RAMALINGESWARA RAO (DEAD) THR. LRS. & ANR. versus N. MADHAVA RAO & ORS. on 5 April 2019

472

SUPREME COURT REPORTS

[2019] 6 S.C.R.

AT. RAMALINGESWARA RAO (DEAD) THR. LRS. & ANR.

v.

N. MADHAVA RAO & ORS.

(Civil Appeal No. 3408 of 2019)

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APRIL 05, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Appeal: Second appeal – Concurrent findings of facts bycourts below – Interference by the High Court – Justification of –CHeld: Trial court and the first appellate court on appreciating theevidence of the parties came to a conclusion that the plaintiffs failedto prove the ingredients necessary for the grant of perpetualinjunction – When the courts below have recorded concurrentfindings of fact against the plaintiffs, based on appreciation of factsDand evidence, such findings are binding on the High Court – It isonly when such findings are found to be against any provision oflaw or against the pleading or evidence or are found to be whollyperverse, the High Court may interfere in its second appellatejurisdiction – Thus, the High Court erred in interfering in theconcurrent findings of facts of the courts below.

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Injunction: Perpetual injunction – Claim of – On facts,appellants purchased suit land from one of the co-sharers –Respondent no. 1-3, sons of another co-sharer, filed suit againstappellants seeking perpetual injunction, rejected by the trial courtand first appellate court, however, allowed by the High Court – OnFappeal, held: Possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial oftheir right to their knowledge by the person in possession, andexclusion and ouster following thereon for the statutory period –Respondents have no case for grant of perpetual injunction – EvenGassuming that the respondents claimed to be in possession of thesuit property for claiming injunction, yet they were not entitled toclaim injunction against the other co-sharers over the suit property– Appellants being the purchasers of the suit property from one ofthe co-sharers stepped into the shoes of their co-sharer, thus, had a G

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T. RAMALINGESWARA RAO (DEAD) THR. LRS v.N. MADHAVA RAO & ORS.

right to defend their title and possession against the other co-sharer– High Court erred in interfering in the concurrent findings of thefact without recording a finding as to why the concurrent findingsof fact are bad in law and why it requires interference – Orderpassed by the High Court is set aside and that of the trial court andfirst appellate is restored.

Allowing the appeal, the Court

HELD: 1.1 The High Court erred in interfering in theconcurrent findings of facts of the two Courts below, whichdismissed the plaintiffs’ suit. The trial court and the first appellatecourt on appreciating the evidence of the parties had rightly cometo a conclusion that the plaintiffs failed to prove the ingredientsnecessary for the grant of perpetual injunction. [Paras 10, 11][476-H; 477-A]

1.2 When the two courts below have recorded concurrentfindings of fact against the plaintiffs, which are based onappreciation of facts and evidence, such findings being concurrentin nature are binding on the High Court. It is only when suchfindings are found to be against any provision of law or againstthe pleading or evidence or are found to be wholly perverse, acase for interference may call for by the High Court in its secondappellate jurisdiction. Such was not the case made out in the HighCourt. It is for this reason, the High Court should not haveinterfered in the findings of the two courts below and instead, thefindings should have been upheld by the High Court.[Paras 12, 13][476-B-D]

2.1 The plaintiffs-respondent Nos.1-3 have no case muchless prima facie for grant of perpetual injunction. Even assumingthat the plaintiffs claimed to be in possession of the suit property(which the two courts below did not find in their favour) forclaiming injunction, yet they were not entitled to claim injunctionagainst the other co-sharers over the suit property. Thepossession of one co-sharer is possession of all co-sharers, itcannot be adverse to them, unless there is a denial of their rightto their knowledge by the person in possession, and exclusionand ouster following thereon for the statutory period. DefendantNos. 1 and 2-appellants being the purchasers of the suit property A

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Afrom one of the co-sharers stepped into the shoes of their vendor(co-sharer) and, therefore, had a right to defend their title andpossession against the other co-sharer. [Para 14, 17 and 19][476-D; F-G; 477-A]

2.2 The plaintiffs had no case to claim injunction againstBdefendant Nos.1 and 2 in relation to the suit property. The twocourts below, therefore, rightly declined it and the same isaffirmed. [Para 20][477-B]

2.3 The High Court failed to appreciate the factual and legalcontroversy in its proper perspective and, therefore, erred ininterfering in the concurrent findings of the fact without recordingCa finding as to why the concurrent findings of fact are bad in lawand why it requires interference in its second appellatejurisdiction. The impugned order is set aside and the judgment/decree of the trial court/first appellate which dismissed the suitfiled by respondent no. 1-3 is restored. [Para 21, 22][477-C-D]DMohammad Baqar & Ors. v. Naim-un-Nisa Bibi & Ors.AIR 1956 SC 548 – referred to.

Case Law Reference

AIR 1956 SC 548 relied on

Para 17

ECIVIL APPELLATE JURISDICTION: Civil Appeal No. 3408OF 2019

From the Judgment and Order dated 23.11.2010 of the High Courtof Andhra Pradesh at Hyderabad in S.A. No. 1036 of 2006.

M. Rajesh, Byrapaneni Suyodhan, Ms. Tatini Basu, Advs. for theFappellants.

K. Maruthi Rao, Ms. K. Radha, Mrs. Anjani Aiyagari, AniruddhaP. Mayee, K.Subba Rao, Ms. K. V. Bharathi Upadhyaya, Advs. for therespondents.

