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2024 DIGILAW 1000 (AP)

P. Prathap Goud v. N P Yerriswamy

2024-08-07

B SYAMSUNDER

body2024
JUDGMENT : Bandaru Syamsunder, J. The plaintiff in OS.No.65 of 2007 on the file of Junior Civil Judge’s Court, Uravakonda of Ananthapuramu District is the appellant. The respondents are the defendants in the suit. 2. The appellant and the respondents hereinafter be referred to as plaintiff and defendants as arrayed before the trial Court. 3. The plaintiff instituted the suit against the defendant Nos.1 to 3, seeking injunction simpliciter in respect of site shown as ‘EFGH’ in Ex.A3/plaint plan. The plaint schedule property is shown in the plaint, which reads as under: SCHEDULE EFGH property shown in the plaint plan situated in Palthur village, SRD of Uravakonda, RD of Anantapur within the following particulars: East-West 40 feet, North-South 8 feet. Bounded by: East Drainage channel; West Avajappa old walls and open space North ABCD house South Defendants house. 4. It is the contention of the plaintiff that he is resident of Palthur village, a house site patta was granted by the Revenue authorities on 25.08.1970 in favour of one P.Channa Basavana Gowd, who is his Senior Paternal Uncle, and ever since granting of Ex.A1/patta in favour of his Senior Paternal Uncle, his uncle and after him, himself is in possession and enjoyment of patta land, wherein he constructed a house about 15 years back, which is shown as ‘ABCD’ in Ex.A3/plaint plan. There is open space to the south of ‘ABCD’ house of the plaintiff, which is shown as ‘EFGH’, wherein the plaintiff has constructed bathroom and lavatory with measurements of 6 feet x 8 inches shown in Ex.A3/plaint plan as ‘IJGF’ and remaining portion is shown as ‘JIEH’, which is being used by the plaintiff for washing the clothes. The plaintiff submits that the defendant Nos.1 and 2, who are natural brothers, and the defendant No.3 is the wife of the defendant No.2, they got house towards south of plaint schedule property, shown as ‘KLMN’ in the plaint plan, and the defendant Nos.1 and 2 divided their house into two portions, wherein eastern portion shown as ‘KLMN’ fell to the share of the defendant No.1 and western side portion shown as ‘KLMN’ fell to the share of the defendant No.2. The defendant No.3 got divided from the defendant No.2, she got half share in the house of the defendant No.2. The defendant No.3 got divided from the defendant No.2, she got half share in the house of the defendant No.2. It is also the contention of the plaintiff that the defendants are not having windows and door ways towards northern site, i.e., into plaint schedule property and when they intended to construct a new house and tried to open a door towards northern side with an intention to knock away the plaint schedule property and tried to use for their own purpose, which was prevented by him, and then filed suit for permanent injunction, restraining the defendants not to interfere with his possession of the portion shown as ‘EFGH’ in Ex.A3/plaint plan. 5. The defendants filed written statement, resisting the claim of the plaintiff. It is the contention of the defendants that house constructed by Mr.P.Channa Basavana Gowd is not within the boundaries specified in the house site patta granted to him. They submit that the plaintiff has no locus standi to file suit regarding patta land, and the plaint schedule property is not within the boundaries of house site patta granted by the Government, as there is open site in between the defendants’ site and site granted to Mr.P.Channa Basavana Gowd, and the said site belongs to the Government, if at all there is any objection, the Government alone has got right to proceed against them. It is also the contention of the defendants that the suit is not maintainable, which is filed by the plaintiff only to harass them, as they never trespassed into the plaintiff’s land, and the plaintiff has no right to construct bathroom and lavatory in the disputed site under the guise of patta granted to Mr.P.Channa Basavana Gowd, who is also having children, due to that there is no cause of action to file a suit. They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues: 1. “Whether the plaintiff is entitled for permanent injunction against the defendants and their men as prayed for? 2. Whether the plaintiff has locus standi to file the suit or not? 3. Whether between the house of plaintiff and defendants there is open space which belongs to Government or not? 4. To what relief? 7. The parties went to trial. On behalf of the plaintiff, PW.1 to PW.3 were examined. Exs.A1 to A7 were marked. 2. Whether the plaintiff has locus standi to file the suit or not? 3. Whether between the house of plaintiff and defendants there is open space which belongs to Government or not? 4. To what relief? 