a suit for mere injunction without seeking a prayer for declaration of title is maintainable ; when the plaintiff is in a settled possession on date of suit - Government should have been impleaded as a party to the suit and the suit should be dismissed since the Government is not impleaded.- not necessary as It is not the contention of the plaintiffs/respondents that the Government is obstructing their use of the land as a rasta/path or as a courtyard. nor of the defendants =SA.No.463 of 2014 05-08-2014 Ediga Ranganayakulu, (Died) per L.Rs.and others.Appellants/Appellants/Defendants B. Venkatesu,S/o.Venkatappa, Aged : 39 years,Occ : Business, R/o.Chennekothapalli,Anantapur District and others.Respondents/Respondents/Plaintiffs =2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11804
a suit for mere injunction without seeking a prayer for declaration of title is maintainable ; when the plaintiff is in a settled possession on date of suit -
Government should have been impleaded as a party to the suit and the suit should be dismissed since the Government is not impleaded.- not necessary as It is not the contention of the plaintiffs/respondents that the Government is obstructing their use of the land as a rasta/path or as a courtyard. nor of the defendants =
The frame of the suit indicates that the plaintiffs are owners of
house properties adjacent to ACDF site and they claimed that the said
site was being used by them for ingress and egress into their property;
that ABEF is part of Gramakantam and BCDE portion is part of the
property purchased by plaintiff nos.2, 3 and 4 under Ex.A.2.
22. On the other hand, the defendants contended that the plaint
schedule property is part of their property purchased under Exs.B.1
and B.2.=
Trail court decreed the suit - Appellant court also found that a suit for mere injunction pertaining to a vacant site for ingress and egress can be maintained without seeking relief of
declaration of title; and since defendants are not the real owners of the
disputed property and since plaintiffs are found to be in possession
thereof, the trial court had rightly granted injunction in their favour.
In M. Kallappa Setty v. M.V. Lakshminarayana Rao , the
Supreme Court held that plaintiff can, on the strength of his
possession, resist interference from persons who had no better title
than himself to the plaint schedule property. In that case, the Supreme
Court, having found that the plaintiff failed to establish his title to the
plaint schedule property but was found to be in possession on the date
of the filing of the suit, granted injunction in favour of the plaintiff.
24. In Chepana Peda Appalaswamy v. Chepana Appalanaidu
and others ,
a learned single Judge of this Court also held that a suit
for mere injunction without seeking a prayer for declaration of title is
maintainable.
Similar view has been taken in Karuppana Goundar
and another v. V.C.T.N. Chidambaram Chettiar and another and
Fakirbhai Bhagwandas and another vs. Maganlal Haribhai and
another .
25. In Rame Gowda v. M. Varadappa Naidu ,
the Supreme Court
held that a person in possession of land in assumed character of owner
and exercising peaceably the ordinary rights of ownership has a
perfectly good title against the entire world but a rightful owner, and
that when facts disclose no title in either party, possession alone
decides.
26. Thus as a matter of law, a suit for mere injunction without
seeking a prayer for declaration of title is maintainable. So this
contention of the counsel for appellants is rejected.
the Government should have been impleaded as a party
to the suit and the suit should be dismissed since the Government is
not impleaded.
The basis for this plea appears to be the contention of
the plaintiffs that part of the plaint schedule property is a
Gramakantam site rasta/path and the rest of it forms part of the
property of plaintiff nos.2 to 4.
28. It is not the contention of the plaintiffs/respondents that the
Government is obstructing their use of the land as a rasta/path or as a
courtyard.
In the present case, the respondents/plaintiffs contend that
although defendants have access to a public rasta/path to the North of
their houses and ACDF property does not form part of their property,
they are interfering with the use of ACDF portion by the plaintiffs. If
the Government did not want the plaintiffs to use ABEF portion
which is said to be Gramakantam, it is for the Government to take
steps to do so.
It is not for defendants to plead the cause of
Government and obstruct the plaintiffs in the use of ABEF portion.
