*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.202 of 2004 %30-11-2011 # Nagasamudrala Vasaraiah ..appellant And Dasam Kondaiah & others ..Respondents !Counsel for the appellant: Sri Ch. Srinivas ^Counsel for respondents . : Sri V. Ravi Kiran Rao < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.202 of 2004 JUDGMENT: The defendant in O.S.No.197 of 1998 on the file of the Principal Junior Civil Judge, Karimnagar, is the appellant. The respondent filed the suit for injunction in respect of 37 guntas of land in Sy.No.359/B of Algunoor Village, Thimmapur Mandal, Karimnagar District. It was pleaded that the suit schedule property, along with some other extent, was assigned to his father about 30 years ago, and after the death of his father, he has inherited the same. It was alleged that his name was entered in the revenue records, and that part of land was acquired by the Government. Alleging that the appellant is trying to interfere with his possession, he filed the suit for the relief of perpetual injunction. The appellant filed written-statement, opposing the suit. He pleaded that the respondent and two others by name, Dasam Parsaiah and Dasam Jampaiah sold an extent of one acre in Sy.No.359/B, including the suit schedule property, way back on 20-09-1992 under an unregistered document for a sum of Rs.14,950/- and that possession was also delivered. It was stated that when the respondent and two others, named above, sought to interfere with his possession, the appellant filed O.S.No.1460 of 1992 in the same Court for the relief of injunction, and that on admission of the case of the appellant, by the respondent, the suit was decreed on 07- 06-1993. He pleaded that the decree became final and that he is in continuous possession and enjoyment of the suit schedule property. He alleged that on account of the increase in the value of the property, the respondent has filed the suit with an oblique motive. Through its judgment dated 01-02-2002 the trial Court decreed the suit. A.S.No.13 of 2002 filed by the appellant in the Court of IV Additional District & Sessions Judge (Fast Track Court), Karimnagar, was dismissed on 30-06-2003. Hence, this Second Appeal. Sri Ch. Srinivas, learned counsel for the appellant submits that the trial Court and the lower Appellate Court committed serious error in ignoring the decree in O.S.No.1460 1992, filed as Ex.B-5. He contends that when the respondent herein admitted the possession of the appellant, by filing a written-statement in O.S.No.1460 of 1992, marked as Ex.B-2, there was no basis for the Courts below to assume that the appellant is not in possession of the property. He further submits that the Courts below have erred in extending the scope and ambit of O.S.No.1460 of 1992, and the decree passed therein, as well as the rights of the parties, vis-à-vis the land. Learned counsel submits that substantial questions of law arise for consideration. Sri V. Ravi Kiran Rao, learned counsel for the respondent, on the other hand, submits that the decree in O.S.No.1460 of 1992 was obtained by playing fraud, and that the appellant himself was not sure as to the nature of his possession. He contends that the respondent has flatly denied the execution of any document in favour of the appellant, and no injunction could have been granted against him, since he is the true owner. Only one issue was framed in the suit, viz., “whether the plaintiff is entitled for perpetual injunction as prayed for”. The respondent deposed as PW-1 and another person, by name, Gaddam Parsharam was examined as PW-2. On his behalf, he filed Exs.A-1 to A-11, which are mostly, in the form of pahanies. Ex.A- 4 is the sale deed, and Ex.A-5 is its true translation. On behalf of the appellant, DWs 1 to 4 were examined and Exs.B-1 to B-5 were filed. Ex.B-1 is an unregistered sale deed, but was impounded; Ex.B-2 is the written-statement filed by the respondent herein in O.S.No.1460 of 1992; Ex.B-3 is the certified copy of the vakalat, and Ex.B-5 is the decree passed in that suit. In his plaint, the respondent did not make any reference, either to a document dated 20-09-1992, marked as Ex.B-1, or the decree passed in O.S.No.1460 of 1992, marked as Ex.B-5. At least, when the appellant filed a written-statement, referring to the sale, through Ex.B- 1, and the decree passed in Ex.B-5, the respondent was under obligation to file a rejoinder, making his version clear. He did not take any such step. It is a matter of record, that after the purchase made by the appellant, under Ex.B-1, he filed O.S.No.1460 of 1992. The respondent herein figured as 1st defendant in Ex.B-2. Every fact that was pleaded by the appellant herein was admitted and obviously a decree ensued on 07-06-1993. In case the respondent was of the view that the decree was obtained by playing fraud upon him, or that it is otherwise untenable, he ought to have taken necessary steps. It is rather curious to note the contents of the cross-examination of DW-1, i.e. the appellant herein. It was suggested to him that he ought to have filed an E.P., for execution of the decree in Ex.B-5, or that he ought to have filed a suit for recovery of possession. Whatever may have been the purpose, that such untenable questions were put, the trial Court ought to have exhibited caution and care. Unfortunately, the trial Court proceeded on the same lines. Its perversity is evident from the fact that it has gone to the extent of observing that Exs.B-1 and B-5 are of no value. The relevant observation reads; “…In view of the clear provision of law, I find that Exs.B-1 and B-5 of no value…” Even if the trial Court wanted to express its view on Ex.B-1, which is not a registered document, there was no basis or justification for it, to observe that Ex.B-5 is of no value. No Court can say that the decree passed by another Court is of no value. Incidentally, it is the same Court, which passed the decree in Ex.B-5. Therefore, a substantial question of law, viz., “Whether a Court can grant relief of perpetual injunction in favour of a person, who suffered a decree for perpetual injunction in that very Court, in the hands of the defendants in the subsequent suit” arises for consideration. There cannot be an answer to this question, except in negative. The lower Appellate Court has picked up certain observations out of context, from the deposition of DW-1 and affirmed the decree passed by the trial Court. It was of the view that the appellant himself stated that he is not in possession of the property. However, a perusal of the evidence, both in chief and cross, discloses that he was clear in his stand, namely, that he purchased the property under Ex.B-1; he is in possession of the property since the date of document, and that he obtained a decree in Ex.B-5. His complaint as to interference with possession, by the respondent herein was treated as an admission of his not being in possession. At any rate, once a Court of competent jurisdiction has passed a decree for injunction, a defendant in that suit cannot be heard, to say that he is in possession. Even if he has assumed possession unlawfully, the Court cannot extend its helping hand. Therefore, the Second Appeal is allowed, and the decree passed by the trial Court, as affirmed by the lower Appellate Court is set aside. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.30-11-2011. Note: LR copy to be marked. (B/O) KO