injunction suit not maintainable with out possession = In a suit for injunction, what becomes material is the state of affairs obtaining as on the date of filing of the suit. Though the appellant pleaded that she is in possession and enjoyment of the suit schedule property, in the course of cross-examination, she admitted that DW.1 is in possession of the property, not only by the time the suit was filed, but also 9 years prior to her deposition. That itself is sufficient to non-suit the appellant. No substantial question of law arises for consideration in this second appeal.

SA 94 / 2013

PETITIONER RESPONDENT CHEMBETI LAKSHMAMMA W/O PERUMALLU   VS CHERI SUBBAIAH AND 3 OTHERS PET.ADV. : SUBRAHMANYA NARUSU RESP.ADV. :  SUBJECT: null DISTRICT:  CHITTOOR

 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

Second Appeal No.94 of 2013

JUDGMENT:

The appellant filed O.S.No.700 of 1980 in the Court of I Additional District Munsif, Tirupathi, for the relief of perpetual injunction, in respect of the suit schedule property.  

She stated that she is in possession and enjoyment of the suit schedule property and that the respondents are trying to interfere with her possession without any basis.  The trial Court dismissed the suit through its judgment, dated 08.08.1988.  

Aggrieved by that, the appellant filed A.S.No.107 of 1988 in the Court of III Additional District Judge, Tirupathi.  

The appeal was dismissed through judgment, dated 14.08.1996.  Hence, the second appeal.

Heard Sri K.S.R.Murthy, the learned counsel for the appellant.

The appeal was initially presented way back in the year 1996.  Ever since then, it has been undergoing several adjournments and stages, on one ground or the other.  It was in the recent past that the second appeal has been numbered. 

On the basis of the pleadings before it, the trial Court framed the following issues:

1.                              “Whether Cheri Perumallu was absolute owner of the suit schedule and it devolved on the plaintiff due to intestate demise of cheri Perumallu?

2.                              Whether the 2^nd defendant purchased the suit schedule from 1^st defendant and enjoying it as its absolute owner?

3.                              Whether the 2^nd defendant is not a necessary party to the suit?

4.                              Whether the cause of action alleged in the suit is true and genuine?

5.                              To what relief?”

On behalf of the appellant, PWs.1 to 4 were examined and Exs.A.1 to A.20 were filed.  On behalf of the defendants, DWs.1 to 4 were examined and Exs.B.1 to B.52 were filed.  The trial Court held all the issues against the appellant.  The lower Appellate Court framed the following points for its consideration, and held the same against the appellant.

1.                                   “Whether the plaintiff has title to the 1^st item of the plaint schedule?

2.                                   Whether the plaintiff has possession in respect of 1^st  item of the plaint schedule?

3.                                   Whether the plaintiff has title to the 2^nd item of the plaint schedule?

4.                                   Whether the plaintiff has possession in respect of 2^nd item of the plaint schedule?

5.                                   Whether the plaintiff is entitled for permanent injunction in respect of items 1 and 2 of the plaint schedule?

6.                                   Whether the judgment and decree of the trial Court are liable to be set aside?”

In a suit for injunction, what becomes material is the state of affairs obtaining as on the date of filing of the suit.  Though the appellant pleaded that she is in possession and enjoyment of the suit schedule property, in the course of cross-examination, she admitted that DW.1 is in possession of the property, not only by the time the suit was filed, but also 9 years prior to her deposition.  That itself is sufficient to non-suit the appellant.  No substantial question of law arises for consideration in this second appeal.

Hence, the second appeal is dismissed.  There shall be no order as to costs.

The miscellaneous petition filed in this second appeal shall also stand disposed of.

____________________

L.NARASIMHA REDDY, J.   

Dated:11.02.2013

GJ

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Writ Petition No.4053 of 2013

Date:11.02.2013

GJ