Second appeal dismissing challenge to order denying permanent injunction. Court held appellant failed to prove possession against respondent's documentary evidence of pattadar passbook, making injunction inappropriate. Only title suit viable.
No permanent injunction granted; appellant to file separate suit for declaration and recovery.
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THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY
SECOND APPEAL No.974 of 2013
Dated: 05.06.2014
Between: Vallabhneni Bangaraiah .. Appellant and Panamala Peda Musili
.. Respondent
Counsel for the appellant: Mr. K. Manmadha Rao
Counsel for the Respondent: Mr. Penumaka Venkata Rao
The Court made the following:
JUDGMENT:
This second appeal arises out of judgment and decree dated 30.08.2011 in A.S.No.153 of 2010 on the file of the learned V Additional District Judge, Ongole, whereby he has confirmed the judgment and decree dated 12.04.2010 in O.S.No.263 of 2005 on the file of the learned Principal Junior Civil Judge, Ongole.
I have heard Dr. K. Manmadha Rao, learned counsel for the appellant, and perused the record.
The appellant filed O.S.No.263 of 2005 for permanent injunction restraining the respondent from interfering with his peaceful possession and enjoyment of the property consisting of 0-34 3/8 cents comprised in Sy.No.1498 of Allur Village, Kothapatnam Mandal, Prakasam District. It is the pleaded case of the appellant that his father by name Reddaiah and his brother Venkata Swamy have jointly purchased an extent of 0-68¼ cents under registered sale deed dated 07.03.1958 from its original owner, that in the partition between his father and his brother, the suit schedule property fell to his father’s share and that his father died in the year 1990. That the appellant being the only son, he has succeeded to the suit schedule property. That as the respondent was proclaiming in the village that he was causing obstruction to the peaceful possession and enjoyment of the appellant over the suit schedule property, the appellant has filed the suit for injunction.
The respondent filed a written statement, wherein he has claimed ownership and exclusive possession over the property. He has averred that the father of the appellant alienated the suit schedule property in the year 1983 for a consideration of Rs.20,000/- and
delivered possession in the presence of Kokkiligadda Durga Rao and Peda Sing Lakshmaiah and that since then he has been in peaceful possession and enjoyment of the suit schedule property. He has further averred that his possession was duly recognized by the Government and pattadar passbook and title deed were issued in his name and that he lost his title deed and passbook. He has further averred that his name was mutated in the revenue record as pattadar and enjoyer and that the appellant never raised any objection for his enjoyment for the last 25 years.
Having regard to the respective pleadings of the parties, the trial Court has framed the following issues:
1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?
The appellant-plaintiff examined himself as P.W.1 and also examined one Kokkiligadda Venkateswarlu as P.W.2. He has also got marked registered sale deed dated 07.03.1958 as Ex.A1. The respondent examined himself as D.W.1 and also examined one Rasani Musalaiah as D.W.2. He has got pattadar passbook dated 29.03.2006 marked as Ex.B1.
On a consideration of the oral and documentary evidence, the trial Court has dismissed the suit on two grounds, namely; that the appellant has two sisters surviving at the time of filing of the suit, but he did not disclose the said fact and, therefore, he is not entitled to the equitable relief of injunction and that he has not adduced any evidence to show that he is in possession of the property. The lower appellate Court has confirmed the judgment of the trial Court and dismissed the
appeal.
From the evidence adduced by both parties, it is clear that except claiming that the appellant is in possession of the property, no iota of documentary evidence was produced to substantiate the said plea. The oral evidence let in by the appellant as P.W.1 and that of P.W.2 was disbelieved by the trial Court. On the contrary, the respondent has filed pattadar passbook marked as Ex.D1. Pitted against the documentary evidence produced by the respondent, the oral evidence of the appellant regarding possession paled into insignificance. Therefore, both the Courts below have rightly held that the appellant failed to establish his possession. Though the trial Court has held that the appellant is not entitled to the equitable relief, this Court need not delve into the said aspect. Even assuming that the appellant alone is entitled to maintain the suit, as he failed to establish his plea that he is in possession of the property, he is not entitled to the relief of injunction. Though the respondent has claimed ownership and title, he has not produced the sale deed. Nevertheless, Ex.B1 is sufficient to hold that he is in possession of the property. Even if the respondent has no title over the property, his possession is enough to non-suit the appellant. Assuming that the appellant is the true owner of the property, as he is not in possession of the same, he is not entitled to the grant of injunction. The appellant, if so advised, can only file a separate suit for declaration of title and recovery of possession of the property.
For the above-mentioned reasons, I do not find any reason to interfere with the well-considered judgments of the Courts below.
The second appeal is accordingly dismissed.
C.V.NAGARJUNA REDDY, J
5th June, 2014 IBL
1 issue framed by the court
Whether the appellant is entitled to relief of permanent injunction without establishing possession?
Vallabhneni Bangaraiah
Panamala Peda Musili
C.V. Nagarjuna Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
