SA/751/2016 of Gangula Surya Rao, Vs Jaggavarapu Peda Venkata Krishna Reddy, on 31 December 2024

Common Judgment:

This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree dated 18.04.2016 in A.S.No.184 of 2011, on the file of the IX Additional District Judge, West Godavari at Kovvur, reversing the Judgment and decree, dated 25.09.2010 in O.S.No.296 of 2009, on the file of Junior Civil Judge, Jangareddigudem.

2. The appellant herein is the 2[nd] defendant, the respondents 1 and 2 herein are the plaintiffs and respondents 3 and 4 herein are the defendants 1 and 3 in O.S.No.296 of 2009, on the file of Junior Civil Judge, Jangareddigudem.

3. The plaintiff initiated action in O.S.No.296 of 2009, on the file of Junior Civil Judge, Jangareddigudem, with a prayer for permanent injunction restraining the defendants and their men from ever interfering with their possession and enjoyment of suit schedule property in any manner.

4. The learned Junior Civil Judge, Jangareddigudem, dismissed the suit with costs. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed A.S.No.184 of 2011, on the file of the IX Additional District Judge, West Godavari at Kovvur. The learned IX Additional District Judge, West Godavari at Kovvur, allowed the appeal by decreeing the suit in favour of plaintiffs. Aggrieved thereby, the unsuccessful 2[nd] defendant approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.

6. The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.296 of 2009, is as follows:

The 2[nd] plaintiff is wife of 1[st] plaintiff. Originally, Nanduri Surya Venkata Subrahmanyam and his people are the owners of suit schedule property and they sold the suit schedule property to plaintiffs under two registered sale deeds in their respective names on 29.03.1985. Both the plaintiffs enjoying their respective properties under a contiguous plot and as the 1[st] plaintiff is husband of 2[nd] plaintiff, he is looking after the affairs of the suit schedule property. Two years after the purchase, plaintiffs raised cashew nut garden and now the same is aged about 17 years and giving yield. The names of plaintiffs are mutated in revenue records and they are paying taxes to Government. The plaintiffs obtained loans from banks by mortgaging the plaint schedule property and revenue authorities issued pattadar passbooks and title deeds in their respective names. The defendants 1 to 3 demanded the 1[st]plaintiff to give donation of Rs.6,000/- for the parties they are representing them as leaders and 1[st] plaintiff refused to give the amount. Therefore, the defendants and their men developed grudge against plaintiffs and since two days they started proclaiming that they would enter into suit schedule property and cut and carry the cashew trees and sell them and thereby they would compensate the loss caused to them, as the plaintiffs not willing to give donation to them. Therefore, the plaintiffs are constrained to file the suit.

7. The defendants 1 and 3 remained set ex parte before the trial Court.

7. The defendants 1 and 3 remained set ex parte before the trial Court.

8. The 2[nd] defendant filed written statement before the trial Court denying the averments in the plaint. The brief averments in the written statement are as follows:

Originally one Nanduri Surya Venkata Subrahmanyam was the owner of suit schedule property. He further contended that he is landless poor and getting his livelihood by doing coolie works and he along with other landless poor persons, who are in possession of assigned lands, trying for pattas and they applied before MRO for pattas and the same is in progress. The original assignees are not in possession of assigned lands and village Karanam mutated the names of various persons known to him in the revenue records in relation to assigned lands by ignoring the provisions of Act, 9 of 1977. He further contended that he along with some other landless poor persons are in possession and enjoyment of suit schedule property and some other properties and they are trying to get pattas and plaintiffs are not having right or possession over schedule properties. The documents filed by the plaintiffs are not valid documents in the eye of law and he prayed to dismiss the suit.

9. On the basis of above pleadings, the learned Junior Civil Judge, Jangareddigudem, framed the following issues for trial:

(1) Whether the plaintiffs are in possession and enjoyment of plaint schedule property as on the date of filing of suit? schedule property as on the date of filing of suit?

(2) Whether the plaintiffs are entitled for perpetual injunction as prayed for? prayed for?