The Judgment of the Court was delivered byG

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated23.11.2010 passed by the High Court of Judicature, Andhra Pradesh atHyderabad in Second Appeal No.1036 of 2006 whereby the High Courtallowed the second appeal filed by respondent Nos.1 to 3 herein.H

3. A few facts need mention hereinbelow for the disposal of thisappeal, which involves a short point.

4. The appellants herein are defendant Nos.1 and 2, respondentNos.1-3 herein are the plaintiffs and respondent Nos.5-9 are thedefendant Nos.4-8 of the civil suit out of which this appeal arises.

5. Respondent Nos.1-3 (plaintiffs) filed a civil suit against theappellants (defendant Nos.1 and 2) and respondent Nos.5 to 9 (defendantNos.4 to 8) seeking perpetual injunction against the defendants restrainingthem from interfering in his peaceful possession over the suit properties.

6. The appellants (defendant Nos.1 and 2) contested the suitwhereas the remaining defendants (4 to 8) remained ex parte. TheTrial Court by judgment/decree dated 20.08.2001 dismissed the suit.Respondent Nos.1-3 (plaintiffs) felt aggrieved and filed first appealbefore the Additional District & Sessions Judge(Fast Track Court),Visakhapatnam. By judgment dated 07.11.2005, the First Appellate Courtdismissed the appeal and upheld the judgment/decree of the Trial Court.

7. The plaintiffs (respondent Nos.1-3) felt aggrieved and filedsecond appeal in the High Court of Andhra Pradesh. By impugned order,the High Court allowed the appeal, set aside the judgment impugnedtherein and decreed the plaintiffs’ suit by passing a decree for perpetualinjunction against the defendants in relation to the suit property, whichhas given rise to filing of the present appeal by way of special leave inthis Court by defendant Nos.1 and 2.

8. So, the short question, which arises for consideration in thisappeal, is whether the High Court was justified in allowing the plaintiffs’second appeal and thereby was justified in decreeing their suit by grantinga decree of perpetual injunction against defendant Nos.1 and 2 in relationto the suit property.

9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal andwhile setting aside the impugned order restore the judgment/decree ofthe First Appellate Court and the Trial Court which resulted in dismissalof the plaintiffs’ suit.

10. In our considered opinion, the High Court erred in interferingin the concurrent findings of facts of the two Courts below, whichdismissed the plaintiffs’ suit.

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A11. In our view, the Trial Court and the First Appellate Court onappreciating the evidence of the parties had rightly come to a conclusionthat the plaintiffs failed to prove the ingredients necessary for the grantof perpetual injunction.

12. When the two Courts below have recorded concurrent findingsBof fact against the plaintiffs, which are based on appreciation of factsand evidence, in our view, such findings being concurrent in nature arebinding on the High Court. It is only when such findings are found to beagainst any provision of law or against the pleading or evidence or arefound to be wholly perverse, a case for interference may call for by theHigh Court in its second appellate jurisdiction.C

13. Such was not the case made out in the High Court. It is forthis reason, we are of the view that the High Court should not haveinterfered in the findings of the two Courts below and instead, the findingsshould have been upheld by the High Court.

D14. Coming now to the facts of the case, we find that the plaintiffs(respondent Nos.1-3) have no case much less prima facie for grant ofperpetual injunction.

15. The suit property is a part of big chunk of land owned byseveral brothers who inherited the same after the death of their father,Enamely, Poornayya.

16. The appellants (defendant Nos.1 and 2) are the purchasers ofthe suit land from one of the co-sharers (one of the brothers) by aregistered sale deed. Respondent Nos.1-3 (plaintiffs) are the sons ofanother co-sharer (brother).

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F17. In our view, even assuming that the plaintiffs claimed to be inpossession of the suit property (which the two Courts below did not findin their favour) for claiming injunction, yet they were not entitled to claiminjunction against the other co-sharers over the suit property. It is asettled principle of law that the possession of one co-sharer is possessionof all co-sharers, it cannot be adverse to them, unless there is a denial ofGtheir right to their knowledge by the person in possession, and exclusionand ouster following thereon for the statutory period. [See MohammadBaqar & Ors. vs. Naim-un-Nisa Bibi & Ors.(AIR 1956 SC 548)]

18. So far as the claim of the plaintiffs as being in exclusivepossession to the exclusion of others was concerned, the same was heldHnot proved by the two Courts below.

T. RAMALINGESWARA RAO (DEAD) THR. LRS v.N. MADHAVA RAO & ORS. [ABHAY MANOHAR SAPRE, J.]

19. Defendant Nos.1 and 2 (appellants herein) being the purchasersof the suit property from one of the co-sharers stepped into the shoes oftheir vendor (co-sharer) and, therefore, had a right to defend their titleand possession against the other co-sharer.

20. In the light of the aforesaid admitted position arising in thecase, in our view, the plaintiffs had no case to claim injunction againstdefendant Nos.1 and 2 in relation to the suit property. The two Courtsbelow, therefore, rightly declined it and we affirm the same.

21. As noted above, the High Court failed to appreciate the factualand legal controversy in its proper perspective and, therefore, erred ininterfering in the concurrent findings of the fact without recording afinding as to why the concurrent findings of fact are bad in law and whyit requires interference in its second appellate jurisdiction.

22. In view of the foregoing discussion, we allow the appeal, setaside the impugned order and restore the judgment/decree of the TrialCourt/First Appellate Court which dismissed the suit filed by respondentNos.1-3 (Plaintiffs).

Nidhi Jain

Appeal allowed.

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