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2025 DIGILAW 720 (AP)

Akkena Ramulu v. Karri Bala Prasad Rao

2025-06-16

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : V. GOPALA KRISHNA RAO, J. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 24.03.2022 in A.S.No.26 of 2019, on the file of the II Additional District Judge, Parvathipuram (“First Appellate Court” for short) reversing the Judgment and decree, dated 31.01.2019 in O.S.No.122 of 2013, on the file of the Senior Civil Judge, Bobbili (“Trial Court” for short). 2. The appellants herein are the defendants and the respondents herein are the plaintiffs in O.S.No.122 of 2013. 3. The plaintiffs initiated action in O.S.No.122 of 2013, on the file of the Senior Civil Judge, Bobbili, with a prayer for granting permanent injunction restraining the defendants, their men, followers, friends from interfering with the plaintiffs’ peaceful possession and enjoyment of the plaint schedule properties and for costs of the suit. 4. The learned trial Judge dismissed the suit. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed A.S.No.26 of 2019, on the file of the II Additional District Judge Parvathipuram. The learned First Appellate Judge allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Aggrieved thereby, the defendants approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.122 of 2013, is as follows: One Karri Appalanaidu is the grandfather of the plaintiffs. He inherited some property from his ancestors. After his death, properties were inherited to his two sons,, they are Parisinaidu and Appalanaidu. Parisinaidu blessed with two sons they are plaintiffs herein and Appalanaidu blessed with four daughters. During the lifetime of Parisinaidu and Appalanaidu, they purchased the plaint schedule property under a registered sale deed No.1045/1950 from Vajarapu Ramamuduli and his son Narayana for a valid consideration. Since then, they enjoyed the plaint schedule property along with their ancestral property with absolute rights. Subsequently, the said Parisinaidu and Appalanaidu died leaving the plaintiffs and four daughters respectively as their legal representatives to their estate. Thereafter, the plaintiffs and four daughters of Appalanaidu orally partitioned their ancestral property along with the plaint schedule property. Since then, they enjoyed the plaint schedule property along with their ancestral property with absolute rights. Subsequently, the said Parisinaidu and Appalanaidu died leaving the plaintiffs and four daughters respectively as their legal representatives to their estate. Thereafter, the plaintiffs and four daughters of Appalanaidu orally partitioned their ancestral property along with the plaint schedule property. During the said partition, four daughters of Appalanaidu received cash equivalent to their shares. Thereafter, the plaintiffs became absolute owners of the plaint schedule property along with their property. During the lifetime of Parisinaidu, he mortgaged the schedule property to one Allu Gangunaidu, after death of Parisinaidu, the said mortgage is continued by the plaintiffs and thereafter the said Gangunaidu died and after his death, his children continued the said mortgage by the plaintiffs for some time and subsequently the said mortgage was redeemed. The defendants approached the plaintiffs and demanded for allotment of the plaint schedule property to them under a mortgage for a cheaper amount, but the plaintiffs refused to do so. Then the defendants developed grudge and waiting for an opportunity to grab the said land by hook or cook. One week back, the defendants along with their men trying to enter into the schedule property of the plaintiffs and on seeing the same, the plaintiffs and their people with great difficulty resisted them from enter into the plaint schedule property. Then the defendants threatened the plaintiffs that they would not allow the plaintiffs to be in peaceful possession of the plaint schedule property, their life and property would be in danger. Now they are also trying to interfere with the plaintiffs’ peaceful possession and enjoyment of the plaint schedule property and that they constrained to file the suit. 7. The 3 rd defendant filed written statement before the trial Court denying the material averments made in the plaint and the same was adopted by the defendant Nos.1 and 2. The brief averments in the written statement are as follows: (i) The claim of the plaintiffs is in respect of Ac.3-90 cents of land i.e., the total extent of the land covered by Sy.No.262/1. The plaintiffs base their claim on the registered sale deed, dated 29.06.1950 which clearly shows that their ancestors purchased only