(3) To what relief?

10. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.3 were examined and Exs.A.1 to A.13 were marked. On behalf of the 2[nd] defendant, D.W.1 and D.W.2 were examined but no documents were marked.

11. The learned Junior Civil Judge, Jangareddigudem, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit with costs. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.184 of 2011, on the file of the IX Additional District Judge, West Godavari at Kovvur, wherein, the following points came up for consideration.

(1) Whether the plaintiffs are in possession and enjoyment of suit schedule property as on the date of filing of the suit?

(2) Whether the plaintiffs are entitled permanent injunction as prayed for?

(3) Whether there are any grounds to interfere with the findings of the trial Court?

(4) To what relief?

12. The learned IX Additional District Judge, West Godavari at Kovvur i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the 2[nd] defendant and allowed the appeal filed by the plaintiffs by decreeing the suit. Felt aggrieved of the same, the unsuccessful 2[nd] defendant in O.S.No.296 of 2009 filed the present second appeal before this Court.

13. On hearing both side counsels at the time of admission of the appeal, on 02.01.2017, the composite High Court of Andhra Pradesh at Hyderabad, the following substantial questions of law are framed:

(1) When there is prima facie evidence before the Courts below that the subject land is assigned land covered by AP Assigned Lands (Prohibition of Transfers) Act, 1977 and alienation thereof is prima facievoid, whether the lower appellate Court was right relying solely on the possession of the respondent Nos.1 and 2 without reference to the title and in reversing the well considered judgment of the trial Court?

(2) Whether the Plaintiffs have to prove their case on their own without relying upon the weaknesses of the defendants’ case?

(3) Whether the plaintiffs can plead adverse possession against the third party without impleading the owner of the property?

(4) Whether the judgment of the 1[st] appellate Court is perverse? (5) Whether the plaintiffs are entitled for injunction without seeking declaration of title when their title is under cloud?

14. Heard Sri Y.V. Anil Kumar, learned counsel for the appellant and heard Sri V.S.K. Rama Rao, learned counsel, representing Sri V. Uday Kumar, learned counsel for the respondents 1 and 2.

15. Learned counsel for the appellant would contend that the decree and judgment passed by the 1[st] appellate Court is illegal, erroneous and contrary to law and the 1[st] appellate Court erred in reversing the decree and judgment passed by the trial Court. He would further contend that the decree and judgment passed by the 1[st] appellate Court may be set aside by allowing the second appeal filed by the appellant herein.

16. Per contra, learned counsel for respondents 1 and 2/plaintiffs would contend that on re-appreciation of the entire evidence on record, the 1[st]appellate Court rightly set aside the decree and judgment passed by the learned trial Judge and there is no need to interfere with the finding given by the learned 1[st] appellate Judge in its judgment.

17. Admittedly, in the case on hand, both the plaintiffs are husband and wife. They filed a simple suit for claiming the relief of permanent injunction restraining the defendants and their men from interfering with their possession and enjoyment over the plaint schedule property. Therefore, the burden is on the plaintiffs to prove that they are in possession and enjoyment over the plaint schedule property as on the date of suit. The evidence of P.W.1 coupled with documentary evidence Ex.A.3 to Ex.A.13 shows that the plaintiffs are in possession and enjoyment of the plaint schedule property and the same is supported by P.W.2 and P.W.3. The suit is filed against defendants 1 to 3. Defendants 1 and 3 are remained set ex parte. The 2[nd] defendant alone contested in the suit proceedings.

