was correct in reversing the well considered judgment of the trial court and whether the same would amount to substantial question of law?"

18. As seen from the record, the suit is filed for injunction simpliciter. Both

the parties, the plaintiff and the defendant are claiming the property basing on

sada sale deeds, which are un-registered documents. Both the parties got the

said documents impounded by paying necessary stamp duty. But, however, as

they were un-registered documents, they could not be considered unless for

collateral purpose of proving long standing possession. The plaintiff filed the

suit stating that it was a vacant property and that while he was digging trenches

and was proceeding with the construction, the defendant tried to interfere with

his possession. The defendant in his evidence stated that he obtained

permission from the Gram Panchayat, Somidi for construction of the house and

raised up to basement level. An Advocate Commissioner was also appointed

during the pendency of the suit and the Advocate Commissioner filed a report

stating that a room was under construction in the suit schedule property and the

walls of the room were raised up to three-fourth feet height from the ground

(one stone row from the ground). As per the Commissioner, both the parties

identified the suit schedule property. The suit schedule property as claimed by

the plaintiff is 520 square yards in plot Nos.16 and 17 in Survey No.147

situated at erstwhile Somidi Village, presently called as Venkatadri Nagar,

Kazipet with boundaries shown as, North: Owner's plot, South: 20" road, East:

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Owner's plot and West: plot belonging to Sri D.Rajaiah. The plaintiff filed

Ex.A1 sale deed and a plan showing the said boundaries. As per the sale deed

filed by the plaintiff, the sale deed was executed on 28.04.1969 for a

consideration of Rs.5,000/- and the vendors of the property were shown as

Mohd.Tajuddin Sahib and Sri V.Suryanarayana Rao. Their source of title was

not mentioned in the said document. But, it was only stated the vendors' names

were entered in the revenue records as pattedars of the said lands. Except

Ex.A1, no other document was filed by the plaintiff to show the link documents

of his vendors or that their names were entered in the revenue records.

19. The defendant filed his sale deed marked as Ex.B1. As per Ex.B1, the

said document was executed on 02.02.1965 i.e. prior to the document of the

plaintiff and the vendor of the said sale deed was shown as one Sri Khaja

Shakeer Hussain. It was stated that the vendor was the owner of the land

bearing survey No.147 situated at Somidi Village, Warangal District and his

name was entered in the revenue records as pattedar of the said land and that the

purchaser i.e. the defendant approached the vendor to purchase a plot of land

admeasuring 500 square yards for a consideration of Rs.5,400/-. But no plot

number was stated and it was also stated to be situated in Survey Nos.140 and

143 in Somidi Village, Warangal District admeasuring 500 square yards and

stated to be bounded by North: B.Venkataiah, East: 20" road, West: Rajaiah,

South: Owner's land. There were no signatures of witnesses on the said

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document, except the signature of the owner. The plan enclosed to it was

having several obliterations, corrections made with regard to the directions,

extent of the land and there were also no signatures of witnesses on the said

plan.

20. PW.1 admitted in his evidence that his vendors purchased the property

from the original pattedar Khaja Shakeer Hussain. He had not examined his

vendors before the Court. Though he stated that one of his vendors

Mohd.Tajuddin Sahib was residing at Hyderabad to his knowledge, he did not

know his exact address and another vendor Sri V.Suryanarayana Rao was no

more. He admitted that his name was not registered in the pahanies and he did

not pay land revenue to the said land. He also admitted that he did not know,

whether his vendors paid the land revenue. He also stated that adjacent to the

said property, the house of Khaja Shakeer Hussain, the original pattedar was

situated.

21. The defendant was examined as DW.1. He stated that he was an

employee in Railway Department working as an Assistant Guard and that the

sale consideration covered under Ex.B1 was paid by his father-in-law. The

stamp paper was also purchased by his father-in-law. He admitted in his cross-

examination at one place that the mentioning of survey Nos.140 and 143 in

Ex.B1 was by mistake. At another place he stated that the survey numbers

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mentioned in Ex.B1 were correct and he stated as Survey No.147 by mistake

and he further stated that he did not purchase any land in Survey No.147. He

also admitted filing of an affidavit of Khaja Shakeer Hussain in Court and

Shakeer Hussain mentioned in his affidavit as Survey No.147, which was

correct. He stated that Ex.B1 document was drafted in Hyderabad. But, he did

not go to Hyderabad and stated that he was not claiming any land beyond his

document. The plan enclosed to Ex.B1 was also prepared at the same time. He

also admitted there were alterations in Ex.B1 and there were no initials at the

place of corrections, though he denied that all the said corrections were made to

sute their case after taking return of the said document from the Court.

