Whether the plaintiff is in wrongful possession of the plaint schedule property without having title?
held that the plaintiff came and traced his right under unregistered sale agreement, thereupon unregistered Will, those documents have also not seen in the light of the day and claiming injunction against his landlord, who is the real owner by setting up a false title. Therefore the plaintiff is not entitled to permanent injunction against true owner i.e defendant. Further the plaintiff is bound to show his prima facie right and title or he has to amend the suit for declaration, but the plaintiff has not to do so. 2023:APHC:33555
suit for permanent injunction against the respondent/ defendant in respect of the plaint schedule property contending that the suit schedule property was purchased by one Pinnamaneni Venkata Ratnam under a Sale Agreement dated 11.05.1973 from the defendant and his father S. Yesudasu. Later said Venkata Ratnam executed a Will dated 21.11.1984 in favour of his two sons namely Pinnamaneni Ranga Rao and Pinnamaneni Krishna Rao bequeathing his properties to them. Later he died on 19.06.2000. Therefore the said Will came into operation. Subsequently P. Krishna Rao gifted his properties to his two sons namely plaintiff and Babji under Registered Gift Deed dated 30.04.2015, since then they have been possession and enjoyment of the suit schedule property. While so, the defendant and his men developed an evil eye to knock away the said property and threatened with dire consequences. Hence the suit.
held that
25. Upon perusal of the Judgment of the first appellate court have discussed at length on the decisions relied by the appellant and given finding that the plaintiff came and traced his right under unregistered sale agreement, thereupon unregistered Will, those documents have also not seen in the light of the day and claiming injunction against his landlord, who is the real owner by setting up a false title. Therefore the plaintiff is not entitled to permanent injunction against true owner i.e defendant. Further the plaintiff is bound to show his prima facie right and title or he has to amend the suit for declaration, but the plaintiff has not to do so. Therefore the first appellate court dismissed the appeal
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI1
1
THE HON’BLE DR.JUSTICE K. MANMADHA RAO
SECOND APPEAL Nos.260 and 262 of 2023
PINNAMANENI BABJI
Versus
SATHULURI PARASURAMUDU
COMMMON JUDGMENT:
Second Appeal No. 260 of 2023 has been filed assailing the
Judgment and Decree dated 21.03.2023, passed in A.S.No.78 of
2015 by the learned XII Additional District Judge, Vijayawada (in
short “the first appellate court”) in dismissing the Appeal by
confirming the Judgment and decree dated 24.03.2015 in
O.S.No.586 of 2014 passed by the learned I Additional Junior Civil
Judge, Vijayawada (in short “the trial court)”.
Second Appeal No. 262 of 2023 has been filed assailing the
Judgment and Decree dated 21.03.2023, passed in A.S.No.83 of
2015 by the learned XII Additional District Judge, Vijayawada (in
short “the first appellate court”) in dismissing the Appeal by
confirming the Judgment and decree dated 08.04.2015 in
O.S.No.587 of 2014 passed by the learned VI Additional Junior
Civil Judge, Vijayawada (in short “the trial court)”.
2. The parties will herein after be referred to as they are
arrayed in the Original Suit for the sake of convenience.
3. Since the facts and issue involved in all the Second
Appeals are one and the same, I find it expedient to decide these
matters by a Common Judgment.
2
4. For the sake of convenience, S.A.No. 260 of 2023 is taken
as leading case.
5. The appellant herein is the appellant/ plaintiff;
respondent is the respondent/ defendant in the courts below. The
appellant/ plaintiff is different and respondent/ defendant is
common in both the Appeals and also before the courts below.
