no injunction - no possession= In a suit for permanent injunction, the appellant has to establish prima facie title, balance of convenience and irreparable injury, if injunction is not granted. To prove the same, P.W.3, who is the Mandal Surveyor, was examined. On instructions of Mandal Revenue Officer, P.W.3 conducted survey of the plaint schedule land. But, there is no evidence to show that he conducted survey in accordance with law. He has given notices to the neighbouring ryots with a view to survey and demarcate the land. Though P.W.3 filed report before the Mandal Revenue Officer, the same has not been filed into the Court to show that he conducted survey in accordance with law. The explanation given by him that the report was destroyed in the office, cannot be accepted. If there is any documentary evidence, it has to be proved through P.W.3, who conducted the survey. When P.W.3 has not filed any report with regard to survey of the plaint schedule property, his oral evidence cannot be accepted.


THE HON'BLE SRI JUSTICE K.C. BHANU

 

SECOND APPEAL NO.45 OF 2013

 

JUDGMENT:

This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 13.09.2012, passed in A.S.No.10 of 2012 on the file of the Principal District Judge, West Godavari District at Eluru, whereunder and whereby, the judgment and decree, dated 13.10.2011, passed in Original Suit No.57 of 2008 on the file of the I Additional Junior Civil Judge, Eluru, were set aside.
2.       The appellant herein is the plaintiff and the respondent herein is the defendant, in the trial Court. 
3.       For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the trial Court.
4.       The brief facts of the plaint are as follows:
The plaintiff is the owner and in occupation of Ac.1-89 cents of land in R.S.No.10/1E of Chodimella Village.  Originally, plaintiff’s father acquired Ac.9-00 cents of land in R.S.No.10/1E of Chodimella Village under a registered sale deed, dated 02.05.1960.  He settled Ac.8-00 cents of land out of Ac.9-00 cents to his wife Chandrakanthamma under a registered settlement deed, dated 28.01.1964.  The said Chandrakanthamma gave Ac.2-00 cents each to her four sons including the plaintiff.  Chandrakanthamma executed a registered settlement deed, dated 15.05.1989, in favour of the plaintiff for Ac.1-50 cents out of
Ac.2-00 cents given to him.  After the death of father of plaintiff, the plaintiff got Ac.3-00 cents including Ac.1-50 cents settled by his mother in his favour in the family settlement and arrangement. Out of Ac.3-00 cents, the plaintiff sold Ac.0-30 cents and he is in possession and enjoyment of remaining Ac.2-70 cents. There is a coconut garden in the plaint schedule property and the plaintiff has been enjoying the usufruct from the coconut garden without any hindrance from any corner. 
          The defendant got land on the eastern side of the plaint schedule property to an extent of Ac.1-70 cents and it is a vacant land. The defendant made illegal attempts to encroach the plaint schedule land by removing boundary marks and made attempts to shift the boundary bunds.  The plaintiff filed an application before Mandal Revenue Officer, Eluru, to measure his land and the land of the defendant and to fix boundary stones separating the plaint schedule property and the land of the defendant.  The Mandal Revenue Officer, Eluru deputed Mandal Surveyor to measure the lands and fix the boundaries between the plaint schedule property and the land of the defendant.  After issuing notices to the plaintiff and defendant, the Mandal Surveyor measured the lands and fixed boundary marks and planted survey stones by demarcating and separating the plaint schedule property from the land of the defendant and a sketch was also given to the plaintiff.  Since then there is no dispute between the plaintiff and defendant and the plaintiff is enjoying the plaint schedule property. About two years back, at the instance of antisocial elements and the persons enemies towards the plaintiff, made highhanded and illegal attempts to remove the survey stones fixed by the Mandal Surveyor with an intention to encroach the plaint schedule property.  The defendant proclaiming that he would remove the boundary marks and survey stones by hook or crook and encroach into the schedule property.  The defendant removed the coconut garden and now trying to encroach the plaintiff’s land.  The defendant at any moment translate his threats into action and remove the survey stones and boundary marks and encroach into the plaint schedule property.  Hence, the suit.
5.       The defendant filed written statement denying the averments made in the plaint and contending as follows:
The plaintiff is owner of only Ac.1-50 cents but not Ac.1-89 cents and the said fact is evident from the registered settlement deed, dated 15.05.1989, executed by mother of plaintiff.  His land is situated on the eastern side of the plaintiff’s land. The defendant being kartha of his joint family, has been in exclusive possession of Ac.2-07 ½ cents.  He purchased an extent of Ac.4-81 ½ cents under a registered sale deed, dated 16.02.1974.  The plaintiff has no right and title in respect of the plaint schedule property, as the trees are existing in parallel.  But, taking undue advantage of the situation, the plaintiff is trying to grab the tress existing about 15 in number along with the boundary.  On 29.03.2008, the plaintiff along with his brother and 10 rowdy elements highhandedly trespassed into his land by removing the boundary bunds and laid fencing by erecting cement poles.  The plaintiff’s brother and his henchmen attacked him and caused bleeding injuries and he was admitted in the hospital and thereafter, he lodged a complaint in Crime No.62 of 2008 for the offence punishable under Section 324 read with 34 IPC.  Hence, he prays to dismiss the suit.  
6.       On the basis of above pleadings, the following issues have been settled by the trial court for trial:
“1.     Whether the plaintiff is entitled for permanent injunction against the defendant as prayed for?
2.              To what relief?”