7. The parties went to trial. On behalf of the plaintiff, PW.1 to PW.3 were examined. Exs.A1 to A7 were marked. On behalf of the defendants, DW.1 and DW.2 were examined, but no documents were marked. 8. On appreciation of oral and documentary evidence, the trial Court dismissed the suit, filed by the plaintiff with an observation that the plaintiff has no locus standi to file a suit in view of Mr.P.Channa Basavana Gowd is having legal heirs and also, on the ground that the suit for injunction simplicitor is not maintainable without prayer for mandatory injunction. 9. Aggrieved by the Judgment and Decree passed by the trial Court, the plaintiff presented AS.No.51 of 2009 on the file of III Additional District Judge (Fast Track Court), Anantapur, which was dismissed by the First Appellate Court, confirming the Judgment and Decree passed by the trial Court. 10. In these circumstances, the present Second Appeal is presented. 11. I have heard learned Counsel Mr.Sravan Kumar, representing on behalf of Mr.O.Manoher Reddy, learned Senior Counsel for the appellant as well as learned Counsel Mr.Rohit, representing on behalf of Mr.Maheswara Rao Kunchem, learned Counsel for the respondent Nos.1 and 2/defendant Nos.1 and 2. 12. The learned Counsel, representing the appellant would submit that there is no dispute with regard to existence of house of the plaintiff as shown in Ex.A3/plaint plan, and construction of bathroom in the plaint schedule site. He would further submit that the defendants have no right to question possession and enjoyment of the plaintiff in respect of plaint schedule property when the plaintiff is in settled possession of the same. He argued that in a suit for injunction simplicitor when the plaintiff is in settled possession of plaint schedule property, he is entitled to seek equitable relief of injunction against the person, who has no title and possession over the disputed property. He relied on the ratio laid down of this Court in Alla Seshukumar and another vs. Alla Radha Krishna. 2008 (1) ALD 748 , wherein it is held at Para Nos.11 and 12, which reads as under: “11. He relied on the ratio laid down of this Court in Alla Seshukumar and another vs. Alla Radha Krishna. 2008 (1) ALD 748 , wherein it is held at Para Nos.11 and 12, which reads as under: “11. In the present case, the first plaintiff is no other than the wife of the defendant. Irrespective of the validity of the gift, she entered into possession through Ex.Al gift deed in 1987 and she continues to be in possession of the property till the date of filing of the suit. As the first plaintiff continues to be in possession of the property for a long period by taking possession under Ex.Al gift deed and as the property was said to be the joint family property of the second plaintiff and the defendant, the Courts below went wrong in observing that the first plaintiff took possession of the property under a void gift, therefore, the first plaintiff is not entitled for injunction. 12. Whether the gift is valid under law, whether the gift was cancelled under the revocation deed and whether the defendant continues to be the owner of the property are the questions to be decided in separate proceedings for declaration of title etc. As the defendant did not file either the revocation deed or any scrap of paper to show that either he took redelivery of the property or that he is continuing in possession of the property without delivery to the first plaintiff, the first plaintiff is entitled for the relief of injunction in respect of item No.1 also. The Courts below went on deciding the question of title without prayer for the same and gave findings in respect of title, therefore, I am inclined to hold that the findings regarding the title are not binding on the plaintiffs as the suit was only for perpetual injunction”. He would further submit that both Courts have erroneously held that the plaintiff has no locus standi to file a suit when the Government has not objected for the possession of the plaintiff in respect of plaint schedule property. He further argued that DW.2 admitted in his crossexamination that the plaintiff constructed his house about 15 years back, including lavatory and bathroom in the plaint schedule property, which shows that the plaintiff is in settled possession of plaint schedule property, which failed to consider by both Courts. He further argued that DW.2 admitted in his crossexamination that the plaintiff constructed his house about 15 years back, including lavatory and bathroom in the plaint schedule property, which shows that the plaintiff is in settled possession of plaint schedule property, which failed to consider by both Courts. He prays to allow the appeal. 