IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.333 OF 2001 Between : Ramayanam Lovaraju . .... APPELLANT A N D Tuni Municipality, Tuni. …RESPONDENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO. 333 OF 2001 JUDGMENT: The plaintiff in O.S.No.38 of 1999 on the file of the Principal Senior Civil Judge, Kakinada, is the appellant herein. The suit was filed for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff to the extent of 60 square yards with a thatched house in plot No.1 in survey No.289/2. 2. The allegations in the plaint would go to show that the schedule property was originally a cantonment property and the plaintiff has been residing in the schedule property and the possession has been recorded by the revenue authorities. The plaintiff constructed Saidbaba Temple in the year 1958, in an extent of 60 square yards, and the remaining 60 square yards, the plaintiff raised a thatched house. The plaintiff has been in continuous possession and enjoyment and perfected his title to the schedule property. The defendant intends to construct a shopping complex and he is trying to dispossess the plaintiff by demolishing the thatched house and therefore, the suit was filed for permanent injunction. 3. The defendant filed written statement contending that the plaintiff is not the owner of the property and that the claimed possession since a long period and the same was recognized by the Revenue Authorities is not correct. According to the defendant, issuance of possession certificate is not in accordance with rules. It is further pleaded that the land in survey No.289/2 is vested with the municipality and the plaintiff is only an encroacher. The possession certificate is to be issued for a person who belongs to Weaker Section and had no house, whereas, the plaintiff has got a Pacca residential building and two shops. The plaintiff is also a municipal contractor. The disputed site is proposed for shopping complex under I.D.S.M.T. scheme, for the benefit of the public and the necessary beget was released and the National Building Construction Corporation was entrusted with the above construction. Therefore, the plaintiff is not entitled for injunction as prayed for. 4. On the basis of above pleadings, the following issues have been framed for trial by the trial Court. “1. Whether the plaintiff is in continuous possession of plaint schedule property as pleaded by the plaintiff? 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? 3. To what relief ? 5. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and got examined P.W.w on his behalf and got marked Exs.A.1 to A.9. On behalf of the defendant D.W.1 was examined and Exs.B.1 to B.4 were marked. 6. After considering the evidence on record, the learned Senior Civil Judge, dismissed the suit of the plaintiff and aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arises for consideration are: 1) whether the plaintiff is entitled for injunction as prayed for? 2. whether the judgment and decree of the lower Court is legal and sustainable? 8. This being a suit for injunction based on the claim of the plaintiff for continuous possession and enjoyment, it is for the plaintiff to prove that he has got continuous possession and enjoyment. Though the plaintiff claims to have perfected title by adverse possession, the suit is not one for declaration of title and it has no relevancy. Apart from it, it is to be shown by the plaintiff that he has been in long recognized possession of the property entitled for injunction. It is also to be borne in mind when the plaintiff approached the Court for relief of injunction, he should come to the Court with clean hands. 8. Evidently the total extent of land in survey No.289/2 is said to be 120 square yards. Out of it, the suit schedule property is 60 square yards. Whereas in another 60 square yards a temple said to have been constructed in the year 1958. To prove that right from 1958, the plaintiff has been in possession and enjoyment of the property, no single document is filed. So also to prove that the plaintiff has constructed a temple, there is no proof of the same. The plaintiff contended that the municipality has no right to deal with the property, and it is the Revenue Authorities, that have to deal with the property. Evidently this contention is not tenable, since all the Government sites in the Municipal area vests with the municipality. The plaintiff does not dispute the fact that the municipality intended to construct a shopping complex. From the evidence of P.W.1, he did not apply for granting of patta in the year 1958. In the year 1997 he was given Ex.A.1 for construction of the residential house. He also admitted that except the electricity bills, he does not have any document to show that he was in possession since 1958. He admits that he has got RCC house in Tuni and also owns two shop. The issuance of Ex.A.1, possession certificate by the Revenue authorities, is disputed by the defendant. The plaintiff has not examined any Revenue Authorities to show that as to on what basis the certificate Ex.A.1 was given. No revenue record was also summoned to show that the Mandal Revenue Officer has got right to issue the certificate Ex.A.1. The evidence of P.W.2 about long possession and enjoyment of the plaintiff is also of no avail. There is no proof that the plaintiff is the owner of the temple or in possession of the entire property since long time. Ex.A.1 was given only in the year 1997, which is prior to filing of the suit. Merely because, Ex.A.1 the possession of the plaintiff was shown for 13 years is of no evidence, since that statement is not based on any other supporting evidence. The certificate Ex.A.1 is not a document of title and it is not even a patta. It discloses that the certificate issued for the purpose of constructing the house under Weaker Sections Housing Scheme. From the own evidence of the plaintiff, he is not entitled for any of the benefits, as he owns a house, shops and does business. Therefore, the purpose of Ex.A.1 is not to confer title or to recognize possession of the plaintiff. 9. As against the claim of the plaintiff the evidence of D.W.1 goes to show that encroachment tax was collected in the name of the plaintiff in the year 1996-97 and 1997-98 and prior to that also encroachment tax was collected. The plaintiff at no point of time claimed title to the property and from Exs.B.1 and B.2, it is clear that the plaintiff has paid the encroachment tax. The construction of thatched house is also unauthorized, since there is no permission from the municipality. In fact some of the encroachers are said to have voluntarily vacated the premises, but the plaintiff has approached the Court and obtained the injunction. It was sought to be suggested to D.W.1, that the municipality has got right in Ac.0.25 cents in survey No.289/2 and the rest of it belongs to the Government. If such is the case, the plaintiff would have summoned the revenue records. The plaintiff has also not examined other encroachers in the schedule property. There is nothing on record to show that by the date of filing of the suit, the plaintiff has paid the encroachment tax to protect his possession. 10. Learned counsel for the appellant relied on a decision reported in Prataprai N.Kothari V. John Braganza[1], wherein it was held thus: “When the suit is based on plea of long and exclusive possession and when the defendant has not proved the title the suit cannot be dismissed” The above decision has no application to the facts of the present case. In this case admittedly, the Government has permitted the municipality to construct a complex, and it is not the case of the plaintiff that he has got independent title. The title of the plaintiff is not proved by any other evidence. The continuous possession is also not proved, in order to get injunction against the real owner. The contention that due procedure for eviction of the encroachers is to be followed is not open to be raised by the plaintiff, since he has not come to the Court on the plea that he is recognized encroacher entitled for injunction. In fact, he has come to the Court on the plea that he has title to the property and the defendant has no right in the property. The plaintiff has failed to prove title to the property or long possession and enjoyment entitling for injunction. Therefore, the judgment and decree passed by the learned Senior Civil Judge, does not call for any interference by this Court and it is liable for dismissed. 11. Accordingly, the Appeal Suit is dismissed with costs. ____________________________ N.R.L.NAGESWARA RAO, J MARCH 11, 2010. YVL [1] AIR 1999 Supreme Court 1666