THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 390 OF 2000 AND CROSS-OBJECTIONS (SR) NO. 20291 OF 2002 Date of order: 20.1.2011 Between: Jampala Eswaraiah (died) and others …Appellants and P. Narayana Reddy (died) and others …Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 390 OF 2000 AND CROSS-OBJECTIONS (SR) NO. 20291 OF 2002 COMMON JUDGMENT: The second appeal is filed by the defendants who are aggrieved by the dismissal of their counter-claim for eviction by both the courts below. The respondent-plaintiff filed a suit for permanent injunction alleging that he is the owner and possessor of the suit schedule property and that the appellants are interfering with the same. In the said suit the appellants filed a written statement asserting title to the large extent of property which includes the suit schedule property under the document of title i.e., Sale deed dated 4.5.1934- Ex.B1. The defendants claimed that the entire extent of the land covered by the said sale deed bears S.No. 744/B and that in the said land there exists a rice mill of the defendants and a small portion of land (suit schedule property) which was allowed to be used by the plaintiff for residence by erecting a hut. The defendants, therefore, claimed that the plaintiff is merely a licensee and he was already called upon to vacate the premises and has not vacated the same. The defendants, not only opposed the suit for injunction, but had filed a counter-claim seeking eviction of the plaintiff. The trial Court, though granted injunction in favour of the plaintiff by accepting the plaintiff’s case that he has established his possession over the suit schedule property on the basis of the demand notices and tax paid by him, as evident from Exs.A1 to A13, but has also held that the plaintiff had failed to establish title to the suit schedule property. To the extent of counter-claim of the defendants, the trial Court felt that the defendants have not claimed declaration of title and, therefore, they are not entitled to seek relief of eviction against the plaintiff and accordingly dismissed the counter-claim. The defendants preferred an appeal before the first appellate Court and under the impugned judgment and decree the lower appellate court has set aside the injunction decree granted in favour of the plaintiff on the ground that the plaintiff is not able to establish his status or capacity in which he claims to be in possession of the suit schedule property. The lower appellate court also noticed that though the plaintiff had claimed ownership in the plaint, he admitted in his cross-examination that he is not the owner and the suit land is a Government Poramboke land. While rejecting the plaintiff’s claim for permanent injunction, the lower appellate court also rejected the counter-claim of the defendants for eviction of the plaintiff on the basis of the reports of the advocate- commissioner and surveyor which were obtained by the lower appellate court pending the appeal vide it’s orders in I.A.Nos. 13 of 1998 and I.A.No. 698 of 1999. Aggrieved by the said judgment of the lower appellate Court, the defendants have preferred this appeal to the extent of rejection of their counter-claim and the plaintiff has preferred cross-objections to the extent of rejection of his relief of injunction. Heard learned senior counsel appearing for the appellants and the learned counsel appearing for the cross-objector/respondent. I am unable to appreciate the reasoning of both the courts below, inasmuch as the plaintiff who has filed the suit for injunction claiming ownership and possession was bound to establish the same. Though the trial Court agreed that the plaintiff has failed to establish title as pleaded, but proceeded to grant injunction without examining as to whether the said injunction would operate against the true owner as claimed by the defendants. The lower appellate Court also having taken note of the fact that the plaintiff admits that he is not the owner as per his cross-examination and sets up title in the Government, has rightly rejected the relief of injunction, but in doing so it has placed reliance upon the reports of the advocate- commissioner and surveyor who were not able to locate and identify the suit schedule property and the report is also not signed by the advocate-commissioner. The lower appellate Court ultimately proceeded on the premise that the hut in the suit land as claimed by the plaintiff is near the defendants’ land. These conclusions have neither answered the issue in the suit nor are sufficient to adjudicate upon the claims made by either of the parties. Both the Courts below have failed to appreciate that in a suit for injunction the plaintiff would be entitled to succeed against the whole world merely on the possession, except the true owner. Similarly the defendants’ counter-claim for possession based on title had to be adjudicated upon by both the courts below in order to ascertain whether the defendants have established title or not. The judgments of both the courts below have overlooked these essential aspects. In addition thereto, the appointment of advocate- commissioner or surveyor by the lower appellate Court is neither probative nor their reports have been proved or established in accordance with law and they have not assisted the lower appellate court in arriving at the just conclusions on facts. The findings of fact reached by both the courts below are, therefore, clearly vitiated and I am constrained to set aside the same. The second substantial question of law formulated in this second appeal - Whether the learned I-Addl. District Judge did not fall into grave error in misreading the reports of the advocate commissioner appointed by the appellate court and of the surveyor whose assistance was taken by the commissioner in identifying the plaint schedule site, which formed the material evidence in the case - therefore, deserves to be answered in favour of the appellants. The second appeal and the cross-objections are allowed and the impugned judgments and decrees are set aside. However, in the interest of justice, and in view of the obscurity in the evidence on record, I deem it appropriate to remit the suit together with counter-claim for fresh disposal to the trial Court which shall frame appropriate issues in the light of the observations made above and shall grant one opportunity to either of the parties to lead further evidence, if any, if asked for by them and shall hear and determine the suit afresh. It is needless to observe that any findings under the impugned judgments or as recorded in this judgment shall not influence the trial Court while deciding the suit afresh. Pending re-consideration of the suit as directed above, the interim order of status quo made by this Court in CMP No. 2838 of 2002, dated 19.6.2002 shall be maintained by both the parties. The suit be disposed of within six months from the date of receipt of a copy of this judgment. There shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 20.1.2011 KR