Ac.1-00 cents in extent. The plaintiffs cannot claim more extent of land than extent which is shown in their document of title i.e., sale deed. The plaintiffs base their claim on the registered sale deed, dated 29.06.1950 which clearly shows that their ancestors purchased only Ac.1-00 cents in extent. The plaintiffs cannot claim more extent of land than extent which is shown in their document of title i.e., sale deed. The plaintiffs suppressed the alleged mortgage document in respect of the schedule property said to have been executed by Parisinaidu in favour of Allu Gangunaidu nor placed any document in proof regarding the alleged continuation of the said mortgage by the plaintiffs in favour of Gangunaidu and his legal representatives. Plaintiffs might have suppressed the alleged documents due to the fact that the real facts regarding extent and other aspects will come out which are definitely against the pleadings of the plaintiffs. The names of neither the plaintiffs nor their ancestors nor their alleged vendors appear in the fair adangal. (ii) The defendant Nos.1 and 2 purchased Ac.0-80 cents of land from the real owners of the land viz., Penta Appalanaidu and Reddi Appalanaidu covered by Sy.No.262/1 under registered sale deed, dated 24.03.1960. The 1 st defendant sold away Ac.0-70 cents of land out of the land covered by Sy.No.261/1 to the 3 rd defendant under a registered sale deed, dated 19.03.2010. The defendant Nos.1 to 3 have been in possession and enjoyment of the land covered by Sy.No.262/1 right from the execution of sale deeds, dated 24.03.1960 and 19.03.2010 in respect of the property mentioned in the respective sale deeds. The plaintiffs are not entitled to maintain the suit for injunction against the real owners of the property. Mere suit for injunction without prayer for declaration under the circumstances of the case is not maintainable. 8. On the basis of above pleadings, the learned trial Judge framed the following issues for trial: (1) Whether the plaintiffs are entitled for permanent injunction as prayed for or not? (2) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.5 were examined and Exs.A.1 to A.14 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.3 were marked. 10. (2) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.5 were examined and Exs.A.1 to A.14 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.3 were marked. 10. The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit.Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.26 of 2019wherein, the following points came up for consideration: (1) Whether the impugned decree and judgment, dated 31.01.2019 of the trial Court is sustainable either factually or legally? (2) To what relief? 11. The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the defendants and allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful defendants in O.S.No.122of 2013 filed the present second appeal before this Court. 12. On hearing both sides counsel at the time of admission of the appeal, this Court framed the following substantial questions of law: (1) Whether the decree and judgment of the First Appellate Court is legally valid as the First Appellate Court has not traversed beyond the scope of the powers of Appellate Court, though the First Appellate Court is having powers to re-adjudicate the entire evidence on record, when there is serious dispute raised by the defendants/appellants herein with regard to the title of the plaintiffs/ respondents herein? (2) Whether the First Appellate Court is not committed an error in allowing the appeal filed by the respondents herein, when the matter involves complicated questions of fact and law relating to title or cloud of title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction, as held by the Hon’ble Supreme Court in (1) Jharkhand State Housing Board vs. Didar Singh and others, reported in 2019 (17) SCC 692, (2) T.V. Ramakrishna Reddy vs. M. Mallappa and others, reported in AIR 2021 SC 4293 and (3) Kayalulla Parambath Moldu Haji vs. Namboodiyil Vinodan, reported in 2021 (227) AIC 166 = 2021 (4) KLJ 505? (3) Whether the First Appellate Court is not committed an error in not considering the finding recorded by the trial Court to the effect that from the evidence let in by both parties, there is a clear dispute of title and identity of the property and when there is a cloud with regard to the title, obviously the plaintiffs have to approach the Court for declaration of their title so as to decide the title at length? 13. Heard Sri Chalasani Venkayya, learned counsel, on behalf of Sri Chalasani Ajay Kumar, learned counsel appearing for the appellants and heard Sri V. Mallik, learned counsel, on behalf of M/s. N. Anula, learned counsel appearing for the respondents. 