Without possession - no permanent injunction be granted - 2023:APHC:27507
suit for permanent injunction - dismissed - appeal also dismissed - SA Held that Since the plaintiff failed to establish his possession over the suit schedule property as on the date of suit and contrary to the case of the plaintiff, the defendant established his possession in the suit schedule property as on the date of filing of the suit. Therefore, the plaintiff ought to have file the suit for recovery of possession. Since the plaintiff failed to prove his possession as on the date of suit, he is not entitled for the relief of permanent injunction”
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI1
THE HON’BLE DR.JUSTICE K. MANMADHA RAO
SECOND APPEAL No.272 OF 2023
CHAPPIDI HARINATH REDDYVersus
CHAPPIDI VENKATA REDDYJUDGMENT:
The Second Appeal has been filed assailing the Judgment
and Decree dated 21.02.2022, passed in A.S.No.1 of 2017 by the III
Additional District Judge, Rajampet. The learned first Appellate
Court, while dismissing the appeal filed by the plaintiff, had
confirming the decree and Judgment dated 28.04.2014 of the
learned Junior Civil Judge, Nandalur, passed in O.S.No.50 of
2007.
2. The parties will herein after be referred to as they are
arrayed in the Original Suit for the sake of convenience.
3. The plaintiff filed suit in O.S.No.50 of 2007 on the file of
the Court of the Junior Civil Judge, Nandalur against the
defendant for grant of permanent injunction restraining the
defendant and his men from interfering with plaintiff’s peaceful
possession and enjoyment of the plaint schedule property. The
averments in the plaint, in brief are as under:-
Originally Revenue Authorities assigned the plaint schedule
property to grandfather of the plaintiff by name Chappidi
Ankireddygari Pitchi Reddy on 16.09.1961, since then he has been
in possession and enjoyment of the same and after his demise, his
father and after him the plaintiff is the absolute owner of the plaint
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schedule property. During the life time of his father, the defendant,
who is having lands adjacent to the plaint schedule property tried
to nab the same and his father also made a complaint before the
revenue authorities also. The defendant has no way concerned
with the plaint schedule property. Hence the suit.
4. Per contra, the defendant filed Written Statement denying
the material averments made in the plaint and contended that the
plaintiff’s grandfather and Ankireddygari Pitchi Reddy and
defendant’s father Chappidi Ankireddy are brothers and sons of
Chappidi Gangi Reddy and they were living as Hindu joint family
along with their another brother Chappidi Bali Reddy. It is further
contended that Ankireddygari Pitchi Reddy being the elder brother
and Kartha of joint family obtained DKT Patta in his favour in
respect of the plaint schedule property with joint funds of the
defendant’s father and the defendant. Since then defendant’s
father and plaintiff’s grandfather were in joint possession and
enjoyment of the suit schedule property till their death.
Subsequently, they got divided orally and respective shares were
allotted among them and the plaint schedule property fell to the
share of defendant’s father C. Ankireddy and after his death the
defendant is in possession and enjoyment of the same with
absolute rights till date. The father of the plaintiff moved mediation
during his lifetime and requested the defendant to pay some money
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to discharge his debts and plaintiff’s father himself executed an
agreement of sale dated 10.04.2004 in favour of the defendant
agreeing to sell the suit schedule property and received advance
amount from the defendant and he discharged the debts and died
in the year 2006. After death of father of plaintiff, the plaintiff with
a malafide intention made false representations to take possession
of the plaint schedule property. Therefore the plaintiff is not
entitled to claim any relief in the suit and same is liable to be
dismissed.
5. Based on the above pleadings, the trial court eventually
framed the following issues for trial:
1. Whether the plaintiff is in possession and enjoyment of the suit schedule
property as on the date of filing of the suit?
2. Whether the agreement of sale dated 10.04.2004 is true and correct?
3. Whether the suit is bad for non-joinder of necessary parties and there is a
cause of action?
4. To what relief?
5. Whether the plaintiff is entitled for permanent injunction as prayed for?
(Issue No.5 is additional issue).
6. During the course of trial PW-1 was examined on behalf of
the plaintiff and Exs.A1 to A6 were marked and on behalf of the
defendants, DW-1 was examined and marked Ex.B1 to B5. The
Tahsildar, Pullampeta is examined as CW-1 and Ex.C1 to C6 were
marked through him.
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7. After full-fledged trial, the trial could hold that the plaintiff
has failed to prove his possession and enjoyment of the plaint
schedule property and that plaintiff is not entitled for permanent
injunction. Accordingly, the suit was dismissed.
8. Assailing the said judgment and decree of the trial court,
the plaintiff has preferred an appeal in A.S.No. 1 of 2017. The first
appellate court has framed the following points for consideration in
the Appeal:
1. Whether the plaintiff is in possession and enjoyment of the plaint
schedule properties as on the date of suit with semblance of legal
right?
