whether the true owner is entitled for permanent injunction without possession ? No. 2023:APHC:21779
held that
the appellant/plaintiff failed to establish his case and both Courts have rightly held that the appellant failed to establish his possession. Though the trial Court has held that the appellant is not entitled to the equitable relief, this Court need not delve into the said aspect. Even assuming that the appellant alone is entitled to maintain the suit, as he failed to establish his plea that he is in possession of the property, he is not entitled to the relief of injunction. Though the respondent has claimed ownership and title, he has not produced the sale deed. Even if the respondent has no title over the property, his possession is enough to nonsuit the appellant. Assuming that the appellant is the absolute/true owner of the property, as he is not in possession of the same, he is not entitled to the grant of 9 injunction. The appellant, if so advised, can only file a separate suit for declaration of title and recovery of possession of the property.
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
1
HON’BLE DR. JUSTICE K. MANMADHA RAO
SECOND APPEAL No.261 of 2023
THATIPARTHI SUBBA RAOVersus
YADALA DANDEMMA
JUDGMENT:
The present Second Appeal is preferred by the
appellant aggrieved by the Decree and Judgment dated
14.07.2022 passed in A.S.No.5 of 2016 on the file of XII
Additional District Judge, Pithapuram, confirming the
decree and judgment dated 20.11.2015 passed in O.S
No.196 of 2008 on the file of Principal Junior Civil Judge,
Tuni.
2. Heard Sri T.N.M. Ranga Rao, learned counsel
appearing for the appellant and Sri G.Venkata Subba Raju,
learned counsel appearing for the respondents.
3. The appellant is the plaintiff and the respondents
are the defendants in O.S.No.196 of 2008 on the file of
Principal Junior Civil Judge, Tuni (for short “the trial
Court”).
4. For convenience and clarity, the parties are
hereinafter referred to as arrayed in the suit.
2
5. The plaintiff is the absolute owner of the plaint
schedule property, which is devolved upon him on the death
of his father and thus he is in peaceful possession and
enjoyment of the same. Pattadar passbook and title deeds
were also issued to him by the revenue authorities. The No.3
Adangal copy was also issued in favour of him. The 1st
defendant is the cousin sister and the defendants No.2 to 4
are cousin brothers of him. The defendants No.5 and 6 are
henchmen of the defendants No.1 to 4. As the defendants
and their henchmen are tried to remove the soil of seed bed
from the plaint schedule property, neighboring ryots rushed
to there and resisted the illegal activity of the defendants,
due to which, the defendants and their men flew away
proclaiming that they shall trespass and occupy the plaint
schedule property illegally. Therefore the plaintiff filed suit
for grant of permanent injunction.
6. The defendants No.5 and 6 were set ex parte. The
1st defendant filed written statement and the same was
adopted by the defendants No.2 to 4 denying all the
averments made in the plaint. The father of 1st defendant
married one Gangamma and there were disputes between
3
the parents of this defendant. It is stated that on
19.05.2015 the plaint schedule property was given to 1st
defendant on registered settlement deed. Since then, he has
been in possession and enjoyment and the Government
issued Pattadar passbooks etc., in favour of 1st defendant.
It is also stated that even knowing the above fact, the
plaintiff has filed the false suit.
7. Basing on the pleadings, the trial Court famed the
following issues:
1. Whether the plaintiff is in possession of the suit schedule
properties by the date of filing the suit?
2. Whether the plaintiff is entitled for relief of permanent
injunction as prayed for?
3. To what relief?
8. During the course of trial, on behalf of the plaintiff,
he himself examined as PW.1 and got examined one Villager
as PW.2 and Ex.A1 to Ex.A4 were marked. On behalf of the
defendants, DW.1 to DW.4 were examined and Ex.B1 to
Ex.B3 were marked.
9. The trial Court upon hearing the arguments of both
the counsels, and on consideration of entire oral and
documentary evidence, dismissed the suit. Aggrieved by the
said judgment and decree, the plaintiff preferred an appeal,
4
which ended in dismissal confirming the judgment and
decree of the trial Court. Hence, the second appeal came to
be filed.
10. This Second Appeal is filed under Section 100
CPC on the ground that the judgment and decree of both
courts below is totally basing on the presumption, surmises
and conjectures, ignoring the material facts available on
record and interpretation of law.
