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2023 DIGILAW 1335 (AP)

S. Nalini v. Anthony`s Church

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT 1. The Second Appeal has been filed assailing the Judgment and Decree dtd. 2/3/2016, passed in A.S.No.170 of 2010 by the learned IV Additional District Judge, Tirupati, Chittoor District (in short "the first appellate court") in confirming the Judgment and decree dtd. 26/7/2010 in O.S.No.873 of 2007 passed by the learned Principal Junior Civil Judge, Tirupati (in short "the trial court"). 2. The parties will herein after be referred to as they are arrayed in the Original Suit for the sake of convenience. 3. The Appellant herein is the plaintiff; respondent is the defendant before the trial court. 4. The plaintiff filed the suit for grant of permanent injunction restraining the defendant, its office bearers, agents, followers etc., from trespassing into or in any way interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property. The averments in the plaint, in brief are as under:- The plaint occupied the plaint schedule property and in recognition of her possession, the revenue authorities have granted B.Memos dtd. 2/3/1980 and 5/4/1981 and she has been paying cist for the site. After due enquiry, she was also granted a Patta dtd. 14/4/1982 for an extent of Ac. 0.05 cents in Sy.No.430 of Karakambadi Village Accounts bearing Plot No.2 and house bearing No.19-377 on Tirupati-Chennai road. The plaintiff constructed a shop and doing business therein by obtaining electricity service connections one in the name of her father-in-law and another one in the name of her brother-in-law. Except the plaintiff, the defendant and anyone has no right and title or interest over the plaint schedule property. On 15/8/2007 the defendant with his office bearers and followers attempted to dispossess the plaintiff from the plaint schedule property and with great difficulty the plaintiff resisted their attempts. Hence the suit. 5. The defendant in the suit filed written statement by denying all material allegations and contended that there is hut in the suit schedule property belongs to Jayaprakash and others and the plaintiff having trespassed into the suit schedule land by claiming the Hotel as her own including the site. The defendant Church in order to construct Orphanage home for girls in the suit schedule site has made necessary arrangements and when the suit schedule was about to be handed over to the defendant by Jayaprakash and his brother, the plaintiff has trespassed and occupied the same. The defendant Church in order to construct Orphanage home for girls in the suit schedule site has made necessary arrangements and when the suit schedule was about to be handed over to the defendant by Jayaprakash and his brother, the plaintiff has trespassed and occupied the same. The suit schedule property is not a DKT land and it is a private land belongs to defendant. The DKT Patta filed by the plaintiff is a fabricated and spurious document created for the purpose of knock away the Church property. One S. Jayaprakash and others, who are sons of late Sivarama Nair have filed O.S.No.1318 of 2005 on the file of I Additional Junior Civil Judge, Tirupati for injunction restraining the defendant therein not to evict them by force claiming tenancy with the defendant therein and the said suit was decreed in favour of the defendant on 23/2/2007 with a direction to deliver vacant possession of the suit site within three months by Jayaprakash and others. But they failed to do so. The actual tenants namely Jayaprakash and others approached the defendant for compromise and vacated the suit premises, while handing over the suit site, the plaintiff highhandedly trespassed and occupied the premises and filed a suit. The defendant filed a suit for damages against Jayaprakash and others in O.S.No. 56 of 2007 and the same was decreed by awarding damages of Rs.5,00,000.00 and filed O.E.P.No.56 of 2007 which pending. Hence the suit is liable to be dismissed. 6. Based on the above pleadings, the trial court eventually framed the following issues for trial: 1. Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for? 2. To what relief? Based on the above additional written statement pleadings, the trial court eventually framed the following additional issues were settled: 1. Whether the plaintiff is in possession of the property bearing Door No.19-377 as on date of filing of the suit? 2. To what relief? 7. During the course of trial PWs-1 to 4 have been examined on behalf of the plaintiff and Ex.A1 to A14 have been marked and on behalf of the defendant, DWs-1 to 6 have been examined and marked Ex.B1 to B12, Exs. X1 to X3. 8. 2. To what relief? 7. During the course of trial PWs-1 to 4 have been examined on behalf of the plaintiff and Ex.A1 to A14 have been marked and on behalf of the defendant, DWs-1 to 6 have been examined and marked Ex.B1 to B12, Exs. X1 to X3. 8. After considering the material available on record, the trial court dismissed the suit holding that the plaintiff though is proved to have been in possession of the plaint schedule property as on the date of the suit, is not entitled to the relief of permanent injunction against the defendant. Assailing the said decree and judgment of the trial court, the plaintiff has preferred an appeal in A.S.No.170 of 2010. The first appellate court has framed the following points for determination in the Appeal: 1. Whether the appellant/ plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? 9. The First Appellate Court after considering the facts and circumstances of the case dismissed the appeal on merits on 2/3/2016 by confirming the Judgment and decree of the trial court. Assailing the Judgment of the First Appellate Court, the appellant herein, who are plaintiff before the trial court has filed this Second Appeal, seeking to set aside the decree and Judgment of the first appellate court. 10. This court while admitting the Second Appeal has framed the following substantial question of law, which are as under:- a) Whether the lower Appellate Court erred in confirming the judgment of the Trial Court and also erred in holding that the appellant was bound to establish title, though she filed a suit for injunction and when the evidence on record revealed that the respondent had no title to the property? b) When the finding of the Trial Court that the appellant is in possession of the plaint schedule property, as on the date of filing of the suit, is not disturbed by the lower Appellate Court, whether the lower Appellate Court can deny relief of injunction to the appellant on the ground that there is no evidence on record to show that she was assigned the land? c) When the plaintiff produced Ex.A.5, which is the order assigning the subject land to her on 14/4/1982 by the Tahsildar, Chandragiri and she is found to be in possession thereof, whether relief of permanent injunction can be denied to her on the ground that the Revenue Officials can cancel the patta subsequently? And d) Whether the Courts below acted perversely in refusing the relief of permanent injunction to the appellant? 