IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.716 of 2011 Between: Pedda Appalanaidu (died) and others ..... PETITIONER(S) AND Metta Manikyam ..... RESPONDENT(S) JUDGMENT: This appeal is directed against the judgment dated 30-03-2011 in A.S.No.9 of 2009 passed by the Senior Civil Judge, Rajam, whereby and whereunder the lower appellate Court confirmed the decree and judgment dated 13-04-2009 passed by the Junior Civil Judge, Rajam, in O.S.No.85 of 2004. 2. The appellants herein are the defendants and the respondent herein is the plaintiff in the trial Court. The parties will be referred to as they are arrayed to in the O.S. for the sake of convenience. 3. Plaintiff filed O.S.No.85 of 2004 on the file of the Junior Civil Judge, Rajam, for permanent injunction against the defendants praying to restrain them and their men from interfering with her peaceful possession and enjoyment of the plaint schedule land. 4. The brief case of the plaintiff is as follows: The husband of the plaintiff late Metta Lakshmanamurthy alias Lakshmanarao was a military personnel and he was assigned Ac.5-00 in Sy.No.71/20 at Gorinta village vide proceedings of the Tahsildar, Cheepurpalli in R.C.9310/66/A7, dated 22-12-1966 and accordingly he was handed over the possession of the said land and he brought the land under cultivation. Subsequently, the State Government assigned and granted patta for Ac.3.09 cents in addition to the five acres of land as aforementioned. It is also the case of the plaintiff that after the death of Lakshmanamurthy in the year 1999 the plaintiff herself migrated to Tungapeta, which is an adjacent village to Gorinta and used to cultivate the land assigned to her husband. It is alleged that as the defendants who are influential persons had been threatening to dispossess the plaintiff and interfering with her possession she filed a suit for permanent injunction. 5. The first defendant is the father of defendants 2 and 3. It appears that after the death of first defendant, defendants 2 and 3 were added as the legal representatives in I.A.No.404 of 2004 dated 07-03-2005. 6. The first defendant filed a written statement and his main case is that the husband of the plaintiff who was residing at Subbaraopeta of Sarubujjili mandal, which is at a distance of 100 Kms., from the suit schedule land and that he delivered the possession of the said land to the first defendant and also executed a Power of Attorney in the year 1971. It is also his case that he was cultivating the land and while so, in the year 1988 the husband of the plaintiff sold the said land to the first defendant for Rs.15,000/- and issued a receipt and thus, he became the absolute owner of the land and since then he was cultivating the land. The main case of the first defendant is that after the demise of Late Lakshmanamurthy the plaintiff colluded with his enemies and filed this false suit. It is also the case that he had given a suitable reply to the notice sent by the plaintiff. 7. The trial Court framed the following issues for consideration: 1. Whether the plaintiff has got title and possession in the plaint schedule property ? 2. Whether the defendant interfered with the plaintiff’s possession ? 3. If so, whether the defendants are justified in interfering with the plaintiff’s possession ? 4. Whether there is cause of action for the plaintiff to file the suit ? 5. Whether the plaintiff is entitled for permanent injunction ? 6. To what relief ? 8. On behalf of the plaintiff, the plaintiff herself was examined as PW-1 and PWs.2 to 4 were examined and Exs.A-1 to A-6 were marked. On behalf of the defendants, the second defendant was examined as DW-1 and DWs.2 to 4 were examined and Exs.B-1 to B-12 were marked. 9. The learned Junior Civil Judge having considered the oral and documentary evidence came to the conclusion that in a suit for permanent injunction the plaintiff has to establish that she has been in possession of the suit schedule property and that she is in possession of the property on the date of filing of the suit and that since the suit is filed for permanent injunction there is no need to decide the issue of title and accordingly decreed the suit. 10. Challenging the same, the defendants filed the appeal in A.S.No.9 of 2009 on the file of the Senior Civil Judge, Rajam. The Appellate Court also having considered the entire evidence came to the conclusion that the documents filed by the defendants also go to show that the suit schedule property is D-Form patta and that the beneficiaries cannot alienate the same without prior permission of the Government and that the lower Court rightly held that the plaintiff has been in possession of the property and that there is no need to discuss the title of the party and accordingly, dismissed the appeal. 11. The only contention of the learned counsel for the appellants is that the Courts below have not considered that the plaintiff was not in possession of the property and that husband of the plaintiff had executed Power of Attorney in favour of the first defendant. It is also submitted that an ex-serviceman can sell the property after a period of 10 years after the assignment of the land. 12. Since both the Courts below have found that the plaintiff has been in possession of the property and there is no material to say that the said finding is perverse finding, I am of the view that no substantial question of law arises in this case. 13. Since the Original Suit itself has been filed only for permanent injunction there is no need to consider the issue whether the husband of the plaintiff was authorized to sell his assigned land 10 years after the land was assigned to him. 14. Learned counsel for the appellants submits that since title issue was not considered by both the Courts below the appellants may be permitted to institute a suit for declaration of title. I am not inclined to express any view on such request, if advised so, the plaintiff may file such suit and this observation does not mean that the appellants have been permitted to institute a fresh suit. 15. The Second Appeal is disposed of accordingly at the admission stage as no substantial question of law arises in this appeal. There shall be no order as to costs. _________________________ B. CHANDRA KUMAR, J July 29, 2011 PN THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.716 of 2011 July 29, 2011 PN