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2020 DIGILAW 289 (AP)

P. Kabeer v. Galigavi Siddana Goud

2020-04-23

D.RAMESH

body2020
JUDGMENT: 1. The appellant herein is the defendant in the suit. The respondent as the plaintiff instituted the suit for permanent injunction against the appellant herein, in O.S.No.74 of 2001 on the file of the Court of the Junior Civil Judge, Alur. 2. Plaintiff filed the suit against the defendant for granting permanent injunction restraining the defendant, his men, servants and relations not to trespass into the suit land. The plaintiff filed the suit as owner of the land in Survey No.410/7 in an extent of 0.12 cents in Holagunda village limits in Holagunda Mandal. The original extent of the land in S.No.410 was Ac.11.19 cents and it was ancestral property of the plaintiff. Out of the said land, Ac.3.03 cents was sold to one Pinjari Hanumakka in the year 1955. The Government acquired Ac.4.85 cents for the purpose of T.B.P (Tungabhadra Project) in the year 1941. The portion of the land was also acquired by the government for laying road and this 12 cents only remained for the plaintiff family, said plaint schedule land of 0.12 cents is in possession and enjoyment of the plaintiff and he laid fencing to the said land to protect his right over the same, whereas the defendant is attempting to grab the said land by creating revenue records with the assistance of V.A.O., who is not well disposed towards the plaintiff. He further pleaded that with the help of the revenue officers, the defendant is attempting to trespass into the suit schedule land, to disturb the possession of the plaintiff over the suit land, without any right or interest in the same. Hence, plaintiff requested to grant for permanent injunction against the defendant. 3. The defendant filed written statement denying all the allegations in the plaint. With the specific contention that the plaint schedule of 12 cents situated Holagunda village in Survey No.410 originally belongs to Saibanna, who is father of the defendant and he was in possession of the same for more than 30 years by paying land revenue to the government and subsequently on 30.11.1987, the father of the defendant sold the plaint schedule land to the defendant by a registered sale deed, for Rs.1000/-and the defendant took delivery of the same and subsequently, the defendant put up fencing embedding the stones by spending huge amount, and that ever since he is in possession and enjoyment of the same. Considering the possession, the Government also issued new pattadar pass book and title deed to him. 4. The plaintiff was examined as PW.1 and Ex.A1 to A3 are marked on his behalf. Ex.A1 is the office copy of Right of Holding Property [RHP] issued by Sub Registrar. Ex.A2 is the plan. Ex.A3 is the certified copy of RHP. On behalf of the defendant, the defendant is examined as DW.1. 5. After the evidence of PWs.1 to 3, the defendant filed a petition under Order 26 Rule 9 of CPC for appointment of Commissioner, the Commissioner was appointed and he filed his report on 23.03.2006. 6. After considering rival submissions and the entire material available on record, the trial Judge had dismissed the suit on the ground that the plaintiff has not placed any revenue records such as Adangal or pattadar pass books or land revenue receipts for showing either the possession of his family or about his possession as contended by him and the oral evidence adduced by him is also contrary to the evidence adduced by the defendant and the oral, documentary evidence adduced by him is not at all sufficient to hold that he is in possession of schedule land as on the date of suit. 7. Aggrieved by the said judgment, the plaintiff filed an Appeal Suit No.59 of 2006 on the file of II Additional District Judge, Kurnool at Adoni. Basing on the grounds raised by the appellant, the lower appellate Court framed the following points for consideration: 1. Whether the finding of the lower Court that the appellant/plaintiff failed to prove his possession over the plaint schedule property as on the date of the suit is correct, legal and sustainable in law? 2. To what relief? 8. Upon hearing both sides, considering the evidence adduced by the parties, the lower appellate Court has allowed the appeal by setting aside the judgment and decree passed by the learned Junior Civil Judge, Alur. 9. 2. To what relief? 8. Upon hearing both sides, considering the evidence adduced by the parties, the lower appellate Court has allowed the appeal by setting aside the judgment and decree passed by the learned Junior Civil Judge, Alur. 9. While considering the evidence, lower appellate Court observed that both the parties have claimed that fencing was laid around the plaint schedule property by themselves only, there is no pleading on behalf of the defendant that he laid foundation in the plaint schedule property and that without pleading on behalf of the respondent/defendant on the above aspect, the report of the Commissioner regarding the existence of the traces of foundation is of no value and also considering the evidence of DW.1 in his cross examination, dated 22.08.2006, that he does not know whether the plaintiff or his farm servant used the plaint schedule property for storing the hayrick-yard. Learned judge opined that if really the defendant was in possession of the plaint schedule property, would he give answer for the question in that manner and the evidence regarding the acts of ownership which goes to constitute possession on behalf of both the sides, is unsatisfactory and in regard to the proof actual possession of appellant/plaintiff over the plaint schedule property cannot reasonably be expected in this case. Further held that even though the suit is for bare injunction, yet, there is necessity in the case to look on the aspect whether, the appellant/plaintiff or the respondent/defendant has got title over the plaint schedule property. 10. When the suit itself is for bare injunction, both plaintiff as well as defendant are failed to prove their possession in the property, there is no wrong in proceeding by the lower appellate Court basing on the title of the property. 11. Further the lower appellate Court observed that there is no dispute that the total extent of land in the Survey No.410 is Ac.11.19 cents, in view of the admissions of DW.1 in his cross-examination that the entire land covered by Survey No.410 of Holagunda village belongs to Gali Siddana Gowd’s family (plaintiff) and an extent of Ac.4.80 of land was acquired by the Government, and that an extent of Ac.3.03 was sold by the plaintiffs’ father, to one Pinjari Hanumakka. DW.1 also admitted that his father purchased Ac.3.03 cents from the said Hanumakka to whom the father of plaintiff sold the above extent. DW.1 also admitted that his father purchased Ac.3.03 cents from the said Hanumakka to whom the father of plaintiff sold the above extent. Even though the contention of DW.1 that he purchased 12 cents of land from his father, he is unable to produce any document with regard to his submission. 