Dismissed

Pabbati YESUDAS.(DIED)AND3 Others. v. Pabbati Sudarshanam.

Telangana HC3 Dec 2012SA/648/2001

Case brief

AI extract

What is this about?

This second appeal concerns dismissal of a suit for permanent injunction. The Supreme Court held that framing points under Order XLI Rule 31 CPC is not a substantial question of law. Regarding possession, the Court found the plaintiff's possession established via voter list and lack of contrary evidence, dismissing the appeal.

What did the court decide?

Second appeal dismissed with costs.

Pabbati YESUDAS.(DIED)AND3 Others. Vs Pabbati… — Property and Title | Telangana HC (2012)

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HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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S.A.No.648 of 2001

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JUDGMENT:

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The respondent/plaintiff filed the suit in the trial Court for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the same. The plaint schedule consists of property with hut and pial measuring East-West: 9 yards and North-South: 8 yards in Danielpuram of Nandyal town in Ward No.25. A plan is attached to the plaint showing the schedule property as ABCD. After trial, the trial Court dismissed the suit; and when the plaintiff questioned the same by filing appeal, the lower appellate Court allowed the appeal granting permanent injunction in favour of the plaintiff. This appeal was admitted on the ground that ground No.8 of the grounds of appeal raises substantial question of law. Ground No.8(I) relates to framing of appropriate point for determination by appellate Court under Order XLI Rule 31 CPC. In a suit for permanent injunction, the only question to be considered and determined is relating to entitlement of permanent injunction by the plaintiff. After the trial Court framed more than appropriate issues and decided the same, which

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issues were reproduced by the lower appellate Court in its judgment, the only further point to be addressed is whether the appeal is to be allowed or dismissed. In any event, framing relevant points under Rule 31 of Order XLI CPC cannot be a substantial question of law. In a suit of the present nature for permanent injunction, unless any prejudice is shown to the appellant herein, the contention on framing of point by the lower appellate Court cannot be a substantial ground in this appeal.

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2. Ground No.8(II) relates to the plaintiff’s failure to prove ancestral nature of the suit property. Ground No.8(III) relates to failure to consider Ex.B.4 by the lower appellate Court. In a suit for permanent injunction, the primary question to be decided would be whether the plaintiff has been in possession of the schedule property by the date of the suit. If the said question is answered in favour of the plaintiff, then a subsidiary or secondary question arises as to whether the defendant has got better title to the suit property than that of the plaintiff. In the case on hand, the lower appellate Court came to the conclusion that the plaintiff has been in possession of the suit property on the

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basis of several pieces of evidence. There is no dispute that hut in the suit site gutted in fire and there was Sessions Case under Section 436 IPC as per S.C.No.87 of 1986 on the file of Assistant Sessions Judge, Nandyal at the instance of the plaintiff. If Ex.B.4 unregistered gift deed executed by the 1^st defendant in favour of D.W.2 Neelamma is true and if Neelamma was in possession of the hut by the date of fire incident, she would have figured in some capacity either as de facto complainant or a witness in the Sessions Case. This circumstance was taken by the lower appellate Court to come to the conclusion that the plaintiff was in possession of the suit property and not either the 1^st defendant or Neelamma (DW.2). The second circumstance is on the basis of Ex.A.8 voters list in which the plaintiff is shown as one of the voters residing in the suit property at Nandyal. The defendants tried to contradict the plaintiff by confronting Ex.B.1 portion of deposition in Sessions Case, wherein he stated that he does not have any property at Nandyal. PW.1 though tried to give some explanation for the same; it appears that the said portion of evidence in Ex.B.1 relates to any other property than the property which gutted in fire. Though PW.1 claims to have been paid

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Rs.250/- by the Government for the fire incident in which he lost his hut, PW.1 could not substantiate the same by filing any documentary evidence from the Revenue Department. In any event, Sessions Case No.87 of 1986 and Ex.A.8 voters list are the pieces of evidence relied upon by the lower appellate Court for coming to a conclusion in favour of plaintiff. As pointed out earlier, in a suit for permanent injunction, possession is the primary concern. When the plaintiff was found to be in possession of the suit property, then it is for the defendant to show that he has got better title to the suit property than that of the plaintiff in order to nonsuit the plaintiff in possession from claiming relief of permanent injunction. The 1^st defendant did not presently claim any rights for himself and pleads for DW.2 Neelamma who is not a party to the suit on the basis of Ex.B.4. Ex.B.4 is a self-serving document executed by the 1^st defendant only. It cannot have any bearing in deciding the 1^st defendant’s antecedent title to it. The fact that the plaintiff is enrolled as voter in Rayamalpuram also as per Exs.B.2 and B.3 in his maternal grand mother’s place, would not falsify the plaintiff’s possession of the suit property and would not falsify Ex.A.8 voters list of Nandyal. This Court is of the

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opinion that the view taken by the lower appellate Court is possible from the evidence available on record. I find that the said view is not perverse and therefore is not liable to be disturbed in this second appeal. Ground Nos.8(II) and 8(III) do not stand for scrutiny.

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3. In the result, the second appeal is dismissed with costs.

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____________________________ SAMUDRALA GOVINDARAJULU,J

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Dt.3^rd December, 2012

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PNV

Pabbati YESUDAS.(DIED)AND3 Others. v. Pabbati Sudarshanam.

Case brief

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Pabbati YESUDAS.(DIED)AND3 Others. v. Pabbati Sudarshanam.

Case brief

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