18. The appellant is 2[nd] defendant. The appellant examined himself as D.W.1 before the trial Court. He admits in his evidence in cross examination itself that there is a cashew nut tope in the plaint schedule property and it is

raised at about 20 years ago by the 1[st] plaintiff. As stated supra, the 2[nd]plaintiff is none other than the wife of 1[st] plaintiff. The appellant as D.W.1 admits in his evidence that the 1[st] plaintiff look after the plaint schedule property on his behalf and also on behalf of the 2[nd] plaintiff i.e., his wife and he has no documentary evidence to show that he is in possession and enjoyment of the plaint schedule land. The appellant also further admits that the revenue authorities issued pattadar passbooks and title deeds in favour of the 1[st] plaintiff and also his wife 2[nd] plaintiff in respect of the plaint schedule property. Therefore, the unequivocal admissions of the appellant i.e., D.W.1 shows that the plaintiffs are in possession and enjoyment over the plaint schedule property since 20 years prior to the institution of the suit and the revenue authorities also recognized their possession and issued pattadar passbooks and title deeds to both the plaintiffs in respect of the plaint schedule property. It is relevant to say that the Mandal Revenue Officer is also examined as D.W.2. He clearly admits that an extent of Ac.3-00 cents of land in schedule property survey number was given by way of patta to the 1[st]plaintiff and an extent of Ac.3-00 cents of land in schedule property survey number was given by way of patta to the 2[nd] plaintiff. As stated supra, both the plaintiffs 1 and 2 are husband and wife and the plaint schedule property is an extent of Ac.6-00 cents of land in same survey number. The own admissions of D.W.2 i.e., Mandal Revenue Officer also goes to show that the pattas were given by the Government in favour of the plaintiffs in respect of the plaint schedule property by recognizing their possession. It is not the case of either of the parties that the said pattadar passbooks and title deeds were cancelled by the Government. The suit is instituted in the year 2009. Admittedly, the pattadar passbooks under Ex.A.3 and Ex.A.4 were given by the Government on 19.03.2004 and the same was admitted by D.W.2 in his evidence. Therefore, material on record clearly reveals that the plaintiffs are in possession and enjoyment over the plaint schedule property much prior to the institution of the suit itself.

19. As stated supra, the appellant also admitted the possession of the plaintiffs over the plaint schedule property since 20 years prior to institution of the suit. As noticed supra, the own admissions of the appellant herein supports the documentary evidence under Ex.A.3 to Ex.A.13 that the plaintiffs are in possession and enjoyment over the plaint schedule property and the defendants are not in possession of the plaint schedule property. Furthermore, no iota of evidence is placed by the appellant to show that he is in possession and enjoyment over the plaint schedule property.

20. The learned counsel for the appellant relied on Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs., and others[1] .

The facts in the aforesaid case law are suit is filed for relief of permanent injunction. The defendant claimed title that he purchased the plaint schedule property by virtue of a registered sale deed. In the aforesaid case the Apex Court held as follows:

“As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.”

Admittedly, in the case on hand, the plaint schedule property is a dry land. The plaintiffs relied on pattadar passbooks, Adangal, land revenue receipts and tax receipts to show their possession. Furthermore, the appellant also admitted that the plaintiffs are in possession since 20 years prior to the institution of the suit proceedings. The appellant is not claiming any title in the plaint schedule property.

21. Learned counsel for the appellant relied on State of Andhra Pradesh and another vs. Srimat Kandala Raghavacharyulu (died) per LRs., and another[2] .

The facts in the aforesaid case law relates to the title over the plaint schedule property. The Government is also one of the parties to the said case. In the present case on hand the suit is filed for claiming relief of permanent injunction and the Government is not a party to the present suit proceedings.

22. Learned counsel for the appellant relied on Agnigundala Venkata Ranga Rao vs. Indukuru Ramachandra Reddy (dead) by LRs and others[3].

The facts in the aforesaid case law relates to suit for permanent injunction to restrain the defendants from interfering with the possession of the land and the suit land was sold by the appellant after commencement of the Land Ceiling Act and the said sale deed is void in contravention of provisions of the Land Ceiling Act. Therefore, the facts and circumstances in the cited decision are different to the instant case.

23. Learned counsel for the appellant placed reliance in Jharkhand State Housing Board vs. Didar Singh and another[4] where the Apex Court held as follows:

“It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

Learned counsel for appellant placed another reliance in Karukola Vasudeva Rao vs. Karri Sueelamma[5].