2. Whether the plaintiff is entitled for permanent injunction as prayed for?
3. Whether the decree and judgment of the trial court warrants any
interference by way of this appeal?
4. To what relief?
9. The First Appellate Court after considering the facts and
circumstances of the case, held as follows:
29.Since the plaintiff failed to establish his possession
over the suit schedule property as on the date of suit and
contrary to the case of the plaintiff, the defendant established
his possession in the suit schedule property as on the date of
filing of the suit. Therefore, the plaintiff ought to have file the suit
for recovery of possession. Since the plaintiff failed to prove his
possession as on the date of suit, he is not entitled for the relief
of permanent injunction”.
and dismissed the appeal on merits on 21.02.2022, by confirming
the findings of the trial court. Assailing the Judgment of the First
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Appellate Court, the appellant herein, who is plaintiff before the
both courts below filed this Second Appeal, seeking to set aside the
decree and Judgment of the courts below.
10. This court while admitting the Second Appeal has framed
the following substantial question of law, which are as under:-
1. Whether the appellate court is justified in dismissing the appeal by
confirming the Decree and Judgment in contrary to Sections 2(1)(6) and
3 of A.P.Assigned Lands (Prohibition of Transfers) Act, 1977?.
2. The first appellate court and trial court applied its mind while
dismissing the suit and appeal in contrary to Ex.A1 to A6 and C1 to C6
and relied on Ex.B1 and B2 dismissed the suit and first appeal?
11. Heard Mr.Nagaraju Naguru, learned counsel for the
appellant and Mr.G.Ramesh Babu, learned counsel for the
respondent.
12. The appellant herein is the plaintiff/ appellant before the
courts below.
13. During hearing learned counsel for the appellant
submitted that the plaintiff is the absolute owner of the plaint
schedule property, having acquired from his father. The revenue
authorities issued DKT Patta in favour of grandfather of the
plaintiff, after him his son and after him the plaintiff succeeded
the same, since then he has been inducted into possession and
that the defendant has no manner of any right, title or possession
trying to interfere with the plaint schedule property, for which the
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plaintiff resisted his attempts. The defendant has got nothing to do
with the plaint schedule property.
14. Whereas, learned counsel for the respondent vehemently
contended that in the oral settlement of the joint family, the plaint
schedule property fell to the share of the defendant’s father Anki
Reddy. After his demise, the defendant is in possession and
enjoyment of the same. The plaintiff obtained Pattadar Pass Book
by false representation, without physical possession in respect of
the plaint schedule property. The plaintiff’s father himself executed
an agreement of sale in favour of the defendant agreeing to sell the
suit schedule property and received advance amount. After demise
of plaintiff’s father, the plaintiff making attempts to take over the
possession of the plaint schedule property. No.3 adangal would
show that the name of the defendant in respect of plaint schedule
property. Hence the claim of the plaintiff is liable to be dismissed.
15. Perused the records.
16. From the evidence adduced by both parties, it is clear
that the oral evidence let in by the plaintiff as P.W.1 was
disbelieved by the trial Court. On the contrary, the respondent has
filed unregistered Agreement of Sale marked as Ex.B1 and No.3
Adangal as Ex.B2. Pitted against the documentary evidence
produced by the defendant, the oral evidence of the plaintiff
regarding possession paled into insignificance. Therefore, both the
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Courts below have held that the plaintiff failed to establish his
possession. Though the trial Court has held that the plaintiff is not
entitled to the equitable relief, this Court need not delve into the
said aspect.
17. Even assuming that the plaintiff 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 defendant has claimed ownership and title,
he has not produced the sale deed. Even if the defendant has no
title over the property, his possession is enough to non-suit the
plaintiff. Assuming that the plaintiff is the true owner of the
property, as he is not in possession of the same, he is not entitled
to the grant of injunction. The plaintiff, if so advised, can only file
a separate suit for declaration of title and recovery of possession of
the property. In “Vallabhneni Bangaraiah Vs. Panamala Peda
Musili”1 the learned Single Judge of unified High Court of A.P also
discussed the similar facts and liberty also given to the appellant
therein to file a separate suit for declaration of title and recovery of
possession of the property and dismissed the said appeal.
18. In view of the forgoing discussion, I find no merit to
interfere with the findings of the both courts, except granting
liberty to the plaintiff to approach proper fora for redressal of the
1
S.A.No.974 of 2013, dated 05.06.2014
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title dispute between the parties, in respect of plaint schedule
property, if so advised.
19. Accordingly, the Second Appeal is dismissed. 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: 08.08.2023.
KK
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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO
Second Appeal No.272 OF 2023
Date: 08.08.2023.
KK
