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2007 DIGILAW 1147 (AP)

Kaneez Fathima v. Samru Sultana

2007-11-26

L.NARASIMHA REDDY

body2007
JUDGMENT 1. The unsuccessful plaintiffs in O.S.No.265 of 1999 are the appellants in the Second Appeal. The suit is filed, for the relief of perpetual injunction, against the respondents. The appellants pleaded that the suit schedule property, bearing House No.3-6-13, situated at Adarshnagar, Karimnagar, was owned by one Mr.Ali Nawaz and he sold the same in favour of the 2nd appellant on 05.10.1998. The 2nd appellant is said to have gifted the suit schedule property in favour of the 1st appellant, under a gift deed, dated 06.04.1999. They complained that the respondents started interfering with the possession over the property, without any basis. 2. Respondents filed written statement opposing the claim of the appellants. It was pleaded that the father of defendants 2 and 3, by name Ali Mohammed, was the original owner of the property and he, in turn, had gifted the same, orally, in favour of the 1st defendant. O.S.No.515 of 1989 was filed by the 1st defendant, against her father, for declaration of title, in respect of the suit property. Almost a consent decree came to be passed on 22.06.1989 and the judgment and decree therein were filed as Exs.B.1 and B.2. It was alleged that though the subject matter of Exs.B.1 and B.2 is the property, bearing No.3-6-14, two house Nos.3-6-13 and 14 were assigned to the same premises and subsequently, a new number, being 3-6-21, came to be assigned to the property under Ex.B.6. Through its judgment, dated 21.07.2003, the trial Court dismissed the suit. Appellants filed A.S.No.53 of 2003 in the Court of III Additional District Judge, Karimnagar. The appeal was dismissed on 08.09.2005. Hence, this Second Appeal. 3. Sri V.L.N.Gopala Krishna Murthy, learned counsel for the appellants, submits that the Courts below have proceeded on totally impermissible lines, while adjudicating the dispute, between the parties. He contends that both the Courts have concentrated on the question of title and hardly any finding was recorded, as to the possession, which alone becomes relevant and important in a matter of this nature. Learned counsel submits that the view expressed by the Courts below that the possession without title cannot be accepted, is opposed to settled principles of law. 4. Learned counsel submits that the view expressed by the Courts below that the possession without title cannot be accepted, is opposed to settled principles of law. 4. Sri P.V.Narayana Rao, learned counsel for the respondents, on the other hand, submits that the very origin of claim made by the appellants, on the basis of an unregistered sale deed, that too, from a person, who was not competent to sell the property, is shaky and that the concurrent findings of fact recorded by the Courts below do not warrant any interference. 5. The suit was filed for the relief of injunction simplicitor. The trial Court framed only one issue namely, whether the plaintiffs are entitled for perpetual injunction as prayed for. On behalf of the appellants, PWs.1 to 3 were examined and Exs.A.1 to A.7 were filed. On behalf of respondents, DWs.1 to 3 were examined and Exs.B.1 to B.6 were filed. The suit was dismissed and the decree passed by the trial Court was affirmed by the lower appellate Court. 6. It hardly needs any emphasis that the most important question that arises for consideration in a suit for perpetual injunction is, as to who, among the parties to the suit, are in possession of the schedule property, as on the date of filing of the suit. Question of title assumes secondary importance, that too, after a finding is recorded by the trial Court that the plaintiffs are in possession of the property. If it is not found that the plaintiffs are in possession of the property, even the necessity to verify the title, pales into insignificance. 7. In the instant case, the trial Court as well as the lower appellate Court devoted most of their attention to ascertain the title vis--vis the property. It is no doubt true that under Exs.B.1 and B.2, the title of the 1st respondent was declared vis- -vis the property in house bearing No.3-6-14. The appellants did not make any claim as regards that property. The respondents did not make any independent claim for property in house bearing No.3-6-13. 8. While it was incumbent upon the Courts below to record a definite finding, as to possession over the suit schedule property, as observed earlier, most of the discussion was devoted only to the question of title. The small discussion undertaken about the possession was also on the lines, which are not acceptable to law. 8. While it was incumbent upon the Courts below to record a definite finding, as to possession over the suit schedule property, as observed earlier, most of the discussion was devoted only to the question of title. The small discussion undertaken about the possession was also on the lines, which are not acceptable to law. For instance, the trial Court observed in para 16 of its judgment, as under: 9. "Here it is to be noted that there is no need of physical possession of the property by either of the parties, certainly possession follows title. The title of the plaintiffs is not established as such the possession based on the title under Ex.A.1 cannot be considered as the legal possession." 10. The Court was under impression that, unless a plaintiff in a suit for perpetual injunction proves his title, possession even if established, cannot be recognized. This is totally opposed to the settled principles of law. Basically, the finding, as to the possession, must be recorded, in a suit of this nature, and the verification of title, on the limited sense, must be undertaken, if necessity arises. The approach adopted by the trial Court was virtually repeated at the appellate stage also. This Court is of the view that the matter needs to be considered afresh by the trial Court. 11. Hence, the Second Appeal is allowed and the judgments under appeal are set aside. The matter is remanded to the trial Court, with a specific direction that it shall record a finding, as to who, among the parties to the suit, are in possession of the suit schedule property. In case, it emerges that the plaintiffs are in possession of the property, a further verification shall be undertaken, as to whether such possession is backed by any semblance of right. On the other hand, if the finding is that the plaintiffs are not in possession, as on the relevant date, there would not be any necessity to go into further aspects. It shall be open to the parties to lead evidence in support of their respective contentions. There shall be no order as to costs.