THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.1192 of 2010 Dated 12-10-2011 Between: Seepana Ramulu. …Appellant. And: Boddepalli Neelamma and others. … Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.1192 of 2010 JUDGMENT: This appeal is directed against the decree and judgment dated 2-9-2010 passed by the learned Principal District Judge, Srikakulam in A.S.No.61 of 2008 whereby and whereunder, the learned Principal District Judge, allowed the appeal setting aside the decree and judgment dated 13-3-2008 passed by the learned 1st Additional Junior Civil Judge, Sriklakulam in O.S.No.678 of 2003. Appellant herein is the plaintiff and respondents herein are the defendants. The parties will hereinafter be referred to as arrayed before the trial Court for the sake of convenience. Originally, the plaintiff filed the suit before the trial Court against the defendants for permanent injunction restraining them, their men, agents and relatives from interfering with his peaceful possession and enjoyment of the plaint schedule property, which was situated in S.No.52 (25) of an extent of Ac.0.11 cents in Fazulbegpeta village. The case of the plaintiff in brief is as follows: The plaintiff is the owner of the plaint schedule property. He has been enjoying the same continuously by raising shed without any interruption for the last many years and has been cultivating it by raising paddy crop etc., for some years and now he had dug the earth and raised height to use the plaint schedule property as thrashing floor. The defendants are the residents of Bairivanipeta which is nearer to the plaint schedule property. They belong to the Scheduled Caste, they are lawless and powerful persons in the village and are proclaiming in and around the village that they will trespass into the plaint schedule property. The 3rd defendant filed written statement which was adopted by defendants 1 and 2. It is contended by the defendants in the said written statement that the plaint schedule property is not a thrashing floor as claimed by the plaintiff, but in fact they have been living thereon by constructing a thatched temporary shed and that the survey numbers and the boundaries given by the plaintiff are not correct and that the land originally belongs to the State Government and that the defendants have been in possession and enjoyment of the plaint schedule property for the past several years without any interruption. Basing on the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled to the permanent injunction against the defendants as prayed for? 2. To what relief? On behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and no documents were marked on their behalf. The trial Court having observed that plaintiff has got possession and title to the suit schedule property, decreed the suit. Aggrieved by the same, the defendants preferred an appeal before the 1st appellate Court. The 1st appellate Court, on reappreciation of the evidence, having observed that when once the plaintiff failed to establish his physical possession by the date of filing of the suit, the relief of permanent injunction cannot be entertained and hence, the impugned judgment is not legal and sustainable and the same is liable to be set aside, allowed the appeal. Aggrieved by the same, the present appeal has been filed by the plaintiff before this Court. Heard the learned counsel and perused the material available on record. It is contended by the learned counsel for the plaintiff that though the defendants have not adduced any documentary evidence and the plaintiff filed documentary evidence, the 1st appellate Court wrongly reversed the findings of the trial Court. It is his further contention that the burden lies on the defendants to satisfy the Court that the findings of the trial Court are perverse, but the defendants did not do so and hence, the order of the lower appellate Court is liable to be set aside confirming the Decree and Judgment of the trial Court by allowing this second appeal. On the other hand, it is contended by the learned counsel for the defendants that the findings of the trial Court are perverse and hence, the 1st appellate Court is justified in setting aside same and thereby, the order impugned needs no interference by this Court. Whether any substantial question of law arises in this appeal. It is an admitted fact that the plaintiffs filed the suit for permanent injunction and the suit in question is of the year 2003. The trial Court having relied on Exs.A.1 to A.3 i.e., copies of SLR, pattadar pass book and title deed and having found that the plaintiff is in possession and enjoyment of the plaint schedule land in Survey No.52 (25), decreed the suit in favour of the plaintiff. It is contended by the learned counsel for the defendants that the plaint schedule land exists in Survey No.53, but not in Survey No.52 (25) as claimed by the plaintiff. Hence, the main dispute in question is whether the plaint schedule land is in Survey No.52 (25) or in Survey No.53. Hence, the dispute is with regard to the identification of the schedule property in question. It is well settled law that the burden lies on the plaintiff to prove his case and in case the plaintiff proves his case, then the burden shifts on to the defendants to rebut the same. Merely because the defendants did not adduce documentary evidence, it does not mean that the plaintiff can rely on the weaknesses of the defendant so as to prove his case. Originally, the plaintiff filed the suit for a permanent injunction. In a case of this nature, it has to be examined as to whether the plaintiff is in prima facie possession of the schedule property by the date of filing of the suit. Now, it has to be seen as to whether the evidence adduced on the side of the plaintiff, is sufficient to prove his case. In the instant case, the plaintiff besides examining himself as P.W.1, examined P.W.2 who is the then Deputy Tahsildar, Srikakulam and two others as P.Ws.3 and 4. According to P.W.2, Exs.A.2 and A.3, i.e., Pattadar Pass book and title deed of one Ramulu, respectively, were issued to P.W.1 from the office of the Tahsildar. P.W.2 admitted in his cross examination that he was not working in the mandal revenue office, Sriklakulam on the date of issue of Exs.A.2 and A.3 and he was giving evidence by looking into those documents. Though P.W.3 filed his chief-affidavit, he did not turn up for cross- examination. In view of this, the evidence of P.W.2 is liable to be eschewed from consideration and therefore, it cannot lend any help to the case of the plaintiff. The evidence of P.W.4 is not useful to the case of the plaintiff. The evidence on record shows that the writings in Exs.A.2 and A.3 seem to have been written with different inks and apart from that, there is much difference in the hand writing. In addition to that, there are number of corrections at Sl.No.30 of Ex.A2 and A3 and the survey number seems to have been interpolated. The 1st appellate Court has examined all these aspects in detail. The 1st appellate court entertained a doubt as to the genuineness of the entries at Serial No.30 of Exs.A.2 and A.3. A reading of evidence makes it clear that the findings of the 1st appellate Court are based on proper appreciation of the evidence available on record. When the defendants have been claiming that they have been in peaceful possession and enjoyment of the property in question and that the land originally vests with the Government and particularly, when the title of the plaintiff itself is disputed, the plaintiff ought to have filed the suit for declaration of his title over the plaint schedule property. No substantial question of law arises and I do not see any reason to entertain the second appeal and therefore, the second appeal is liable to be dismissed. At this stage, the learned counsel for the appellant- plaintiff submitted that the appellant/plaintiff may be permitted to file a comprehensive suit for declaration of title and recovery of possession. It is needless to observe that it is always open to the appellant- plaintiff to initiate necessary proceedings if he is so advised. Subject to the above observation, this appeal is dismissed at the stage of admission. No costs. ____________________ B. CHANDRA KUMAR, J. Date: 12-10-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.1192 of 2010 Dated 12-10-2011