HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.603 OF 2005 DATED: 28.12.2011 BETWEEN: Parasa Alivelu Mangathayaramma and others .. Appellants And Parasa Ramayya Panthulu .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.603 OF 2005 JUDGMENT: This second appeal is filed against the decree and judgment dated 25.03.2005 passed by the Additional Senior Civil Judge, Fast Tract Court, Kovvur in A.S.No.92 of 1996. 2. I have heard Sri S.Sreeramachandra Murthy, learned counsel appearing for the appellants and Sri Srinivasa Rao Pachwa, learned counsel appearing for the respondent. 3. For the convenience sake, the parties will be referred to as ‘the plaintiffs and defendant’. 4. The brief facts of the case essential for considering the second appeal may be stated as follows: 5. The plaintiffs filed the suit for permanent injunction restraining the defendant, his men and agents from interfering with her peaceful possession and enjoyment of the schedule property. The schedule property and other adjacent properties originally belonged to the plaintiff No.1’s husband. As the husband of the first plaintiff became indebted, to discharge the said debts, he sold away the schedule property to the plaintiff for a consideration of Rs.500/- and executed registered sale deed on 24.04.1940. The plaintiff No.1 paid the said amount from out of her Streedhana. As she purchased the schedule property, she became absolute owner of the property and she has been enjoying the same and has been paying taxes to the grampanchayat. The plaintiff No.1 brought up the defendant, who is her sister’s son to her house and performed his marriage. The plaintiff No.1 got secured a job to the defendant and also made him to run a photo studio with her money. The defendant used to live in a portion of the schedule house. After the abolition of village officers’ posts, the defendant alienated the western side portion to Srinivas and sold away some portion in which he is residing to one Venkateswara Rao without her knowledge and her son. When she raised dispute, Srinivas Rao paid Rs.1,000/- and Venkateshwara Rao paid Rs.5,000/- to her and obtained receipts. The defendant shifted to Kakinada and from there to Koyyalagudem and now residing there by running a photo studio. The plaintiff No.1 let out the western portion of the house to one Subbarao and collecting rents from him. The plaintiff’s husband died in the year 1955. 6. The defendant filed written statement contending that the plaintiff has no exclusive right over the property and that he is the adopted son and the said adoption was performed in the presence of village elders and relatives. The defendant succeeded the village karanam post from the husband of the first plaintiff as he is the adopted son. The sale deed executed by Sri Pardhasaradhi is nominal one to screen away the property from the creditors of Pardhasaradhi. The first plaintiff’s name was never mutated in the panchayat records. There are no cordial terms between the plaintiff No.1 and the defendant. The said Pardhasaradhi died in the year 1947, but not in 1955. At the time of adoption, the said Pardhasaradhi made a family arrangement in which he got the schedule premises. The defendant has perfected title to schedule property by adverse possession. The first plaintiff filed this suit to knock away his property. The first plaintiff never let out any portion to Subba Rao or any one and Subbarao was his tenant. Therefore, the suit filed by the plaintiffs is liable to be dismissed. 7. The first plaintiff filed the suit for permanent injunction in respect of the plaint schedule house and its appurtenant site. The defendant contended that he is the adopted son of the plaintiff No.1 and her husband late Parthasarathi and that the alleged sale deed dated 24.04.1940 –Ex.A1 executed by late Parthasarathi in favour of the first plaintiff is a nominal one intended for the purpose of screening the properties from the creditors of late Parthasarathi. The learned trial Court accepted the contention of the defendant that he is the adopted son of the first plaintiff but decreed the suit filed by the plaintiffs for permanent injunction holding that the plaint schedule property was purchased by the first plaintiff from her husband for valuable consideration and she has been in possession and enjoyment of the same in exclusive right. In the first appeal, the plaintiffs challenged the finding recorded by the trail Court as to the validity of contention without filing any cross objections. The learned first appellate Court, however, re-examined the issue and concurred with the finding recorded by the trial Court that the defendant is the adopted son of the first plaintiff. The learned first appellate Court, however, reversed the finding of the trial Court which was to the effect that the first plaintiff has been in exclusive possession and enjoyment of the property in her own right and that she is entitled for the relief of permanent injunction as prayed for in the suit. Challenging the said decree and judgment dated 25.03.2005 passed by the first appellate Court, the plaintiffs preferred the present second appeal. 8. Before the trial Court, PW-1 was examined and Exs.A-1 and A- 2 were marked on behalf of the plaintiffs. On behalf of the defendant, DWs.1 to 4 were examined and Exs.B-1 to B-17 were marked. 9. The unsuccessful plaintiffs in the first appeal are the appellants in the present second appeal. 10. The second appeal has been admitted by this Court on considering the involvement of the following substantial questions of law for consideration: 1) Whether the first appellate Court was justified in holding that the defendant is the co-owner of the suit property having disbelieved the family arrangement pleaded by the defendant? 2) Whether the judgment of the first appellate Court is tainted with perversity? 