IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.1197 OF 2009 Between: Mekala Beeraiah & 3 others ..... Appellants/Appellants 2 to 5/Defendants 2 to 5 AND Mekala Mallaiah & 4 others ..... Plaintiffs/Respondents/Respondents 6. Mekala Mallaiah ..... Respondent/Appellant No.1/Defendant No.1 7. Mekala Bhoolaxmi ..... Respondent/Appellant No.6/Defendant No.6 The Court made the following: JUDGMENT: The Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), is directed against the Judgment and Decree, dated 06.08.2009, in A.S.No.74 of 2007, on the file of the learned Judge, Family Court -cum- Additional District and Sessions Judge, Karimnagar, whereunder and whereby the Judgment and Decree, dated 02.07.2007, in O.S.No.633 of 2002, on the file of the learned Principal Junior Civil Judge, Karimnagar, were confirmed. 2. The appellants herein are defendants 2 to 5 and the respondents 1 to 5 herein are plaintiffs in the suit. For a better appreciation of facts, the parties are hereinafter referred to as arrayed in the trial Court. 3. Brief facts, that are necessary for disposal of the present Second Appeal, may be stated as follows: The plaintiffs filed the suit stating that the first plaintiff was the original owner of the land admeasuring to an extent of Ac.6.08 guntas, in Survey No.1159/B, situated at Ramanagar locality of Karimnagar, having purchased it 40 years back, and he sold the land to several persons as plots from time to time, retaining Ac.0.22 guntas of land, which is suit schedule land. He was in enjoyment of the same obtaining the Pattadar passbook and title deeds and his name was entered in the Pahanies. The first defendant, taking advantage of his name also as that of the first plaintiff, was trying to alienate the suit land to third parties and that the Defendant Nos.2 to 5 were interfering with his possession and enjoyment. Hence, the suit for grant of perpetual injunction restraining the Defendant Nos.1 to 6 and their men from interfering with the peaceful possession and enjoyment of the suit property. 4. The Defendant Nos.1 to 6 filed a common Written Statement stating that the Defendant Nos.1 to 5 are the sons of Late Mekala Narsaiah and the first plaintiff and father of the defendants by name Late Mekala Narsaiah along with one person by name Mekala Lingaiah are the three own brothers and sons of Mekala Parvathalu; that the land in the suit survey No.1159/B originally belonged to Mekala Mallaiah, son of Mekala Parvathalu; that the first plaintiff, taking advantage of his name as Mekala Mallaiah, is claiming the suit land and further alleged that in O.S.No.185 of 1997, Mekala Narsaiah, the father of Defendant Nos.1 to 5, was shown as Defendant No.1, and Mekala Mallaiah, who was the deceased first plaintiff, was shown as Defendant No.2, and Mekala Lingaiah was shown as Defendant No.3; and that Plaintiff No.1 filed a Written Statement stating that himself and his brothers Mekala Narsaiah, who was the father of Defendant Nos.1 to 5, and one Mekala Lingaiah are equal share holders of land in Survey Nos.1169 and 1159/B and suppressing the said fact, the first plaintiff filed a suit and that the Plaintiff Nos.2 to 5 have come on record upon the death of the first plaintiff. Hence, they prayed to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the plaintiff is entitled for grant of perpetual injunction as prayed for? and 2. To what relief? 6. During trial, P.Ws.1 to 3 were examined and Exs.A1 to A28 were marked on behalf of the plaintiffs. On behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B13 were marked. 7. The trial Court, after considering the evidence on record, came to the conclusion that the incidental title of the plaintiffs has been proved and Exs.A16 to A21, which are the certified copies of Pahanies for the years 1954-55, 1949-50, 1995-96, 1996-97, 1985-86 and 1987-88 respectively show about the possession of the plaintiffs over the suit land and accordingly decreed the suit. 8. On appeal, the first defendant filed a Memo to withdraw the appeal as he cancelled the Gift Deed executed in favour of Defendant Nos.2 to 4, but however, the Defendant Nos.2 to 4 contested the appeal as the finding of the trial Court with regard to the prima facie title and possession has not been established and the defendants were never in the possession of the suit land and the appeal was dismissed. Challenging the same, the present Second Appeal is filed. 9. The substantial questions of law raised in the Second Appeal are: 1. Whether the first Appellate Court is right in law in not deciding the main issue of revocation/cancellation of gift deeds by the first appellant in the first appeal who is Respondent No.6 herein, as the appellants herein, were put in possession of the suit schedule property under the said gift deeds, dated 30.11.2002? 2. Whether the first Appellate Court is right in law in not noticing the fraud played by the first appellant in the first appeal who is Respondent No.6 herein, as he colluded with the Respondent Nos.1 to 5 herein and revoked/cancelled the gift deeds, dated 30.11.2002, executed in favour of the appellants herein unilaterally without issuing any notice to the appellants, even though there is no condition of revocation/cancellation in the gift deed and withdrawn his claim in the first appeal? 3. Whether the first Appellate Court is right in accepting the statement of the first appellant in the first appeal (Respondent No.6 herein) in revoking/canceling the gift deed executed by him, which is contrary to settled principles of law? and 4. Whether the first Appellate Court is right in accepting the Memo filed by the first appellant in the first appeal (Respondent No.6 herein) withdrawing his claim on the ground that he settled the matter out of Court and cancelled the gift deeds, dated 30.11.2002, executed by him in favour of the appellants herein on the ground that the actual possession is not delivered to the done, but in view of the settled law that any gift deed without possession is invalid and the gift deed cannot be revoked after deliver of possession? 