The facts in the aforesaid case law are both the parties claiming title. Here the appellant is not claiming title over the plaint schedule property.

24. Learned counsel for the appellant relied on Civil Appeal No.722 of 2012 of Apex Court.

In the aforesaid case law Tahsildar, Urban Improvement Trust i.e., Government is a party to the suit.

25. Learned counsel for the appellant relied on Beeraka Bharamari and another vs. Joint Collector, Visakhapatnam District and others.

The facts in the aforesaid case law are resumption order was issued by the Government in respect of the plaint schedule property. The facts in the present case on hand are different to the aforesaid case law.

26. Learned counsel for the appellant relied on Balkrishna Dattatraya Galande vs. Balkrishna Rambharose Gupta and another[6].

The dispute of both the parties in the aforesaid case law is in between landlord and tenant. Therefore, the facts and circumstances in the cited decision are different to the instant case.

In the case on hand, the own evidence of appellant clearly goes to show that the plaintiffs are in possession and enjoyment over the plaint schedule property much prior to the institution of the suit.

5 2022 SCC OnLine AP 528

27. In a case of Rame Gowda (dead) by LRs. vs. M. Varadappa Naidu (dead) by LRs. and another[7], the Apex Court held at para No.8 as follows:

“It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.”

The Apex Court further held at para No.9 as follows:

“The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :

i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.”

28. The evidence of D.W.1 and the Mandal Revenue Officer, Jangareddigudem, also clearly goes to show that the pattadar passbooks and

title deeds were issued in the name of the plaintiffs by recognition of their possession in the plaint schedule property in the year 2004 itself. As per the own case of the appellant he is not claiming any title in the plaint schedule property. As per the own case of the appellant the suit land is not belongs to the defendants. Therefore, the defendants and their men are not entitled to interfere with the possession and enjoyment of the plaintiffs over the plaint schedule property. Admittedly, the defendants having not get any pattas in respect of the plaint schedule property. Therefore, the defendants are not entitled to interfere with the possession and enjoyment of the plaintiffs over the plaint schedule property on the pretext that the appellant applied for patta before the Government. The learned 1[st] appellate judge on re-appreciation of the entire evidence on record gave a finding that the plaint schedule property is assigned land and plaintiffs are not acquired title over the plaint schedule property, but the plaintiffs are in possession and enjoyment over the plaint schedule property, therefore, the plaintiffs are entitled to remain in possession until they are evicting under due process of law.

29. As noticed supra, the material on record amply proves that the plaintiffs are in possession and enjoyment over the plaint schedule property and the defendants are not having any title in respect of the plaint schedule property. Therefore, the plaintiffs are entitled the relief of permanent injunction against the defendants and their men to protect their possession. Admittedly, in the case on hand, the Government is not a party to the suit proceedings and the defendants are not having any ownership rights in the plaint schedule property and they did not get any pattas in respect of the plaint schedule property. On appreciation of the entire evidence on record, the learned 1[st]appellant Judge rightly came to a conclusion that the plaintiffs are entitled the relief of permanent injunction in respect of the plaint schedule property against the defendants herein until the plaintiffs are evicted under due process of law.

30. In the case on hand, the plaintiffs are in possession and enjoyment over the plaint schedule property and the appellant/2[nd] defendant did not get any patta in respect of the plaint schedule property and the appellant is also not claiming any title in the plaint schedule property. There was unequivocal admissions by the appellant himself in his evidence itself both the plaintiffs are in possession and enjoyment over the plaint schedule property much prior to the institution of the suit, in such a case, the appellant is not entitled to interfere with the possession and enjoyment of the plaintiffs over the plaint schedule property.

31. In the result, the second appeal is dismissed confirming the decree and judgment, dated 18.04.2016 in A.S.No.184 of 2011, on the file of the IX Additional District Judge, West Godavari at Kovvur. Each party do bear their own costs in the second appeal.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

__________________________

V. GOPALA KRISHNA RAO, J.

DT. 31.12.2024. PGR