IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT HYDERABAD FRIDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1102 OF 2001 Between:- M.Laxmamma (died) M.Jaya Krishna and others …Appellants A n d Poonamchand …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1102 OF 2001 JUDGMENT: This appeal is directed against the judgment and decree dated 24-09-2001 in A.S.No.14 of 1998, on the file of the X-Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, wherein the said appeal filed by the appellants herein was dismissed, confirming the judgment and decree dated 23-10-1997 in O.S.No.1796 of 1987, on the file of the IV-Additional Judge, City Civil Court, Hyderabad, whereunder the said suit filed by the respondent herein for permanent injunction, was decreed. 2 . Heard the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff. Perused the record. 3. The case of the respondent/plaintiff, in brief, is as follows: Late Mali Muthamma was the owner and pattadar of the land bearing Nos.17 to 19 in Thotaguda village and she sold Ac.0-24 gts in Sy.No.17 and Ac.0-30 gts in Sy.No.19 to Dhanulal and Mohanlal under a registered sale deed dated 11-02-1955 and put them in possession. Dhanulal, who is the paternal uncle of the plaintiff, died issueless on 29-11-1979 and plaintiff’s father Mohanlal died in 1960 leaving behind three sons, the plaintiff being the youngest. The plaintiff and his two brothers have been in possession and enjoyment of the land ever since. Mali Muthamma died issueless on 12-04-1964. The defendants were falsely claiming to be the heirs of Mali Muthamma. She did not have any son by name M.Jangaiah. Mali Muthamma was shown as pattedar in the revenue records till 1981-82. In the year 1982-83, the lands were recorded as Government lands in pahani patrika. During the town survey, the land in Sy.No.19 came to be comprised in T.S.No.7, Ward No.202, Block ‘C’ of Thotaguda village and the land in Sy.No.18 came to be comprised in T.S.No.8 and the lands in Sy.No.17 came to be comprised in T.S.No.7/1 of the same ward and block. The plaintiff, on coming to know that the lands were recorded as Government lands in the town survey records, got the same corrected. He also got the sale deed executed by Mali Muthamma certified by the Inspector General of Registration on 10-07-1985 by paying the penalty. The property was mutated by the Mandal Revenue Officer, Musheerabad in the names of Dhanulal and Mohanlal on 22-03-1986 and faisal patti was also issued in the name of plaintiff and his brothers. Pattadar passbook was also issued to the plaintiff for the suit lands. As the defendant was trying to make a false claim over the suit lands, the plaintiff filed the suit for injunction. Subsequent to filing of the suit, D-1 died on 11- 11-1991 and her sons were brought on record as legal representatives. 4. The defendants filed a written statement contending that the total extent of Sy.No.17 is Ac.01-06 gts and Sy.No.19 is Ac.2-00 and the plaintiff is not clear as to where the suit lands are situate in the total extent. It is admitted that Sy.Nos.17 to 19 were the patta lands of Mali Muthamma. The alleged alienation by Mali Muthamma in favour of Dhanulal and Kishanlal sons and delivery of possession to them is denied. It is strange that mutation took place in the year 1986 i.e., 31 years after the alleged purchase in 1955. Mali Muthamma was having personal cultivation raising paddy from 1953 onwards. She had a son by name Jangaiah, who is the husband of D-1, and father of D-2. After the death of Mali Muthamma, her son Jangaiah became the absolute owner and he was in possession of the suit land raising paddy as first crop and fodder as second crop. Even after town survey, the lands continued to be in the name of Mali Muthamma in the revenue records. In 1983, arrack and toddy shops came to be located in Sy.Nos.18 and 19. One Venkataswami, Contractor executed a lease deed in favour f D-1 on a monthly rent of Rs.300/-. In 1986-87, notices were issued by D-1 to the Superintendent of Central Excise, terminating the sale of toddy. Thus, the defendants have been in exclusive possession and enjoyment of Sy.Nos.17 and 19. The plaintiff was never in possession thereof. The suit for bare injunction is not maintainable. Based on the above pleadings, the trial Court framed the following issues and additional issues: Issues: i) Whether the plaintiff has title to the suit property? ii) In which part of S.Nos.17 and 19 of Thotaguda are the suit plots located? iii) Whether the plaintiff is in possession on the date of the suit? iv) Whether the plaintiff has a cause of action for filing the suit? v) Whether the plaintiff is entitled to the permanent injunction as prayed for? vi) To what relief? Additional Issues: i) Whether the plaint as amended is in proper form for non-inclusion of D-3 and D-4 and no relief has been claimed against them? ii) What is the extent of the suit property as per amended plaint? iii) Whether the suit property as amended forms part of S.No.17 or S.No.19 or both? iv) Whether the suit is maintainable without seeking the relief of declaration of title for suit property? v) Whether the brothers of the plaintiff are necessary parties to the suit? 5. During trial, P.W.1 was examined and Exs.A.1 to A.44 were marked on behalf of the plaintiff. D.Ws.1 to 3 were examined and Exs.B.1 to B-55 were marked on behalf of the defendants. Exs.X-1 and X-2 are land revenue receipts. 