6. Initially the appellant/ plaintiff before the court below has
filed the suit for permanent injunction against the respondent/
defendant in respect of the plaint schedule property contending
that the suit schedule property was purchased by one
Pinnamaneni Venkata Ratnam under a Sale Agreement dated
11.05.1973 from the defendant and his father S. Yesudasu. Later
said Venkata Ratnam executed a Will dated 21.11.1984 in favour
of his two sons namely Pinnamaneni Ranga Rao and Pinnamaneni
Krishna Rao bequeathing his properties to them. Later he died on
19.06.2000. Therefore the said Will came into operation.
Subsequently P. Krishna Rao gifted his properties to his two sons
namely plaintiff and Babji under Registered Gift Deed dated
30.04.2015, since then they have been possession and enjoyment
of the suit schedule property. While so, the defendant and his men
developed an evil eye to knock away the said property and
threatened with dire consequences. Hence the suit.
3
7. The defendant filed Written Statement denying all material
averments made in the plaint and contended that the father of the
defendant has leased out an extent of Ac. 1.00 cents in
R.S.No.117/2D of Gunadala Village in 1970 to one Pinnamaneni
Venkata Ratnam on monthly makta at Rs. 1,000/- to Yesudasu till
1976 till his death. Later his sons Ranga Rao and Krishna Rao
used to continue the tenancy by paying makta at Rs. 3,000/- till
2012. Later they stopped to pay makta. The defendant and or his
father never sold their land including the plaint schedule rpoeprty
to the plaintiff or his ancestors, the alleged agreement of sale is
forged, which is not referred to in the alleged Will also. The said
land was assigned by Government noted in Resettlement Register
of Gunadala Revenue Village, as such it cannot be alienated. The
plaintiff has no right over the plaint schedule property. Therefore
the suit is liable to be dismissed.
8. Based on the above pleadings, the trial court eventually
framed the following issues for trial:
(1) Whether the plaintiff is entitled for permanent injunction, as prayed for?
(2) Whether the plaintiff is in wrongful possession of the plaint schedule
property without having title?
(3) To what relief?
9. During the course of trial PWs-1 to 3 were examined on
behalf of the plaintiff and Ex.A1 to A7 were marked and on behalf
4
of the defendant, Dws-1 and 2 were examined and Ex.B1 to B13
were marked.
10. After thorough enquiry, the trial court holding that the
plaintiff is in possession of the schedule property, but his
possession is wrongful and at the same time he cannot be
protected by way of permanent injunction and hence the trial court
dismissed the suit of the plaintiff on 24.03.2015.
11. Assailing the said Judgment and decree of the trial court,
the defendants therein have preferred an appeal in A.S.No. 78 of
2015. The first appellate court has framed the following points for
determination in the Appeal:
1. Whether plaintiff has got legal title and lawful possession over the plaint
schedule property, so as to seek relief of injunction against the defendant,
who is real owner?
2. Whether learned trial judge appreciated both facts and law properly or
committed serious error in dismissing plaintiff’s suit filed for bare
injunction?
3. Whether judgment of learned trial judge suffers from any illegality or
perversity and same is liable to be set aside in this appeal?
12. The First Appellate Court after considering the facts and
circumstances of the case dismissed the appeal on merits on
21.03.2023 by confirming the decree and judgment of the trial
court.
5
13. Assailing the Judgment of the First Appellate Court, the
appellants herein, who are defendants before the trial court has
filed these Second Appeals, seeking to set aside the decree and
Judgment of the courts below.
14. The appellant raised the following question of law in the
grounds of Appeal, which are as under:
a) Whether in law the First Appellate Court is right in
confirming the Judgment and the Decree of the Trial Court when
it is proved, and also admitted by the respondent, as to the
appellant/ plaintiff's possession in the Plaint Schedule Property?
b) Whether in law the First Appellate Court is right in not
taking into consideration of the well settled legal position that a
suit for mere injunction is maintainable if the Plaintiff is in
possession of the property as on date of filing of the suit?
c) Whether the First Appellate Court is right in not taking
into consideration of the Legal Position settled by the Hon'ble
Supreme Court in AIR 1996(SC) 1807 wherein it was held that
the mere suit for injunction can't be converted into suit for
probation of Will and direct parties to adduce evidence, be it
primary or Secondary.