11. There cannot be any dispute that, under the
amended Section 100 C.P.C., a party aggrieved by the decree
passed by the first appellate court has no absolute right of
appeal. He can neither challenge the decree on a question of
fact or on a question of law. The second appeal lies only
where the High Court is satisfied that the case involves a
substantial question of law. The word ‘substantial’ as
qualifying ‘question of law’, means and conveys – of having
substance, essential, real, or sound worth, important,
considerable, fairly arguable, in contradiction with –
technical, formal, or no substance, no consequence or
academic only. A substantial question of law should directly
and substantially affect the rights of the parties. A question
5
of law can be said to be substantial between the parties if
the decision in appeal turns one way or the other on the
particular view of law. But, if the question does not affect
the decision, it cannot be said to be substantial question
between the parties. Recording a finding without any
evidence on record; disregard or non consideration of
relevant or admissible evidence; taking into consideration
irrelevant or inadmissible evidence; perverse finding- are
some of the questions, which involve substantial questions
of law.
12. According to Section 100 CPC, a definite
restriction on to the exercise of jurisdiction in a second
appeal so far as the High Court is concerned. Needless to
record that the Code of Civil Procedure introduced such an
embargo for such definite objectives and since the Courts
are required to further probe on that score and the Courts
while detailing out, but the fact remains in second appeal
finding of fact, even if erroneous, will generally not be
disturbed but where it is found that the findings stand
vitiated on wrong test and on the basis of assumptions and
conjectures and resultantly there is an element of perversity
6
involved therein, the High Court will be within its
jurisdiction to deal with the issue. The High Court can
interfere with such finding recorded by the trial Court
though not on law in view of judgment reported in Kulavant
Kaur v Gurdial Singh Mann1
10. Keeping in mind the scope of Section 100 CPC, I
would like to decide the present appeal at the stage of
admission.
11. The main contention before the trial Court in the
written statement is that when the defendants were in joint
family the plaint schedule property was given to 1st
defendant with a limited right to enjoy the property and the
same was given on registered settlement deed. Since then
the 1st defendant has been in possession and enjoyment and
the Government has also issued pattadar passbook etc., in
his favour.
12. On a perusal of the material on record, it is clear
that, the plaint schedule property is joint family and
ancestral property of 1st respondent’s father and appellant’s
father and their brothers. On the one hand, the appellant
1 2001 (4 SCC 262
7
contended that the plaint schedule property fell to him. But
on the other hand, the 1st respondent contended that all the
brothers gave the plaint schedule property to the mother of
1st respondent for life time enjoyment and later respondents
No.2 to 4 who are brothers of 1st respondent settled the
plaint schedule property in favour of 1st respondent under
registered settlement deed. This Court observed that there
was no positive evidence or substantial evidence adduced by
both parties to decide to whom the plaint schedule property
succeeds.
13. This Court further observed that the suit was filed
for grant of permanent injunction and the appellant/plaintiff
has to prove that he is in possession and enjoyment of the
property on the date of filing of the suit. But, on verification
of the record, the documents filed by the appellant/plaintiff
did not disclose that he was in lawful possession and
enjoyment of plaint schedule property on the date of filing of
suit. Admittedly, a person, who can seek relief of permanent
injunction, it is necessary to prove that plaintiff, was in
lawful possession of the plaint schedule property and the
defendant tried to interfere or disturb such lawful
8
possession. Further, in this case, an Advocate
Commissioner was also appointed and filed his report
stating that the plaint schedule property is situated in
S.No.214/6, 214/7 and 214/8 and not in S.No.216/2,
where the appellant/plaintiff claiming possession of plaint
schedule property in S.No.216/2.
14. Viewed from any angle, this Court observed that
the appellant/plaintiff failed to establish his case and both
Courts have rightly held that the appellant failed to
establish his possession. Though the trial Court has held
that the appellant is not entitled to the equitable relief, this
Court need not delve into the said aspect. Even assuming
that the appellant alone is entitled to maintain the suit, as
he failed to establish his plea that he is in possession of the
property, he is not entitled to the relief of injunction.
Though the respondent has claimed ownership and title, he
has not produced the sale deed. Even if the respondent has
no title over the property, his possession is enough to nonsuit the appellant. Assuming that the appellant is the
absolute/true owner of the property, as he is not in
possession of the same, he is not entitled to the grant of
9
injunction. The appellant, if so advised, can only file a
separate suit for declaration of title and recovery of
possession of the property.
15. For the above-mentioned reasons, I do not find
any reason to interfere with the well-considered judgments
of the Courts below.
16. Accordingly, the Second Appeal is dismissed at
the stage of admission. No order as to costs.
As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 06 -07-2023
Gvl
10
HON’BLE DR. JUSTICE K. MANMADHA RAO
SECOND APPEAL No.261 of 2023
Date : 06.07.2023
Gvl
