IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD THURSDAY, THE TENTH DAY OF SEPTEMBER, TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.719 OF 2009 BETWEEN: Tula Venkataiah S/o. Raja Ram …. Appellant AND Tula Srinivas S/o. Rajaiah and another …. Respondent THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.719 OF 2009 JUDGMENT: This Second Appeal is filed against the judgment dated 24-07- 2006 in A.S. No.20 of 2004 passed by the III Additional District Judge at Karimnagar, whereunder and whereby the decree and judgment dated 06-02-2004 in O.S. No.48 of 2000 passed by the Principal Junior Civil Judge, Karimnagar, was reversed. 2. Appellant is the plaintiff and the respondents are the defendants in the suit. 3. The brief facts that are necessary for disposal of the present second appeal may be stated as follows: The appellant herein filed O.S. No.48 of 2000 alleging that himself and his brother (father of defendant No.1 and husband of defendant No.2) jointly purchased the land to an extent Ac.0.12 guntas in Survey No.382/B at Karimnagar from one Rajalingam under simple sale deed on 20-05-1959. Thereafter, the said document was impounded by the Revenue Divisional Officer, Karimnagar on 12-05-1997 and they were in possession and enjoyment of the said land in equal shares. Later, the plaintiff migrated to Nagula Malyala for his livelihood, but his possession was continued in respect of Ac.0.06 guntas and it is an abadi land. Taking advantage of his absence, defendant Nos.1 and 2 approached the revenue authorities and got mutated their names for entire Ac. 0.12 guntas and without proper enquiry 13-B certificate was issued as per the proceedings dated 19-02-1996 in favour of defendants for Ac.0.12 guntas. After perusing the documentary evidence, the Mandal Revenue officer passed orders for rectification of entries infavour of the appellant and directed the Village Administrative Officer for mutation and a passbook has also issued to him along with the ownership certificate on 05-06-1998. The plaintiff further submitted that the defendants are interfering with his peaceful possession and enjoyment of the suit schedule property and hence he filed the suit for perpetual injunction. 4. The defendants denied the ownership and possession of the plaintiff over the suit land and also denied the joint purchase of the land by plaintiff and his brother. It is pleaded by the defendants that the father of defendant No.1 had purchased the total extent of Ac.0.12 guntas in Survey No.382/B from the original owner Pasmati Laxmaiah on 20-04-1976 through a simple sale deed and that they have constructed a room in Ac.0.12 guntas of land and Municipal House No.8-1-43/1 was also allotted to it and that the vendor of the plaintiff has no land in survey No.382 and hence the defendants prayed to dismiss the suit. 5. Basing on the above pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiff is entitled for perpetual injunction as prayed for ? 2. To what relief? 6. On issue No.1, the trial Court believed the claim of the plaintiff in the suit land as a genuine one and accordingly decreed the suit. On appeal, it was reversed. Challenging the same, the present Second Appeal is filed. 7. According to the learned counsel for the appellant, the substantial question of law is whether the first Appellate Court is correct in not taking into consideration of Ex.A-4, title deed of the appellant, which is issued under the provisions of the Andhra Pradesh Record of Rights Act, which clearly established that the appellant is in possession of the scheduled land and in reversing the judgment of the Principal junior Civil Judge, Karimnagar. 8. There cannot be any dispute that in a suit of perpetual injunction, the title of the parties has to be gone into incidentally. But, for grant of injunction, it must be proved by the plaintiff that he was in possession of the property by the date of filing of the suit. To substantiate the case of the plaintiff he filed Ex.A-1 simple sale deed dated 20-05-1959. Under Ex.A-1, the property was sold by one Pasmati Laxmaiah but not Rajalingam. The said document was impounded by the Revenue Divisional Officer, Karimnagar on 12-05-1997. According to the learned counsel for the defendants, that document cannot be looked into for the reason that the validation of the certificate as required under Rule 22 (6) of The Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1989 have not been fulfilled. The said Rule reads as follows: . Rule 22 (6): The Recording Authority shall on production of the certificate issued under sub- section (4) of Section 5-A of the Act make an entry in the Record of Rights in Forms 1 and 1B to the effect that the person whose name has been recorded as an occupant is the owner of the property from the date of the issue of the said certificate. The recording Authority and the Mandal Revenue Officer shall make necessary entries in the Record of Rights in land in Forms 1 and 1B under proper attestation and referencing to files of the Mandal Revenue Officer. A perusal of the above provision makes it clear that a certificate has to be issued by the Mandal Revenue Officer and thereafter the Mandal Revenue Officer shall make necessary entries in the records. 9. Even assuming for a moment that Ex.A-1 confers prima facie title, still the plaintiff must show that he was in possession of the property by the date of filing of the suit. He has not filed any other document to show that he was in the possession of the property by the date of filing of the suit except Ex.A-9 pahani for the year 2000-2001. Admittedly Ex.A-9 relates to the land in survey No.382/A. In the plaint filed by the plaintiff, originally the survey number is written as 382. Later the survey number was amended as 382/B in the plaint. Therefore, burden is on the plaintiff to show that he was in possession of the property. As seen from Ex.A-9, it relates to survey No.382/A but not Survey No.382/B. That discrepancy has not been explained by the plaintiff. 10. Similarly, Exs.A-5 to A-8 are also certified copies of pahanis relating to certain years. They do not disclose that the plaintiff has been paying the tax to the government in respect of the land in survey No.382/B. There cannot be any dispute that payment of tax to the Government is the evidence of possession. Therefore, except the oral evidence of PWs.1 to 3, absolutely no evidence was adduced by the plaintiff to show that he was in possession of the property. Unless he shows that he was in possession of the property by the date of filing of the suit, perpetual injunction cannot be granted. 11. On the other hand, the contention of the defendants is that they have constructed a house in an extent of Ac.0.12 guntas of land in survey No.382/B and they purchased the said land under a simple sale deed; that, later it was validated by the Revenue Divisional Officer and thereafter Exs.B-3 and B-4 title deed and Pattadar passbooks have been given to them; that, thereafter they have been paying the tax to the government and also they are paying electricity consumption charges to the department concerned. The documents Exs.B-5 to B-7 would go to show that the defendants were paying tax to the Municipality in pursuance of the demand notices Exs.B-8 and B-9 issued by the Municipality. Similarly Exs.B-10 to B-13 Electricity consumption bills would clearly disclose that they are residing in the said property. All those documents would clearly reveal the survey number as 382/B. Similarly documents Exs.B-3 and B-4 would clearly go to show that defendant No.1 is the Pattadar in respect of the land admeasuring Ac.0.12 guntas in survey No.382/B. 12. There cannot be any dispute that the title deed cannot be looked into for the purpose of deciding as to who is in actual possession of the suit property. The substantial question of law, as framed by the appellant is not real substantial question of law. On proper appreciation of the evidence on record, the appellate Court found that the plaintiff had miserably failed to establish that he was in possession of the property as on the date of filing of the suit and accordingly, set aside the judgment and decree of the trial Court. That order cannot be said to be perverse. Hence, there are no grounds to interfere with the judgment passed by the trail Court. 13. Accordingly, the Second Appeal is dismissed at the stage of admission, as there is no substantial question of law. No costs. _____________ K.C. BHANU, J SEPTEMBER 10, 2009. KTL