THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.921 of 2010 ORDER: The Second Appeal arises out of the concurrent judgments rendered by the Court of I Additional Junior Civil Judge, Bapatla in O.S.No.22 of 1995 and of the Court of Senior Civil Judge, Bapatla in A.S.No.55 of 2004. The appellant ﬁled the suit for the relief of declaration of title and perpetual injunction in respect of 95 cents of land, described in the suit schedule. She pleaded that the property was purchased under a sale deed dated 30-09-1985 marked as Ex.A-1, from two vendors by name Ademma and Navamani. The mother of their vendors by name, Mantramma had three daughters, by name Ademma, Navamani and Yashodamma and one son Subba Rao, and that Mantramma is said to have executed Ex.A-11 in favour of the vendors of the appellant, by name Ademma and Navamani. The appellant further pleaded that the 1st respondent, who is the son of Subbarao, ﬁled O.S.No.12 of 1986 in the Court of I Additional Junior Civil Judge, Bapatla, against his paternal aunts regarding this very property for the relief of perpetual injunction and that the said suit was dismissed. The appeal A.S.No.5 of 1993 ﬁled against it, is also said to have been dismissed. With these contentions, the appellant filed the suit. The suit was contested mainly by the 1st respondent. He pleaded that the property was held by his grand-father, Butchaiah, husband of Mantramma, and that he executed a Will Ex.B-8 in his favour. It is stated that the Will relied upon by the appellant, Ex.A-11, was a fabricated one, and that the vendors of the appellant have no right to convey the property. The trial Court dismissed the suit through judgment dated 22-09- 2004. A.S.No.55 of 2004 was dismissed on 05-02-2009. Hence, this Second Appeal. Sri S. Krishna Mohan, learned counsel for the appellant submits that the trial Court disbelieved both the Wills and in such an event, the relief of declaration, at least to the extent of half of the property left by Mantramma and her husband, Butchaiah ought to have been granted. He contends that the lower Appellate Court committed serious error in projecting a point, which was not pleaded by any party, namely that the land was assigned and it was not capable of being transferred. Learned counsel submits that an important substantial question of law arises for consideration, and the judgments rendered by the trial Court and the lower Appellate Court cannot be sustained in law. Sri R. Satyanarayana, learned counsel for the respondents, on the other hand, submits that the second appeal cannot be entertained against the concurrent ﬁndings of fact. He contends that the sole basis for the claim of the appellant was Ex.A-11, and once that was found to be a fabricated document, there does not exist any basis for her claim at all. He further submits that the mere dismissal of a suit for injunction ﬁled by his client, does not give any conferment of right upon the appellant to seek remedies. The trial Court framed the following issue: 1. Whether the plaintiﬀ is entitled for permanent injunction as prayed for? Additional Issues: 1. Whether the plaintiﬀ is entitled for declaration of title as prayed for? 2. Whether the relief of declaration is time barred or not? 3. Whether the “B1 Namuna” is true, valid and binding on the defendants? On dismissal of the suit, the appellant ﬁled A.S.No.55 of 2004. The lower Appellate Court framed only one point for consideration, viz., whether the trial Court has committed any illegality or irregularity in dismissal of the suit. Ultimately, the appeal was dismissed. The suit was ﬁled for the two-fold relief of declaration of title and injunction. On behalf of the appellant PWs 1 to 5 were examined and Exs.A-1 to A-16 were ﬁled. On behalf of the respondents DWs 1 to 3 were examined and Exs.B-1 to B-14 were filed. Appellant, on the one hand, and respondents, on the other hand, laid claim to the property under separate Wills. While Ex.A-11 is said to have been executed by Mantramma in favour of her two daughters, i.e., the vendors of the appellant, the husband of Mantramma, by name, Butchaiah, executed Ex.B-8 in favour of the 1st respondent. Both the parties have adduced oral and documentary evidence, mainly to prove those two gifts. The trial Court held that none of the parties are successful in proving the Wills. This Court is not able to ﬁnd any fault in the ﬁndings recorded by the trial Court, not only in relation to proof, but also as regards several suspicious circumstances. The trial Court expressed its view, supported by valid reasons. Once the Wills are excluded from consideration, the property has to devolve through succession. As observed earlier, Butchaiah and Mantramma had four children, out of whom two daughters are the vendors of the appellant and one son, is the father of the 1st respondent. If one goes by succession, the three daughters and one son will get 1/4th share each. Ex.A-1 can be said to be a sale deed in respect of undivided half share in the suit schedule property, representing 1/4th share each, of the vendors of the appellant. The 1st respondent, on the other hand, will be entitled to 1/4th share, that was to be allotted to his father. Though the suit was ﬁled for declaration in respect of the entire property, there is no reason why the relief in the form of declaration to the said extent cannot be granted. The lower Appellate Court has projected an issue, referable to the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977. According to it, the suit schedule property was assigned by the Government, and it could not have been alienated in favour of the appellant at all. That was not the case pleaded by any one, much less any proceedings were initiated under that enactment. The observations made by the lower Appellate Court in that context are perverse. Even where the relief of declaration cannot be granted, the one, pertaining to injunction can certainly be considered. In case the plaintiﬀ is able to prove the possession, the relief as to injunction can be granted. However, in the instant case, the ﬁnding is that the plaintiﬀ did not prove her possession. So was the case with the attempt made by the 1st respondent. Now that it is held that the property purchased by the appellant is an undivided share, he cannot get the relief of injunction against the co-owners. The only alternative would be, to seek the relief of partition by filing a suit. Hence, the Second Appeal is allowed in part, holding that the appellant holds title in respect of undivided share to the extent of half of the suit schedule property, and that it shall be open to her to seek the relief of partition. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.24-11-2011. KO