d) Whether the First Appellate Court is right in dismissing
the Appeal and confirming the Trial Court Judgment without
there being any specific finding about the Title of the Defendant,
particularly when defendant has failed to establish his title
either by producing documentary evidence or through oral
evidence.
e) Whether the 1st Appellate Court is right in relying upon
the principle of law evaluated in Balram Singh VS Kelo Devi
(2022(6) ALD 200 (SC)] to the present facts of the case, and
whether the finding in Balram Singh VS Kelo Devi (2022(6) ALD
200 (SC)| suffers per-incuraim. For, the basis for the observation
is that the plaintiff cannot file the suit for specific performance,
6
as the sale agreement is an unregistered one. There is no
reference in the said Judgment about the proviso under Section
49 of the Registration Act. It is submitted that the three bench
judgment of the Hon'ble Supreme Court, reported in 2018 (7)
SCC- Pg. 639 held that "An unregistered Agreement of Sale can
be admitted as evidence of a contract in a suit for specific
performance in view of proviso to Section 49 of the Registration
Act." The Judgment considered by the first appellate court is
rendered by a bench consisting of two judges only. The earlier
larger bench judgment or the proviso to Section 49 of the
Registration Act is not referred to in the said Judgment. The
Hon'ble Supreme Court in a recent judgment reported in 2022(5)
Supreme- Pg. 412 held that a decision or judgment can be perincuriam any provision in a statute, rule or regulation, which
was not brought to the notice of the court. It can also be perincuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or larger bench?
f) Whether the Appellate Court is right in making
observation that Will Deed, dated 21.11.1984, which was
marked as Ex A6 has never seen day light as the same was not
filed, when the said Document is Marked as Ex A6?
g) Whether the Courts below right in observing as to nonfiling of link documents in a Suit for Permanent Injunction is a
ground to dismiss the suit, when more particularly when the
possession over the property is undisputed and admitted.
h) Whether the first appellate court is right in not even
mentioning about the Additional Evidence Petition filed under m
Order. 41 Rule 27 of CPC in I.A. No. 1356/2019?
15. Heard Mr. P. Rajasekhar, learned counsel representing
Mr. T.V.P. Sai Vihari, learned counsel for the appellant and Mr.
V.L.N.Sarma, learned counsel for the respondent.
16. During hearing learned counsel for the appellant would
contend that the first appellate court failed to consider very crucial
7
circumstance as to the pleading of the respondent/defendant that
the plaint schedule property was let out to the father of the
plaintiff and his brother, and that they did not pay the Maktha,
and that the respondent/ defendant has been demanding them to
vacate the land. Although the said contention of respondent/
defendant is totally false, baseless and untruthful and without any
iota of proof, yet in view of the said plea of the respondent/
defendant, it cannot be held that the appellant's possession is
illegal in the plaint schedule property. Thus, the 1st Appellate court
has totally gone into a serious confusion as to the appreciation of
the facts, pleadings and evidence on record.
17. It is further contended that the first Appellate court
finding as to the title of the appellant is quite erroneous, both on
fact and in law. For, the suit is filed only for a permanent
injunction and the primary question to be considered while
granting or refusing the injunction is possession as on date of the
filing of the suit, and whether such possession is lurking or
settled. Question of title is only incidental and even without giving
a finding as to the title, the court has to decide the possession
independently. The first Appellate court has failed to note that any
finding on title in a suit for permanent injunction does not operate
as res-judicata in a subsequent suit between the same parties as
to the title of the property.
8
18. It is further contended that the first appellate court has
failed to take into consideration several admissions made by the
respondent/defendant (DW-1) apart from his pleading that the
land has been let out to the father of the plaintiff, as to possession
of the appellant/ plaintiff as on the date of the filing of the suit
and much prior to that. The first appellate court ought to have
held that on facts of the case that the appellant/plaintiff is entitled
to be protected his possession in the plaint schedule property, as
per the doctrine of part-performance. Therefore the findings of the
first appellate court are based on mere surmises and the same is
liable to be set aside.
