INJUNCTION SUIT - PLAINTIFF NOT ONLY PROVE HIS POSSESSION BUT ALSO PROVE THE ALLEGED INTERFERANCE BY THE DEFENDANTS It is well settled law and principle that when a person came to the court and seek a relief of permanent injunction, he has to establish the possession over the plaint schedule property as on the 3 date of filing of the suit and also interference of opposite party into his peaceful possession and enjoyment, but though D5, who is plaintiff in OS 130/08 filed suit for seeking a relief of permanent injunction against plaintiff herein, who is D3 in OS 130/08 failed to prove his possession over plaint schedule property as well as alleged interference of plaintiff and her children. “37. As per the version of D5 (Plaintiff in OS 130/2008) while he is enjoying the property, plaintiff 2 and her children who are D1 to D3 in OS130/08, along with 5 others, came to the suit schedule property on 23.02.08 at about 6:00 p.m., without any manner of right, title, possession try to occupy the same and at the intervention of one Pothuraju and others, D5 (Plaintiff in OS 130/2008) could resist the illegal acts committed by the plaintiff and her children, but to prove the said interference of plaintiff and her children, D5(Plaintiff in OS 130/2008) neither choose to adduce any corroborative oral evidence nor marked any supportive document. If really plaintiff and her children (D1 to D3 in OS 130/2008) committed the alleged illegal acts against D5 and the same was resisted with the help of one Pothuraju and others, what prevented D5(Plaintiff in OS 130/2008) to get examine said Pothuraju or any others person who allegedly resisted plaintiff and her children (D1 to D3 in OS 130/2008) on his behalf to prove the alleged interference of plaintiff and her children. But no positive evidence is placed by D5(Plaintiff in OS 130/2008) to establish the alleged inference of plaintiff and her children (who are D1 to D3 in OS 130/2008). In absence of any positive evidence, the version of D5(Plaintiff in OS 130/2008) that while he is enjoying the property, plaintiff and her children (who are D1 to D3 in OS 130/2008) came to schedule property and interfered into his possession of property is not tenable. Further more once D5(Plaintiff in OS 130/2008) failed to establish his possession over the plaint schedule property, the question of interfere does not arise.
INJUNCTION SUIT - PLAINTIFF NOT ONLY PROVE HIS POSSESSION BUT ALSO PROVE THE ALLEGED INTERFERANCE BY THE DEFENDANTS
It is well settled law and principle that when a person came to the court and seek a relief of permanent injunction, he has to establish the possession over the plaint schedule property as on the 3 date of filing of the suit and also interference of opposite party into his peaceful possession and enjoyment, but though D5, who is plaintiff in OS 130/08 filed suit for seeking a relief of permanent injunction against plaintiff herein, who is D3 in OS 130/08 failed to prove his possession over plaint schedule property as well as alleged interference of plaintiff and her children.
“37. As per the version of D5 (Plaintiff in OS 130/2008) while he is enjoying the property, plaintiff 2 and her children who are D1 to D3 in OS130/08, along with 5 others, came to the suit schedule property on 23.02.08 at about 6:00 p.m., without any manner of right, title, possession try to occupy the same and at the intervention of one Pothuraju and others, D5 (Plaintiff in OS 130/2008) could resist the illegal acts committed by the plaintiff and her children, but to prove the said interference of plaintiff and her children, D5(Plaintiff in OS 130/2008) neither choose to adduce any corroborative oral evidence nor marked any supportive document. If really plaintiff and her children (D1 to D3 in OS 130/2008) committed the alleged illegal acts against D5 and the same was resisted with the help of one Pothuraju and others, what prevented D5(Plaintiff in OS 130/2008) to get examine said Pothuraju or any others person who allegedly resisted plaintiff and her children (D1 to D3 in OS 130/2008) on his behalf to prove the alleged interference of plaintiff and her children. But no positive evidence is placed by D5(Plaintiff in OS 130/2008) to establish the alleged inference of plaintiff and her children (who are D1 to D3 in OS 130/2008). In absence of any positive evidence, the version of D5(Plaintiff in OS 130/2008) that while he is enjoying the property, plaintiff and her children (who are D1 to D3 in OS 130/2008) came to schedule property and interfered into his possession of property is not tenable. Further more once D5(Plaintiff in OS 130/2008) failed to establish his possession over the plaint schedule property, the question of interfere does not arise.
AP HIGH COURT
THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN
SECOND APPEAL NO.278 OF 2020
K. Raghavamma,Versus
K K MOHAN DIED
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 11.03.2020 passed in A.S.No.96 of 2016 on the
file of VI Additional District Judge, Krishna at Machilipatnam
by dismissing the appeal suit and confirming the common
judgment and decree dated 21.06.2016 passed in O.S.Nos.95
and 130 of 2008 on the file of I Additional Junior Civil Judge,
Machilipatnam.
2. The appellant herein is the appellant in the lower
appellate Court and plaintiff in O.S.No.95 of 2008. The
respondents herein are respondents in the lower appellate
Court and defendants in O.S.No.95 of 2008.
3. The suit in O.S.No.95 of 2008 is filed by the plaintiff to
grant permanent injunction against the defendants and his
men restraining them from interfering with the plaintiff’s
possession over the plaint schedule property and for costs of
the suit.
4. The trial Court having considered the entire material on
record and after hearing both sides, while dismissing the suit
held in para Nos.37 and 38 of the common judgment dated
21.06.2016 that the plaintiff is not entitled for the relief
sought in the main suit which is extracted hereunder.
