IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.502 of 2011 Between: A. Bharathi .. Appellant AND Atmakur Krishna Reddy & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.502 of 2011 JUDGMENT: The second appeal is directed against the judgment and decree in A.S.No.17 of 2005, on the file of the Senior Civil Judge’s Court, Wanaparthy, dated 25.04.2006, by which the judgment and decree in O.S.No.95 of 2001, on the file of the Junior Civil Judge’s Court, Wanaparthy, dated 09.06.2005, dismissing the suit without costs were confirmed and the appeal was dismissed with costs. 2. The factual background is that the plaintiff filed the suit for a permanent injunction in respect of 0.01 ½ guntas in S.No.54 of Nagavaram Village in Plot No.42 claiming that she purchased the same under a registered Sale Deed, dated 16.12.1980, from Mandla Devanna, the original owner, and Mandla Devanna purchased the land in S.No.54 under a registered Sale Deed, dated 30.06.1996, from Atmakur Balakistaiah alias Balakista Reddy, father of defendants 1 and 2. Mandla Devanna was issued a D-form patta on 23.01.1978 and the agricultural land was converted into house plots and sold to several persons under registered Sale Deeds. The defendants, who obtained the Occupancy Rights Certificate from the revenue authorities, demanded some amount from the plaintiff and, hence, the suit for a permanent injunction. 3. The defendants resisted the suit denying the purchase by the plaintiff and contending that Mandla Devanna and K. Ramulu had nothing to do with the suit land. The defendants claimed to be the owners and occupants of S.No.54 of Nagavaram Village and claimed that they or their father never sold the land to Mandla Devanna. The truth of the Sale Deed, dated 30.06.1996, was denied and it was the defendants who converted the land into plots and sold to needy persons. Therefore, the defendants, claiming to be in possession and to have also obtained an Occupancy Rights Certificate, desired the suit to be dismissed. 4. The entitlement of the plaintiff to a permanent injunction was the subject of the issues framed by the trial Court, which examined P.Ws.1 and 2 and D.Ws.1 to 3 during trial and also marked Exs.A-1 to A-9 and Exs.B-1 to B-12. 5. The trial Court rendered its judgment firstly stating that it is not going to decide the title over the suit plot. The trial Court also observed that in a suit for permanent injunction, the question of title is a different matter and the trial Court found that Mandla Devanna never approached the Mandal Revenue Officer but obtained a patta certificate from the Assistant Collector in 1978, but not an Occupancy Rights Certificate. The issuance of D-form patta was found by the trial Court to be surprising and even under the D-form patta, Mandla Devanna was not entitled to sell the land to anybody. The trial Court also found that Ex.A-5 issued by the Mandal Revenue Officer showed the defendants to be pattadars for the land and the Pahanies filed by the defendants clearly established that they are in possession of the land. The trial Court also observed that the plaintiff examined P.W.2 to corroborate her claims of possession, but P.W.2 admitted that he visited the suit plot only about 10 years earlier. The mere fact that the plaintiff filed a complaint before the police or she filed an encumbrance certificate is no proof of her possession and it was noted from Ex.A-9-Affidavit that the defendants sold the property to one Nookala Ramulu and made no reference to Mandla Devanna. The statement of P.W.1 during the cross-examination that she was of the opinion that she was in possession of the suit plot itself was construed as showing a presumption of the plaintiff to be in actual possession. The trial Court referred further to the evidence of P.Ws.1 to 3 and concluded that as the plaintiff, who has to prove her possession over the suit land in the suit for permanent injunction, cannot depend on the weakness of the defendants and as she failed to prove her title and possession, she cannot claim a permanent injunction. The suit was consequently dismissed without costs. 6. In appeal by the plaintiff against the dismissal of the suit, the first Appellate Court delivered the impugned common judgment deciding not only the appeal against the judgment in O.S.No.95 of 2001, but also two other appeals involving identical questions of fact and law. The Appellate Court, after referring to the rival contentions, evidence and challenge to the judgments of the trial Courts, considered among other things whether the plaintiffs proved their lawful possession in their respective suit schedule plots and were entitled to the equitable relief of permanent injunctions. The Appellate Court also considered the sales by Mandla Devanna to K. Ramulu or the sales by Mandla Devanna and Ramulu together to the plaintiffs in the three suits to be not valid sales conveying legal possession to the purchasers. The provisions of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, more particularly, Sections 47 and 50 B were considered to stare against the legality of the alleged sales. The Appellate Court also relied on the Occupancy Rights Certificate in favour of the defendants/brothers and considered that the D-form patta issued in favour of Mandla Devanna also prohibited any alienation unless the land value was paid. The conversion of the land to house plots was also considered a violation of the terms of assignment and consequently, the plaintiffs in all the three suits were considered to have failed to prove their lawful possession even if their other contentions are true. The first Appellate Court also went into the question of actual possession and observed that the defendants have produced Pahanies including Khasra Pahani and also observed that the endorsements given by the Mandal Revenue Officer about not issuing title deeds and pass books in favour of the defendants were also not helpful in proving the possession of the plaintiffs. It was, therefore, concluded that the possession of the defendants till 1997-98 was proved by the revenue records and in the absence of any evidence to show the plaintiff coming into possession at any time later, the alleged possession under the registered Sale Deed of 1980-81 must be negatived. The Appellate Court also, hence, concurred with the trial Court and dismissed the appeals with costs. 