22. The trial court also pointed out in its judgment that:

"23. So far as the dispute in respect of plan enclosed to Ex.B1 is concerned, the contention of learned advocate for plaintiff is not without substance. Admittedly, defendant took return of Ex.B1 from the court and subsequently re-

submitted and got it marked. The signature of vendor in the plan enclosed to Ex.B1 is obliterated creating a suspicion that it was not signed by owner and the possibility of substituting the present plan while removing the earlier plan is more. Perusal of the disputed plan go to show that boundaries were corrected and the directions shown in the plan were also corrected completely. North was converted into South in this plan and therefore much reliance

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cannot be placed on this plan to decide this case, though the entire Ex.B1 document is beyond any doubt which contains boundaries of the property purchased by defendant."

24. One more strong circumstance which created lot of suspicion is the court endorsements on the plan and the document Ex.B1. Ex.B1 consists of three separate pages. Pages 1 and 2 are containing recitals of document and they bear on each page two court endorsements dated 16.11.1990 and 06.02.1997 i.e. the date of presentation of document in the Court and the date of re-submission respectively, whereas the third page i.e. the plan enclosed to document bears only one endorsement of the court dated 06.02.1997 and there was no second endorsement dated 16.11.1990 leading to inference that defendant substituted the plan with a new plan after taking return from the Court while suppressing original plan taken from the Court and thus the Court was not inclined to believe the plan enclosed to Ex.B1."

23. The Lower Appellate Court pointed out several infirmities in the

document marked as Ex.B1 as follows:

"25. Firstly, Ex.B1 ex facie reveals Survey Nos.140 and 143 of Somidi Village, now called as Venkatadri Nagar, Kazipet in its body of recitals.

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26. Secondly, while it is so, the map enclosed to Ex.B1 reveals Survey No.147 of the said village and there is obvious dichotomy between sale deed and map.

27. Thirdly, the boundaries shown in the body of Ex.B1 sale deed and in the map are totally different and contradictory.

28. Fourthly, the boundaries shown in Ex.B1 sale deed did not tally with the boundaries shown in suit schedule.

29. Fifthly, the conduct of defendant in taking back Ex.B1 from Court and substituting the map with material alterations is mischievous with obliterations and unauthenticated corrections in the map.

30. Sixthly, the effect of making a material alteration without the consent of the party bound, is exactly the same as that of cancelling the deed.

31. Seventhly, Exs.B2 and B3 speaks of Survey No.147 and not of Survey Nos.140 and 143 and do not support Ex.B1.

32. Eighthly, Ex.B4 speaks of Survey No.147 and is therefore not concerned with Ex.B1.

33. Ninthly, even the affidavit of Shakeer Hussain speaks of Survey No.147 only and is therefore not concerned with Ex.B1. The parties to Ex.B1 are not illiterate or blind or ignorant of

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the language or figures in Ex.B1 in respect of survey number and boundaries.

34. Tenthly, though the DW.1 deposed in his chief and cross-examination that Survey Nos.140 and 143 were mentioned in Ex.B1 by mistake, at the first instance, the very same DW.1 in his further cross-examination admitted that Ex.B1 and was shown to be in Survey Nos.140 and 143 and that the survey numbers mentioned in Ex.B1 are correct, but he stated by mistake as Survey No.147 and that he is not claiming any land beyond his document. This is clear admission that DW.1 has no land in Survey No.147 at all.

35. Eleventhly, if there is really mistake occurred in survey number, DW.1 could have got rectification deed from Shakeer Hussain.

36. Twelthly, the oral evidence which runs counter to the admission contained in writing signed by a party in Ex.B1 in the very nature of thing, is a very weak piece evidence and cannot be accepted without a grain of salt.

37. Thirteenthly, Ex.B4 is not a document of proof of title, but only a certificate to the effect that State is not willing to purchase, and has no objection for transfer of the land and therefore the issue of Ex.B4 in favor of defendant is of no help to the defendant [2002 (3) ALD 558 AP].

38. Fourteenthly, DW.1 deposed that his vendor is alive and his whereabouts are not known as

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the vendor was moving from place to place from time to time. Affidavit of a person is of no value when the affiant is alive and not subjected to cross-examination. It is held in [AIR 1972 SC 330 (339)] that the Court will refuse to act on an affidavit when the deponent cannot be cross- examined.

39. Fifteenthly, DW.1 deposed as if Ex.B1 was drafted at Hyderabad, and the stamp paper was purchased at Hanumakonda.

40. Sixteenthly, DW.1 deposed that his father- in-law purposed property under Ex.B1 whereas he admitted that in his written statement it is stated as if his father purchased property under Ex.B1.

41. Seventeenthly, DW.1 did not give any plot number in Survey No.147 at all. All these facts go to show that Ex.B1 is irrelevant, inadmissible and has no probative force at all in respect of suit schedule property. Ex.B1 cannot form foundation to suit claim at all.

42. Eighteenthly, coming to the question of possession, the suit was filed in the year 1990. DW.1 deposed on 18.02.1997 that the basement was raised by him 4 years back approximately. Then, it must mean the year 1993. This shows that the defendant was not in possession and enjoyment of suit schedule property as on the date of suit or at any time.

