when the defendant disputed the title of the plaintiff’s vendors, the suit ought to have been filed for declaration of title and mere seeking of a permanent injunction will not entitle the plaintiff for a decree. In the absence of establishment of possession and enjoyment of the said property, it cannot be decreed.

 when the defendant disputed the title of the plaintiff’s vendors,  the suit ought to have been filed  for declaration of title and mere seeking of a permanent injunction will not entitle the plaintiff for a decree. In the absence of establishment of possession and enjoyment of the said property, it cannot be decreed.

AP HIGH COURT 

THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

SECOND APPEAL NO.280 OF 2020

Sodisetty Subramanyam

     -VS-

Poola Balanchendraiah

JUDGMENT:

This Second Appeal is filed against the judgment and

decree, dated 20.03.2020 passed in A.S.No.23 of 2018 on the

file of the III Additional District Judge at Rajampet dismissing

the appeal by confirming the judgment and decree dated

23.04.2018 passed in O.S.No.9 of 2014 on the file of Junior

Civil Judge, Railway Kodur.

2. The appellant herein is the appellant before the lower

appellate Court and plaintiff in O.S.No.9 of 2014. The

respondent herein is the respondent before the lower

appellate Court and defendant in the said suit.

3. The suit in O.S.No.9 of 2014 is filed before the Junior

Civil Judge, Railway Kodur against the defendant for grant of

permanent injunction restraining him, his men and agents

from interfering with the plaintiff’s peaceful possession and

enjoyment over the suit schedule property i.e. land

admeasuring Ac.0-05 cents in survey No.58/6 of Kodur

village and costs of the suit.

4. The case of the plaintiff is that an extent of Ac.0-41

cents of land in survey No.58/6 is an ancestral property of

one Katikam Seshaiah and during his life time, he sold away

Ac.0-36 cents out of Ac.0-41 cents by retaining Ac.00-05

cents of the land. After his death, the property devolved upon

the legal heirs of said Katikam Seshaiah and from them, the 

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plaintiff purchased Ac.00-05 cents i.e. the suit schedule

property. The suit schedule property is a part and parcel of

Ac.0-41 cents. But the same was opposed by the defendant.

5. On behalf of the plaintiff, PWs1 and 2 were examined

and Exs.A1 to A5 were marked. On behalf of the defendants,

DWs1 and 2 were examined and Exs.B1 to B5 were marked.

After hearing both the sides, the Court below came to a

conclusion that in a suit for permanent injunction, the

plaintiff has to prove his possession and enjoyment over the

suit schedule property as on the date of filing the suit basing

on the strength of his own case and not on the weakness of

the defendant’s case. The plaintiff admittedly relied upon

Ex.A3 and considering the merits, the Court below came to a

conclusion that the plaintiff could not establish his

possession over the suit schedule property of the land

admeasuring Ac.00-05 cents and as such the suit was

dismissed observing further that it is a misconceived one, as

the plaintiff sought only for permanent injunction when there

is a title dispute between the parties. Aggrieved by the same,

the plaintiff preferred the first appeal in A.S.No.23 of 2018

before the III Additional District Judge, Rajampet.

6. The lower appellate Court after hearing both the sides,

gave a finding to the effect that prior to the instant case,

under Ex.B5 itself, the defendant disputed the title of the

plaintiff’s vendors, as such the suit ought to have been filed 

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for declaration of title and mere seeking of a permanent

injunction will not entitle the plaintiff for a decree. In the

absence of establishment of possession and enjoyment of the

said property, it cannot be decreed. Hence, the lower

appellate Court has dismissed the appeal and confirmed the

judgment of the trial Court against which the present second

appeal is preferred raising some grounds purported to be the

substantial questions of law. Two of such questions are

hereunder:

“(L) Whether or not the Gift Settlement Deed dated

22.08.1958 produced and marked on behalf of the

defendant as Ex.B1 confers any right to conclude

the title and possession over the suit schedule

property although the oral transfer of the Suit

Schedule Property is invalid?

(N) Whether or not the Courts are justified in

shifting the onus of the plaintiff for disproving the

knowledge about the Gift Settlement Deed dated

22.08.1958?”

7. Heard the learned counsel for the appellant/plaintiff

and perused the record.

8. Having regard to the facts and circumstances of the

case, taking into consideration of the judgments rendered by

the Courts below wherein it was held that the plaintiff has

miserably failed in establishing the possession over the suit

schedule property as on the date of initiating an action, the

suit for granting permanent injunction can’t be decreed and 

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that apart as the appellant/plaintiff has not made out any

grounds to frame any substantial questions of law, this Court

finds no reason to interfere with the judgments of the lower

Courts and 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.280 of 2020

30.11.2020

IKN