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2010 DIGILAW 1285 (AP)

T. Pedda Swamy Reddy v. P. Parvathamma

2010-12-21

L.NARASIMHA REDDY

body2010
JUDGMENT : The appellant filed O.S.No.313 of 2007 in the Court of the Principal Junior Civil Judge, Kurnool against the respondents for the relief of perpetual injunction in respect of the suit schedule property. He pleaded that the suit schedule property had accrued to him by way of succession and the respondents are trying to interfere with his possession without any basis. He has also filed pattadar pass book, adangals etc. in proof of his possession. 2. The respondents filed a written statement opposing the suit. According to them, their grand mother by name, Nagamma, was the original owner of the land and she mortgaged the same with the father of the appellant for a sum of Rs.1500/-. During the life time of Nagamma, the mortgage was not redeemed and her daughter, whose name is also Nagamma, filed O.S.No.492 of 1993 in the Court of the II Additional Junior Civil Judge, Kurnool for redemption. A compromise decree is said to have been passed in it, where under, the amount due was deposited and the mortgagee in turn had redelivered possession. They further contended that being a factionist and strongman in the village, the appellant is harassing them and their tenants. 3. The trial Court dismissed the suit through its judgment, dated 08.04.2010. Aggrieved thereby, the appellant filed A.S.No.32 of 2010 in the Court of the Special Judge for Trial of Cases under S.C., S.T. (POA) Act-cum-VI Additional District & Sessions Judge, Kurnool. The appeal was dismissed on 15.11.2010. Hence, this second appeal. 4. Sri M.Damodar Reddy, learned counsel for the appellant, submits that the trial Court and the lower appellate Court did agree that the appellant is in possession of the suit schedule property and still have denied the relief of perpetual injunction. He contends that even if the possession of the appellant over the land is that of trespasser, the relief of perpetual injunction ought to have been granted leaving it open to the respondents to seek declaration of title and recovery of possession. 5. The appellant prayed for the relief of injunction simplicitor. The trial Court framed only one issue for its consideration, namely whether the appellant is entitled for the relief of perpetual injunction. Before the trial Court, the appellant examined P.Ws.1 to 5 and filed Exs.A1 to A4. On behalf of the respondents D.Ws.1 and 2 were examined and Exs.B1 to B5 were filed. The trial Court framed only one issue for its consideration, namely whether the appellant is entitled for the relief of perpetual injunction. Before the trial Court, the appellant examined P.Ws.1 to 5 and filed Exs.A1 to A4. On behalf of the respondents D.Ws.1 and 2 were examined and Exs.B1 to B5 were filed. The trial Court has taken on record Exs.X1 to X8 also. The suit was dismissed and in the appeal filed against it, the lower appellate Court framed the following points for its consideration: (1) Whether the appellant/plaintiff is entitled for permanent injunction as prayed for? (2) Whether the decreed and judgment of the trial Court suffer from any material irregularities and illegalities and are liable to be set aside? 6. The appellant laid his claim vis-à-vis the suit schedule property by stating that he inherited the same from his father. This plea would have assumed acceptability, if only the father of the appellant had independent and legal title for it. Though the appellant maintained silence as to the nature of rights that have accrued to his father and thereby to him, the respondents have clearly stated the relevant facts. It was pleaded that the land originally belonged to Nagamma and she mortgaged it in favour of the father of the appellant. Absolute title would have accrued to the father of the appellant, if only the mortgage was foreclosed in accordance with law. It is not in dispute that the usufructory mortgage was not foreclosed during the life time of the father of the appellant. On the other hand, a reverse process i.e. redemption has taken place by virtue of a compromise decree passed in O.S.No.492 of 1983. 7. Once a mortgage is redeemed, the mortgagee ceases to have any right whatever vis-à-vis the mortgaged property. When the father of the appellant ceased to have any right on account of the redemption, that is brought about through decree in O.S.No.492 of 1983, there was no way that the appellant could have inherited to that very property. Therefore, the whole basis for the appellant to lay claim vis-à-vis the land was untenable. 8. It is no doubt true that in a suit for injunction, the Courts cannot go into the question of title. However, it can be certainly examined as to the collateral issue. Therefore, the whole basis for the appellant to lay claim vis-à-vis the land was untenable. 8. It is no doubt true that in a suit for injunction, the Courts cannot go into the question of title. However, it can be certainly examined as to the collateral issue. It is well recognized that the relief of perpetual injunction is an equitable remedy and thereby, it is always in the discretion of the Court. It is in the context of the exercise of discretion, that the Courts have to examine the bona fides of the person, who claims that relief. When totally untenable facts are pleaded which are contrary to record that will certainly be a factor to be taken into account by the Court. 9. The appellant no doubt has proved his possession over the land by filing pattadar pass book, title deed, certificate issued by the V.A.O. and encumbrance certificate, filed as Exs.A1 to A4. There are instances where the relief of perpetual injunction is granted even where the possession is not supported by title. However, if the possession claimed by a plaintiff in a suit for injunction runs contrary to a decree passed by a Court, the system would not extend its helping hand to a person enabling him to defeat the decree suffered by that very person or his legal representatives. It has already been mentioned that the father of the appellant was a party to the decree in O.S.No.492 of 1983. Under that decree, he got the benefit of realizing the mortgage amount and redelivered the possession of the land, which he retained under usufructory mortgage. Whatever may be the status of a third party, who occupies the land and claims the relief of perpetual injunction, a person who claims rights through another who is a party to the decree cannot be permitted to defeat the very adjudication. The trial Court and the lower appellate Court have examined the matter from the correct perspective and this Court does not find any substantial question of law arises for consideration in this second appeal. 10. Therefore, the second appeal is dismissed. There shall be no order as to costs.