IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL Nos.39 and 41 OF 2000 BETWEEN Jarajana Dalaiah and others. …APPELLANTS AND Jarajana Eeswaramma and another. …RESPONDENTS Counsel for the Appellants: MR. M.V.S. SURESH KUMAR Counsel for the Respondents: MR. K.V. SUBRAHMANYA NARASU The Court made the following: - COMMON JUDGMENT: S.A.No.39 of 2000 is directed against the decree of dismissal of the appellants’ suit O.S.No.239 of 1989 dated 23.06.1994, which was confirmed by the judgment and decree dated 10.10.1995 in A.S.No.14 of 1994 passed by the Subordinate Judge, Rajam. Similarly, S.A.No.41 of 2000 is directed against judgment and decree dated 23.06.1994 passed in O.S.No.94 of 1988 decreeing in favour of the respondents, as confirmed by the Subordinate Judge, Rajam in A.S.No.13 of 1994. by judgment and decree dated 10.10.1995. 2. The facts, in brief, are as follows: (a) O.S.No.94 of 1988 was filed by the respondents herein for injunction with respect to the suit schedule land in Sy.No.228/2. After the respondents obtained interim injunction in the said suit, the appellants herein filed a cross-suit for injunction being O.S.No.239 of 1989 describing the plaint schedule as bearing Sy.No.228/3. While the appellants as well as the respondents in either of the suits were proceedings on the premise that the subject matter of the suits is one and the same land, during the trial an Advocate Commissioner was appointed, who has localized the suit schedule properties and pointed out that the survey numbers of the suit schedule property are not the one as claimed by the parties in either of the suits but are, in fact, located in Sy.Nos.223/2 and 223/4. Both the parties accordingly, amended the plaint schedules and evidence has been lead accordingly. (b) The trial court, on consideration of the evidence came to the conclusion that the respondents herein (plaintiffs in O.S.No.94 of 1988) claimed the suit schedule property on the basis of the decree passed in favour of the husband of the first plaintiff in O.S.Nos.160 and 171 of 1970 and it was also found that in execution of the said decree, the husband of the first plaintiff was put in possession of the suit schedule property by the bailiff of the said executing Court on 17.06.1973 vide Ex.A10 and the trial Court was also satisfied that the evidence on record shows that since the said date the plaintiffs have established possession and the appellants herein (defendants in O.S.No.94 of 1988) have not filed any documents to substantiate their claim of possession of the amended plaint schedule. The trial Court also disbelieved Ex.B6 – agreement of sale dated 11.06.1973 under which it was claimed by the third appellant herein that the suit schedule property was sold to him by the predecessor of the respondents herein. The trial Court also found that the appellants had suppressed the suit O.S.No.94 of 1988 filed by the respondents and the interim injunction obtained therein and has adversely commented against the appellants conduct in filing a cross-suit O.S.No.239 of 1989 without disclosing the earlier suit and the temporary injunction obtained by the respondents. Consequently, the trial court decreed the respondents’ suit O.S.No.94 of 1988 and dismissed the appellants’ suit O.S.No.239 of 1989. (c) Two appeals, being A.S.Nos.13 and 14 of 1994, were carried by the appellants against the said decrees and under the impugned judgment, the lower appellate Court has concurred with the findings of the trial Court by appreciating the documentary and oral evidence on record. Hence, the second appeals. 3. S.A.No.39 of 2000 was admitted on the following substantial questions of law: 1. Whether a suit for permanent injunction abates when a joint cause of action was pleaded against the 5 defendants and when the 4th defendant died before service of summons and in spite of directions from the court no steps were taken to bring his legal representatives on record. 2. Whether the suit for permanent injunction based on title could be decreed when the plaintiffs admitted that they did not have nay record to show that they are the owners of land and on the contrary they admitted that the revenue entries showing the names of the father of the 1st appellant. 3. Whether the report of the Advocate Commissioner overrides the clear and categorical admissions made by the plaintiffs that they do not have title document and all the revenue records show that defendants are the owners and the documents filed by them do not relate to the suit property. 4. Whether the suit for injunction could be decreed when the plaint schedule property did not exist as pleaded by the plaintiffs and when the Commissioner found that the plaint schedule property admeasures only Ac.0.25 cents and not Ac.0.48 cents in toto is sustainable. 5. Whether the defendants have not perfected their title by adverse possession in respect of ABXY portion of the suit schedule property in the light of the finding that the land revenue records filed by the 4th defendant clearly establishes their possession over and above the statutory period. 6. Whether Ex.B6 having been admitted in evidence could be rejected on the ground that it is hit by Section 17 of the Indian Registration Act when no objection was taken for marking the document and whether an unregistered sale deed could not be used to establish possession under Section 49 of the Indian Registration Act.” S.A.No.41 of 2000 was admitted on 24.01.2000 to consider the substantial questions of law Nos.1, 3, 4 and 6, extracted above. 4. Heard the learned counsel for the appellants and the learned counsel for the respondents. 5. The learned counsel for the appellants points out that the lower appellate Court had noticed in para 25 of its judgment the fact that the counsel on either side had conceded that the plaintiffs in O.S.No.239 of 1989 (appellants herein) are not concerned with the property claimed by the respondents and similarly, the respondents also are not concerned with the property claimed by the appellants and that being the position, it was argued that there was no occasion for the lower appellate Court to deal with the rest of the aspects after noticing the concessions and admissions on behalf of either of the parties. Learned counsel also points out that the findings recorded by the trial Court and the lower appellate Court doubting the genuineness and validity of Ex.B6 was uncalled for, as both the suits are one for permanent injunction and are not suits for title. Learned counsel, therefore, submitted that the dispute as noticed by the lower appellate Court being only relating to 10 cents, which are part of Ex.B6, the findings reached by the Courts below are vitiated. 