13. The learned Counsel, representing the respondents would submit that both Courts gave concurrent findings that the plaintiff has no locus standi to file a suit, seeking equitable relief of permanent injunction, as admittedly Ex.A1 was issued in favour of one Mr.P.Channa Basavana Gowd, who is also having legal heirs and the plaintiff has no interest in the subject matter, due to that he is not entitled to claim equitable relief of injunction, which rightly rejected by both Courts. He prays to dismiss the appeal. 14. This Second Appeal was admitted on the following substantial questions of law: a)”Whether the Courts below erred in holding against the appellant on the ground that the plaint schedule property is assigned land which is incapable of alienation by his uncle when the dispute in the suit is not against the State Government? b)When the possession of the appellant of the plaint schedule site is accepted by the lower Appellate Court, whether the appellant could be denied relief of injunction against the respondent who has not shown any better title than the appellant? and c) Whether both the Courts acted perversely in holding that the appellant did not come to the Court with clean hands merely because he did not show that the Government had open place to the south of the land shown in Ex.A1?” 15. As per Section 100 of Code of Civil Procedure (In short ‘CPC’), this Court can interfere with the Judgment of the Appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by the Appellate Court is binding on this Court, unless there is any error of law in such finding. Even a wrong finding of fact is not sufficient to constitute a question of law. 16. The Hon'ble Apex Court in Narayan Sitaramji Badwaik (dead) through LRs. Vs. Bisaram and others, in Civil Appeal No.6124 of 2011, Judgment dated 17.02.2021 explained circumstances under which High Court determines issue of fact. 17. The Hon’ble Apex Court in Chandrabhan (Deceased) Through LRs. Even a wrong finding of fact is not sufficient to constitute a question of law. 16. The Hon'ble Apex Court in Narayan Sitaramji Badwaik (dead) through LRs. Vs. Bisaram and others, in Civil Appeal No.6124 of 2011, Judgment dated 17.02.2021 explained circumstances under which High Court determines issue of fact. 17. The Hon’ble Apex Court in Chandrabhan (Deceased) Through LRs. And Others – Appellants vs. Saraswati and Others – Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated 22.09.2022, explained the scope of Section 100 of CPC and laid down the principles relating to Section 100 of CPC at Para No.33 of the Judgment, which reads as under: "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (Emphasis supplied) (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence," it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 18. Both Courts gave concurrent findings that the plaintiff has no locus standi to file a suit, and he failed to show the Government site on the southern side of his house as shown in Ex.A1. It is no doubt true that as per the ratio laid down by this Court in Alla Seshukumar and another case, referred supra, this Court by following the ratio laid down by the Hon’ble Apex Court in Rame Gowda vs. M.Varadappa Naidu, 2004 (2) ALD 31 (SC) held that if a person files a suit for injunction simplicitor complicated questions of title cannot be decided, and his possession of the property on the date of filing of the suit has to be considered, and when a person who is seeking equitable relief of injunction able to establish that he is in settled possession of plaint schedule property, he is entitled to seek equitable relief of injunction. Now, it would be beneficial to quote Section 41 of Specific Relief Act, 1963, which reads as under: “41. Now, it would be beneficial to quote Section 41 of Specific Relief Act, 1963, which reads as under: “41. Injunction when refused.— An injunction cannot be granted— (a)to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b)to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c)to restrain any person from applying to any legislative body; (d)to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e)to prevent the breach of a contract the performance of which would not be specifically enforced; (f)to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; (g)to prevent a continuing breach in which the plaintiff has acquiesced; (h)when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; (i)when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; (j)when the plaintiff has no personal interest in the matter. 