*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.892 of 2011 %23.08.2011 #Audimulam Govindamma (died) and others .. appellants. Vs. $Audimulam Subba Rao ..Respondent. !Counsel for the appellants : Sri T.Ravi Kumar ^Counsel for the Respondent : Sri K.Venu Madhav <Gist : >Head Note: ?Cases Referred: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.892 of 2011 JUDGMENT: The deceased – 1st appellant, Govindamma, had two sons, by name Venkateswarlu (the deceased – 2nd appellant) and the sole respondent herein. She filed O.S.No.88 of 1992 in the Court of Additional Senior Civil Judge, Ongole, against the respondent, for the relief of perpetual injunction in respect of the suit schedule property. During the pendency of that suit, Govindamma filed a memo not pressing the suit and it was accordingly dismissed. Stating that Govindamma executed a deed of settlement on 18.09.1981, in his favour, her second son Venkateswarlu, the 2nd appellant, filed an interlocutory application, for restoration of the suit. The suit was accordingly restored. He pleaded that the respondent has absolutely no right or interest vis-à-vis the suit schedule property and that he cannot interfere with the possession and enjoyment thereof. Govindamma, on the other hand, filed O.S.No.104 of 1995 in the same Court against her elder son, the 2nd appellant herein, for the relief of cancellation of the settlement deed, dated 18.09.1981. The respondent herein came on record as L.R., on the death of the sole plaintiff. His wife and children got impleaded as defendants 2 to 4 on the basis of a Will said to have been executed by Govindamma in their favour. Through common judgment, dated 05.01.2002, the trial Court decreed O.S.No.88 of 1992 and dismissed O.S.No.104 of 1995. Aggrieved thereby, the respondent filed A.S.No.33 of 2002 against the decree in O.S.No.88 of 1992 in the Court of II Additional District Judge, Ongole. Defendants 2 to 4 in O.S.No.104 of 1995 filed A.S.No.35 of 2002 in the same Court. The respondent herein filed cross objections in that appeal. Through common judgment, dated 09.03.2011, the lower Appellate Court allowed A.S.No.33 of 2002 and dismissed A.S.No.35 of 2002 and cross objections. Challenging the decree in A.S.No.33 of 2002, the plaintiffs in O.S.No.88 of 1992 field the present second appeal. Heard Sri T.Ravi Kumar, learned counsel for the appellants and Sri K.Venumadhav, learned counsel for the sole respondent. On the basis of the pleadings before it, the trial Court framed the following issues, in both the suits: i) Whether the plaintiff is entitled to a decree for cancellation of the settlement deed dated 18.09.1981 as prayed for? (O.S.No.104 of 1995) ii) Whether the plaintiff is entitled for the injunction as prayed for? (O.S.No.88 of 1992) The trial Court clubbed both the suits and common evidence was recorded. On behalf of the respondent, PWs.1 to 5 were examined and Ex.A.1 to A.40 were filed. On behalf of the appellants, DWs.1 to 5 were examined and Exs.B.1 to B.25 were filed and the opinion of the Expert is taken on record as Ex.C.1. Through common judgment, the trial Court decreed O.S.No.88 of 1992, filed by the appellants herein and dismissed O.S.No.104 of 1995 filed by the respondent herein. The lower Appellate Court reversed the decree in O.S.No.88 of 1992. The suit was initially filed by Govindamma, against her younger son, the sole respondent. It was dismissed as not pressed, at her instance, obviously because the disputes were resolved between the mother and the younger son. However, the 2nd appellant came into picture on the strength of an alleged deed of settlement and got the suit restored. It is indeed a debatable, as to whether O.S.No.88 of 1992, which was got dismissed by Govindamma, the sole plaintiff, as withdrawn, could have been restored at the instance of her elder son, the deceased-2nd appellant herein. The respondent, however, did not take any steps vis-à-vis the order of restoration and thereby rendered that issue final. The trial Court recorded a finding to the effect that the appellants proved their possession over the suit schedule property and decreed the suit. The lower Appellate Court has taken into account the factum of Govindamma filing O.S.No.104 of 1995, disowning the very basis for the 2nd appellant to claim the property, namely, the deed of settlement, dated 18.09.1981. That suit, however, was dismissed by the trial Court. An appeal filed against that namely A.S.No.35 of 2002 and the cross-objections therein were dismissed. The respondent was a party to the suit and an appeal and he did not challenge the decree in O.S.No.104 of 1995 as affirmed by the lower Appellate Court. Even if it is possible to have a second view upon merits, an important development has taken place during the pendency of the second appeal. In respect of the very property, which is the subject- matter of O.S.No.88 of 1992, the respondent herein filed O.S.No.36 of 2006, against the appellants, for the relief of declaration of title and recovery of possession, on the strength of a Will, dated 12.04.1977, said to have been executed by his father, late Venkaiah. It means that he has admitted the possession of the respondents herein over the property. A substantial question of law, namely “whether a defendant in a suit for injunction can resist the suit, in case he has himself filed a separate suit for the relief of declaration of title and recovery of possession, as regards the same property” arises. The invariable answer to that question would be ‘no’. The very fact that a person had admitted the possession of the other, would disable the former from interfering with the possession of the latter. He has to await the outcome of the suit instituted by him. Hence, the second appeal is allowed and the decree passed by the lower Appellate Court in A.S.No.33 of 2002, is set aside. As a result, the decree passed by the trial Court would remain. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:23.08.2011 L.R. copy to the marked. GJ