7.       During trial, the plaintiff himself examined as P.W.1 and also got examined P.Ws.2 and 3 and got marked Ex.A.1 to A.7. On behalf of the defendant, the defendant himself was examined as D.W.1 and also got examined D.W.2 and got marked Exs.B.1 to B.14. Exs.X1 to X.4 were marked.  
8.       The trial Court after considering the evidence on record, decreed the suit granting permanent injunction restraining the defendant, his men and representatives from interfering with the plaint schedule property.  On appeal, the said decree and judgment were set aside. Challenging the same, the present Second Appeal is filed.  
9.       Learned counsel for the appellant raised the following substantial questions of law:
i)                   Whether in a suit for permanent injunction, the prima facie title and possession of the plaintiff supported by Ex.A.1 to A.7 are not sufficient to decree the suit?
ii)                  Whether the decreed suit of the plaintiff can be reversed by the appellate Court without evidence of contra title or possession of the suit land by the Defendant?
iii)                Whether the decree of the trial Court can be reversed by the appellate Court without giving reasons for differing from the reasons assigned by the trial Court?
iv)                 Whether the evidence of P.W.3 who determined the boundaries of the lands of the plaintiff and Defendant can be eschewed from consideration by a simple statement that Ex.A.4 and A.6 cannot be countenanced?
v)                   Whether the reasons assigned by the lower appellate Court are sufficient for reversing the judgment and decree of the trial Court?”

10.     There cannot be any dispute that, under the amended Section 100 C.P.C., a party aggrieved by the decree passed by the first appellate Court has no absolute right of appeal.  He can neither challenge the decree nor a question of fact or on a question of law.  The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law.  The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, of sound worth, important, considerable, fairly arguable, in contradiction with – technical, formal, or no substance, no consequence or academic only.  A substantial question of law should directly and substantially affect the rights of the parties.  A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties.  Recording a finding without any evidence on record; disregard or non-consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding –are some of the questions, which involve substantial questions of law.   
11.     Learned counsel for the appellant /plaintiff contended that evidence of P.W.3 is very clear that he demarcated the land of the appellant and respondent and fixed the boundaries; that because the report submitted by P.W.3 to the Tahsildar was destroyed in the office, the same has not been filed into the Court; that but the evidence of P.W.3 is very clear with regard to demarcation of the land and its boundaries; that the dispute is with regard to boundary of the land of the appellant and respondent; that from the evidence of P.W.1 and the recitals in Exs.A.1 to A.6, it is clear that the appellant is in possession and enjoyment of the plaint schedule property and therefore, the appellate Court ought to have confirmed the decree and judgment of the trial Court instead of reversing the same.
12.     On the other hand, learned counsel for the respondent / defendant contended that the survey conducted by P.W.3 has not been filed into the Court; that there is no proof to show that P.W.3 conducted survey in accordance with law; that the appellant did not raise any substantial question of law and all the questions raised only with regard to factual aspects of the case, which are based upon the evidence; that in the absence of any substantial question of law, the appeal cannot be admitted and hence, he prays to dismiss the appeal.
13.     The dispute is in respect of Ac.1-89 cents of land in R.S.No.10/1E of Chodimella Village, West Godavari District.  The appellant is claiming title under Exs.A.1 to A.3 and also oral family settlement entered into between the family members of the appellant.  He also relied upon Ex.A.4-survey plan and Ex.A.7 – No.3 adangal relating to the year 1998.  But, he has not filed any document to show that he is in exclusive possession and enjoyment of the plaint schedule property.
14.     In a suit for permanent injunction, the appellant has to establish prima facie title, balance of convenience and irreparable injury, if injunction is not granted.  To prove the same, P.W.3, who is the Mandal Surveyor, was examined.  On instructions of Mandal Revenue Officer, P.W.3 conducted survey of the plaint schedule land.  But, there is no evidence to show that he conducted survey in accordance with law.  He has given notices to the neighbouring ryots with a view to survey and demarcate the land.  Though P.W.3 filed report before the Mandal Revenue Officer, the same has not been filed into the Court to show that he conducted survey in accordance with law.  The explanation given by him that the report was destroyed in the office, cannot be accepted.  If there is any documentary evidence, it has to be proved through P.W.3, who conducted the survey.  When P.W.3 has not filed any report with regard to survey of the plaint schedule property, his oral evidence cannot be accepted. Therefore, that is the reason why the appellate Court has not placed any implicit reliance on the evidence of P.W.3. 
15.     On the other hand, the respondent filed Exs.B.1 to B.5, which would go to show that he got prima facie title in respect Ac.1-70 cents of land in R.S.No.10/1E. He also filed Exs.B.10 and B.11, which are No.3 adangals. No doubt, on behalf of appellant, Exs.X.1 to X4 are marked through P.W.3, but, they do not contain the actual extent of land.  
Unless, the appellant establishes his prima facie title and possession of the land in question, permanent injunction cannot be granted. None of the findings of the appellate Court is shown to be perverse or contrary to law.  Similarly, it is not a case of taking inadmissible evidence into consideration or overlooking the admissible evidence for the purpose of reversing the judgment.  Therefore, it can be said that the appellate Court has appreciated the evidence on record in a right perspective.  There is no question of law much less substantial question of law involved in the Second appeal and there are no grounds to interference with the same

16.     Accordingly, the Second Appeal is dismissed at the stage of admission itself.  There shall be no order as to costs.  Miscellaneous petitions, if any, pending in this appeal shall stand closed.  
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K.C.BHANU, J

FEBRUARY 07, 2013.
YVL


THE HON'BLE SRI JUSTICE K.C. BHANU

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECOND APPEAL NO.45 OF 2013


07.02.2013
YVL

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