29. In my opinion, therefore, the courts below have rightly held
that the Government is not a necessary party to the suit and plaintiffs
need not have impleaded the Government.
Therefore, the Second Appeal is dismissed at the admission
stage. No costs.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11804
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
SA.No.463 of 2014
05-08-2014
Ediga Ranganayakulu, (Died) per L.Rs.and
others.Appellants/Appellants/Defendants
B. Venkatesu,S/o.Venkatappa, Aged : 39 years,Occ : Business,
R/o.Chennekothapalli,Anantapur District and
others.Respondents/Respondents/Plaintiffs
<GIST:
>HEAD NOTE:
Counsel for Appellants :Sri D. Atchuthananda
Counsel for Respondents:Sri N. Aswartha Narayana
? Cases referred
1. AIR 1972 SC 2299
2. 1996 (2) ALT 389
3. AIR 1936 Madras 963
4. AIR 1951 Bom. 380
5. 2004 (1) SCC 769
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
SA.No.463 of 2014
JUDGMENT :
This Second Appeal is filed challenging the judgment and
decree dt.18.06.2014 in AS.No.8 of 2013 on the file of Senior Civil
Judge, Dharmavaram (Old AS.No.17 of 2006 on the file Senior Civil
Judge, Penukonda), confirming the judgment and decree
dt.19.10.2006 in OS.No.28 of 1997 on the file of Junior Civil Judge,
Dharmavaram.
2. The appellants herein are the legal representatives of 1st
defendant.
3. Respondent nos.1, 2, 3, 4 and one N. Venkataramudu filed the
above suit for a permanent injunction restraining defendant nos.1 to 3
from interfering with their peaceful possession and enjoyment of the
plaint schedule property.
4. According to the plaintiffs, the plaint schedule property is an
open site consisting of a courtyard and rasta/path way of the
plaintiffs house property more particularly described in the sketch
filed along with plaint as ACDF; plaintiffs are owners of adjacent
houses shown as MNOPQ to the south of ACDF area; 1st plaintiff got
ABEF property by uninterrupted, continuous, peaceful, open and
hostile possession over it for more than the statutory period prescribed
for adverse possession; that ABEF site was part of Gramakantam
originally; likewise, plaintiff nos.2, 3 and 4 have got right over BCDE
property under a registered document relating to their EBGHCD
property; out of ACDF plaint schedule property, ACXY part was
being used as a courtyard in front of the houses of plaintiffs; the
doors, windows, spouts, ventilators of plaintiffs houses open into
ABXY; that this was also used by plaintiffs to stand their carts, store
agricultural implements, etc.,; that out of ACDF suit property, the
other YXDF part was used by plaintiffs as a rasta/path for ingress and
outgress for the houses and respective courtyards of their houses ;
they had been using the ACDF property exclusively since it is a
necessity for the beneficial enjoyment of their houses; that defendants
are enjoying the property shown as DIJE in the plaint sketch to the
north of ACDF; that one Jardhar was enjoying the property shown as
FEJK; defendants have no right, possession and enjoyment over the
plaint schedule property; there is a public rasta/path to the north of
the properties of defendants; and defendants intended to encroach into
the plaint schedule property and threatened to dispossess plaintiffs
from the suit property and obstruct and interfere with their use and
occupation of the suit property prompting the filing of the suit.
WRITTEN STATEMENT OF 1ST DEFENDANT :
5. The 1st defendant filed his written statement opposing the
plaint averments. Defendant nos.2 and 3 adopted his written
statement.