11. The learned first appellate Court took into consideration the evidence of the defendant, who was examined as DW.1 and his natural mother, who was examined as DW.3. DW1 and DW3 had categorically spoken to the fact of adoption of the defendant taking place by undertaking requisite ceremonies. The learned first appellate Court further took into consideration in fact that in the school admission register the defendant’s father’s name was shown as Parthasarathi. Another crucial aspect which was taken into consideration by the learned first appellate Court is that in Ex.B.3- sale deed executed by the first plaintiff, she referred the defendant as her adopted son and executed the sale deed on his behalf also as he was a minor by then. Similarly, in SSLC certificate also he is shown as the son of late Parthasarathi. The learned first appellate Court considered the established legal position that the adoption took place more than 50 years ago, it was not possible for the party pleading adoption to adduce positive evidence in proof of adoption and if the individual was considered by the plaintiffs and relatives as the adopted son, the said fact can be taken into consideration in proof of adoption, despite the fact that the specific date and month of the adoption were not pleaded. Therefore, on the question of adoption both the Courts have concurrently held that the defendant is the adopted son of the first plaintiff and late Parthasarathi. Since the first plaintiff has referred the defendant in Ex.B.3-sale deed dated 29.04.1949 as her adopted son she is estopped from taking a different stand in the present suit. 12. However, the fact remains that the first plaintiff purchased the plaint schedule property from her husband under Ex.A.1-sale deed and her version is that to repay the debts to his creditors, her husband sold the plaint schedule property to her under Ex.A.1-sale deed and she purchased the same by paying sale consideration from out of her stridhana. The defendant who contended that the said sale deed was only nominal failed to establish the same by adducing any sort of evidence. The mere fact that the property was sold by the husband of the first plaintiff for the purpose of discharging the debts does not render Ex.A.1 sale deed nominal in the absence of any valid and reliable evidence in that regard. However, in all the panchayat records the name of the defendant is shown as the owner of the property and all the taxes and demand notices are in the name of the defendant. The contention of the plaintiff no.1 is that she allowed the defendant to reside in the western portion of the house, she in fact paid the taxes to the panchayat through the defendant and that the defendant obtained the receipts in his own name. It is also her contention that the defendant managed to enter the plaint schedule property in his name in the records of the grampanchayat. 13. However, there are certain crucial aspects in this case which cannot be overlooked while deciding the issue whether the plaintiffs are entitled for permanent injunction or not. On evidence, the learned first appellate Court found that by the date of Ex.A.1, the defendant was only seven years and attained majority 11 years thereafter. Ex.A.1 is that of the year 1951. Parthasarathi and the first plaintiff lived till 1951 and the very fact that the name of the first plaintiff was not mutated in the records of the grampanchayat indicates that the property was never treated as the exclusive property of the first plaintiff. Further, the first plaintiff admitted in his evidence that the defendant had two storied building adjacent to the tiled house which is part of the plaint schedule property and that the defendant sold away the two storied building to some third parties and left for Kakinada. It is borne out from Ex.A.11 sale deed that the defendant sold the two storied building to one K.Venkateshwara Rao on 15.04.1986. The defendant also sold vacant site situate on the western side of the schedule mentioned property to one Srinivas under Ex.B.1-sale deed in the year 1994. The two storied building and the said site which was sold by the defendant under Ex.B.10 and B.11 –sale deeds was admitted to be the part of the schedule mentioned properties covered by Ex.A.1-sale deed. Therefore, it is not understandable as to why the first plaintiff kept quite when the said sales were effected by the defendant in the years 1984 – 1986 respectively. The first plaintiff also admitted in her evidence that the defendant was residing on the western side portion of the plaint schedule house. It is further admitted in her evidence that she sold part of the plaint schedule property to the second plaintiff and he constructed a thatched house in the site sold to him much prior to the filing of the suit. 14. Considering all these facts, the learned first appellate Court rightly arrived at a positive conclusion that on the date of filing of the suit, the first plaintiff was not in exclusive possession and enjoyment of the entire plaint schedule property. I n POTTE RAMANNA AND ANOTHER v MUKKA RAJANNA AND OTHERS[1] the learned single Judge of this Court held that in a suit for permanent injunction simplicitor, it is well settled, the most relevant issue is whether the plaintiff is in possession of the land on the date of filing of the suit and if the plaintiff fails to establish the same and adheres to the document under which the plaintiff claims title is not entitled for the relief of permanent injunction and the suit for permanent injunction itself if not maintainable. In the instant case also from the evidence forthcoming on either side it is made out that the first plaintiff as well as the defendant sold some part of the properties covered by Ex.A.1 – sale deed to third parties. Admittedly, the defendant was residing in part of the plaint schedule property though temporarily he left for Kakinada on the date of instituting the suit by the first plaintiff. Thus, it is a clear case of joint possession by the parties to the suit and therefore, the plaintiff is not entitled to claim the relief of permanent injunction against the defendant. The first plaintiff who acquiesced to the right of the defendant in respect of the schedule mentioned property and she being not in exclusive possession of the entire property on the date of filing of the suit is not entitled for the relief of permanent injunction as rightly held by the first appellate Court. I do not find any perversity in the finding recorded by the learned first appellate Court, which is based on evidence and reasoning and the decision rendered by it is strictly in accordance with established principles of law governing the subject of injunction. In fact, no substantial question of law is involved for consideration in this second appeal and the second appeal itself is not maintainable. 15. For the foregoing reasons, the second appeal fails and the same is dismissed without any order as to costs. __________________ Date: 28.12.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.603 OF 2005 DATE: 28.12.2011 [1] 2006(1)ALD 162