6. Learned counsel for the respondents submitted that apart from the concurrent findings of both the Courts below, the appellants have preferred a review petition against the judgment of the lower appellate Court in A.S.No.13 of 1994 and the said review petition being I.A.No.144 of 1995 was dismissed on contest on 08.03.1996. Learned counsel points out that S.A.No.41 of 2000 is directed against the main judgment in A.S.No.13 of 1994 but the judgment of the lower appellate Court dismissing the review petition has not been questioned by the appellants nor the pendency of the review or its disposal is discussed in the present appeal. He also states that the Advocate Commissioner’s report was accepted by both the parties, as neither any objection was filed nor the same was otherwise shown to be incorrect. On the contrary, both the parties amended their plaint schedule on the basis of the report of the Commissioner. He also points out that the trial Court having noticed the possession of the plaintiffs’ predecessor and thereafter that of the plaintiffs in pursuance of the execution of the decree in the previous suit, the said possession continues and the documents filed by the respondents in support of the same fully justify the grant of decree of injunction. Similarly, in the absence of any documents filed by the appellants to establish their claim for possession in O.S.No.239 of 1989, the said suit was rightly dismissed by both the Courts on merits as well as on the ground of suppression. 7. It is evident from the record and findings of the trial Court that the claim of the plaintiffs in O.S.No.94 of 1998 (respondents herein) is squarely based upon the possession, which they got in execution of the decree in the previous suit O.S.Nos.160 and 171 of 1970. Ex.A10 is the suit register extract showing that the plaint schedule in the aforesaid suits was delivered by the bailiff to the predecessors of the respondents herein on 17.06.1973 and the said plaint schedule tallies with the present suit schedule in O.S.No.94 of 1988. The aforesaid finding not only establishes the identity of the plaint schedule in O.S.No.94 of 1988 in favour of respondents but it also displaces Ex.B6 document dated 11.06.1973 under which the appellants, particularly appellant No.3 claimed possession of the property. It would be noticed that Ex.B6 is anterior to the respondents’ predecessor being put in possession by the executing Court. Since the said delivery of possession to the respondents’ predecessor is only on 17.06.1973, it is difficult to accept, that the respondents’ predecessor dealt with the property and alienated the same under Ex.B6 in favour of appellant No.3. When the predecessor of the respondents himself was not in possession on the date of Ex.B6, it cannot be accepted that he had alienated and delivered possession to appellant No.3 under Ex.B6. Thus, without the necessity of going into the validity and genuineness of Ex.B6, and accepting it as true and correct, the claim of the appellants that they are in possession in pursuance of the said document and further claim of adverse possession was rightly not accepted by both the Courts below. It was also found by both the Courts that while the respondents’ documents established their possession over the suit scheduled property, the appellants have not produced any document substantiating their possession as far as suit schedule property is concerned. The decree in O.S.No.94 of 1988, filed by the respondents is concerned, was therefore, rightly granted by the trial Court and confirmed by the lower appellate Court. I am, therefore, unable to find any perversity in the reasoning under the impugned judgments. The second appeal S.A.No.41 of 2000 directed against the said concurrent decrees is, therefore, liable to be dismissed. In view of the above, the substantial questions of law are answered against the appellants. 8. In so far as S.A.No.39 of 2000 is concerned, the suit O.S.No.239 of 1989 was dismissed by concurrent findings reached by both the Courts below, primarily, as the claim of the appellants was based on Ex.B6, which is already discussed above. In addition to that it was found by both the Courts below that the appellants herein suppressed pendency of O.S.No.94 of 1988 and interim injunction subsisting therein in favour of the respondents. The filing of the said cross-suit by the appellants was, therefore, found by both the Courts to be in suppression of material fact. The Courts below have also found that once it is conceded by appellants’ counsel that they have nothing to do with the plaint schedule property in O.S.No.94 of 1988 there is no substance in the claim of the appellants seeking injunction. More importantly, as per the Commissioner’s report and the plan, it was found that the land claimed by appellants is away from the plaint schedule land in O.S.No.94 of 1988 and it was, therefore, found that there was no ground for the appellants to claim injunction against the respondents. Both the suits being one for injunction the conduct of the plaintiffs in O.S.No.239 of 1989 was material with that of the plaintiffs in O.S.No.94 of 1988. While the conduct of the plaintiffs in O.S.No.94 of 1988 was not found blameworthy that of the appellants (plaintiffs in O.S.No.239 of 1989) showed that they had come to the Court with unclean hands suppressing material information. The dismissal of O.S.No.239 of 1989 was, therefore, justified. 9. The appellants have not been able to counter argument of the respondents that they had filed a review petition and pending disposal of the review, S.A.No.39 of 2000 was filed. However, the review petition was later dismissed and it attained finality and no further proceedings appear to have been taken against the same. In that view of the matter also the judgment of the lower appellate Court dismissing the review petition and that having attained finality, even otherwise S.A.No.39 of 2000 is liable to be dismissed. The substantial questions of law having been answered against the appellants, this appeal is also liable to be dismissed. In the result, S.A.Nos.39 and 41 of 2000 are accordingly dismissed. In the circumstances there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 10, 2011 DSK