* THE HON’BLE SRI JUSTICE R. KANTHA RAO + SECOND APPEAL NO. 831 of 1999 % 13-10-2011 # Mohd.Khasim & Ors. .. Appellants VS. $ Municipal Corporation, Warangal. .. Respondent ! Counsel for the appellants: Mr.Bankatlal Mandhani ^ Counsel For Respondent: Mr.K.Visweshwar Reddy < Gist : > Head Note : ? CITATIONS : 1) AIR 2009 Supreme Court-2463 2) AIR 1999 Supreme Court-1341 3) 2010 JT-9-46 4) AIR 1999 Supreme Court-1441 (1) 5) AIR 2004 Supreme Court-4609 6) 2011 (5) Supreme-763 IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE THIRTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 831 OF 1999 Between: Mohd. Khasim & Ors. … Appellants V/s. Municipal Corporation, Warangal … Respondent Counsel for the Appellants: Sri Bankatlal Mandhani Counsel for the Respondent: Sri K.Visweshwar Reddy The Court made the following: (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 831 OF 1999 JUDGMENT : This second appeal is filed against the judgment and decree dated 24-08-1999 passed by the First Additional District Judge, Warangal, in AS.No. 23 of 1993 confirming the decree and judgment passed by the II-Additional District Munsif in OS.No. 1001 of 1989. 2. Heard Sri Bankatlal Mandhani, the learned counsel appearing for the appellants and Sri K.Visweshwar Reddy, the learned standing counsel for the respondent. 3. The appellants are the plaintiffs. They instituted the suit for injunction simplicitor in respect of a small house with wooden frames and tin sheds in a vacant site of an extent of 161.7 sq.yards situated in ward No. 16, Railway Gate, Warangal Municipality within the specified boundaries mentioned in the plaint. The said property hereinafter will be referred to as suit schedule property. 4. The appellants pleaded in their plaint that the property was originally purchased by Mohammed Jahinullauddin, who purchased the same from private individual. After his death, the property was succeeded by the appellants, mother Smt.Noorunnisa Begum and after her death the property was devolved on the appellants who are the children of Jahinullauddin and they have been in possession and enjoyment of the property on the date of filing of the suit. 5. The appellants submitted that the officials of Warangal Municipality being influenced by a local leader, R.Rajamouli, who was inimical to the appellants illegally attempted to dispossess the appellants by removing the sheds in the suit schedule property. The appellants offered resistance with the help of neighbours by then the appellants’ mother, Smt.Noorunnisa Begum was also alive. She filed OS.No. 761 of 1981 against the respondent-municipality claiming damages. In the said suit though the respondent-municipality admitted the possession of the appellants. It was dismissed and no damages were granted to the appellants’ mother. 6. Subsequently it is said that the appellants raised structures in the same site in which they continued to be in possession and when again there was a threat of dispossession they filed the present suit for bare injunction. The respondent-municipality though made appearance in the suit did not choose to file written statement and remained exparte. 7. On behalf of the appellants, the first appellant was examined as PW-1 but no documentary evidence was let-in. The learned trial Court considering that the appellants failed to prove their title to the property and also taking into account the fact that the earlier suit filed by the appellants mother for damages was dismissed and no documentary evidence was let-in by the appellants in proof of their possession, dismissed the suit filed by the appellants. 8. Aggrieved thereby, the appellants preferred AS.No. 23 of 1993, which was heard and disposed of by the First Additional District Judge, Warangal confirming the decree and judgment passed by the trial Court. However, in the appeal, the appellants filed a petition under Order-41, Rule-27 of CPC to receive seven documents as additional evidence. The said petition was allowed and the documents filed by the appellants were marked as Exs.A-1 to A-7. Ex.A-1 is the Xerox copy of the written statement, Ex.A-2 is the voters list of ward No.16, Ex.A-3 is the electricity bills, Ex.A-4 and A-5 are the letters addressed by the Registrar of Births and Deaths of Municipal Corporation, Warangal to one of the appellants, considering the death of Smt.Noorunnisa Begum, the mother of the plaintiffs and Mohammed Jahinullauddin, Ex.A-6 is the counter filed by the Municipal Corporation in WP.No. 16942 of 1996 filed by the appellants and Ex.A-7 is the counter-affidavit filed by the Municipal Corporation, Warangal in the said writ petition, which was served on the appellants. 9. In the counter-affidavit filed in WP.No. 16942 of 1996 by the Municipal Corporation, Warangal, the possession of the appellants was admitted but they were termed as “encroachers” of the land belonging to Warangal Municipality. This apart, from the remaining documents, which were referred to above, it is clearly made out that the appellants are in possession of the suit schedule property. However, the learned first appellate court expressed the view that the documents, which were filed by the appellants as additional evidence in the appeal, are subsequent to 1989 and therefore they cannot be considered as evidencing possession of the appellants on the date of the suit. The learned first appellate court also concurred with the view taken by the learned trial court that since the plaintiffs failed to prove their title and in the absence thereof and the management of the property can be construed to be entrusted to Warangal Municipality by the Government, the appellants are not entitled for injunction. Concurrent findings in relation to refusal of the relief of injunction were rendered despite the admitted facts that the respondent did not file written statement in the suit and admitted in the writ petition filed by the appellants earlier that the appellants are in possession of the suit schedule property. Both the courts below were predominantly of the view that since the respondent-municipality exercised its right to dispossess the appellants from the suit schedule property and the plaintiffs not being able to prove their title to the property they are not entitled for the relief of injunction. 