14. The law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In a case of Bhagwan Sharma v. Bani Ghosh , [ AIR 1993 SC 398 ] , the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar , [AIR 1999 SC 471] , the Apex Court held as follows: “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 15.The Apex Court in Hero Vinoth Vs. Seshammal , [ AIR 2009 SC 1481 ] , held thus: "It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. Seshammal , [ AIR 2009 SC 1481 ] , held thus: "It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.” In the aforesaid case, the Apex Court further held as follows: “To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 16. The plaintiffs in the suit approached the trial Court for seeking relief of prohibitory injunction against the defendants in respect of the plaint schedule property. In the written statement itself the defendants pleaded that the plaintiffs are not entitled to maintain the suit for injunction against the real owners of the property and mere suit for injunction without a prayer for declaration is not yet maintainable. The defendants pleaded that the claim of the plaintiffs is based on a registered sale deed, dated 29.06.1950 alleged to have been obtained by their ancestors for an extent of Ac.1-00 cents only but the suit schedule property extent is Ac.3-90 cents, the plaintiffs cannot claim more extent of land than the extent which is shown in their sale deeds. The title of the plaintiffs is seriously disputed by the defendants in the written statement itself. As per the averments of the plaint, the grandfather of the plaintiffs i.e., Karri Appala Naidu and brother of Appala Naidu by name Parisinaidu, both of them purchased an extent of Ac.1-00 cents of land jointly under registered sale deed, dated 29.06.1950 under Ex.A.1. Appalanaidu died by leaving his two sons and Parisinaidu died by leaving his four daughters as their legal representatives. The suit schedule property covered under Ex.A.1 is Ac.1-00 cents only whereas the plaintiffs are claiming discretionary relief of permanent injunction for an extent of Ac.3-90 cents within the boundaries mentioned in the schedule property. 17. The case of the defendants as per the written statement filed by them is that the defendant Nos.1 and 2 purchased Ac.0-80 cents from the real owners of the land viz., Penta Appalanaidu and Reddi Appalanaidu covered by Sy.No.262/1 under a registered sale deed, dated 24.03.1960. 17. The case of the defendants as per the written statement filed by them is that the defendant Nos.1 and 2 purchased Ac.0-80 cents from the real owners of the land viz., Penta Appalanaidu and Reddi Appalanaidu covered by Sy.No.262/1 under a registered sale deed, dated 24.03.1960. The 1 st defendant sold away Ac.0-70 cents out of the land covered by Sy.No.262/1 to 3 rd defendant under a registered sale deed, dated 19.03.2010 and the defendant Nos.1 to 3 have been in peaceful possession and enjoyment of the land covered by Sy.No.262/1 right from the execution of the sale deeds, dated 24.03.1960 and 19.03.2010 in respect of the property mentioned in the sale deeds. 18. The learned counsel for the respondents would contend that though the extent of property mentioned in their sale deeds as Ac.1-00 cents, boundaries prevails and the suit schedule property herein is situated within the boundaries mentioned in Ex.A.1. In the case on hand, both the parties herein are claiming the property in the same survey number. As per Ex.B.3 original fair adangal extract issued by the Tahsildar, which clearly goes to show an extent of Ac.3-90 cents in Sy.No.262/1 is in the name of Allu Appala Swamy, Reddi Appalaswamy Naidu and Penta Appalaswami Naidu, but not in the name of either grandfather of the plaintiffs or their vendors. The defendants also relied on their registered sale deeds. 19. The learned counsel for the plaintiffs contended that in the plaintiffs document one of the boundary holders is vendor of the defendants. No doubt if survey number is different, boundaries prevail. Here both the parties are claiming the property in same survey number, therefore, the boundaries will not prevail. As per the own statement of the plaintiffs in their evidence, the total extent of Sy.No.262/1 consists Ac.30-00 cents and they do not aware where the defendants purchased the land in same survey number to an extent of Ac.0-80 cents. Here the plaintiffs are seeking relief of permanent injunction for Ac.3-90 cents in Sy.No.262/1 the defendants are also claiming their property in the same survey number. The title of the plaintiffs is seriously disputed by the defendants in the written