S. Md. Sharif [Died] By Lrs v. Mohammad Osman Died By Lrs
2024-03-06
V.R.K.KRUPA SAGAR
body2024
DigiLaw.ai
JUDGMENT : (V.R.K. KRUPA SAGAR, J.) Legal representatives of the original plaintiff have preferred this Appeal under Section 100 of Code of Civil Procedure (C.P.C.). Legal representatives of the original defendant are the respondents herein. 2. Sri Mohammad Sharif instituted O.S.No.59 of 1988 as against SriMohammad Osman with a prayer for declaration of title of plaintiff over the plaint schedule property and a consequential permanent injunction restraining the defendant and his men from trespassing into any portion of the plaint schedule property and for costs and such other reliefs. The claim of title was made stating that property originally belonged to the ancestors of the plaintiff and it all came by succession. 3. Defendant filed the written statement denying the plaint averments and contended that the property belonged to the Mosque and the plaintiff having joined as a tenant in a small portion of a space for running a hotel has come up with all false pleas and sought dismissal of the suit. 4. Learned trial Court settled the following issues for trial: 1. Whether the plaintiff has got title over the plaint schedule property? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief? 5. At the trial, on behalf of the plaintiff, PWs.1 to 5 were examined and Exs.A.1 to A.39 were marked. On behalf of the defendant, DWs.1 to 3 were examined and Exs.B.1 to B.18 were marked. The advocate commissioner-PW.5 marked Exs.C.1 and C.2. 6. After an elaborate consideration of the evidence on record, learned District Munsif, Banaganapalle by a judgment dated 19.01.1993 found that plaintiff has no title over the property and his possession over the property is unlawful and accordingly it refused to grant all the reliefs and dismissed the suit with costs. 7. Aggrieved by it, the sole plaintiff preferred A.S.No.5 of 1993 before the learned Principal Senior Civil Judge, Nandyal. During the pendency of the appeal, the sole appellant died and his legal representatives came on record as appellant Nos.1 to 5. The sole defendant also died and his legal representatives came on record as respondent Nos.1 to 4. 8. On hearing the submissions on both sides, learned first appellate Court framed the following points for its consideration: 1. Whether the plaintiffs proved their title by satisfactory evidence? 2. Whether the plaintiffs perfected their title by way of adverse possession? 3.
The sole defendant also died and his legal representatives came on record as respondent Nos.1 to 4. 8. On hearing the submissions on both sides, learned first appellate Court framed the following points for its consideration: 1. Whether the plaintiffs proved their title by satisfactory evidence? 2. Whether the plaintiffs perfected their title by way of adverse possession? 3. Whether the plaintiffs are entitled for permanent injunction? 4. Whether the decree and judgment of the lower court suffers from any irregularity on facts or law? 5. Whether the documents which were sought to be tendered by the plaintiffs by way of additional evidence can be received? 9. After considering the material on record, by a judgment dated 24.04.2007 the learned first appellate Court dismissed the appeal and confirmed the trial Court judgment. At paragraph No.26 the learned first appellate Court recorded that on evidence it was found that the plaintiff has been in possession and enjoyment of the suit schedule property. It also observed that despite orders of status quo the appellants built a pucca building in the suit site (it may be mentioned that in the original suit the plaint schedule mentions existence of a hut). Holding that the possession held by the plaintiff is unlawful, it refused to grant even the relief of permanent injunction. 10. Aggrieved by that, the present appeal is preferred by the plaintiffs. During the pendency of this appeal respondent No.4 died and his legal representatives were brought on record as respondent Nos.5 to 7. 11. On 02.08.2007 this Court admitted the appeal on the following substantial questions of law: 1. Can the trial Court and the first appellate Court dismiss an action for injunction, even in case the possession is admitted by the defendant and same having been taken judicial notice by both the Courts, with resultant findings to that effect, for failing to establish case as far as the relief of declaration of title is concerned? 2. Can the trial Court and the first appellate Court refused to grant relief of injunction, even in case where possession is established/admitted, for the reason that, the case on the question of declaration of title is not made out? 3. Can a Court dismiss the suit in entirety, even where there is an admission of the part of the claim and where such partial relief is separable and independent of the main claim? 12.
3. Can a Court dismiss the suit in entirety, even where there is an admission of the part of the claim and where such partial relief is separable and independent of the main claim? 12. Sri M.Bala Subrahmanyam, the learned counsel for appellants and Smt. Vinodini Ruth, the learned counsel representing Smt. Harija Akkineni, the learned counsel for respondent Nos.5 to 7 submitted arguments. 13. The submission of the learned counsel for appellants is that since both the Courts below found on evidence that the appellants have been in possession of the suit schedule property they ought to have decreed the relief of permanent injunction even though both the Courts below found no material to declare the title of the plaintiffs/appellants. This being a legal error is required to be rectified by this Court. 14. As against this, the learned counsel for respondents submitted that since the main relief of the appellants was found not maintainable, the consequential relief of injunction could not have been granted and therefore the Courts below rightly refused the relief of permanent injunction and the impugned judgments do not require any interference. 15. Having bestowed attention on the rival submissions, this Court has to state that the relief in the suit was claimed on the basis of a title alleged to have been held by the plaintiff and therefore the primary relief he sought for is for declaration of title and the relief of permanent injunction is prayed as a consequential relief. Both the Courts below have found on evidence that the plaintiffs/appellants are not the title holders of the plaint schedule property and they declined to grant the relief of declaration. Thus, the question is whether the consequential relief of permanent injunction could be granted where the substantive relief was negatived. Law in this regard is laid down by the Hon’ble Supreme Court of India in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128 . The subject matter before their Lordships was about declaration of title and consequential relief of permanent injunction and also for cancellation of sale deed. The plaintiffs were found not entitled for title declaration and also the prayer for cancellation of sale deed. The only question remained was whether in such circumstances the consequential relief of permanent injunction could be or could not be granted.
The plaintiffs were found not entitled for title declaration and also the prayer for cancellation of sale deed. The only question remained was whether in such circumstances the consequential relief of permanent injunction could be or could not be granted. After analyzing Sections 31, 34, 38 and 41 of the Specific Relief Act and several other provisions, their Lordships concluded laying down the law that once plaintiff failed to get any substantive relief the consequential relief cannot be granted. It was in the light of such principle their Lordships held that the suitor therein, though was found in possession, was not entitled for the consequential relief of permanent injunction. The present case at hand squarely falls within the framework of the said ratio. Therefore, the impugned judgment of the learned first appellate Court which refused to grant the consequential relief of injunction to the appellants herein is right and is in accordance with law and therefore does not require any interference. All the points are held against the appellants. 16. In the result, this Second Appeal is dismissed. Consequently, the impugned judgment dated 24.04.2007 of learned Principal Senior Civil Judge, Nandyal in A.S.No.5 of 1993 stands confirmed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.