10. The following substantial questions of law have been formulated by this Court while admitting the second appeal : i) On failure by the appellants to prove their title, whether they are not entitled for the relief of injunction ? Even if the respondent is considered to be the true owner of the property ? ii) Whether the appellants, who are in settled possession of the property are entitled for the relief of injunction ? iii) Whether the procedure adopted by the first appellate court in refusing to consider the documentary evidence adduced by the appellants on the ground that the said evidence relates to the subsequent period is in accordance with law ? 11. The crucial documents in this case are the counter and counter-affidavit filed by the Warangal Municipality in WP.No. 16942 of 1996 filed by the appellants, which are marked as Ex.A6 and Ex.A- 7. The respondent Municipality had categorically admitted in the above said two documents that the appellants are in possession of the suit schedule property. Therefore, apart from the other documentary evidence adduced by the appellants, the admission by the respondent alone prove the possession of the appellants. In SETH RAMDAYAL JAT V/s. LAXMI PRASAD[1], the Supreme Court held that though a judgment of a criminal Court shall not be admissible in a civil suit, the admission made by a party in previous criminal proceedings is relevant and admissible as evidence for the purpose of proving a claim in the civil suit. Thus, in the instant case more particularly in view of the fact that no explanation was offered by the respondent-municipality as to the admission positively made in the counter-affidavit filed before this Court in WP.No.16942 of 1996, it can be considered as sufficient proof in relation to possession of the appellants over the suit schedule property. 12. Further the first appellate court was misdirected itself in not considering the documents filed by the appellants on the ground that they relate to the period, which is subsequent to the suit. Therefore, the learned first appellate court had fallen into grave error in holding that Exs.A-1 to A-6 filed by the appellants in the appeal which was received by the first appellate court as additional evidence are not useful for considering as evidence in relation to the possession of the appellants. From the judgment referred to above rendered by the Supreme Court, the learned first appellate court ought to have presumed that they are relevant for considering the fact that the appellants were in possession of the schedule mentioned property for a reasonable and proximate period prior to the institution of the suit. 13. Another important aspect, which requires consideration in this second appeal, is that the respondent-municipality had not filed any written statement before the trial court and remained exparte. Thus, the version of the respondent-municipality in the present case was not before the trial court. The pleadings of the appellants were not controverted or denied by the respondent-municipality. In ISWAR BHAI C. PATEL @ BACHU BHAI PATEL V/s. HARIHAR BEHERA AND ANR [2], the Supreme Court held that when the defendants did not enter witness box to deny the plea of the plaintiff, adverse inference can be drawn against him as contemplated under section 114 (g) of the Evidence Act and the High Court is justified in decreeing the suit in its entirety and passing decree against the defendant. 14. I n SAMEER KUMAR PAL V/s. SHEIKH AKBAR [3], the Supreme Court held that in the absence of any pleading and any issue and further in the absence of any proper evidence, the view expressed by the learned Judge of the High Court that the properties were joint family properties is clearly unwarranted. 15. In the instant case also, as I have already said there is no version of the respondent-municipality before the learned trial court and accordingly the learned trial court or the first appellate court are not justified in weaving out entirely a new case in favour of the respondent. Similarly in VIDHYADHAR V/s. MANKIKRAO AND ANR[4], the Supreme Court held that where a party to the suit does not appear into the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. 