10. There cannot be any dispute that in a suit for perpetual injunction, the three requirements which have to be considered by the trial Court are: 1. Whether plaintiffs have title to the property? 2. Whether the plaintiff was in the possession of the property by the date of filing of the suit? And 3. Whether the balance of convenience is there i.e., if the injunction is not granted, irreparable injury is caused to the plaintiff? 11. The Defendant Nos.2 to 5 were claiming their title with regard to the suit schedule property by virtue of a Gift Deed said to have been executed by the first defendant. During the pendency of the appeal, the said Gift Deed was revoked. 12. The learned counsel appearing for the appellants herein contended that once the Gift Deed has been accepted by defendants 2 to 5, it cannot be cancelled unilaterally and therefore, the Defendant Nos.2 to 5 have got a title to the property. That question cannot be decided in the Appellate Court, because it has come during the appeal. Whether the Gift Deed cancelled by the first defendant is in accordance with law or not is a separate issue to be decided in a separate forum. Since the appeal is the continuation of the suit, the issues which have to be decided in the suit has to be taken into consideration by framing the points for determination in the appeal. No doubt, the cancellation of Gift Deed has taken place during the pendency of the appeal, but at the same time, that point may not arise in view of the fact that, that aspect has not come up for consideration in the trial Court. The plaintiffs filed the certified copy of the registered Sale Deed, which is marked as Ex.A22, and another certified copy of the registered Sale Deed, which is marked as Ex.A23, in respect of the suit land, and in pursuance of thereof, the Revenue Department issued the Encumbrance Certificate and title deed passbook and Pattadar passbook, which were marked as Exs.A24 and A25. Therefore, these documents show the title of the plaintiff. Further, they filed Exs.A1 to A6, certified copies of Pahanies for the years from 1979-80, 1989-90, 1993-94, 1997- 98, 1998-99, 1999-2000 respectively and A17 to A21, Pahanies for the years from 1949-50, 1995-96, 1996-97, 1985-86 and 1987- 88 respectively, which show about the possession of the suit property. There cannot be any dispute that the revenue records like the Pahanies showing the names of the parties can be used as an evidence for showing the possession of the parties. 13. On the other hand, the defendants filed Ex.B3-Sale Deed, dated 20.08.1985, which is relating to some other property and not relating to the present suit schedule land. Even Exs.B1 and B2, which are the certified copies of the judgment and decree in O.S.No.185 of 1975, relate to some third parties in respect of some other land. These two documents relate to the land in Survey No.1169. Similarly, Ex.B4 is the Rythu passbook relating to the land in Survey No.1159. No document is filed by the defendants to show that they have got a right, title and interest in respect of Acs.0.22 guntas of land in Survey No.1159/B. Similarly, Exs.B5 to B12, certified copies of Pahanies for the years from 1954-55, 1958-59, 1964-65, 1969-70, 1974-75, 1979- 80, 1986-87 and 1992-93 respectively, which are prior to the filing of the suit. After 1993, the defendants have not filed a single document to show that they were in the possession of the property as on the date of the filing of the suit, which is filed in the year 2002. Therefore, considering these aspects, the trial Court as well as the Appellate Court rightly decreed the suit. 14. As regards the first substantial question of law is concerned, the remedy of the appellants herein is otherwise because they are contending that the revocation and cancellation of Gift Deed by the first appellant is not in accordance with law or not. It is a dispute, inter se, between the parties therein, which has nothing to do with the points involved in the appeal. It is also alleged that the first plaintiff is colluded with Respondent Nos.1 to 5 and revoked the Gift Deeds, dated 30.11.2002. Again this question has to be decided not by the Appellate Court by a separate forum. Whether the cancellation of Gift Deed, dated 30.11.2002, is in accordance with law or not, is to be decided in a separate forum, but not in a suit for mere injunction. Therefore, none of the grounds raised in the Second Appeal is the substantial questions of law, which has to be decided by this Court. All these grounds are raised for the first time in the Second Appeal. These grounds arose during the pendency of the appeal when the first appellant allegedly cancelled the Gift Deed, dated 30.11.2002. That aspect cannot be gone into by the Appellate Court. 15. Therefore, the Appellate Court rightly dismissed the appeal. There are no grounds to interfere with the same and the Second Appeal is liable to be dismissed, as there is no substantial question of law involved, leaving open the remedies available to the appellants. 16. Accordingly, the Second Appeal is dismissed at the admission stage, confirming the Judgment and Decree, dated 06.08.2009, in A.S.No.74 of 2007, on the file of the learned Judge, Family Court –cum- Additional District and Sessions Judge, Karimnagar. _______________ (K.C. BHANU, J) Date: 22nd December, 2009 KL