6. The 1st defendant contended that one Mallakka,
W/o.Venkatappa purchased the plaint schedule property from one
Narayanamma under a registered sale deed Ex.B.1 dt.17.10.1947; that
she enjoyed the same till 26.06.1968 when she sold it to the father of
the defendants under a registered sale deed Ex.B.2 dt.26.06.1968 and
inducted him into possession of the property; defendants are actually
six brothers and after the death of their father in 1987, the 3rd
defendant along with other three defendants became owners of the
property as legal heirs of their father; and so the suit is bad for non-
joinder of necessary parties. They also claimed that they were
assigned one cent of land by Government measuring 21 x 50 links
towards the west of the plaint schedule property under HS
Dis.No.35/77 and they are in exclusive possession and enjoyment of
the plaint schedule property which is covered under Ex.B.2 sale deed
dt.26.06.1968. They alleged that the plaintiffs, in order to grab the
property which is adjoining the National Highway, had filed the suit
without having right, title or possession.
7. Pending suit, the 2nd plaintiff died and 5th plaintiff was added as
his legal representative. The 2nd defendant also died on 06.08.2002
but his legal representatives were not brought on record and the suit
was dismissed against 2nd defendant on 04.12.2002 as abated.
8. On the basis of the pleadings, the trial court framed the
following issues :
1. Whether the plaintiffs are entitled for permanent injunction
as prayed for in the plaint ?
2. To what relief ?
9. During trial, PWs.1 and 2 were examined by plaintiffs and they
marked Exs.A.1 to A.4. The defendants examined DWs.1 and 2 and
marked Exs.B.1 to B.4. Ex.X-1 is the Advocate-Commissioners
report and Ex.X-2 is the Advocate-Commissioners plan which was
also marked.
10. By judgment and decree dt.19.10.2006, the trial court decreed
the suit with costs to the extent of 21 yards (east-west) x 8 yards
(north-south) restraining defendant nos.1 and 3 and their men from
interfering with the peaceful possession and enjoyment of the plaint
schedule property.
11. It relied mainly on the Advocate-Commissioners report Ex.X.1
and his plan Ex.X.2 which clearly mentioned the portions of the
plaintiffs as MNOPQ and the site which is situated on the north of
MNOPQ, i.e., the plaint schedule property as having measurements
North-South as 24 feet = 8 yards and East-West 21 yards or 63 feet. It
held that the evidence on record and the measurements in Exs.B.1 and
B.2 clearly establish that the property of the defendants is located
beyond FD line towards the North; that plaintiffs have possession of
ACXY area as indicated in the plaint plan and their possession over
XYFD shown in the plaint plan can be presumed because if that area
is excluded, the plaintiffs cannot enjoy their house property; that
boundaries and measurements of GHDE exactly tally with the
boundaries and measurements shown in Ex.A.2 sale deed
dt.14.05.1925 in the name of one Narappa, who is the husband of 4th
plaintiffs maternal grand-fathers elder sister; and that the boundaries
of the plaint schedule property do not tally with the boundaries of the
property under Exs.B.1 and B.2 under which the defendants claim.
12. The trial court rejected the contention of defendants that the
plaintiff should also have sought a declaration of their title in addition
to the relief of injunction and that the Government is not a necessary
party to the suit.
13. Challenging the said judgment, the 1st defendant filed originally
AS.No.17 of 2006 before the Senior Civil Judge, Penukonda.
14. Pending suit, the 1st defendant died and his wife and son were
impleaded as appellant nos.2 and 3 therein.
15. The said appeal was later transferred to the Court of the Senior
Civil Judge, Dharmavaram and re-numbered as AS.No.8 of 2013.
16. By judgment and decree dt.18.06.2014, the said appeal was also
dismissed. The lower appellate court held that the plaint schedule
property abuts the properties of plaintiffs and they are using the same
for ingress and outgress for their respective houses; that it is in
Gramakantam site and they are using the same since it is
Government land. It held that defendant nos.1 and 3 did not take the
assistance of any Mandal Surveyor to ascertain the location of the
properties of the parties to the suit with reference to their respective
documents; that a suit for mere injunction pertaining to a vacant site
for ingress and egress can be maintained without seeking relief of
declaration of title; and since defendants are not the real owners of the
disputed property and since plaintiffs are found to be in possession
thereof, the trial court had rightly granted injunction in their favour.