16. If we examine the present case in the light of the legal principles laid down by the Supreme Court in the above referred decisions, the version of the respondent-municipality was not at all before the learned trial court. It did not file the written statement nor did it cross-examine PW-1. Moreover the respondent admitted the possession of the appellants over the suit schedule property in the counter affidavit filed by it before this Court in WP.No.16942 of 1996. In view of all these factors, both the learned courts below ought to have drawn adverse inference against the case set up by the respondent-municipality but they failed to do so. Though the appellant admitted that their mother filed the suit for damages and the said suit was dismissed, they have not specifically stated in their pleadings that the trial court therein held that they are not in possession of the property. The defendant did not file any material in the present case showing whether the appellants were in possession of the suit schedule property was an issue before the trial court in the said case and it was finally decided against the appellants. In the absence of any plea by the respondent-municipality that the parties were at the issue as to whether the appellants were in possession of the suit schedule property and it was decided against the appellants, there was no basis for the first appellate court to hold that the present suit is barred by res judicata. Absolutely there was no material before the first appellate court to hold that the issue whether the plaintiffs are in possession of the schedule mentioned property was decided against the appellants and it attained finality. Therefore, the finding that the present suit is barred by res judicata is not based on any pleadings and evidence and therefore is totally erroneous. Even other wise, the contention of the appellants is that long prior to the institution of the suit their father acquired the site under a sale from a private individual and they have been living in the said site doing blacksmith business and the respondent-municipality illegally resorted to demolish the sheds in the schedule mentioned site. It is not at all the case of the appellants that at any point of time the respondent took possession of the schedule mentioned property from them. Another important factor, which has to be kept in mind in this context, is that absolutely no proceedings have been brought on record by the respondent-municipality showing the steps taken by them to remove the alleged encroachment made by the appellants. Both the courts below were totally unjustified in holding that the act of demolition by the respondent-municipality indicates their exercising right of dispossession of the appellants from the schedule mentioned property. Even if the respondent considers that the appellants are encroachers it has to take steps in accordance with law and under the provisions of A.P. Municipalities Act. But no evidence is adduced by the respondent showing that they have taken steps for removal of encroachment provided for under law. The appellants contend that still they are in possession of the property. There is no contra evidence to this is let-in by the respondent-municipality. Moreover, they admitted in the writ petition filed before this court by the appellants that they are in possession of the schedule mentioned property. 17. In RAME GOWDA (D) by LRs V/s. VARADAPPA NAIDU (D) by LRs & ANR[5], the Supreme Court held that “if the plaintiff, despite the fact that he failed in proving his title, if it is found that he is in settled possession of the property, he is entitled to protect his possession even against a true owner and even if he is a trespasser he is entitled for injunction. According to the Supreme Court, the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him possession even from the rightful owner, if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. If it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even against the true owner”. 18. In CHANDNA IMPEX PRIVATE LIMITED V/s. COMMISSIONER OF CUSTOMS, NEW DELHI[6], the Supreme Court held that a finding of fact may give rise to a substantial question of law, if the findings are based on no evidence and/or relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. 19. In the instant case also, both the courts below have ignored the uncontroverted pleadings and evidence relating to possession of the appellants in respect of the suit schedule property more particularly the admission of the respondent- municipality about the possession of the plaintiffs over the suit schedule property. The evidence on record clearly reveals that the appellants are in settled possession of the property since long time prior to filing of the suit and they were never dispossessed of the property by the respondent-municipality. 20. Both the courts below ignored the well recognized legal proposition that a person, who is in settled possession of the property is entitled for the relief of injunction irrespective of the fact whether he succeeded in proving his title to the property or not. The substantial questions of law, which have been referred hereinabove, have been rightly raised by the appellants in their memorandum of grounds of appeal which have been formulated by this Court for consideration. Since the evidence in proof of possession of the plaintiffs available on record is totally ignored by both the courts below and the findings rendered are contrary to the settled legal principles, they are liable to be set aside in the present second appeal. 21. For the foregoing reasons, the decree and judgment passed by the first appellate court which confirmed the one passed by the trial Court is set aside. The suit filed by the appellants seeking permanent injunction is decreed. The second appeal succeeds and is allowed. There shall be no order as to costs. _____________________ JUSTICE R. KANTHA RAO. 13-10-2011. I s L NB : LR copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 831 OF 1999 PRE-DELIVERED JUDGMENT Circulation No. Date: -10-2011 Court Master: I s L Computer : Bungalow of RKR, J. NB: LR COPY TO BE MARKED. [1] ) AIR 2009 SUPREME COURT-2463 [2] ) AIR 1999 SUPREME COURT-1341 [3]) 2010-JT-9-46 [4] ) AIR 1999 SUPREME COURT-1441 (1) [5] ) AIR 2004 SUPREME COURT-4609 [6] ) 2011 (5) SUPREME-763