IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.51 OF 2010 Between: 1. Sambathula Laxmanudu and three others. … Appellants And Pilla Rangarao … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 51 OF 2010 ORDER:- This is the defendants’ second appeal against the decree and judgment of I Additional District Judge, East Godavari at Rajahmundry, dated 23.10.2009 allowing A.S.No.61 of 2007 and decreeing the suit of the plaintiffs in O.S.No.1196 of 2004 on the file of I Additional Junior Civil Judge, Rajahmundry filed for permanent injunction, which was partly dismissed on 22.01.2007. Respondents/plaintiffs filed the above suit for permanent injunction claiming that the father of the 1st plaintiff was in occupation of Item No.1 of the plaint schedule property as an assignee, who resided there along with his family by erecting a thatched house till his death about 30 years back by which time the 1st and 2nd defendants were residing in a separate house. After the demise of his father, 1st plaintiff has been in possession of the property and the same was confirmed by the Government by issuing a certificate of enjoyment by the Mandal Revenue Officer-Ex.A1, dated 11.02.1993. Subsequently, he removed the thatched house and constructed a permanent R.C.C. terraced building during the year 1998-99 and has been in continuous possession and enjoyment of the same. The 2nd plaintiff was granted a patta in respect of item No.2 of the plaint schedule property by the Government by proceedings, dated 21.12.1996 and she has been in peaceful possession and enjoyment of the same. When the 1st and 2nd plaintiffs have been residing in item No.1 of the plaint schedule property, the 1st and 2nd defendants resided in a portion of item No.1 of the plaint schedule property, during the year 2001-02 on payment of monthly rent of Rs.300/-. On account of some disputes, they vacated the same during the year 2002 and due to the strained relationship, the 2nd defendant started proclaiming that she got a right in the plaint schedule property and on account of assault on the 1st plaintiff, there were criminal proceedings in that regard. Hence the above suit for permanent injunction. The 2nd defendant contested the suit by filing written statement denying the material averments contending that item No.1 of the schedule property has been in joint possession and enjoyment of both the parties of the suit and in fact, herself and the 1st plaintiff have jointly constructed a R.C.C. terraced building in item No.1 of the schedule property by demolishing a thatched house and she has been paying house taxes to the concerned authorities in respect of her portion pertaining to item No.1 of the schedule property, and hence, the suit is not maintainable. The 1st, 3rd and 4th defendants filed a memo adopting the written statement of the 2nd defendant. On the above pleadings, the following issues were settled by the trial court: 1. Whether the 1st plaintiff is entitled for the relief of permanent injunction as prayed for with regard to item No.1? 2. Whether the 2nd plaintiff is entitled for the relief of permanent injunction as prayed for with regard to item No.2? 3. Whether the defendant No.2 is in possession and enjoyment of the item No.1 of the plaint schedule property as contended by her in her written statement? 4. To what relief? To prove the case of the plaintiffs, 1st plaintiff was examined as P.W.1, two more witnesses were examined as P.Ws.2 & 3 and Exs.A1 to A13 were marked. On behalf of the defendants, 2nd defendant was examined as D.W.1, 1st defendant as D.W.2 and 4th defendant as D.W.3 and four more witnesses were examined as D.Ws.4 to 7 and Exs.B1 to B7 were marked and Exs.X1 to X3 were marked. The trial court dismissed the suit in respect of Item No.1 of the plaint schedule property, but granted perpetual injunction in respect of item No.2 of the plaint schedule property. Aggrieved thereby, the 1st plaintiff filed the first appeal. The lower appellate court after reanalyzing the oral and documentary evidence decreed the suit of the 1st plaintiff in respect of item No.1 of the plaint schedule property. Hence, the second appeal. Learned counsel for the appellants/defendants contends that when the property belongs to their father, the appellants will have a right in the suit schedule property and, therefore, the respondents/ plaintiffs are not entitled for any injunction against the joint owners. It is well settled that in a suit for injunction, the plaintiff has to establish his prima facie possession over the suit schedule property, as on the date of institution of the suit and that there is a threat to such possession. In order to prove the same, the 1st