IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.138 of 1999 BETWEEN Chinta Ramamurthy. …APPELLANT AND Adari Lakshmi and others. …RESPONDENTS Counsel for the Appellant: MR. K.V. SUBRAHMANYA NARUSU Counsel for the Respondents: MR. G. VIVEKANAND MR. JOSYULA BHASKARA RAO The Court made the following: - JUDGMENT: This is a plaintiff’s appeal against the judgment and decree of the lower appellate Court in A.S.No.35 of 1995 dated 17.08.1996 confirming the judgment and decree of the trial Court dismissing O.S.No.399 of 1988 dated 20.12.1989 for injunction. 2. The aforesaid suit was filed seeking injunction against the defendants over the plaint schedule in an extent of Ac.6.94 cents out of Ac.9.84 cents of dry land in R.S.Nos.9/1, 9/2 and 9/3 situated at Chintanippula Agraharam, Sabbavaram Taluk, Visakhapatnam. The claim of the plaintiff in the suit was that the said land is situated in a notified Inam estate and it belonged to one Chunduri Venkataramayya. The right of occupancy is said to have been transferred in favour of plaintiff’s father by the said C. Venkataramayya on 28.11.1959 and thereafter, the plaintiff’s father and the plaintiff claimed that they are in continuous possession and enjoyment of the land and that they are also paying land revenue. The plaintiff also claimed that he applied for grant of patta under the Estate Abolition Act and the patta, in fact, was granted, however, excluding the suit schedule land, which was a mistake and for which he had taken up other proceedings. Meanwhile, alleging interference, initially by the Tahsildar, he had approached this Court in WP.No.1801 of 1982, while his application for grant of patta was pending, and by order of this Court dated 15.08.1983 the said the said writ petition was disposed of giving direction to the Tahsildar that the petitioner may not be dispossessed pending consideration of his application for grant of patta. Thereafter, alleging interference by the defendants, the present suit for injunction was filed. 3. The defendants 1 and 2 resisted the suit by claiming that they are in possession of the same under an agreement of sale dated 12.11.1973 executed by L. Venkata Subrahmanyam and his wife Satyavathi to the extent of Ac.2.00 cents in R.S.No.9/1. It was also claimed that their vendor had acquired title by virtue of D-form patta granted to her in D.R.No.522/79 dated 21.10.1970. Based on the same, the defendants claimed continuous possession and title to the extent of Ac.2.00 cents of the suit schedule land. 4. Both the parties led evidence, oral and documentary, which has been considered in detail by the trial Court. 5. The trial Court came to the conclusion that there is no documentary evidence on behalf of the plaintiff establishing his continuous possession on the date of suit. It is also noticed the evidence of P.W.2, who admitted that the defendants 1 and 2 have been in possession for the last over ten years. Consequently, therefore, the trial Court dismissed the suit whereupon the appeal was filed by the plaintiff before the lower appellate Court, which also has been dismissed confirming the findings of the trial Court. Hence, this second appeal. 6. This appeal was admitted on 09.12.1999 on the substantial questions of law mentioned in para 9 of the grounds, which are as follows: (a) Whether the judgment of the lower appellate Court is legally sustainable, as the same is vitiated by non consideration of the admission of the first defendant and the veracity of her statement that the plaintiff came into possession under the guise of interim injunction. (b) Whether the lower appellate Court is right in placing any reliance on Ex.B11 which is being challenged in this Hon’ble Court. (c) Whether the judgment of the lower appellate Court is not vitiated by not considering the effect of Ex.A4 to A6. 7. Mr. K.V. Subrahmanya Narusu, learned counsel for the appellant has strenuously contended and pointed out allegedly clear and apparent errors committed by the Courts below, which according to him vitiate the judgment of both the Court below. Learned counsel points out the evidence of D.W.1 wherein he has stated that the patta was granted in favour of his wife – D1 for the suit land and that they have been in continuous possession and enjoyment of the same by raising crops and by paying the land revenue till they were dispossessed by the plaintiff. The aforesaid statement recorded towards the end of para 12 of the trial Court’s judgment is relied upon to contend that the possession of the plaintiff having been admitted by the defendants there is no reason as to why the Courts below have dismissed the plaintiff’s suit. He also points out that the defendants 1 and 2 are claiming possession and title only with respect to Ac.2.00 cents of land and for the rest of the suit schedule land there is no resistance so far as plaintiff’s claim is concerned. He also stated that the lower appellate Court committed error in going into the question of title in a suit for injunction and committed error in confirming the judgment and decree of the trial Court. 8. Learned counsel for the respondents/defendants 1 and 2, on the contrary, submits that the vendor of the defendants 1 and 2 was granted D-form patta under the proceedings of the Tahsildar, referred to above, and which were exhibited in the suit vide Ex.B1. It is also further supported by proceedings of the Tahsildar under Ex.B2 dated 16.09.1981 and the Ryot pass book showing the defendants possession and enjoyment to the extent of Ac.2.50 cents in R.S.No.9/1 under Ex.B4 dated 20.03.1980 as well as land revenue receipts – Exs.B5 to B9 for the period 1982 to 1987. The respondents 3 to 6 supported the contentions of the defendants 1 and 2. 9. In the light of these contentions, the substantial questions of law have to be answered. It has to be noticed that the suit was filed on 19.04.1982 merely for injunction and the defence in the said suit is only by the defendants 1 and 2, who claim title to the extent of Ac.2.00 cents of land, which is part of the suit schedule. In a suit for injunction, the plaintiff has to succeed not only on the basis of proof of possession, which he produces before the Court, but he must also show that he has a better title than that of the defendants. The findings of both the Courts below show that the plaintiff has not filed any documents to show possession and is only relying upon the admission of D.W.1, as mentioned above. On the contrary, the defendants have relied upon proof of documents emanating from the State, which, prima facie, show their possession over Ac.2.00 cents of the land claimed by them. No doubt, the lower appellate Court has gone into assessment of respective title of the parties; keeping in view, the fact that this being a suit for injunction all those findings with respect to title under the impugned judgments have to be treated as incidental and prima facie and would not bind either of the parties for claiming appropriate relief of declaration of title from the appropriate Court. 10. So far as proof of possession as on the date of suit is concerned, I am not persuaded to accept the contentions of the learned counsel for the appellant that the Courts below have committed any error nor I am able to see any perversity or erroneous appreciation of evidence in the judgments impugned. The documents produced by the plaintiff clearly are with respect to his alleged entitlement to the grant of patta, but, admittedly, no patta was granted to him and on the contrary, the defendants were able to establish the grant of D-form patta and the Ryot pass book – Exs.B1 and B4 to show their, prima facie, title supported by Exs.B5 to B9 land revenue receipts, which supports their claim for possession. The Courts below, therefore, have rightly approached the issue in an appropriate perspective so far as the aspect of possession is concerned and have dismissed the suit of the plaintiff by rightly appreciating the evidence on record. The alleged admission of D.W.1 on which reliance is placed by the learned counsel for the appellant, even if correct, relates to the period during the pendency of the suit when D.W.1 was examined, and the same is not relevant for assessment of alleged possession of the plaintiff on the date of the suit and therefore, I am not able to see any error or perversity warranting correction by this Court under Section 100 of the Code of Civil Procedure, 1908. The substantial questions of law, therefore, are answered in the negative. The second appeal is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J October 22, 2010 DSK