7. Against the said common judgment and the decree in A.S.No.17 of 2005, the plaintiff in O.S.No.95 of 2001 is before this Court with this second appeal challenging the findings of the Courts below as illegal and contending that the predecessor-in-title of the appellant was issued a patta by the Government in respect of the inam land vested with the Government as per Section 3 of the Inams Abolition Act, 1956, and it was after the grant of such patta, the land was converted into house plots and sold to several individuals. The agricultural operations in the land having seized 30 years earlier and the purchase of the plaintiff being of a non-agricultural land, the dismissal of the suit was illegal and on presumptions and assumptions, the trial and the Appellate Courts dismissed the suit. The appellant, therefore, contended that substantial questions of law arise for consideration in the second appeal about the accrual of rights over the inam land on purchase from inamdars prior to issuance of Occupancy Rights Certificate in favour of the tenants, the validity of the sale prior to the issuance of an Occupancy Rights Certificate and the unsound and unsustainable reasons given by the Courts below for the dismissal of the suit. 8. Sri V.R. Reddy Kovvuri, learned counsel for the appellant and Sri J. Suresh Babu, learned counsel for the respondents are heard at the stage of admission. 9. The point for consideration is whether any substantial questions of law are involved in the second appeal for formulation by the High Court to enable entertainment of the second appeal. 10. Section 100 and Order XLII Rule 2 of the Code of Civil Procedure, 1908 (for short, “C.P.C”) mandate formulation of substantial questions of law involved in the second appeal to be a sine qua non for entertainment of a second appeal and the satisfaction of the High Court about the involvement of a substantial question of law was repeatedly held to be not an empty formality and the Apex Court deprecated time and again mechanical admission of second appeals without considering the existence or otherwise of substantial questions of law. 11. In that background, the grounds of appeal raised by the appellant seem to revolve round the correctness or otherwise of the conclusions of the trial Court and the First Appellate Court about the validity or invalidity of the purchase of the plaintiff from Mandla Devanna in spite of the same being much prior to the issuance of the Occupancy Rights Certificate in favour of the defendants. However, the trial Court in its judgment stated even at the inception of the consideration, that it was not going to decide the question of title in the suit for an injunction simpliciter. Though an incidental reference was made to the rival contentions and documents on the question of title also, the judgment of the trial Court primarily revolved round its conclusions on the question of physical possession of the property. The trial Court found the plaintiff examined as P.W.1 to be not sure of her physical possession, P.W.2 to have been possibly unaware of the possession of the plot about the time of the suit having not visited the same since 10 years earlier and the documents of the plaintiff marked as Exs.A-1 to A-9 to be not, prima facie, proof of such possession, except the recital in Ex.A-1-registered Sale Deed, dated 16.12.1980, about the delivery of possession. The trial Court found, on the other hand, the Khasra Pahani, the Record of Rights and Pahanies filed by the defendants, apart from the title deeds and the Occupancy Rights Certificate as well as the proceedings in O.S.No.44 of 1999, to be broadly in support of the version of the defendants. Even otherwise, the trial Court concluded that any weakness in the case of the defendants will not aid the plaintiff in contending to have probablised her possession by the date of the suit and these conclusions are on pure questions of fact and not on any questions of law involved in the alleged transfer of title over the suit plot to the plaintiff. 12. The first Appellate Court, of course, had expressed an opinion about the nature of the possession of the plaintiff with reference to the validity of her title stating that the same is being incidentally enquired into and it is also true that it made a passing observation about the defendants having a better title than the plaintiff. However, the conclusions of the first Appellate Court also are essentially based on its answer to the question of possession on the date of the suit discussing the evidence therefor adduced by both the parties in the three connected suits. While it is true that the suit schedule plot is a vacant house plot, proof of possession of which on the entries in the revenue records and payment of taxes, etc., might not have been available as contended by the learned counsel for the sole appellant, the conclusions of the first Appellate Court were with reference to the admissions of the respective plaintiffs in their evidence before the trial Court. With reference to O.S.No.95 of 2001, the first Appellate Court clearly noted that P.W.1 was only of the opinion that she was in possession of the suit plot and P.W.2 does not know whether the defendants were in possession of the suit land, while he did not see the suit plots since 10 years. If these admissions of P.Ws.1 and 2 were relied on by the first Appellate Court to conclude that the plaintiff failed to prove her physical possession of the suit plot, the same is a conclusion of fact, pure and simple, and no consideration of any questions of law. While scanning the evidence of the plaintiff, the first Appellate Court also referred to the evidence of the defendants and it was of the ultimate opinion that the alleged possession under the registered Sale Deeds of 1980-81 was not probablised as against the probablised possession of the defendants upto 1997-98 and absence of any evidence to show discontinuance of such possession thereafter. 13. Therefore, the questions sought to be projected as substantial questions of law involved in the second appeal were not conclusively determined by the trial Court and the first Appellate Court, though incidentally referred to and the determination of the suit for injunction simpliciter only on the question of possession by the date of the suit cannot be considered to involve any perversity or unreasonableness, if such possession were to be found by the Courts below to have not been proved to be with the plaintiff by the date of the suit. However, it should be made clear that the observations of the trial Court or the first Appellate Court concerning the title of the plaintiff or the defendants cannot prejudice the rights of the parties, if they were to take recourse to an appropriate proceeding to which they are entitled under law before an appropriate forum for assertion or declaration of their title over the suit plot. Though the question of title also could have been incidentally determined by the trial Court/the first Appellate Court, as they have not done so, any observations made by them cannot estop the parties from reiterating their respective contentions in any future proceeding to which, they may take recourse to, if they so desire and are so advised. 14. As no substantial question of law arises in the second appeal, it has to fail subject to the above observation and accordingly, the Second Appeal is dismissed without costs. ___________________ G. BHAVANI PRASAD, J Date: 25th November, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.502 of 2011 Date: 25th November, 2011 KL