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