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.


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                           

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.