6. On a consideration of the evidence available on record, the trial Court held that Ex.A-1 sale deed dated 11- 02-1955 confers valid title on the predecessors of plaintiff in respect of plaint schedule properties and thus the plaintiff had acquired a valid and legal title to the same. The trial Court also held that the contention of the defendants that the identity of the suit land is not established, is untenable. The trial Court also held that the plaintiff is in possession of the suit land and the defendants having no rights therein were trying to interfere with the plaintiff’s possession and enjoyment. Accordingly, the suit for permanent injunction was decreed. Aggrieved by the same, the defendants preferred appeal in A.S.No.14 of 1998. By the impugned judgment dated 24-09-2001, the learned Additional Chief Judge, dismissed the appeal and confirmed the findings of the trial Court. During appeal, additional evidence was marked as Exs.A-45 to A-49 on behalf of the plaintiff and Ex.B52 on behalf of the defendant. Assailing the said judgment and decree, the defendant preferred the present second appeal. 7. During pendency of the second appeal, the respondent-plaintiff filed S.A.M.P.No.2752 of 2010 under Order XLI Rule 27 CPC for receiving additional evidence. The documents filed are copies of the judgment and decree in O.S.No.3312 of 2002, a suit filed by the appellants themselves for cancellation of the sale deed dated 11-02-1955 executed by Mali Muthamma in favour of Dhanulal and Mohanlal. The said suit was dismissed after contest on 05-01-2007. Copy of the said judgment and decree is now marked as Ex.A-50 and copy of the decree as Ex.A-51. 8. The only question of law raised by the learned counsel for the appellants is that the suit property as described in the plaint schedule is unidentifiable and, therefore, suit for permanent injunction in respect of such unidentifiable property is not maintainable. The learned counsel for the respondent, on the other hand, would contend that there is no dispute regarding the identity or location of the suit property and both parties have put forward rival claims in respect of the same property claiming to be in possession as absolute owners thereof. He would, therefore, contend that as there is no dispute regarding the identity or location of the suit property and the Courts below having recorded concurrent finding on question of fact that the plaintiff is having absolute title over the suit property by virtue of Ex.A-1 sale deed in favour of his predecessors and the plaintiff having been found to be in possession and enjoyment of the suit land, the decree for permanent injunction granted by the trial Court and confirmed by the appellate Court is not liable to be interfered with in the second appeal, as no question of law, much less substantial question of law, is involved. 9. The respondent/plaintiff filed the suit for permanent injunction in respect of plaint ‘A’ and ‘B’ schedule properties. Plaint ‘A’ schedule is an extent of Ac.0-24 gts in Sy.No.17 in T.S.No.9/2 with a shed bearing No.15-5-581/3 in Block ‘C’, Ward No.No.202, Block ‘C’ of Thotaguda village. Plaint ‘B’ schedule is an extent of Ac.0-30 gts in Sy.No.19 in T.S.No.7/1 with two sheds bearing Nos. 15-5-581 and 582/2 in Block ‘C’, Ward No.No.202, of Thotaguda village. The boundaries of ‘A’ and ‘B’ schedule items are also mentioned in the plaint schedule. The necessary descriptive particulars for identification of the suit property as required to be furnished under Order VII Rule 3 CPC have, in fact, been furnished in the plaint and also in the plaint schedule. It is significant to note that the appellants/defendants are claiming rights over the self-same property and not in respect of any other proprieties of land forming part of Sy.Nos.17 and 19. It is not disputed that Mali Muthamma was the original owner of the suit land and her name was registered in the revenue accounts as pattadar. According to the plaintiff, his father and uncle Dhanulal and Mohanlal purchased the suit land from Mali Muthamma under a registered sale deed Ex.A-2 dated 11-02-1955 and Dhanulal died issueless and subsequent to the death of their father Mohanlal, the plaintiff and his two brothers succeeded to the estate of his father, including the suit land, and they have been in possession and enjoyment of the same and their names were also mutated in the revenue records and a ryot passbook was also issued in their favour. He would further contend that Mali Muthamma had no son by name Jangaiah. The appellants-defendants, on the other hand, would contend that Mali Muthamma had a son by name Jangaiah, who is husband of D-1 and after the death of Mali Muthamma, her son succeeded to her estate, including the suit land and after his death, his wife D-1 was in possession and enjoyment thereof and her name was also entered in the revenue records. After the death of D-1, her sons were brought on record as LRs during the pendency of the suit. The defendants further contended that the sale deed Ex.A-1 is not valid and binding on them. Necessary evidence was adduced by both parties in support of their rival contentions. On appreciation of the evidence available on record, the trial Court held that Ex.A-1 sale deed confers a valid title on the plaintiff’s predecessors. It was further held that the sale deed was certified under Section 42 of the Stamp Act on payment of stamp duty and penalty and hence it was admissible in evidence for proving the possession of the plaintiff. The said finding was confirmed by the appellate Court also on reappraisal of the evidence. Both the Courts below have held that the plaintiff has duly established his possession and enjoyment over the plaint schedule land. The said concurrent finding recorded on a question of fact by the Courts below on appreciation of the evidence let in by both the Courts does not, therefore, call for any interference by this Court. 