11. Heard Mr. A. Chandraiah Naidu, learned counsel for the appellant and Mr. K. Maheswara Rao, learned counsel for the respondent. 12. During hearing learned counsel for the appellant/ plaintiff would contend that both the courts failed to appreciate the settled law that except the true owner none else have the better title than that of the person in possession of the property, but erroneously dismissed the suit, inspite of producing the house site patta in Ex.A5 and the admission of the defendant that he is not the owner. Further the trial court failed to appreciate that having taken the plea in the written statement that the defendant is the owner of the suit schedule property, the defendant deposed that the church is not the owner, but the Government is the owner, which is quite contrary to his pleading in the written statement, but the trial court held that the plaintiff suppressed the material facts in the light of Ex.B1 to B11, which are not within the knowledge of the plaintiff as she is not a party to the proceedings and though the trial court held that the said Judgment in O.S.No.1782 of 2005 is not binding on the plaintiff. It is further contended that the trial court failed to appreciate the fact that the plaintiff has running business in the plaint schedule property, but came to conclusion that the plaintiff not only failed to prove her continuous possession from 1980 as claimed by her, but also failed to substantiate her claim basing on Ex.A5, though the trial court held that the defendant failed to prove that Ex.A5 is a fake and bogus document. Therefore the judgment of the both the courts below are mere surmises and that same is liable to be set aside. 13. In support of the case of the appellant/ plaintiff, learned counsel for the appellant relied on a decision of this Court in "K.Abdul Raheem (died) per L.Rs. v. Hajeerappa and Others",http://indiankannoon.org/doc/22343906. Therefore the judgment of the both the courts below are mere surmises and that same is liable to be set aside. 13. In support of the case of the appellant/ plaintiff, learned counsel for the appellant relied on a decision of this Court in "K.Abdul Raheem (died) per L.Rs. v. Hajeerappa and Others",http://indiankannoon.org/doc/22343906. wherein it was held as follows: "13. At the outset, it may be stated that though there is an assertion on the part of the plaintiff that he had perfected his title by adverse possession and based his title on possessory title too the same had been specifically denied by the respondents/ defendants. No issue in this regard had been framed, most probably, for the reason that it is only a suit for mere injunction and hence, the question of title may have to be incidentally gone into. In Rame Gowda (died) by LRs. Case (supra) the three Judge Bench of the Apex Court held that when a suit was filed with an allegation that the defendant is trying to encroach the land of the plaintiff and the Court found that the plaintiff proved his possession, but he failed to prove his title, suit can be decreed granting injunction...." He further relied on a decision of the Hon'ble Apex court in "Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. and Others",. wherein it was held as follows: "12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant of challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/ licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally." 14. Whereas learned counsel for the respondent reiterated the contents urged before the courts below and place reliance on a decision of the Hon'ble Apex Court in "Anaathula Sudhakar v. P. Buchi Reddy (dead) by LRs. and Others", (2008) 4 SCC 594 . wherein it was held as follows: "13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. wherein it was held as follows: "13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title." 15. In a suit for bare injunction, the burden of proof is on the plaintiff to show not only his possession as on the date of the suit, but also his incidental title thereto. In order to prove Ex.A5 the plaintiff did not examine any of the Revenue authorities to show that it was issued in the name of the plaintiff in respect of the plaint schedule property. As per evidence of PWs 2 to 4 would show that plaintiff is in possession of the plaint schedule property as on the date of filing of the suit, the discretionary relief of permanent injunction cannot be granted in favour of plaintiff as the evidence has not established any incidental title thereto. Further she was granted house site patta in the year 1982 by the Revenue authorities, but the same can be cancelled at any time. Therefore she cannot get absolute right and title to the plaint schedule property, after removing the constructions if any made therein. Further it was held that there is a well settled law that the plaintiff cannot rely upon the weaknesses in the case of the defendant. The burden of proof is on the plaintiff in the instant case to establish her title. Therefore the first appellate court dismissed the appeal on the ground that as there is no evidence on record to show that the plaintiff is entitled for the assigned land claiming that she is a farmer. 16. After close scrutiny of the findings of the both trial court as well as first appellate court, this Court opines that both the courts below have taken into consideration the material aspects and discussed the case law scrupulously on each and every aspect in proper perspective and finds any impropriety therein. The courts below have given valid reasons in its judgments. Further this Court finds that the case law relied upon by the respondent is applicable to the facts of this case. The courts below have given valid reasons in its judgments. Further this Court finds that the case law relied upon by the respondent is applicable to the facts of this case. Therefore there is some force in the argument of the learned counsel for the respondent to dismiss the Second Appeal. Under these circumstances the Judgments of courts below requires no interference and that this Second Appeal is liable to be dismissed. 17. Accordingly, the Second Appeal is dismissed, confirming the judgments of the courts below. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.