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24. The trial court considered that the evidence of DWs.1 to 4 supported the

case of the defendant that he purchased the land from the original pattedar

Khaja Shakeer Hussain and that the infirmities in the case of the defendant were

not so fatal to completely discard the case of the defendant. The trial court also

stated that the evidence of DW.2 cannot be believed completely, as such kind of

evidence can be produced at any stage. DW.2 was a mason, who stated that he

constructed the basement as per the instructions of the defendant. The trial

court placed reliance upon the evidence of DWs.3 and 4, who were also

Railway Employees having constructed their houses near the suit plots. DW.3

stated that for construction work, the defendant used to take water from his

house and DW.4 was examined to identify the signature of the vendor

Khaja Shakeer Hussain, as he also stated to have purchased his property from

Khaja Shakeer Hussain. But, though the defendant stated that his vendor Khaja

Shakeer Hussain resided by the side of the property, not produced him and

relied upon an affidavit of Khaja Shakeer Hussain. The trial court placed

reliance upon the said affidavit. But as rightly pointed out by the Lower

Appellate Court, the affidavit of a person is of no value when the said person

was alive and not being subjected to cross examination. DW.4 had failed to file

his original sale deed but only filed a photo copy to prove that he purchased site

from Khaja Shakeer Hussain. The trial court placed reliance upon these

witnesses to hold that the defendant was owner and possessor of the suit

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property under Ex.B1. The First Appellate Court brushed aside the said

evidence of DWs.2 to 4 as not worthy of credence. The First Appellate Court

pointed out that DW.2 - mason deposed that he did not remember the date of

construction, which was in the year 1990, whereas, DW.1 deposed that the

construction was made in the year 1993. DWs.3 and 4 were not the

neighboring land owners and they did not produce any document to support the

said contention and that their evidence was contrary to Ex.B1 sale deed. Ex.B1

was not supported by Exs.B2 to B4 in respect of Survey No.147 itself. The

First Appellate Court noted that no rectification deed was filed by the defendant

to show that the survey number was mentioned by mistake in Ex.B1. The

Lower Appellate Court held that Ex.B1 sale deed was not concerned with the

suit schedule property and that the defendant was neither owner nor the

possessor, but an utter stranger to the suit schedule property. The evidence of

defendant was false and fabricated without foundation.

25. This Court agrees with the view taken by the Lower Appellate Court for

discarding the evidence of defendants 1 to 4 as well as the document marked

under Ex.B1. But, however, the suit cannot be decreed basing on the weakness

of the case of the defendant and it should be considered basing on the strength

of evidence of the plaintiff. The burden lies upon the plaintiff to prove that he

is the owner and possessor of the suit schedule property. As the property is a

vacant property, the principle that "possession follows title" is applicable. As

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seen from the record, the names of the plaintiff or the defendant were not

mentioned in the revenue records after their respective sales and no property tax

receipts were filed by any of them. Exs.B2 and B3, the certified copies of

pahanies for the years 1965-66 and 1970-71 would show the name of Shakeer

Hussain as the pattedar. Though the suggestions given by the learned counsel

for the plaintiff to DW.4 would disclose that Khaja Shakeer Hussain sold four

(04) acres of land in Survey Nos.140, 143 and 147 to Mohd.Tahjuddin Sahib

and Sri V.Suryanarayana Rao in the year 1968, no such sale deeds were filed by

the plaintiff to prove that his vendor purchased the property from the original

owner / pattedar Khaja Shakeer Hussain. He failed to examine his vendors or

failed to examine any witnesses to Ex.A1 sale deed. No other evidence was

adduced by the plaintiff except his oral evidence and Ex.A1, sada sale deed.

26. The contention of the learned Senior Counsel for the appellant -

defendant was that as the defendant had raised a cloud over the title of the

plaintiff, the plaintiff ought to have filed a suit for declaration as well as

injunction and relied upon the judgment of the Hon'ble Apex Court in

Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and others (cited

supra), wherein it was held that:

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession

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from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.

On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there

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is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.

16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that

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possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

27. On a perusal of the record, the plaintiff was not able to establish his clear

title. Only when his title is clear, the Court can decide the question of de jure

possession, even though the suit is for mere injunction. But as the title of the

plaintiff is also not clear, as he was unable to prove the source of title of his

vendors, or examine them before the Court and admitted that Shakir Hussain

was the original pattedar from whom his vendors purchased the land but unable

to prove the same, the Court ought to have relegated the parties to seek the relief

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of declaration of title by filing a comprehensive suit for declaration of title

instead of deciding the issue in a suit for injunction simpliciter. As such, this

Court considers that the plaintiff failed to prove his possession and title over the

suit schedule property. As the plaintiff filed the suit seeking the relief of