IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.851 of 2011 Between: T. Balanagaiah .. Appellant AND Kadakatla Prabhakar and another .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.78 of 2006 on the file of the District Judge, Mahabubnagar, dated 31-08-2009, by which the judgment and decree in O.S. No.30 of 2000 on the file of the Junior Civil Judge’s Court, Mahabubnagar, dated 20-06-2006 dismissing the suit with costs, were confirmed. 2. The factual background is that the appellant and the 2nd respondent filed the suit for a permanent injunction in respect of 700 square yards in S.No.1128 of Mahabubnagar as described in the plaint schedule, which was stated to have been purchased by the father of the 1st plaintiff under a registered sale deed dated 06-07-1966, and after his death, the 1st plaintiff was stated to have been in possession and enjoyment of the same, out of which 200 square yards were sold by the 1st plaintiff to the 2nd plaintiff under an agreement of sale in 1990. The 2nd plaintiff was claimed to have constructed a house with permission paying property taxes to the municipality, while the defendant, who is the purchaser of plot Nos.63/1, 63/2 and 63/3 adjoining this suit schedule plot No.63/4, obtained permission from the municipality for construction on an incorrect sketch map. Under that guise, he was allegedly trying to encroach into the suit plot by removing the boundary stone, resulting in the suit. 3. The 1st respondent/defendant resisted the suit contending that the construction of the house within his boundaries was completed and he did not encroach into the suit land, which is a park land left by the original owners and hence, belonging to the municipality. The 2nd plaintiff and her husband Prem Kumar, in collusion with the 1st plaintiff, created documents as if the suit site was purchased from the 1st plaintiff by the 2nd plaintiff. In O.S. No.156 of 1995 by the defendant against Prem Kumar for a permanent injunction, a decree was granted for permanent injunction in respect of a road between plot Nos.63/3 and 63/4 used by the defendant. The plaintiffs suppressed the said decree and under the guise of this suit, Prem Kumar is trying to encroach into the road covered by O.S. No.156 of 1995. E.P. No.43 of 2001 filed by the defendant was for implementing the decree in his favour and hence, the plaintiffs, who did not approach the Court with clean hands, have to fail. 4. The trial Court framed issues about the entitlement of the plaintiffs for a permanent injunction and examined P.Ws.1 and 2 and D.W.1 and marked Exs.A.1, A.2 and B.1 during the trial. 5. The trial Court rendered its judgment noting that the plaintiffs have to prove their lawful possession of the suit land on the date of the suit in the suit for a permanent injunction and also that the defendant interfered with such possession without any right or justification. The trial Court noted that the 1st plaintiff did not explain as to how on the death of his father who purchased the entire land under Ex.A.1 sale deed, he got the entire property when his father has two more sons. The trial Court also noted that the agreement of sale in favour of the 2nd plaintiff was not filed and similarly any permission for construction of a house in that plot was also not filed. The trial Court further noted that stamp duty and penalty were not paid to enable the Court to look into the unregistered sale deed filed by the plaintiffs and it also observed that the alleged ignorance of P.W.2 about O.S. No.156 of 1995 is unreliable. It further observed that the details of O.S. No.87 of 1991 referred to during the cross-examination of P.W.1 were not furnished and hence, it was concluded that the plaintiffs failed to prove their lawful possession or interference by the defendant. The suit was accordingly dismissed with costs. 6. In appeal, the first appellate Court rendered the impugned judgment considering again the entitlement of the plaintiffs for a permanent injunction. The Court opined that the burden of proof is on the plaintiffs and it was noted that no independent witness was examined by the plaintiffs and that they did not even take steps to get the rough sketch filed by them marked and admitted into evidence. The appellate Court further noted that the sale deed or the agreement of sale in favour of the 2nd plaintiff to probablise her possession, were not filed into Court and further noted the inability of P.W.2 to state as to when the defendant made attempts to encroach into the property. The evidence of P.W.1 about the alleged attempts for encroachment on 23-01-2000 and 24-01-2000, was noted to have not been corroborated by P.W.2 and as the evidence of P.Ws.1 and 2 did not inspire confidence and as the plaintiffs did not even have an advocate commissioner appointed to measure the disputed property and the properties of the plaintiffs and the defendant, the appellate Court also considered the plaintiffs to be disentitled to any permanent injunction in the absence of proof. Therefore, the appeal was dismissed with costs. 7. In the second appeal, the plaintiffs again contend that Exs.A.1 and A.2 established the lawful ownership and possession of the suit property with the plaintiffs and when they were not questioned by the defendant in the suit for injunction simpliciter and when the ex parte decree of permanent injunction in O.S. No.156 of 1995 is a judgment in personam, the conclusions of the Courts below are not correct. The plaintiffs, therefore, contended that substantial questions of law arise about the justification for the conclusions of the Courts below, the maintainability of the injunction suit at the behest of even one of the family members, the possession following the admitted purchase by the 1st plaintiff’s father, the irrelevance of not making any request for appointment of an advocate commissioner, the non-application of the principle that possession follows title, the effect of absence of any specific denial by the defendant and the adverse impact of non-production of any document by the defendant. They contended that both the Courts below did not give any finding regarding the possession of the plaintiffs under the feeling that the plaintiffs did not prove their title. 8. Heard the learned counsel for both sides. 