“37. As per the version of D5 (Plaintiff in OS
130/2008) while he is enjoying the property, plaintiff
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and her children who are D1 to D3 in OS130/08,
along with 5 others, came to the suit schedule
property on 23.02.08 at about 6:00 p.m., without any
manner of right, title, possession try to occupy the
same and at the intervention of one Pothuraju and
others, D5 (Plaintiff in OS 130/2008) could resist the
illegal acts committed by the plaintiff and her
children, but to prove the said interference of plaintiff
and her children, D5(Plaintiff in OS 130/2008) neither
choose to adduce any corroborative oral evidence nor
marked any supportive document. If really plaintiff
and her children (D1 to D3 in OS 130/2008)
committed the alleged illegal acts against D5 and the
same was resisted with the help of one Pothuraju and
others, what prevented D5(Plaintiff in OS 130/2008)
to get examine said Pothuraju or any others person
who allegedly resisted plaintiff and her children (D1 to
D3 in OS 130/2008) on his behalf to prove the alleged
interference of plaintiff and her children. But no
positive evidence is placed by D5(Plaintiff in OS
130/2008) to establish the alleged inference of
plaintiff and her children (who are D1 to D3 in OS
130/2008). In absence of any positive evidence, the
version of D5(Plaintiff in OS 130/2008) that while he
is enjoying the property, plaintiff and her children
(who are D1 to D3 in OS 130/2008) came to schedule
property and interfered into his possession of property
is not tenable. Further more once D5(Plaintiff in OS
130/2008) failed to establish his possession over the
plaint schedule property, the question of interfere does
not arise.
38. It is well settled law and principle that when a
person came to the court and seek a relief of
permanent injunction, he has to establish the
possession over the plaint schedule property as on the
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date of filing of the suit and also interference of
opposite party into his peaceful possession and
enjoyment, but though D5, who is plaintiff in OS
130/08 filed suit for seeking a relief of permanent
injunction against plaintiff herein, who is D3 in OS
130/08 failed to prove his possession over plaint
schedule property as well as alleged interference of
plaintiff and her children. Though D5 examined Dw1
to 4 and marked Exs.B1 to B3 on his behalf, but
nothing is elicited to prove his possession over plaint
schedule property and alleged interference. Therefore
the plaintiff failed to produce any proper and cogent
evidence to prove his possession over the disputed
property as well as alleged interference of plaintiff and
others. Therefore D5, who is plaintiff in OS 130/08 is
not entitled to seek any relief sought for. Accordingly,
2nd issue is determined and decided against D5, who
is plaintiff in OS 130/2008.”
5. Aggrieved by the same the plaintiff in O.S.No.95 of 2008
preferred an appeal in A.S.No.96 of 2016 on the file of the
learned VI Additional District and Sessions Judge, Krishna,
Machilipatnam. The lower Appellate Court upon hearing both
the parties framed issues No.1 to 4 at para No.7 of the
judgment and after examining all the issues came to a
conclusion that the appellant therein who is plaintiff in
O.S.No.95 of 2008 is not entitled for any relief and
accordingly dismissed the appeal by confirming the common
judgment and decree dated 21.06.2016 passed in O.S.Nos.95
and 130 of 2008 on the file of I Additional Junior Civil Judge,
Machilipatnam against which the present second appeal is
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filed with the following grounds which are in the nature of
appeal grounds:
1. Whether both the Courts below are right in giving
a finding that the oral contract of sale is not a sale
and after lapse of 18 years filing a suit for Specific
Performance is fatal to seeking such relief by the
appellant/plaintiff?
2. Whether both the Courts below are right in
denying 18 years possession of the appellant over
the suit property, in as much as the same was also
admitted by the respondent No.1?
3. Whether both the Courts below are right in not
considering Ex.A3 to A6 and A17 to A24, which
were issued by the competent authority?
4. Whether both the Courts below are right in not
applying the direct decision rendered in AIR 2000
AP 504 on similar facts when the parties are close
relatives under an oral contract of sale?
5. Whether both the Courts below are right in not
applying the direct decision of Clacutta High Court
in AIR 2001 Cal 42 in which AIR 1946 F.C. 97 was
followed on oral contract of sale?
6. Whether both the Courts below are right in not
coming to conclusion that in view of the spiraling
price, now in the Town due to coming of Port, the
respondents colluded together and brought Ex.B1
agreement of Sale-Cum-Power of Attorney which is
not bonafide one and invalid in view of the
judgment rendered by the Hon’ble Apex Court
reported in AIR 2009 SC 3077?
7. Whether both the Courts below are right in holding
that suit is filed for specific performance on the
basis of Ex.A1?
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8. Whether the lower Appellate Court is holding the
decisions of Trial Court and its findings?
6. Heard Sri Kancharlapalli Siva Rama Prasad, learned
counsel for the appellant.
7. Having heard and perused the material on record, this
Court opines that the learned counsel for the appellant had
miserably failed in showing that the substantial question of
law is involved for seeking any indulgence of this Court in the
present second appeal.
8. Having regard to the facts and circumstances of the
case, as no substantial question of law is framed or evaluated
seeking indulgence of this Court in judgment passed by the
lower appellate Court confirming the judgment of the Court
below, this Court is of the view that this Second Appeal is
liable to be dismissed at admission stage.
9. Accordingly, this Second Appeal is dismissed. There
shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any,
pending shall stand closed.
________________________
B. KRISHNA MOHAN, J
Date: 30.11.2020
IKN
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HONOURABLE SRI JUSTICE B. KRISHNA MOHAN
S.A.No.278 of 2020
30.11.2020
IKN
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