HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1226 OF 2010 DATE:18-02-2011 BETWEEN Mankena Sarojini & Others …Appellants AND Mankena Suryanarayana …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1226 OF 2010 JUDGMENT: This second appeal by the plaintiffs is directed against the judgment and decree dismissing the appeal filed by them in A.S.No.14 of 2007, dated 29.7.2010 by the Senior Civil Judge, Nuzvid confirming the judgment and decree of Junior Civil Judge, Tiruvuru in O.S.No.254 of 2000, dated 16.4.2007 dismissing the suit of the plaintiffs. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. The plaintiffs-appellants herein filed the above suit for perpetual injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property i.e. item No.1 which is claimed to be in possession of the first plaintiff and item No.2, which is claimed to be in possession of plaintiffs 3 to 5, who are the legal representatives of deceased second plaintiff. It is alleged in the plaint that the deceased second plaintiff is the elder brother of the husband of the first plaintiff and that the defendant’s father and deceased second plaintiff’s father are brothers. The defendant filed a suit for specific performance before the District Munsif, Tiruvuru against the husband and son of the first plaintiff alleging that they both agreed to sell the suit land under agreement of sale, dated 22.1.1981. In the said suit, he obtained an injunction restraining the husband and son of the first plaintiff from entering into the land or interfering with his alleged possession and enjoyment over the lands. The said suit was decreed on 4.10.1998. The husband and son of the first plaintiff filed A.S.No.26 of 1988 on the file of Sub Court, Nizvid and that the appeal was allowed on 31.3.1999 setting aside the judgment and decree passed by the trial Court. Aggrieved by the same, the defendant preferred second appeal before this Court and the same is pending. It is alleged that item No.1 of the suit schedule property belonged to one Shaik Mabu Saheb and the first plaintiff purchased the same through a sale agreement, dated 24.1.1963 from Shaik Mabu Saheb and took possession of the same and that the sale agreement was followed by a registered sale deed dated 1.10.1985. Since then the first plaintiff has been in possession and enjoyment of the said property even on the date of the decree passed in O.S.No.99 of 1985 filed by the defendant. Similarly, item No.2 of the suit schedule property belonged to the deceased second plaintiff, who is the elder brother of the husband of the first plaintiff. The said property fell to the share of the second plaintiff and since then, he had been in possession and enjoyment of the same. However, the defendant under the guise of alleged sale agreement is trying to dispossess the plaintiffs from the suit schedule property. The trial Court observed that the defendant purchased the plaint schedule property from the husband and son of first plaintiff-P.W.1 under an agreement of sale dated 22.1.1981 for a consideration of Rs.10,400/- and he was inducted in possession of the same by his vendors on 19.3.1981. Whereas P.W.1 stated in her evidence that her parents purchased item No.1 towards pasupukunkuma and in support of her claim, she filed Exs.A.1 and A.2, which are the certified copies of the agreement of sale, dated 24.1.1963, the payment endorsement and the registered sale deed. On careful perusal of agreement of sale dated 24.1.1963 it does not disclose that the parents of the first plaintiff purchased the land in the name of their daughter-P.W.1 and the contents of the said agreement do not disclose anything about the role played by the parents of the first plaintiff about the said purchase of item No.1 of the suit schedule property. Thus Exs.A.1 and A.2 do not speak that the parents of the first plaintiff purchased item No.1 of the suit schedule property in the name of their daughter-P.W.1. Added to that, first plaintiff did not examine her parents or any other family members to show that amounts were provided by her parents to purchase the land. There is no evidence to show that the said land in R.S.No.452 is the corresponding R.S. number for the item No.1. Even if the contents of Ex.A.3-cist receipt are accepted, they are showing that the land revenue was paid only for the Faslies 1394 to 1396, which are not the suit years or subsequent years. Ex.A.6, the certified copy of No.3 Adangal for the Faslies 1392 to 1394 does not disclose the possession and enjoyment of the first plaintiff over item No.1 of the suit schedule property and it is disclosing the possession of Shaik Mahaboob and Mabu Saheb. Thus the first plaintiff is not in possession of item No.1 of the suit schedule property. P.W.2 (plaintiff No.3) claimed that item No.2 of the suit schedule property fell to the share of her husband i.e. second plaintiff in an oral partition between himself and his brothers and since the date of partition, he was in possession and enjoyment over the said land till his death. But the plaintiffs did not sate when the oral partition was taken place between the second plaintiff and his brothers namely Subba Rao and Kutumba Rao and that none were examined to prove the alleged oral partition and the allotment of the property to the share of the second plaintiff. In view of the same and as the defendant succeeded in the suit in O.S.No.98 of 1985 for specific performance coupled with possession and as he also obtained an injunction, the trial Court dismissed the suit of the plaintiffs. On appeal being filed, by the impugned judgment, the lower appellate Court dismissed the appeal confirming the judgment and decree of the trial Court. Learned counsel for the appellants-plaintiffs contends that the second appeal being S.A.No.486 of 1998 preferred by the defendant was allowed by this Court remitting the matter to the trial Court, by judgment dated 25.7.2007, wherein it is recorded that the plaintiffs are in possession of the property and therefore, the trial Court committed an error in rejecting the claim of the plaintiffs’ possession and granting injunction in favour of the defendant. This Court does not find any merit in the submission made by the learned counsel for the appellants. On decreeing the suit in O.S.No.98 of 1985 for specific performance with a specific finding that the plaintiff therein, who is the defendant in the present suit is in possession of the suit schedule property, pending the appeal, there was no injunction in favour of the plaintiffs-appellants herein. Though the lower appellate court allowed the first appeal filed at the instance of the husband and son of the first plaintiff, this Court in the second appeal set aside the judgment of the lower appellate Court and remitted the matter for fresh consideration. It is curious to note that while setting aside the judgment of the lower appellate Court this Court directed the parties to maintain status quo. While remitting the matter to the lower appellate Court in S.A.No.486 of 1998, this Court recorded a finding that “It is stated that by virtue of interim order granted by this Court, the appellant/plaintiff (defendant herein) is continuing in possession of the plaint schedule property. When the appellate Court is the final Court of fact and when all the factual controversies had not been appreciated in proper perspective, in a Second Appeal it would be very difficult to consider all those factual controversies.” Both the Courts below on appreciation of the evidence in proper perspective rightly came to the conclusion that the appellants-plaintiffs failed to establish their possession over the suit schedule property. No question of law much less any substantial question of law arises for consideration in this second appeal. The second appeal fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. FEBRUARY 18, 2011 Tsr.