plaintiff, who was examined himself as P.W.1 and his another sister Gummadi Suryakantham- P.W.2 admitted that patta was issued for survey No.262/8 for an extent of Ac.0-05 cents originally in the name of their father and during the lifetime of their father, he constructed a thatched house and lived therein along with defendant No.1, P.W.1 and his wife. It is the case of the plaintiffs and defendants that their father died about 30 years back prior to filing of the suit and the defendants accepted that Ex.A1 possession certificate was issued in the name of the 1st plaintiff on 11.02.1993 showing that the plaintiffs are in possession of the suit schedule property. The observation of the trial court at para 11 discloses that it was not inclined to decide the question as to who constructed two portioned R.C.C. building in the site, which was originally allotted to the father of the plaintiff, on the ground that it is only a suit for mere injunction, but called upon the plaintiffs to establish their exclusive title over the schedule property, and gave a finding that the 2nd defendant has got a joint title over the schedule property. According to the defendants, there was a partition of the plaint schedule property in the year 1996 between the plaintiffs and the 2nd defendant, wherein half share was allotted to the plaintiffs and another half to the 2nd defendant and the other sister Suryakantham relinquished her share and the possession was in their favour. But there was no pleading to the said effect about the partition and relinquishment made by Suryakantham. In view of the same, the lower appellate court rightly held that in the absence of any pleadings, any evidence let in is worthless. D.W.7, who was the village secretary examined on behalf of the defendants, admitted in the cross-examination that as per the panchayat records the 1st plaintiff is the owner of item No.1 of the plaint schedule property and the 2nd defendant gave a letter to the panchayat to change the house tax receipt in the name of the 1st plaintiff in the year 2002, which itself clearly destroys the case of the defendants that there was a partition and she was in possession of the half share. Further, P.Ws.1 and 2 and the independent witness P.W.3 testified in their evidence that it is the 1st plaintiff who constructed a pucca R.C.C. building in two portions after obtaining possession certificate from the Mandal Revenue Office and after removal of the old thatched house and that he has been in possession and enjoyment of the terraced house and the defendants have no right over the schedule property. The tax receipts Exs.A2 & A9 pertain to the year 2004, in which year the suit was filed, also discloses that the plaintiffs paid the municipal taxes for the plaint schedule property. Apart from the same they filed several electricity bills - Exs.A4, A6 to A8, A10 to A13, which disclose that they were paid by the plaintiffs. Further Ex.A5 legal notice issued by D.W.1 to one K.Satyanarayana stating that he occupied the entire house and residing there, wherein K.Satyanarayana was asked to vacate the suit schedule property on the ground that there was a dispute with regard to the ownership of the property between 1st and 2nd defendants and the plaintiffs, clearly demonstrates that the defendants are not in possession of the property and the plaintiffs were in possession and let out the said property to the third parties. D.Ws.1 and 2 admitted that they could not correlate the D.No.9-108/1 with the present D.No.9-135. Except one receipt for the year 2001-02 under Ex.B2, there are no other documents filed by the defendants to prove their possession. D.W.7 admitted that Exs.X2 and X3 and Ex.B4, B6 and B7 documents were issued without verification of the panchayat records and that the said documents were issued on the request of the defendants, whereas Ex.B4 was issued in the name of the 2nd defendant, Ex.B6 was issued in the name of the 1st defendant and Ex.B7 was issued in the name of the 4th defendant. When the 2nd defendant claims to be the owner, the house must be recorded in her name. It is not explained as to how these certificates were issued in different names. In view of the same, the said documents do not establish the possession of the defendants and on the other hand, the plaintiffs established their possession over the suit schedule property. The lower appellate court after reanalyzing the evidence, rightly allowed the appeal decreeing the suit of the plaintiffs, which do not give raise to any question of law, much less substantial question of law. Accordingly, the second appeal is dismissed. No costs. __________________ A.GOPAL REDDY, J 5th March 2010 lmv