12. When the defendant is unable to prove his title through link documents, the lower appellate Court rightly pointed out that how the revenue authorities incorporated the name of the defendant in the pass books and title deed, issued in favour of the respondent/defendant. Since the defendant himself has admitted that originally the land in Survey No.410 of Holagunda village belongs to the family of the appellant/plaintiff and there is no documentary evidence, envisaging the sole transaction in support of the plaint schedule property in favour of the respondent/defendant’s father, the pass books or title deeds in favour of the defendant is of no value. 13. In view of the above observations, the lower appellate Court has allowed the appeal by setting aside the judgment and decree passed by the learned Junior Civil Judge at Aluru, in O.S.No.74 of 2001, dated 20.11.2006 and granted permanent injunction against the respondent/defendant restraining him from interfering with the appellant/plaintiff’s peaceful possession and enjoyment over the plaint schedule property. 14. Aggrieved by the said orders, the defendant has filed the present appeal. At the time of admission on the grounds raised by the appellant, at para No. 7 (a), (b), (c) and the appeal has been admitted. 15. Heard both sides. 16. To substantiate his legal grounds raised by the appellant, he has relied upon the judgment, between P. Buchi Reddy and Others Vs. Anantula Sudhakar, 1999 (2) ALD 327 at para 13 held that “it is well settled that in a suit for injunction, the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession, though without title, can resist interference from another, who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. 17. Further relied on the decision in D.Appa Rao Vs. It is also well settled that a person in possession, though without title, can resist interference from another, who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. 17. Further relied on the decision in D.Appa Rao Vs. D.Rama Mohan Rao, 1995 (2) ALT 678 , held that “to obtain interim injunction pending disposal of the suit, the plaintiff has to establish prima facie that he is in possession and enjoyment of the suit schedule property on the date of filing of the suit by adducing necessary oral and documentary evidence, but he cannot rely upon the weakness and lacunae in the case of the defendant”. 18. Finally he relied on the judgment reported in S.Prabhavati Vs. Rohini Kilaru and Others, 2006 (5) ALD 606 wherein it is held, “when plaintiff comes to Court for permanent injunction, entire burden lies on him/her to prove prima facie case, balance of convenience, irreparable loss and hardship. Moreover, weakness in the evidence of the defendants was of no avail to claim an order of injunction”. 19. No doubt in the instant case, either of the parties are unable to prove their possession over the property, hence the lower appellate court, on the basis of title has granted the permanent injunction and moreover, the observations of the Hon’ble High Court in judgment reported in 1995 (2) ALT 678 pertaining to granting of temporary injunction, which is not relevant to the instant case. 20. Finally the observations of the Hon’ble High Court in 2006 (5) ALD page 606, there is no doubt with regard to the burden lies on the plaintiff, to prove prima facie case and the balance of convenience. 21. In the instant case, the lower appellate Court has rightly pointed out that when there is no proof of actual possession of the plaintiff/defendant, over the plaint schedule property, has came to the conclusion that basing on the undisputed facts with regard to the title over the property. 22. 21. In the instant case, the lower appellate Court has rightly pointed out that when there is no proof of actual possession of the plaintiff/defendant, over the plaint schedule property, has came to the conclusion that basing on the undisputed facts with regard to the title over the property. 22. As far as the title of the plaintiff is concerned, is also admitted by the defendant in his cross-examination, and it is evident that twice the land acquisition proceedings was initiated, compensation was paid to the plaintiff’s family and it is not in dispute that out of Ac.11.19 cents of total extent in Survey No.410 of Holagunda village belongs to the Gali Siddana family and out of total extent, after land acquisition and sale made to one Pinjari Hanumakka, only 12 cents of land is in the hands of plaintiff’s possession, so also it is not in dispute that the father of the defendant has purchased 3.03 cents of land in Survey No.410 of Holagunda village from Pinjari Hanumakka, hence, at any rate the father of the defendant has purchased the land in Survey No.410 has only 3.03 cents, for the plaint schedule land of 12 cents, he is unable to produce any document or title over the property. 23. To substantiate his contentions, the respondent/plaintiff has placed reliance upon the judgments reported in the decision, between Cosmopolitan Cooperative Housing Society Limited and another Vs. State of Andhra Pradesh represented by its District Collector, Ranga Reddy District, Hyderabad and others, 2009 (3) ALT 693 , wherein considered the point that “entries in the revenue records, do not confer title by themselves nor can they take away the title, if it is otherwise exists”, and it is held that the entries that are existed in the revenue records do not confer title by themselves nor can they take way the title, if it otherwise exists”. Therefore, merely claiming that their names were entered in the revenue records would not confer any right nor would take away any right existing in a rightful owner. 24. Here, the respondent/plaintiff’s title is not in dispute and in fact the defendant also has not disputed his title over the property and when both the parties have failed to prove their possession over the property, the first appellate Court has rightly observed that the possession follows title and accordingly granted permanent injunction. 25. 24. Here, the respondent/plaintiff’s title is not in dispute and in fact the defendant also has not disputed his title over the property and when both the parties have failed to prove their possession over the property, the first appellate Court has rightly observed that the possession follows title and accordingly granted permanent injunction. 25. In view of the above discussion, no substantial question of law is involved in the present appeal and there is no error in the judgment in the appeal suit No.59 of 2006. Accordingly the second appeal is dismissed confirming the judgment of II Additional District Judge, Kurnool, Adoni, dated 19.08.2009, in granting permanent injunction. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.