17. Aggrieved thereby, the Second Appeal is filed.
18. The contention of the counsel for appellants is that the plaintiffs
ought to have sought for relief of declaration of title also in addition to
the relief of permanent injunction since they have pleaded acquisition
of title by adverse possession to plaint schedule property; that the
Government also is a necessary party since the plaint schedule
property is alleged to be Gramakantam; that since the lower
appellate court observed that no attempt was made to localise the
properties of plaintiffs and defendants by getting appointed a Mandal
Surveyor, the judgments of both courts be set aside and the matter
remanded to the trial court to get an Advocate-Commissioner
appointed to localise the sites.
19. On the other hand, the counsel for respondents supported the
decisions of the courts below and contended that no case has been
made out for interference under Section 100 CPC.
20. I have noted the submissions of both sides.
21. The frame of the suit indicates that the plaintiffs are owners of
house properties adjacent to ACDF site and they claimed that the said
site was being used by them for ingress and egress into their property;
that ABEF is part of Gramakantam and BCDE portion is part of the
property purchased by plaintiff nos.2, 3 and 4 under Ex.A.2.
22. On the other hand, the defendants contended that the plaint
schedule property is part of their property purchased under Exs.B.1
and B.2.
23. In M. Kallappa Setty v. M.V. Lakshminarayana Rao , the
Supreme Court held that plaintiff can, on the strength of his
possession, resist interference from persons who had no better title
than himself to the plaint schedule property. In that case, the Supreme
Court, having found that the plaintiff failed to establish his title to the
plaint schedule property but was found to be in possession on the date
of the filing of the suit, granted injunction in favour of the plaintiff.
24. In Chepana Peda Appalaswamy v. Chepana Appalanaidu
and others , a learned single Judge of this Court also held that a suit
for mere injunction without seeking a prayer for declaration of title is
maintainable. Similar view has been taken in Karuppana Goundar
and another v. V.C.T.N. Chidambaram Chettiar and another and
Fakirbhai Bhagwandas and another vs. Maganlal Haribhai and
another .
25. In Rame Gowda v. M. Varadappa Naidu , the Supreme Court
held that a person in possession of land in assumed character of owner
and exercising peaceably the ordinary rights of ownership has a
perfectly good title against the entire world but a rightful owner, and
that when facts disclose no title in either party, possession alone
decides.
26. Thus as a matter of law, a suit for mere injunction without
seeking a prayer for declaration of title is maintainable. So this
contention of the counsel for appellants is rejected.
27. I also do not agree with the contention of the counsel for
appellants that the Government should have been impleaded as a party
to the suit and the suit should be dismissed since the Government is
not impleaded. The basis for this plea appears to be the contention of
the plaintiffs that part of the plaint schedule property is a
Gramakantam site rasta/path and the rest of it forms part of the
property of plaintiff nos.2 to 4.
28. It is not the contention of the plaintiffs/respondents that the
Government is obstructing their use of the land as a rasta/path or as a
courtyard. In the present case, the respondents/plaintiffs contend that
although defendants have access to a public rasta/path to the North of
their houses and ACDF property does not form part of their property,
they are interfering with the use of ACDF portion by the plaintiffs. If
the Government did not want the plaintiffs to use ABEF portion
which is said to be Gramakantam, it is for the Government to take
steps to do so. It is not for defendants to plead the cause of
Government and obstruct the plaintiffs in the use of ABEF portion.
29. In my opinion, therefore, the courts below have rightly held
that the Government is not a necessary party to the suit and plaintiffs
need not have impleaded the Government.
30. Coming to the grant of injunction in favour of plaintiffs to the
extent of 21 yards x 8 yards against defendant nos.1 and 3, in my
opinion, both courts have rightly relied upon the Advocate-
Commissioners report in coming to the said conclusion and they had
rightly held that Exs.B.1 and B.2 relied upon by defendants relate to
property which is beyond FD line to the North and since defendants
have no property to the South of FD line, they are not entitled to
prevent plaintiffs from using ACDF portion as their courtyard or as a
public rasta/path, particularly when GHDE portion forms part of the
land covered under Ex.A.2.
