THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR S.A.No.778 of 2011 JUDGMENT: This Second Appeal is filed challenging the judgment of the Senior Civil Judge, Rajam in A.S.No.23 of 2007 dated 21.01.2011 whereby and whereunder the learned Senior Civil Judge confirmed the judgment and decree of the learned Junior Civil Judge, Palakonda, dated 11.09.2007. The brief facts of the case are as follows; The appellants herein are the defendants in the original suit. Originally, the suit schedule property belonged to one Dasari Kondababu. One Kotha Saraswathamma, wife of Venkataramana Murthy, purchased the said property under a registered sale deed dated 11.06.1986 from Dasari Kondababu and his family members and Kotha Saraswathamma was put in possession of the property. Thereafter, one Pallanti Jagannadham said to be the close friend of Dasari Konda Babu filed a suit in O.S.No.300 of 1987 against Dasari Konda Babu and Kotha Saraswathamma, contending that he had entered into an oral agreement of sale to purchase the property from Dasari Konda Babu and paid an advance of Rs.2,000/- and obtained a receipt and basing on the said receipt, he filed a suit for specific performance. After a full fledged trial, the suit was dismissed on 22.08.1996. Aggrieved by the same, P.Jagannadham filed an appeal in A.S.No.2 of 1997. The said appeal was also dismissed on 12.11.1997. Thereafter, the appellants herein who are the defendants in O.S.No.75 of 2000 filed the suit in O.S.No.29 of 1999 for permanent injunction against the plaintiffs. It is not in dispute that the said suit has been dismissed. Thereafter, the plaintiffs filed the present suit in O.S.No.75 of 2000 seeking mandatory injunction directing the defendants to remove the thatched sheds and the wooden bunch at their own costs from the plaint schedule site and in case of their failure, they may be removed by the Court at the expenses of the plaintiff and for costs. The 2nd defendant who filed written statement had also taken a plea that during the life time of his father Jagannadham, the original grantor Dasari Venkatarao, father of Kondababu, inducted their father into physical peaceful possession of the vacant site with specific boundaries and that subsequently their father constructed a permanent thatched stall by digging a foundation on the said parcel of the land. Besides other grounds, the defendants raised the ground of limitation. The trial Court besides other issues framed the issue of limitation as to whether the suit is barred by limitation. The trial Court, after considering the case law cited by both the parties and the fact that the parties were litigating from 1987 onwards and the litigation continued between the parties till filing of the suit, held that the suit is not barred by limitation. When the matter was carried to the appellate Court, the appellate Court also considered the entire case law cited by both the learned counsel and finally held that the suit is not barred by limitation. Aggrieved by the said judgment, the appeal has been filed. The main contention of the learned counsel for the appellants is that the appellants, who are the defendants have been admittedly in possession of the property since more than 20 years and the plaintiffs ought to have filed a suit for recovery of possession but they have filed a suit for mandatory injunction seeking removal of thatched sheds and wooden bunk raised by the defendants and that Article 113 of the Indian Limitation Act is applicable to the facts of this case and therefore the suit is barred by limitation. It is also submitted that the Courts below have not considered this important issue. The short point that arises for consideration is whether any substantial question of law arises in this appeal. The 1st defendant in the suit Pallanti Ammadu is no other than the wife of late Jagannadham. It is an admitted case that 2nd defendant is no other than the son of late Jagannadham. A reading of the averments of the written statement filed by the 2nd defendant go to show that they had specifically claimed that it is their father Pallanti Jagannadham who was inducted into possession by the original grantor Dasari Venkatarao father of Dasari Konda Babu. It has to be seen that the other defendants ie., the 3rd defendant-Pallanti Satyanarayana is also son of Jagannadham. D.6 is daughter of late Jagannadham. Any how, the defendants 1, 3 to 6 have filed a memo adopting the written statement filed by the 2nd defendant. Thus they are all sailing together and claiming their rights through late P.Jagannadham. Admittedly, P.Jagannadham who claimed that he entered into an oral agreement with Dasari Konda Babu had lost his suit and the appeal filed challenging the same. It has to be seen that during the pendency of that appeal, admittedly, the appellants/defendants seem to have occupied the property and they themselves filed a suit in O.S.No.29 of 1999 on the file of Junior Civil Judge, Palakonda, seeking injunction against the plaintiffs. Admittedly, the said suit has been dismissed. Having lost the litigation started by their father and also the suit filed by them for injunction, now, they are resisting the suit filed by the plaintiff only on the technical ground that the suit is barred by limitation under Article 113 of the Indian Limitation Act. Admittedly, late P.Jagannadham filed a suit for specific performance and subsequently, defendants filed O.S.No.29 of 1999 and they were pending. Therefore the contention of the plaintiffs appears to be correct that only after the dismissal of the suit filed by Jagannadham and subsequently after the dismissal of the appeal in A.S.No.2 of 1997 filed by him on the file of Senior Civil Judge, Rajam, cause of action arose for them to file the present suit. Admittedly, A.S.No.2 of 1997 was dismissed on 12.09.1997. O.S.No.29 of 1999 filed by the defendants was dismissed on 05.09.2000. Therefore, it appears that limitation started running only from 05.09.2000. A person, who encroaches the property, during the pendency of litigation before a Court cannot seek equities. Both the Courts have categorically held that only during the pendency of the proceedings, the defendants entered into the suit land. It was also specifically held by both the Courts that on the date of purchase of property by late Saraswathamma was put in possession of the property. Therefore, as on 11.06.1986 Kotha Saraswathamma was put in possession of the property and she continued to be in possession of the property till the defendants encroached into that property and thus it is clear that only during the pendency of the litigation between Kotha Saraswathamma and late P.Jagannadham, the defendants highhandedly encroached into the property and raised some constructions. Therefore, the conduct of the parties also should be taken into consideration. A party who does not come to the Court with clean hands cannot claim any equities. In the facts and circumstances of the case, I am of the view that both the Courts have rightly held that the cause of action arose only on the dismissal of A.S.No.2 of 1997 and therefore, the suit filed by the plaintiffs is not barred by limitation. No substantial question of law arising in this appeal. Therefore, the appeal is liable to be dismissed at the stage of admission. Accordingly, the Second Appeal is dismissed. No costs. ____________________ B.CHANDRA KUMAR,J Dt. 5th August, 2011 PNV