19. Learned counsel for the appellant relied on a decision of
Hon’ble Apex Court in “Nagindas Ramdas vs. Dalpatram
Locharam @ Brijaramand and Others”1 wherein it was held as
follows:
“26. From a conspectus of the cases cited at the bar the
principle that emerges is that if at the time of the passing of the
decree, there was some material before the Court, on the basis
of which the Court could be prima facie satisfied, about the
existence of a statutory ground for eviction, it will be presumed
that the Court was so satisfied and the decree for eviction
apparently passed on the basis of a compromise, would be
valid. Such material may take the shape either of evidence
recorded or produced in the case or, it may partly or wholly be in
the shape of an express or implied admission made in the
compromise agreement itself. Admission is true and clear are by
far the best proof of the facts admitted. Admissions in pleadings
1
AIR 1974 SC 471
9
or judicial admission admissible under Section 58 of the
Evidence Act, made by the parties or their agents at or before the
hearing of the case, stand on a higher footing than evidentiary
admission. The former class of admissions are fully binding on
the party that makes them and constitute a waiver of proof.
They by themselves can be made the foundation of the rights of
the parties. On the other hand evidentiary admissions which are
receivable at the rival as evidence are by themselves not
conclusive. They can be shown to be wrong”.
In the case of “State of Rajsthan and Others vs. Shiv
Dayal and Another”2 wherein the Hon’ble Apex Court held as
follows:
“13. We do not agree with the aforementioned reasoning
and the conclusion arrived at by the High Court. It is not the
principle of law that where the High Court finds that there is a
concurrent finding of two courts (whether of dismissal or
decreeing of the suit), such finding becomes unassailable in the
second appeal.
14. True it is as has been laid down by this Court in
several decisions that "concurrent finding of fact" is usually
binding on the High Court while hearing the second appeal
under Section 100 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code"). However, this rule of law
is subject to certain well-known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on
the facts, the trial court is required to appreciate the entire
evidence (oral and documentary) in the light of the pleadings of
the parties. Similarly, it is also a trite law that the Page: 640
appellate court also has the jurisdiction to appreciate the
evidence de novo while hearing the first appeal and either affirm
the finding of the trial court or reverse it. If the appellate court
affirms the finding, it is called "concurrent finding of fact"
2
(2019) 8 SCC 637
10
whereas if the finding is reversed, it is called "reversing finding".
These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point out that it is bad
in law because it was recorded dehors the pleadings or it was
based on no evidence or it was based on misreading of material
documentary evidence or it was recorded against any provision
of law and lastly, the decision is one which no Judge acting
judicially could reasonably have reached. (See observation made
by learned Judge, Vivian Bose, J., as his Lordship then was a
Judge of the Nagpur High Court in Rajeshwar Vishwanath
Mamidwar v. Dashrath Narayan Chilwelkar para 43.)
17. In our opinion, if any one or more ground, as
mentioned above, is made out in an appropriate case on the
basis of the pleading and evidence, such ground will constitute
substantial question of law within the meaning of Section 100 of
the Code.”
The Hon’ble Supreme Court has categorically discussed the
principles relating to Section 100 CPC in “Nazir Mohamed vs. J.
Kamala and Others”3 which reproduced hereunder:
“ 37. The principles relating to Section 100 CPC relevant
for this case may be summarized thus:
(iv) The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are 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,
3
Civil Appeal Nos. 2843-2844 of 2010, dated 27.08.2020
11
taken as a whole, is not reasonably capable of supporting the
finding”.
20. Whereas learned counsel for the respondent reiterated
the defence taken before the courts below and vehemently opposed
to allow the Second Appeals and relied on catena of decisions of
various High Courts and also Hon’ble Supreme Court.
21. During the course of arguments, learned counsel for the
respondents relied on a decision of Hon’ble Apex Court in
“Padhiyar Prahladji Chenaji (deceased) through L.Rs vs.