31. In this view of the matter, there is no question of law much less
any substantial question of law arising for consideration in this
Second Appeal.
32. Therefore, the Second Appeal is dismissed at the admission
stage. No costs.
33. Miscellaneous applications, pending if any in this appeal, shall
stand closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date : 05-08-2014
Government should have been impleaded as a party to the suit and the suit should be dismissed since the Government is not impleaded.- not necessary as It is not the contention of the plaintiffs/respondents that the Government is obstructing their use of the land as a rasta/path or as a courtyard. nor of the defendants =
The frame of the suit indicates that the plaintiffs are owners of
house properties adjacent to ACDF site and they claimed that the said
site was being used by them for ingress and egress into their property;
that ABEF is part of Gramakantam and BCDE portion is part of the
property purchased by plaintiff nos.2, 3 and 4 under Ex.A.2.
22. On the other hand, the defendants contended that the plaint
schedule property is part of their property purchased under Exs.B.1
and B.2.=
Trail court decreed the suit - Appellant court also found that a suit for mere injunction pertaining to a vacant site for ingress and egress can be maintained without seeking relief of
declaration of title; and since defendants are not the real owners of the
disputed property and since plaintiffs are found to be in possession
thereof, the trial court had rightly granted injunction in their favour.
In M. Kallappa Setty v. M.V. Lakshminarayana Rao , the
Supreme Court held that plaintiff can, on the strength of his
possession, resist interference from persons who had no better title
than himself to the plaint schedule property. In that case, the Supreme
Court, having found that the plaintiff failed to establish his title to the
plaint schedule property but was found to be in possession on the date
of the filing of the suit, granted injunction in favour of the plaintiff.
24. In Chepana Peda Appalaswamy v. Chepana Appalanaidu
and others ,
a learned single Judge of this Court also held that a suit
for mere injunction without seeking a prayer for declaration of title is
maintainable.
Similar view has been taken in Karuppana Goundar
and another v. V.C.T.N. Chidambaram Chettiar and another and
Fakirbhai Bhagwandas and another vs. Maganlal Haribhai and
another .
25. In Rame Gowda v. M. Varadappa Naidu ,
the Supreme Court
held that a person in possession of land in assumed character of owner
and exercising peaceably the ordinary rights of ownership has a
perfectly good title against the entire world but a rightful owner, and
that when facts disclose no title in either party, possession alone
decides.
26. Thus as a matter of law, a suit for mere injunction without
seeking a prayer for declaration of title is maintainable. So this
contention of the counsel for appellants is rejected.
the Government should have been impleaded as a party
to the suit and the suit should be dismissed since the Government is
not impleaded.
The basis for this plea appears to be the contention of
the plaintiffs that part of the plaint schedule property is a
Gramakantam site rasta/path and the rest of it forms part of the
property of plaintiff nos.2 to 4.
28. It is not the contention of the plaintiffs/respondents that the
Government is obstructing their use of the land as a rasta/path or as a
courtyard.
In the present case, the respondents/plaintiffs contend that
although defendants have access to a public rasta/path to the North of
their houses and ACDF property does not form part of their property,
they are interfering with the use of ACDF portion by the plaintiffs. If
the Government did not want the plaintiffs to use ABEF portion
which is said to be Gramakantam, it is for the Government to take
steps to do so.
It is not for defendants to plead the cause of
Government and obstruct the plaintiffs in the use of ABEF portion.
29. In my opinion, therefore, the courts below have rightly held
that the Government is not a necessary party to the suit and plaintiffs
need not have impleaded the Government.
