SA/64/2005 of Pramila Bai, Vs The Superintendent of Police, on 30 December 2011

JUDGMENT:

Appellant No.1 filed O.S.No.17 of 2001 in the Court of theJunior Civil Judge, Narayanpet for the multiple reliefs of recoveryof possession of about 400 square yards of land, perpetualinjunction in respect of another bit of land and mandatoryinjunction for removal of certain structures, poles, etc. Shepleaded that one Sri Chenna Bassappa was the owner ofAcs.4.34 guntas of land in Survey No.1/AA of Marikal Village ofMahaboobnagar District and that out of it, the Governmentacquired/purchased Acs.4.23 guntas way back in the year 1954.Out of the left over Ac.0.11 guntas of land, Chenna Bassappa issaid to have donated Ac.0.04 guntas for Eshwar Temple in theVillage and that Ac.0.07 guntas equivalent to 855 square yardswas purchased by appellant No.1 through a sale deed, dated23.06.1980.

It was stated that when the vendor raised some disputesabout the land, the appellant filed O.S.No.67 of 1980 in the Courtof the Junior Civil Judge, Narayanpet and that the suit wasdecreed on 10.11.2008 (Ex.A3). She pleaded that respondent No.3issued a notice under Section 7 of the A.P. Land EncroachmentAct to her, alleging that she encroached into the Government landand that she in turn got issued notices under Section 80 C.P.C.(Exs.A1 and A2). She stated that the respondents encroached intopart of the land highhandedly and erected poles, etc. With thesepleadings, she claimed the relief of recovery of possession andperpetual and mandatory injunctions.

The respondents contested the suit by filing a written statement. They pleaded that the decree in Ex.A3 was collusiveone and that the so-called purchase made by appellant No.1 wasspeculative in nature. It was pleaded that after the Governmentacquired Acs.4.23 guntas of land, Chenna Bassappa was left withAc.0.11 guntas and that he gave that piece of land to the Temple.Appellant No.1 herself is said to have admitted these facts.

The trial Court decreed the suit through judgment, dated10.03.2004. Thereupon, the respondents filed A.S.No.1 of 2004 inthe Court of the Senior Civil Judge, Narayanpet. The appeal wasallowed on 23.09.2004. Hence, this second appeal.

During the pendency of the appeal, appellant No.1 died andher legal representative, appellant No.2, was brought on record.

Heard Sri J.Suresh Babu, learned counsel for the appellantsand the learned Government Pleader for Arbitration for respondentNos.1 to 4.

Having regard to the nature of relief claimed in the suit, andthe pleadings of the parties, the trial Court framed the followingissues for its consideration:

1. Whether the plaintiff is the owner of the suit land?

2. Whether the plaintiff is entitled for recovery of possession of the suitland?land?

3. Whether the plaintiff is entitled for permanent injunction as prayedfor?for?

4. Whether the plaintiff is entitled for mandatory injunction as prayedfor?for?

On behalf of the appellant, P.Ws.1 and 2 were examined andExs.A1 to A8 were filed. On behalf of the respondents, D.Ws.1 and2 were examined and Exs.B1 to B12 were filed. The suit wasdecreed and in A.S.No.1 of 2004, the lower appellate Court framed the following points for its consideration:

1. Whether the plaintiff is entitled to seek declaration of her title over thesuit schedule land as prayed for by the plaintiff?suit schedule land as prayed for by the plaintiff?

2. Whether the plaintiff is entitled to seek the relief of perpetualinjunction against the defendants?injunction against the defendants?

3. Whether the plaintiff is entitled to seek the relief of mandatoryinjunction against D1 to D4 as prayed for?injunction against D1 to D4 as prayed for?

4. Whether the decree and judgment passed by the lower Court sufferfrom any infirmities and irregularities ad call for any interference fromthis Court?from any infirmities and irregularities ad call for any interference fromthis Court?

The appeal was allowed.

There is a basic flaw in the suit filed by appellant No.1. Thereliefs of recovery of possession and perpetual and mandatoryinjunctions were prayed for. It is permissible in law to claim therelief of perpetual injunction without claiming the relief ofdeclaration of title. The relief of recovery of possession can beclaimed generally as a corollary to the relief of declaration of title.It is only when there is no dispute as to the title, that the said reliefcan be claimed straightaway. However, the relief of mandatoryinjunction cannot be claimed in the absence of one for declarationof his rights. It can be claimed as a consequence as ancillary tothe one of declaration of rights or title, as the case may be.

In the instant case, appellant No.1 is said to have filed a suitagainst her vendor and obtained decree in Ex.A6. The plea of therespondents that the said decree was collusive in nature gainsacceptability in view of the fact that the suit was filed withinmonths from the date on which the property is said to have beenpurchased and it was decreed within months after it was filed. Thevery fact that there was no contest by the sole defendant thereindiscloses that it was filed for a different purpose altogether.

The necessity for appellant No.1 to seek the relief ofdeclaration of title once again, would have been obviated if onlyshe claimed the relief of recovery of possession against hervendor, who was a party to Ex.A4. When she is claiming the reliefof recovery of possession and perpetual and mandatoryinjunctions against the respondents herein, it was incumbent uponher to claim the relief of declaration of title. Though an issue wasframed in this regard, the adjudication thereof cannot be effectivein the absence of specific prayer and supporting plea. Hence,there was a serious defect in the frame of the suit itself.

On merits, the evidence discloses that appellant No.1herself admitted that the leftover property of Ac.0.11 guntas wasdonated by Chenna Bassappa to the Temple. This is evident notonly from the written arguments submitted by appellant No.1before the lower appellate Court, but also from Ex.A5 filed by her.It was as recently as in 2002 that the extent in possession of theTemple was shown to be Ac.0.11 guntas. In case appellant No.1has any grievance about it, she ought to have initiated steps underthe relevant provisions of law. Further, Ex.A5 would disclose thatif Ac.0.7 guntas of land said to have been purchased by appellantNo.1 is with the Temple, what was given to it was only Ac.0.04guntas. Since the Temple was not a party to the suit, the occasionto examine this aspect did not exist. The lower appellate Court hastaken these and other aspects into account and reversed thedecree passed in the suit. This Court does not find any substantialquestion of law in the second appeal.

Hence, the second appeal is dismissed. It, however, goeswithout saying that in case the appellants are otherwise entitled to file a suit for declaration, it shall be open to them to do so, dulyimpleading the persons or organisations, that are actually affected.There shall be no order as to costs.

Dt:30.12.2011.

kdl

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L.NARASIMHA REDDY,J