Maniben Jagmalbhai (deceased) through L.Rs and Others”4
wherein it was held as follows:
“13. Therefore, the short question, which is posed for the
consideration of this Court is, whether, in case where the
plaintiff has lost so far as the title is concerned and the
defendant against whom the permanent injunction is sought is
the true owner of the land, whether the plaintiff is entitled to a
relief of permanent injunction against the true owner, more
particularly, when the plaintiff has lost so far as the title is
concerned and can thereafter the plaintiff be permitted to
contend that despite the fact that the plaintiff has lost so far as
the title is concerned, her possession be protected by way of
injunction and that the true owner has to file a substantive suit
claiming the possession.
….
24….Injunction may be granted even against the true
owner of the property, only when the person seeking the relief is
in lawful possession and enjoyment of the property and also
legally entitled to be in possession, not to disposes him, except in
due process of law.”
4
(2002) 12 SCC 128
12
In “K. Ankaiah vs. Tirumala Tirupati Devasthanams”5,
wherein this Court held as follows:
“21. Their possession is prima facie unlawful inasmuch as
the alleged licence in their favour already expired. They had not
shown that they have got any right to be in lawful possession of the
plaint schedule property. Therefore, they cannot seek temporary
injunction against the defendants-TTD, who are the true owners of
the suit property.
…..
23……Therefore, on the date of the suit they have no prima
facie right to be in lawful possession of the disputed property. Their
possession cannot be treated as settled possession or long or
continuous possession. Further, they are not entitled to seek
injunction against the true owner on the basis of their sole unlawful
possession or possession without any right to be lawfully in
possession of the disputed property…. ”
The above case i.e K. Ankaiah’s case has been discussed in
the case of “Syed Jameel vs. K.V.V.Nageshwara Rao and
Another”6. Further in “Smt. Rohini Devi @ Rajeswari Dasi vs.
Babaji Jagannath Das and Others”7, wherein it was held as
follows:
“7. Perusal of the records, i.e the judgments of the Courts
below, the plaint, the written statements, documents exhibited
by both parties and evidence shows that there are neither any
pleadings or nor any evidence of the appellant with regard to
declaration of title. This question has been raised for the first
time before this Court. Where a point of law has not been
pleaded or is found to be arising between the parties in the
5
2002 LawSuit(AP) 485
6
2004(2) ALT 499 (S.B)
7
AIR 2006 Orissa 141
13
absence of any factual format, a litigant should not be allowed to
raise that question as substantial question of law in second
appeal……”
Learned counsel for the respondent further relied on a
decision of Hon’ble Apex Court in “Balaram Singh vs. Kelo
Devi”8 wherein it was held that the plaintiff cannot get relief
indirectly, which otherwise he/she cannot get in suit for
substantive relief. Further, plaintiff cannot get relief of permanent
injunction on basis of such unregistered document/ agreement to
sell, more particularly, when defendant specifically filed counterclaim for getting back possession which was allowed by trial court.
Learned counsel for the respondent further contended that
the case succeeds only on the strength of his own title and not on
the weakness of case of the defendants. The defendants need not
plead and prove possible defects in plaintiff’s title. Even if
defendants to establish their own title, plaintiff must be non-suited
if he fails to establish his title as per decision of erstwhile High
Court of Andhra Pradesh in “Sajana Granites, Madras and
Another vs. Manduva Srinivasa Rao and Others”9.
22. Perused the record.
23. Learned counsel for the plaintiff drawn the attention of
this Court with regard to Para 18 of the Judgment of the first
8
2022(6) ALD 200 (SC)
9
2002(1) ALT 466 (D.B)
14
appellate court that the plaintiff came and traced his right under
unregistered agreement of sale, thereupon unregistered Will, those
documents also have not seen the light of the day and claiming
injunction against his landlord, who is the real owner by setting
up false title and that the plaintiff is not entitled the equitable
relief of permanent injunction against the defendant, who is a
rightful owner, which is incorrect. Further it is contended that
there is no need or necessity to investigate the title, it can be
incidentally gone when the defendant denied the title of plaintiff.