Therefore, the Second Appeal is dismissed at the admission
stage. No costs.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11804
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
SA.No.463 of 2014
05-08-2014
Ediga Ranganayakulu, (Died) per L.Rs.and
others.Appellants/Appellants/Defendants
B. Venkatesu,S/o.Venkatappa, Aged : 39 years,Occ : Business,
R/o.Chennekothapalli,Anantapur District and
others.Respondents/Respondents/Plaintiffs
<GIST:
>HEAD NOTE:
Counsel for Appellants :Sri D. Atchuthananda
Counsel for Respondents:Sri N. Aswartha Narayana
? Cases referred
1. AIR 1972 SC 2299
2. 1996 (2) ALT 389
3. AIR 1936 Madras 963
4. AIR 1951 Bom. 380
5. 2004 (1) SCC 769
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
SA.No.463 of 2014
JUDGMENT :
This Second Appeal is filed challenging the judgment and
decree dt.18.06.2014 in AS.No.8 of 2013 on the file of Senior Civil
Judge, Dharmavaram (Old AS.No.17 of 2006 on the file Senior Civil
Judge, Penukonda), confirming the judgment and decree
dt.19.10.2006 in OS.No.28 of 1997 on the file of Junior Civil Judge,
Dharmavaram.
2. The appellants herein are the legal representatives of 1st
defendant.
3. Respondent nos.1, 2, 3, 4 and one N. Venkataramudu filed the
above suit for a permanent injunction restraining defendant nos.1 to 3
from interfering with their peaceful possession and enjoyment of the
plaint schedule property.
4. According to the plaintiffs, the plaint schedule property is an
open site consisting of a courtyard and rasta/path way of the
plaintiffs house property more particularly described in the sketch
filed along with plaint as ACDF; plaintiffs are owners of adjacent
houses shown as MNOPQ to the south of ACDF area; 1st plaintiff got
ABEF property by uninterrupted, continuous, peaceful, open and
hostile possession over it for more than the statutory period prescribed
for adverse possession; that ABEF site was part of Gramakantam
originally; likewise, plaintiff nos.2, 3 and 4 have got right over BCDE
property under a registered document relating to their EBGHCD
property; out of ACDF plaint schedule property, ACXY part was
being used as a courtyard in front of the houses of plaintiffs; the
doors, windows, spouts, ventilators of plaintiffs houses open into
ABXY; that this was also used by plaintiffs to stand their carts, store
agricultural implements, etc.,; that out of ACDF suit property, the
other YXDF part was used by plaintiffs as a rasta/path for ingress and
outgress for the houses and respective courtyards of their houses ;
they had been using the ACDF property exclusively since it is a
necessity for the beneficial enjoyment of their houses; that defendants
are enjoying the property shown as DIJE in the plaint sketch to the
north of ACDF; that one Jardhar was enjoying the property shown as
FEJK; defendants have no right, possession and enjoyment over the
plaint schedule property; there is a public rasta/path to the north of
the properties of defendants; and defendants intended to encroach into
the plaint schedule property and threatened to dispossess plaintiffs
from the suit property and obstruct and interfere with their use and
occupation of the suit property prompting the filing of the suit.
WRITTEN STATEMENT OF 1ST DEFENDANT :
5. The 1st defendant filed his written statement opposing the
plaint averments. Defendant nos.2 and 3 adopted his written
statement.
6. The 1st defendant contended that one Mallakka,
W/o.Venkatappa purchased the plaint schedule property from one
Narayanamma under a registered sale deed Ex.B.1 dt.17.10.1947; that
she enjoyed the same till 26.06.1968 when she sold it to the father of
the defendants under a registered sale deed Ex.B.2 dt.26.06.1968 and
inducted him into possession of the property; defendants are actually
six brothers and after the death of their father in 1987, the 3rd
defendant along with other three defendants became owners of the
property as legal heirs of their father; and so the suit is bad for non-
joinder of necessary parties. They also claimed that they were
assigned one cent of land by Government measuring 21 x 50 links
towards the west of the plaint schedule property under HS
Dis.No.35/77 and they are in exclusive possession and enjoyment of
the plaint schedule property which is covered under Ex.B.2 sale deed
dt.26.06.1968. They alleged that the plaintiffs, in order to grab the
property which is adjoining the National Highway, had filed the suit
without having right, title or possession.