statement itself. Ex.B.3 fair adangal register produced by the defendants is not inconsonance with No.3 Adangal produced by the plaintiffs. Here the plaintiffs are seeking relief of permanent injunction for Ac.3-90 cents in Sy.No.262/1 the defendants are also claiming their property in the same survey number. The title of the plaintiffs is seriously disputed by the defendants in the written statement itself. Ex.B.3 fair adangal register produced by the defendants is not inconsonance with No.3 Adangal produced by the plaintiffs. The plaintiffs title is based on Ex.A.1 Ac.1-00 cents of land only mentioned in Ex.A.1 document, but the plaint schedule property extent is Ac.3-90 cents. Therefore, I am unable to accept the contention of the learned counsel for the plaintiffs that the boundaries will prevail over the extent. There is no evidence on record to show that when the sub-division was taken place. 20. As stated supra, the plaintiffs relied on the evidence of P.W.1 to P.W.3 and Ex.A.1 to Ex.A.14. P.W.1 is 2 nd plaintiff. As per his evidence, the other registration extracts of Ex.A.2 to Ex.A.5 are no way concerned with the suit schedule property except Ex.A.1. Ex.A.1 goes to show that an extent of Ac.1-00 cents only was purchased under a registered sale deed, but the suit schedule property extent is Ac.3-90 cents. As per the own case of the plaintiffs the Ex.A.2 to Ex.A.5 are no way concerned with the suit schedule property. Ex.A.6 is pattadar passbook of 1 st plaintiff. As per Ex.A.6, an extent of Ac.1- 95 cents in Sy.No.262/1 was purchased by 1 st plaintiff under a registered document No.645, dated 19.04.1997. Ex.A.7 is the title deed passbook of the 2 nd plaintiff. As per Ex.A.7, an extent of Ac.1-95 cents in Sy.No.262/1was purchased by the 2 nd plaintiff under a registered document No.645, dated 19.04.1997. As per the plaint averments, grandfather of the plaintiffs Appalanaidu and his own brother Parisinaidu purchased the property of an extent of Ac.1-00 cents in Sy.No.262/1 under original of Ex.A.1 in the year 1950. The plaintiffs pleaded in the plaint itself that under Ex.A.1, the suit schedule property was purchased by their grandfather and his brother. The above discrepancy is not at all explained by the plaintiffs. 21. The law is well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally well settled that no party should be permitted to travel beyond its pleadings. 22. The above discrepancy is not at all explained by the plaintiffs. 21. The law is well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally well settled that no party should be permitted to travel beyond its pleadings. 22. It is also well settled that where the evidence is not in line with the pleadings and is at varies when it, the said evidence could not be looked into or relied on. It is also settled position of law that one could have permitted to let in evidence only in tune with his pleadings. Ex.A.8 is 1B namuna. It shows that 1 st plaintiff got Ac.1-95 cents in Sy.No.262/1p by way of ancestors, but not in Sy.No.262/1. Ex.A.9 is the adangal for fasli 1424 whereas the suit is filed in the year 2013. Ex.A.9 is subsequent to the institution of the suit. Ex.A.10 is 1B namuna. It has been issued in the year 2015 subsequent to the institution of the suit. The said Ex.A.10 shows the 2 nd plaintiff purchased Ac.1-95 cents which is quite different to the own pleadings of the plaintiffs. Ex.A.11 is 1B namuna issued by the revenue authorities which is subsequent to the institution of the suit proceedings. Ex.A.12 shows that Ac.1-95 cents is purchased by the 2 nd plaintiff by way of registered sale deeds which is also quite different to the pleadings taken by the plaintiffs in the plaint. Ex.A.13 and Ex.A.14 goes to show that 2 nd plaintiff is in possession of Ac.1-95 cents in R.S.No.262/1p but not Sy.No.262/1. As stated supra, the pattadar passbook under Ex.A.6 and title deed passbook under Ex.A.7 produced by the plaintiffs shows that the property in Sy.No.262/1 was purchased by them under document No.645/1997, dated 19.04.1997 which is against their pleadings in the plaint. As per the plaint pleadings, the plaint schedule property is purchased by their grandfather under Ex.A.1 registered sale deed. 23. Ex.B.3 is the fair adangal said to have been issued by the Tahsildar. As per Ex.B.3, Allu Appalaswami, Reddi Appalaswami Naidu and Penta Appalasami Naidu are the owners of the property for an extent of Ac.3-90 cents in Sy.No.262/1. The names of plaintiffs or their ancestors are not at all referred in Ex.B.3. It is well settled that 1B register shall be inconsonance with the fair adangal issued by the Tahsildar. As per Ex.B.3, Allu Appalaswami, Reddi