9. The point for consideration is whether there exist any substantial questions of law to enable entertainment of the second appeal ? 10. Point: The judgment of the trial Court was specific that the 1st plaintiff/P.W.1 did not explain as to how he can enforce his rights over the entire suit land acquired by his father under Ex.A.1 when he has two other brothers, due to which he cannot claim to have acquired lawful possession of the entire land. This opinion has nothing to do with the maintainability of a suit for injunction simpliciter by a family member even without the others joining him in respect of any property, in which the family is interested. The consideration was that unless P.W.1 explained his claim of being in exclusive possession of the entire land, which is the self- acquisition of his father, to the exclusion of his two other brothers, he could not have laid any claim to be in exclusive lawful possession of the entire land, his claim being not one of any joint possession with his brothers. Ex.A.1 registered sale deed in favour of P.W.1’s father itself is not in dispute and in so far as the sale by the 1st plaintiff to the 2nd plaintiff is concerned, the oral claims of P.Ws.1 and 2 are not corroborated by any document to consider the existence or non-existence of any road relied on by the defendant to be probable or improbable. Apart from the absence of proof of title by any documentary evidence for the 2nd plaintiff, the claim that the 2nd plaintiff’s husband, examined as P.W.2, suffered a decree in O.S. No.156 of 1995 at the instance of D.W.1 in respect of the road in question, could not be denied by P.W.2 specifically leading the trial Court to believe in suppression of the material facts by the plaintiffs who could not have been ignorant of O.S. No.156 of 1995 in the ordinary and natural course of human events. Therefore, the lawful possession of the suit land with the plaintiffs by the date of the suit was considered not probablised by the evidence on record. Even the existence of title and possession over the suit land with the plaintiffs could not have provided a cause of action for a permanent injunction against the defendant without proof of interference by the defendant with such possession without any right or justification. The trial Court also considered the total absence of any evidence in this regard from any independent source to be not proving any such interference from the interested evidence of P.Ws.1 and 2. These are conclusions of fact, pure and simple, without any shade of any legal issues. 11. When it came to the appellate judgment also, the appellate Court further noted that even the rough sketch filed by the plaintiffs was not marked or admitted into evidence and the 2nd plaintiff did not even prove that she is a necessary party to the suit by any purchase from the 1st plaintiff. The appellate Court specifically referred to the absence of any specific evidence by P.W.2 about the dates of illegal attempts to interfere with the possession by the defendant and the absence of any corroboration for the attempts by the defendant specified by P.W.1 from any other evidence. The Courts below were not inspired to believe P.Ws.1 and 2 and the trial Court had further opportunity of observing the demeanour of the witnesses and there should be very strong reasons to interfere with such conclusions of fact. Even if the absence of any request from the plaintiffs to have an advocate commissioner appointed to demarcate and identify the properties is not a relevant ground, the questions sought to be raised by the plaintiffs in the second appeal do not appear to arise with reference to any question of law. 12. As sought to be contended by the learned counsel for the appellant, the conclusions of the Courts below were not on the basis of the plaintiffs failing to prove their tile and the trial Court had, in fact, specifically referred to the incidental significance of the question of title and not the primary significance of the same. The defendant also was not questioning the interest of the plaintiffs in plot No.63/4 covered by the plaint schedule, but was only claiming about the existence of a road in between plot No.63/3 and pot No.63/4, which is being attempted to be usurped by the plaintiffs under the guise of injunctive relief in this suit and his claims are prima facie corroborated by the decree against P.W.2 in O.S. No.156 of 1995 regarding such road. The non-production of any documents by the defendant to show his title and possession over plot Nos.63/1, 63/2 and 63/3 is not relevant in any manner, as the dispute is about plot No.63/4, in which the defendant is not claiming any interest. What the defendant did not deny specifically is the possession of the plaintiffs over pot No.63/4, but the specific claim is that under the guise of plot No.63/4, the road in between is sought to be occupied. The questions in controversy between the parties in the suit cannot, therefore, be concluded to have been wrongly appreciated by the Courts below and even if another view on facts than that adopted by the Courts below is possible, the same does not enable the High Court to interfere with any conclusive findings of fact by the final Court of fact finding i.e. the first appellate Court. As no substantial questions of law are involved in the second appeal, which can be formulated for entertaining the second appeal, the second appeal has to fail at the stage of admission. 13. However, it has to be made clear that the judgments of the Courts below or this Court are purely confined to the question of absence of proof of lawful possession of the disputed site with the plaintiffs by the date of the suit and have no bearing on the question of ownership, title and right over the land or property in controversy between the parties. The rights of the parties to take recourse to appropriate legal proceedings permissible under law to assert and establish such rights or title or ownership over any such property, remain unaffected by these judgments in this dispute and the parties are at liberty to pursue such remedies, uninfluenced by these judgments. 14. Subject to the said observation, the second appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 08-12-2011 Svv