7. Pending suit, the 2nd plaintiff died and 5th plaintiff was added as
his legal representative. The 2nd defendant also died on 06.08.2002
but his legal representatives were not brought on record and the suit
was dismissed against 2nd defendant on 04.12.2002 as abated.
8. On the basis of the pleadings, the trial court framed the
following issues :
1. Whether the plaintiffs are entitled for permanent injunction
as prayed for in the plaint ?
2. To what relief ?
9. During trial, PWs.1 and 2 were examined by plaintiffs and they
marked Exs.A.1 to A.4. The defendants examined DWs.1 and 2 and
marked Exs.B.1 to B.4. Ex.X-1 is the Advocate-Commissioners
report and Ex.X-2 is the Advocate-Commissioners plan which was
also marked.
10. By judgment and decree dt.19.10.2006, the trial court decreed
the suit with costs to the extent of 21 yards (east-west) x 8 yards
(north-south) restraining defendant nos.1 and 3 and their men from
interfering with the peaceful possession and enjoyment of the plaint
schedule property.
11. It relied mainly on the Advocate-Commissioners report Ex.X.1
and his plan Ex.X.2 which clearly mentioned the portions of the
plaintiffs as MNOPQ and the site which is situated on the north of
MNOPQ, i.e., the plaint schedule property as having measurements
North-South as 24 feet = 8 yards and East-West 21 yards or 63 feet. It
held that the evidence on record and the measurements in Exs.B.1 and
B.2 clearly establish that the property of the defendants is located
beyond FD line towards the North; that plaintiffs have possession of
ACXY area as indicated in the plaint plan and their possession over
XYFD shown in the plaint plan can be presumed because if that area
is excluded, the plaintiffs cannot enjoy their house property; that
boundaries and measurements of GHDE exactly tally with the
boundaries and measurements shown in Ex.A.2 sale deed
dt.14.05.1925 in the name of one Narappa, who is the husband of 4th
plaintiffs maternal grand-fathers elder sister; and that the boundaries
of the plaint schedule property do not tally with the boundaries of the
property under Exs.B.1 and B.2 under which the defendants claim.
12. The trial court rejected the contention of defendants that the
plaintiff should also have sought a declaration of their title in addition
to the relief of injunction and that the Government is not a necessary
party to the suit.
13. Challenging the said judgment, the 1st defendant filed originally
AS.No.17 of 2006 before the Senior Civil Judge, Penukonda.
14. Pending suit, the 1st defendant died and his wife and son were
impleaded as appellant nos.2 and 3 therein.
15. The said appeal was later transferred to the Court of the Senior
Civil Judge, Dharmavaram and re-numbered as AS.No.8 of 2013.
16. By judgment and decree dt.18.06.2014, the said appeal was also
dismissed. The lower appellate court held that the plaint schedule
property abuts the properties of plaintiffs and they are using the same
for ingress and outgress for their respective houses; that it is in
Gramakantam site and they are using the same since it is
Government land. It held that defendant nos.1 and 3 did not take the
assistance of any Mandal Surveyor to ascertain the location of the
properties of the parties to the suit with reference to their respective
documents; that a suit for mere injunction pertaining to a vacant site
for ingress and egress can be maintained without seeking relief of
declaration of title; and since defendants are not the real owners of the
disputed property and since plaintiffs are found to be in possession
thereof, the trial court had rightly granted injunction in their favour.
17. Aggrieved thereby, the Second Appeal is filed.
18. The contention of the counsel for appellants is that the plaintiffs
ought to have sought for relief of declaration of title also in addition to
the relief of permanent injunction since they have pleaded acquisition
of title by adverse possession to plaint schedule property; that the
Government also is a necessary party since the plaint schedule
property is alleged to be Gramakantam; that since the lower
appellate court observed that no attempt was made to localise the
properties of plaintiffs and defendants by getting appointed a Mandal
Surveyor, the judgments of both courts be set aside and the matter
remanded to the trial court to get an Advocate-Commissioner
appointed to localise the sites.