1 0 . It is well settled that in a suit for permanent injunction what all the plaintiff needs to be established is his lawful possession and enjoyment over the suit land and the question of title can only be incidentally gone into. The fact that Ex.A-1 was an unregistered sale deed does not come in the way of the plaintiff seeking the relief of permanent injunction when once it is shown that he has been in possession and enjoyment of the suit land in a lawful manner. The evidence on record clearly established that the suit land was sold by Mali Muthamma in favour of to Dhanulal and Mohanlal under Ex.A-1 and she also delivered possession and necessary entries were made in the revenue records and after the death of to Dhanulal and Mohanlal, the plaintiff and his brothers succeeded to the estate of their father Mohanlal, including the suit land. The various contentions raised by both parties in support of their respective claims of ownership and possession have been considered in detail by the Courts below and a concurrent finding on a question of fact was recorded to the effect that the plaintiff established his claim of possession and enjoyment over the suit land and the defendants claim in respect of the same land was untenable. When once the plaintiff is able to establish his lawful possession and enjoyment over the suit land the suit for permanent injunction is certainly maintainable, even though the declaration of title is not prayed for. The Courts below have also concurrently held that the identity of the suit land which is the bone of contention between the parties is duly established and the descriptive particulars of the suit land as mentioned in the plaint and plaint schedule are sufficient to identify the same. In fact, the suit O.S.No.3312 of 2002 filed by the appellants against the respondent for cancellation of the sale deed 11-02-1955 was dismissed on merits by judgment and decree dated 05-01-2007, on the file of the VIII Junior Civil Judge, City Civil Judge, Hyderabad, which are now marked as Exs.A-50 and A-51. It is significant to note that the descriptive particulars of the property mentioned in the plaint schedule in O.S.No.3312 of 2002 by the appellants/defendants herein, who are plaintiffs in the said suit, are similar to those of the particulars furnished by the respondent-plaintiff in the present suit. Even in the written statement, the appellants/defendants have furnished the boundaries of Sy.Nos.17 and 19 which are similar in the nature of description to those mentioned in the plaint schedule. 11. The learned counsel for the appellants relied on a decision in NAHAR SINGH V. HARNAK SINGH AND OTHERS[1] wherein it was held that in a suit for specific performance of agreement of sale of immoveable property, the property must be identifiable in order to avail the relief under the Act. He also relied on a decision in BANDU DAS AND ANR. V. UTTAM CHARAN PATTANAIK[2] wherein it was held that in the absence of proper description of the suit land, the suit for declaration of title was not maintainable for want of proper description and sufficient identification. The above decisions are not applicable to the facts of the present case, which are filed for mere injunction and, in fact, the contention of the appellants that the suit property was not identifiable is found to be untenable and the Courts below have recorded a concurrent finding that there cannot be any dispute regarding the identity of location of the suit land. 12. In a decision in GURDEV KAUR AND OTHERS V. KAKI AND OTHERS [3] the Apex Court dealt with the scope of Section 100 CPC. The question that arose consideration in the above case was also whether according to the true delineated scope of Section 100 CPC, the High Court was justified in interfering with the concurrent findings of fact. After discussing the case law on the subject, the Apex Court held as follows:- “The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 CPC by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. 13. In NARAYAN RAJENDRAN AND ANOTHER V. LEKSHMY SAROJINI AND OTHERS[4], the Apex Court reiterated the above proposition. 14. In HERO VINOTH V. SESHAMMAL[5], the apex Court held as follows: “Though the scope for interference with concurrent findings of fact while exercising jurisdiction under S. 100, CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under S. 100, CPC after formulating a substantial question of law.” 15. In P.CHANDRASEKHARAN V. S.KANAKARAJAN[6] the apex Court held that there cannot be any doubt whatsoever that a substantial question of law is different from a question of law. 16. Applying the above principles laid down by the Apex Court in the facts of the present case, it must be held that no question of law, much less a substantial question of law, arises in the present second appeal and the concurrent finding on a question of fact recorded by the Courts below regarding possession and enjoyment of the plaintiff over the plaint schedule land before granting the relief of permanent injunction, does not call for any interference in this second appeal. 17. In the circumstances, it is held that there are absolutely no merits in the second appeal. 18. In the result, the second appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 10th June 2011 Lrkm [1] 1996 (6) SCC 699 [2] AIR 2007 ORISSA 24 [3] (2007) 1 SCC 546 [4] (2009)5 SCC 264 [5] (2006) 5 SCC 545 [6] (2007) 5 SCC 669