THE HON’BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL NOS.419 OF 2009 AND 93 OF 2013
COMMON JUDGMENT:
These Second Appeals are filed under Section 100 CPC against the decree and common judgment dated 30-08-2007 passed in A.S.Nos.40 of 2000 and 44 of 2000 in O.S.Nos.352 of 1993 and 136 of 1999 respectively on the file of the Senior Civil Judge, Kovvur.
2. Heard both sides. For the sake of convenience, the parties herein are referred to as arrayed in the trial court.
3. O.S.No.352 of 1993 and 136 of 1999 were filed before the Prl. Junior Civil Judge, Kovvur, for permanent injunction restraining the defendants and their men from interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule properties respectively. The Suits were clubbed together and a common judgment was rendered by the Prl. Junior Civil Judge, Kovvur, dismissing the Suits. Challenging the same, the un-successful plaintiffs filed appeals before the first appellate court, namely Senior Civil Judge, Kovvur. By impugned judgment dated 30-08-2007 both the appeals were dismissed confirming the decree and common judgment of the trial court. Challenging the same, the present Second Appeals are filed.
4. In view of the amendment to Section 100 CPC admission of Second Appeal is not routine and the appellants must show the Second Appeal involves a substantial question of law.
Substantial question of law has not been defined but it has been stated that it substantially affects the rights of the parties.
When the findings are not based upon admissible evidence or
when inadmissible evidence has been taken into consideration or when both the courts below gave a perverse finding,
then it can be said that a substantial question of law is involved.
5. The Suits are filed for permanent injunction by the plaintiffs in respect of three items in plaint schedule property. The plaintiffs in both the suits based their claim on two un-registered Wills. Both the Wills were disbelieved by the trial court after giving substantial reasons. When both the wills have been disbelieved by the trial court as well as the first appellate court, the incidental title of the party cannot be decided because for grant of permanent injunction three requirements have to be satisfied namely 1) prima facie case 2) balance of convenience must be in favour of the plaintiff and 3) if the injunction is granted, whether any irreparable injury would be caused to the plaintiff.
6. Insofar as the first requirement is concerned, it must be incidentally proved by both the plaintiffs. In view of the fact that there are some suspicious circumstances existing in respect of the execution of Wills, the trial court as well as the first appellate court rightly dismissed the suit. In all respects, the appellants ought to have filed a suit for declaration in respect of the plaint schedule properties. Instead of doing so, the present second appeals are filed. Even in these Second Appeals also no substantial question of law has been raised. Even with regard to the grant of injunction, the plaintiffs must show that they were in possession of the property by the date of filing of the Suits. Right from the date of filing of the suits, none of the parties filed any document to show that they are in actual possession and enjoyment of the property. Therefore, when the plaintiffs in both the suits failed to establish their physical possession and enjoyment of the property as on the date of filing of the suits the question of granting of injunction does not arise. Hence, there is no substantial question of law involved in these second appeals.
7. Accordingly, both the second appeals are dismissed at the admission stage. There shall be no order as to costs.
8. Miscellaneous petitions pending, if any, in these Second Appeals shall stand closed.
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JUSTICE K.C. BHANU
PN
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