THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.795 of 2011 JUDGMENT: Deceased appellant No.1 ﬁled O.S.No.114 of 2000 in the Court of the Junior Civil Judge, Hindupur against the respondents for the relief of perpetual injunction in respect of Acs.4.70 cents of land in Survey No.14-1 of Marasalapalli Village of Chilamathur Mandal, Anantapur District. Their plea was that one Sri Venkataramanappa was the owner of Acs.7.05 cents of land in that survey number, he executed a gift deed on 11.12.1964 (Ex.A1) in favour of his sister Venkatamma in respect of Acs.2.35 cents and that after the death of Venkatamma, her son, appellant No.2 had succeeded to the same. Venkataramanappa is said to have executed another gift deed, dated 12.02.1970, in respect of equal extent of land in favour of his another sister, appellant No.1. After the death of appellant No.1, her property is devolved upon appellant No.3, who is the wife of appellant No.2. Respondent Nos.1 and 2 are the sons of Venkataramanappa. The suit was opposed by the respondents. It was pleaded that they ﬁled O.S.No.68 of 1991 against appellant No.1 for partition of land in Survey No.14-1 and a preliminary decree and thereafter, a ﬁnal decree were passed therein. They stated that ever since the date of the ﬁnal decree in that suit, they are in exclusive possession of Acs.2.85 cents of land. The trial Court decreed O.S.No.114 of 2000 through judgment, dated 30.11.2009. Feeling aggrieved by the decree, the respondents ﬁled A.S.N.10 of 2010 in the Court of the Senior Civil Judge, Hindupur. The appeal was allowed on 27.04.2011. Hence, this second appeal. Heard Sri S.Subba Reddy, learned counsel for the appellants and Sri N.Aswartha Narayana, learned counsel for the respondents. The trial Court framed only one issue for its consideration, namely “whether the appellants are entitled for the relief of perpetual injunction?” On behalf of the appellants, P.Ws.1 to 6 were examined and Exs.A1 to A11 were ﬁled. On behalf of the respondents, D.Ws.1 and 2 were examined and Ex.B1, the certiﬁed copy of the decree in O.S.No.68 of 1991, was ﬁled. In the appeal preferred by the respondents herein, the lower appellate Court framed only one point for its consideration, namely “whether the judgment and decree of the lower Court are sustainable under law?” and allowed the appeal. The parties are closely related. The suit was ﬁled for the relief of injunction simplicitor. In case there did not exist any other arrangement, the trial Court could have proceeded to decide the matter on the basis of the possession over the suit schedule property as on the date of ﬁling of the suit. If there was any dispute as to the title to the property, the matter should have been left to the parties to seek appropriate remedy before the forum concerned. In the instant case, the principal contention advanced by the respondents was that the suit schedule property was subject to partition in O.S.No.68 of 1999 in which appellant No.1 ﬁgured as the sole defendant. If in fact, appellant No.1 was not aware of those proceedings, she could have taken immediate steps either to get the ex parte preliminary or ﬁnal decree set aside or to seek modiﬁcation thereof. She did not take any such steps till she died in the year 2006. Even her legal representatives did not move in the matter. The result is that the ﬁnal decree, Ex.B1, still holds good and the respondents are claiming rights under it. Once a defendant in a suit for perpetual injunction pleads that his right and enjoyment over the suit schedule property is on the basis of the decree, the trial Court cannot just ignore such a decree and proceed to decree the suit. The trial Court in this case committed a patent error in decreeing the suit ﬁled by the appellants. The same was rectiﬁed by the lower appellate Court. No substantial question of law arises for consideration. This much however can be said that the appellants shall be entitled for the relief of injunction in respect of the suit schedule property if any, after excluding the one covered by Ex.B1. Hence, the second appeal is partly allowed maintaining the decree for perpetual injunction vis-à- vis the suit schedule property excluding the one covered by Ex.B1. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt:21.11.2011. kdl