Appalaswami Naidu and Penta Appalasami Naidu are the owners of the property for an extent of Ac.3-90 cents in Sy.No.262/1. The names of plaintiffs or their ancestors are not at all referred in Ex.B.3. It is well settled that 1B register shall be inconsonance with the fair adangal issued by the Tahsildar. The plaintiffs failed to file the revenue receipts in respect of either Ac.3-90 cents or Ac.1-00 cents in respect of the plaint schedule property. Therefore, the documentary evidence as discussed supra and also the oral evidence produced by the plaintiffs are not sufficient to establish the possession of the plaintiffs in the plaint schedule property in an extent of Ac.3-90 cents as on the date of suit. 24.The learned counsel for the respondents placed reliance of (1) Arsad Sk. & another vs. Bani Prosanna Kundu and others (C.A.No.4805 of 2014); (2) Jharkhand State Housing Board vs. Didar Singh and another (C.A.No.8241 of 2009) and (3) Jharkhand State Housing Board vs. Anirudh Kumar Sahu and others (C.A.No.8242 of 2009). In the case on hand, both the parties are claiming the property in the same survey number, therefore, the boundaries will not prevail over the extent. Moreover, the claim of the plaintiffs is that their grandfather and brother of their grandfather purchased Ac.1-00 cents in Sy.No.262/1 under Ex.A.1 and other documents filed by the plaintiffs are no way connected with the suit schedule property. As per the plaint schedule, the plaintiffs are claiming discretionary relief of permanent injunction for Ac.3-90 cents in Sy.No.262/1. The claim of the defendants is that they are in possession in an extent of Ac.0-80 cents in the same survey number and the plaintiffs are not in possession of Ac.3-90 cents i.e., plaint schedule property. Both the parties are claiming their possession in the same survey number. Moreover, 1B adangal is not inconsonance with the fair adangal produced by the defendants. The pattadar passbook and title deed passbook produced by the plaintiffs 1 and 2 are not in accordance with the pleadings in the plaint. Therefore, the facts and circumstances in the case laws cited above by the respondents are different to the instant case. 25. The learned counsel for the appellants would contend that the plaintiffs’ title is under cloud, therefore, the suit for injunction simpliciter is not at all maintainable. Therefore, the facts and circumstances in the case laws cited above by the respondents are different to the instant case. 25. The learned counsel for the appellants would contend that the plaintiffs’ title is under cloud, therefore, the suit for injunction simpliciter is not at all maintainable. In a case of Jharkhand State Housing Hoard v. Didar Singh , [(2019) 17 SCC 692] , the Full Bench of Apex Court held as follows: “It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases the plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, the plaintiff cannot maintain a suit for bare injunction.” In a case of Tehsildar, Urban Improvement Trust and another vs. Ganga Bai Menariya (dead) , [2024 LawSuit (SC) 157] , the Apex Court held as follows: “Further a suit simpliciter for injunction may not be maintainable as the title of the property of the plaintiff/respondent was disputed by the appellants/defendants. In such a situation it was required for the respondent/plaintiff to prove the title of the property while praying for injunction. Reference can be made to the judgment of this Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and ors., 2008 4 SCC 594 .” Admittedly, in the case on hand, the appellants raised a serious title dispute and there is a cloud on the title of the plaintiffs. As stated supra, the plaintiffs also failed to prove their possession in the total plaint schedule property by way of documentary evidence as on the date of filing of the suit. The documentary evidence produced by the plaintiffs could not prove their possession over the plaint schedule property as on the date of suit. Therefore, the learned First Appellate Judge came to a wrong conclusion and allowed the first appeal by setting aside the decree and judgment passed by the learned trial Judge. Therefore, the decree and judgment passed by the learned First Appellate Judge is liable to be set aside. 26. In the result, the Second Appeal is allowed. Therefore, the learned First Appellate Judge came to a wrong conclusion and allowed the first appeal by setting aside the decree and judgment passed by the learned trial Judge. Therefore, the decree and judgment passed by the learned First Appellate Judge is liable to be set aside. 26. In the result, the Second Appeal is allowed. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.