19. On the other hand, the counsel for respondents supported the
decisions of the courts below and contended that no case has been
made out for interference under Section 100 CPC.
20. I have noted the submissions of both sides.
21. The frame of the suit indicates that the plaintiffs are owners of
house properties adjacent to ACDF site and they claimed that the said
site was being used by them for ingress and egress into their property;
that ABEF is part of Gramakantam and BCDE portion is part of the
property purchased by plaintiff nos.2, 3 and 4 under Ex.A.2.
22. On the other hand, the defendants contended that the plaint
schedule property is part of their property purchased under Exs.B.1
and B.2.
23. In M. Kallappa Setty v. M.V. Lakshminarayana Rao , the
Supreme Court held that plaintiff can, on the strength of his
possession, resist interference from persons who had no better title
than himself to the plaint schedule property. In that case, the Supreme
Court, having found that the plaintiff failed to establish his title to the
plaint schedule property but was found to be in possession on the date
of the filing of the suit, granted injunction in favour of the plaintiff.
24. In Chepana Peda Appalaswamy v. Chepana Appalanaidu
and others , a learned single Judge of this Court also held that a suit
for mere injunction without seeking a prayer for declaration of title is
maintainable. Similar view has been taken in Karuppana Goundar
and another v. V.C.T.N. Chidambaram Chettiar and another and
Fakirbhai Bhagwandas and another vs. Maganlal Haribhai and
another .
25. In Rame Gowda v. M. Varadappa Naidu , the Supreme Court
held that a person in possession of land in assumed character of owner
and exercising peaceably the ordinary rights of ownership has a
perfectly good title against the entire world but a rightful owner, and
that when facts disclose no title in either party, possession alone
decides.
26. Thus as a matter of law, a suit for mere injunction without
seeking a prayer for declaration of title is maintainable. So this
contention of the counsel for appellants is rejected.
27. I also do not agree with the contention of the counsel for
appellants that the Government should have been impleaded as a party
to the suit and the suit should be dismissed since the Government is
not impleaded. The basis for this plea appears to be the contention of
the plaintiffs that part of the plaint schedule property is a
Gramakantam site rasta/path and the rest of it forms part of the
property of plaintiff nos.2 to 4.
28. It is not the contention of the plaintiffs/respondents that the
Government is obstructing their use of the land as a rasta/path or as a
courtyard. In the present case, the respondents/plaintiffs contend that
although defendants have access to a public rasta/path to the North of
their houses and ACDF property does not form part of their property,
they are interfering with the use of ACDF portion by the plaintiffs. If
the Government did not want the plaintiffs to use ABEF portion
which is said to be Gramakantam, it is for the Government to take
steps to do so. It is not for defendants to plead the cause of
Government and obstruct the plaintiffs in the use of ABEF portion.
29. In my opinion, therefore, the courts below have rightly held
that the Government is not a necessary party to the suit and plaintiffs
need not have impleaded the Government.
30. Coming to the grant of injunction in favour of plaintiffs to the
extent of 21 yards x 8 yards against defendant nos.1 and 3, in my
opinion, both courts have rightly relied upon the Advocate-
Commissioners report in coming to the said conclusion and they had
rightly held that Exs.B.1 and B.2 relied upon by defendants relate to
property which is beyond FD line to the North and since defendants
have no property to the South of FD line, they are not entitled to
prevent plaintiffs from using ACDF portion as their courtyard or as a
public rasta/path, particularly when GHDE portion forms part of the
land covered under Ex.A.2.
31. In this view of the matter, there is no question of law much less
any substantial question of law arising for consideration in this
Second Appeal.
32. Therefore, the Second Appeal is dismissed at the admission
stage. No costs.
33. Miscellaneous applications, pending if any in this appeal, shall
stand closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date : 05-08-2014
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