But the first appellate court held that the plaintiff is bound to
show his prima facie right and title or he has to amend the suit for
declaration but, plaintiff having failed to do so, claiming injunction
without having legal title and lawful possession, thereby not
entitled injunction against the defendant. Therefore, the first
appellate court has dismissed the appeal.
24. In Ex.A2, which is copy of Adangal would show that the
plaintiff though he has been in possession of the schedule
property, but it was stands in the name of father of the defendant.
Ex.A3 is the tax receipt would show that the land tax was paid by
Pinnamaneni Venkata Ratnam. In fact, the tax can be paid either
by the land owner or any person on behalf of the land owner and
the person who paid the amount and whose name is to be noted.
Ex.A7 is the demand notice, it was issued in the name of the
plaintiff, but in fact the schedule property is a vacant site and the
15
question of payment of house tax does not arise as held by the
trial court.
25. Upon perusal of the Judgment of the first appellate court
have discussed at length on the decisions relied by the appellant
and given finding that the plaintiff came and traced his right under
unregistered sale agreement, thereupon unregistered Will, those
documents have also not seen in the light of the day and claiming
injunction against his landlord, who is the real owner by setting
up a false title. Therefore the plaintiff is not entitled to permanent
injunction against true owner i.e defendant. Further the plaintiff is
bound to show his prima facie right and title or he has to amend
the suit for declaration, but the plaintiff has not to do so.
Therefore the first appellate court dismissed the appeal.
26. There is some force in the argument of learned counsel
for the respondent and that the decisions submitted by the learned
counsel for the respondent, cited supra are applicable to the facts
of this case and would enable the Court to come to a just
conclusion and as the pleadings of the parties have crystallized the
questions in dispute. Therefore, the observations made by the
courts below are very specific and finds no impropriety or
irregularity in its Judgments. As the appellant raised the
substantial question of law is not satisfactory, the Second Appeals
are deserves to be dismissed.
16
27. Since common issues were involved in the both the
suits, the discussion made in S.A.No.260 of 2023 is adopted in
S.A.No.262 of 2023 also.
28. After close scrutiny of the findings of the both trial court
as well as first appellate court, this Court opines that the both
Second Appeals are dismissed.
29. Accordingly, the Second Appeals are dismissed, at the
stage of admission, by a common order. There shall be no order as
to costs.
As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 15.09.2023.
Note: L.R.Copy marked
B/o
KK
17
THE HON’BLE Dr.JUSTICE K. MANMADHA RAO
SECOND APPEAL Nos.260 and 262 of 2023
Date: 15.09.2023.
Note: L.R.Copy marked
B/o
KK
18
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
+ SECOND APPEAL Nos.260 and 262 of 2023
% 15.09.2023
Second Appeal No.260 of 2023
# Pinnamaneni Ratheesh Kumar
… Appellant.
Vs.
$ Sathuluri Parasuramudu
… Respondent.
Second Appeal No.262 of 2023
# Pinnamani Babji
… Appellant.
Vs.
$ Sathuluri Parasuramudu
… Respondent.
! Counsel for the Appellants :
Mr.P. Rajasekhar, learned counsel
representing Mr. T.V.P.Sai Vihari.
! Counsel for the Respondents: Mr. V.V.L.N.Sarma,
< Gist:
> Head Note:
? Cases referred:
1. AIR 1974 SC 471
2. (2019) 8 SCC 637
3. Civil Appeal Nos. 2843-2844 of 2010, dated 27.08.2020
4. (2002) 12 SCC 128
5. 2002 LawSuit(AP) 485
6. 2004(2) ALT 499 (S.B)
7. AIR 2006 Orissa 141
8. 2022(6) ALD 200 (SC)
9. 2002(1) ALT 466 (D.B)
DATE OF ORDER PRONOUNCED: 15.09.2023
19
* THE HON’BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
___________________________
DR.K. MANMADHA RAO, J