19. As per Section 41(j) when the plaintiff has no personal interest in the matter, he is not entitled to seek equitable relief of injunction. In the present case, after perusing the pleadings on both sides, and evidence placed before the trial Court, which clearly shows that the plaintiff is claiming equitable relief of injunction, for which he has to establish the breach of an obligation or infringement of his legal right. As a person seeking relief of injunction, should show the violation of his right by the act complained of and if that act is carried into effect, it must result in infringement of his legal right. Though, in a suit for injunction, primary question to be considered is one of the possessions on the date of filling of the suit, the plaintiff has to establish that he has got legal right to get equitable relief of injunction against the defendants. The plaintiff shall also establish that the defendants are not justified in interfering with his legal right and possession over the suit schedule property. 20. The plaintiff shall also establish that the defendants are not justified in interfering with his legal right and possession over the suit schedule property. 20. Admittedly, Ex.A1/DKT house site patta was granted in favour of one Mr.P.Channa Basavana Gowd said to be Senior Paternal Uncle of the plaintiff. The boundaries and measurements are specifically stated in Ex.A1/patta, which reads as under: North Road East Government site South Government site West Walls of Avvajappa house. Within this, Ac.0.06 cents of site measuring 66’x40’ square feet. 21. When schedule shown in Ex.A1 compared with the plaint schedule, which clearly shows that the plaintiff has not shown the Government site on southern side and he has shown that on the south of plaint schedule property, there is house of the defendants, which shows that the plaintiff by including the Government site, he has shown southern boundary as the house of the defendants. Admittedly, Ex.A1 not stands in the name of the plaintiff to claim personal interest in the subject matter to get equitable relief of permanent injunction. Though, it is said to be admitted by DW.2 in his cross-examination that the plaintiff has constructed his house, lavatory and bathroom about 15 years back, the fact remains is that the contention of the plaintiff is that the defendants are opening their door way to the northern site of their house shown as ‘EIHJ’, which is vacant site. In respect of small extent of vacant site, the plaintiff has to prove his title to claim possession to rely on, the theory of possession follows title. In the present case, Ex.A1 shows that the house site granted in favour of Senior Paternal Uncle of the plaintiff, which is not stand in the name of the plaintiff to claim title over the disputed property to apply the theory of possession follows title. 22. Though, the dispute is not with the Government, when the plaintiff is claiming equitable relief of permanent injunction, he has to show that he has got personal interest in the subject matter, and he was in possession of ‘EIHJ’ site shown in Ex.A3/plaint plan, which is admittedly vacant site, which failed to prove by the plaintiff as rightly held by the Courts below. The learned Appellate Judge held that the plaintiff said to be constructed his house within the measurements shown in Ex.A1 to claim possession over the plaint schedule property, and also observed that the plaintiff failed to prove that ‘EFGH’ portion shown in Ex.A3/plaint plan belongs to him, and it is not the site of the Government. Even, the plaintiff has not pleaded that ‘EFGH’ site belongs to the Government and that he is in exclusive possession and enjoyment of the same since long time. It is also observed by the First Appellate Court that the plaintiff has not taken steps to get the plaint schedule property measured with the assistance of Commissioner to show that he made constructions of his house within the measurements shown in Ex.A1. The ratio laid down by this Court in Alla Seshukumar and another case, relied on by the learned Counsel for the appellant is not applicable to the facts of the present case, as in the present case Ex.A1/patta not stands in the name of the plaintiff and that he has no personal interest in the subject matter to claim equitable relief of permanent injunction. 23. Though, the dispute is not with the Government, the plaintiff has to prove personal interest in the subject matter when he is seeking equitable relief of permanent injunction, and he must come with clean hands by showing correct boundaries when he is claiming right and possession over plaint schedule property under Ex.A1. When the plaintiff failed to prove that he has got personal interest in the subject matter, he is not entitled to seek equitable relief of permanent injunction, which rightly denied by both Courts. 24. Basing on material and evidence, both Courts have rightly appreciated the evidence, and dismissed the suit, filed by the plaintiff. The substantial questions of law framed are answered accordingly. 25. In the result, this Second Appeal is dismissed. In the circumstances of the case, both parties are directed to bear their own costs. Consequently, all pending miscellaneous petitions, if any, shall stand closed. The Interim Orders granted earlier, if any, shall stand vacated.