Having come to the Court seeking equitable relief of injunction, it is for the plaintiffs to establish their rights. The Courts below on question of fact found that the plaintiffs are not in possession of the property after Ex.B.1 and it also transpired during the trial that the patta was cancelled and it has become final, as such there are absolutely no merits and there is no substantial question of law and therefore, the appeal is liable to be dismissed.

on

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

SECOND APPEAL No.229 OF 2012

JUDGMENT:-


          The unsuccessful plaintiffs in O.S.No.34 of 2002 on the file of the Court of Junior Civil Judge, Palakonda, are the appellants herein.

2.       The suit was filed for permanent injunction contending that the 1st plaintiff is in possession of 40 cents of land and the 2nd plaintiff is in possession of 20 cents of land and it was a grant of lease by the Government in the year, 1995 and they have been in continuous possession and enjoyment.  The defendants have no right or interest over the plaint schedule land and they are trying to cause interference and hence filed the suit.  The defendants contended that there are about 115 Harijana families in the village and they have been jointly cultivating the Government land and the lands were assigned to the defendants.  The Revenue Divisional Officer has cancelled the alleged lease in favour of the plaintiffs on 01.12.1997 under Ex.B.1 proceedings and auctioned the crop and one R.Erraiah was the highest bidder.  The plaintiffs challenged the cancellation of patta before the RDO and the appeal was also dismissed suppressing all the facts, the present suit was filed.

3.       After framing necessary issues and considering the evidence adduced by the plaintiffs, the lower Court has dismissed the suit and as against that A.S.No.11 of 2009 was preferred to the Senior Civil Judge, Rajam, who also dismissed the suit and hence the second appeal.

4.       This being a suit for simple injunction, it is necessary for the plaintiffs to prove that they have been in possession and enjoyment of the property.  There is no dispute about the fact that the suit schedule property is a Government land.  Ex.B.1 proceedings from the competent revenue records clearly goes to show that the crop was auctioned and a sum of Rs.950/- was recovered and occupiers of the land in Sy.No.170 to an extent of 1.95 cents were evicted, which incidentally relates to the suit schedule property.  Therefore, the above fact clearly shows that after 1997 the plaintiffs could not have been in possession of the property.   Even assuming to be that the proceedings under Ex.B.1 are not valid without giving the notice under Land Encroachment Act, still it is for the plaintiffs to prove that they have been in continuous possession and enjoyment of the property.  The suit was filed in the year, 2002.  The eviction was said to be in the year, 1997.  Ex.A.3 is the land revenue receipt of the year, 1996 and Ex.A.4 is said to be an adungal extract showing possession and enjoyment for the year 1993-94, which cannot be taken into consideration to prove the possession of the plaintiff as on the date of the suit.  Some reliance is sought to be placed on the evidence of PW.4, who is an Advocate and said to have taken possession of the property from the plaintiffs and therefore, the appellants contend that the proceedings under Ex.B.1 are not true.  As can be seen from the judgment of the Court below, the appointment of PW.4 as receiver was cancelled by the appellate Court and the Court was not inclined to accept the evidence of PW.4.  Therefore, as rightly found by the Court below right from 1997 till filing of the suit no single scrap of paper was filed to prove possession and enjoyment of the property.  Having come to the Court seeking equitable relief of injunction, it is for the plaintiffs to establish their rights.  The Courts below on question of fact found that the plaintiffs are not in possession of the property after Ex.B.1 and it also transpired during the trial that the patta was cancelled and it has become final, as such there are absolutely no merits and there is no substantial question of law and therefore, the appeal is liable to be dismissed.

5.       Accordingly, the Second Appeal is dismissed at the stage of admission.  No costs.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.
          _______________________________

JUSTICE N.R.L. NAGESWARA RAO

Date:25.06.2012
INL                           

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