IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY SECOND APPEAL No.568 of 2010 Between: Rebba Satyanarayana ... APPELLANT a n d Ganna Venkata Narasaiah … RESPONDENT JUDGMENT: This Second Appeal is directed against the judgment dated 03-03-2010 passed in A.S.No.22 of 2008 on the file of the II Additional District Judge, Nalgonda at Suryapet, whereby and whereunder the learned Additional District Judge dismissed the appeal filed by the appellant-plaintiff confirming the judgment dated 01-09-2008 passed in O.S.No.78 of 2005. 2. The appellant is the plaintiff in O.S.No.78 of 2005. He filed the suit for permanent injunction against the defendant in respect of the suit schedule property. The description of the suit schedule property in the plaint is shown as hereunder: “Land admeasuring Ac.1-50 cents out of Sy.No.127 and Ac.1-28 cents out of Sy.No.126/4, total extent of Ac.2-78 cents situated at Syed Muzavarpet village, Munagala mandal, Nalgonda district and bounded by East: Land of Ganna Sarvaiah, now in the possession of Kuchipudi Saraswathamma and Sanjeeva Rao; West: Lands of Dongari Srinivasa Rao and Palapati Narsaiah now in possession of Gobbi Nageswar Rao; North: Land of Ramideni Janakaiah and South: Land of Dongari Srinivasa Rao.” 3. It is the case of the plaintiff that his father Rebba Narsaiah has purchased Ac.1-50 cents in S.No.127 from Gattu Venkata Narsaiah under registered sale deed dated 19-03-1959. His father also purchased Ac.1-28 cents in Sy.No.126/4 under an agreement of sale on 03-05-1960 from Vadde Gurvaiah. Since the date of sale deed/agreement of sale, his father has been in peaceful possession and enjoyment of the lands till his death and thereafter he has been in continuous possession and enjoyment of the same. He has been residing at Hyderabad by attending tailoring work and he is getting the lands cultivated on lease. He filed an application before the Revenue authorities on 29-09-2004 for mutation of his name in the revenue records. He obtained regular sale deed from the son of Vadde Gurvaiah pursuant to the agreement of sale dated 03-05-1960. On 09-11-2004 when the defendant made efforts to tamper the revenue records in respect of the suit land, he gave a complaint on 25-01-2005 to the District Collector, Nalgonda and also Revenue Divisional Officer. According to him, the defendant attempted to trespass into the suit land on 04-02-2005. The defendant also filed a caveat on 08-02-2005 claiming the suit schedule land. Hence, he filed the suit seeking permanent injunction. 4. The defendant entered appearance and filed written statement. The sum and substance of the written statement is that the suit land has been purchased by his father on 21-01-1979 from the father of the plaintiff under an agreement of sale and since then the land has been in possession and enjoyment of his father till his death and thereafter he succeeded the suit land by way of inheritance and he has been in possession and enjoyment of the same since then. He also obtained ROR passbook in his favour. On the application of the petitioner, the Mandal Revenue Officer, Nadigudem directed the ARI to inspect the suit land and accordingly the ARI inspected the land and conducted a panchanama in the presence of adjacent landlords and filed his report stating that the defendant has been in possession and enjoyment over the suit land. The defendant also obtained registered sale deed in favour of Ac.1-28 cents in Sy.No.126/4 on 22-01-2005 from the son of Vadde Narsaiah i.e, Vadde Saidaiah. 5. Basing on the above pleadings the trial Court settled the following issues: 1. Whether the plaintiff is entitled for permanent injunction as prayed for ? 2. To what relief ? 6. The plaintiff got himself examined as PW-1 besides examining two more witnesses as PWs.2 and 3 and marked 15 documents as Exs.A-1 to A-15. On behalf of the defendant, he got himself examined as DW-1 besides examining six more witnesses as DWs.2 to 7 and marked 7 documents as Exs.D-1 to D-7. The chief affidavit of DW-5 came to be eschewed from consideration. 7. The trial Court, on considering the evidence brought on record and on hearing the learned counsel appearing for the parties, came to the conclusion that the defendant has been in possession of the property and thereby proceeded to dismiss the suit by judgment dated 01-09-2008. Assailing the judgment and decree granted in O.S.No.78 of 2005 the plaintiff filed A.S.No.22 of 2008 on the file of the II Additional District Judge, Nalgonda at Suryapet. 8. The learned Additional District Judge, on re-appreciation of evidence brought on record and on hearing the learned counsel appearing for the parties, came to the conclusion that the appellant/plaintiff failed to make out any valid ground to interfere with the judgment and decree passed in O.S.No.78 of 2005 and thereby proceeded to dismiss the appeal by 03-03-2010. Hence, the Second Appeal. 9. Heard the learned counsel appearing for the appellant/ plaintiff and learned counsel appearing for the respondent/ defendant. 10. Learned counsel appearing for the appellant submits that the trial Court as well as the appellate Court failed to consider the evidence brought on record in right perspective and thereby erred in dismissing the suit of the plaintiff. 11. Learned counsel placed reliance on the judgment of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad and others[1] in support of his submissions. Learned counsel also referred to Sub Rule 7 of Rule 7 of the Code of Civil Procedure. 12. I have gone through the judgment of the trial Court as well as lower appellate Court. The plaintiff approached the lower Court with a specific stand that he has been in possession and enjoyment of Ac.2-78 cents comprising Sy.Nos.126/4 and 127. According to him, both the survey numbers constitute one block. The plaint schedule also indicates that both the survey numbers constitute one block. 13. The plaintiff got examined himself as PW-1 besides examining two more witnesses as PWs.2 and 3 to substantiate his contention that he has been in occupation of the suit land. Whereas the defendant besides examining himself as DW-1 examined six more witnesses as DWs.2 to 7 to prove his possession over the suit land. Of course, the evidence of DW-5 came to be eschewed. 14. Indisputably the plaintiff is not residing in the village where the lands are situated. He claims that he is getting the lands cultivated through the lessees. No lessee has been examined to speak of the lands being cultivated on behalf of the plaintiff. The defendant examined the neighbours to the suit land to speak of his being cultivating the suit schedule land. The trial Court after elaborate discussion of the oral evidence came to the conclusion that the defendant has been in possession and enjoyment of the suit schedule property. 15. For better appreciation I may refer to the relevant portion of the trial Court judgment which reads as hereunder: “Plaintiff adduced evidence only in respect of establishing his title to the suit land, which cannot be decided on merits in the present suit. It can only be seen whether the plaintiff has prima facie title over the suit land or not. In view of the documentary evidence adduced by the defendant, it is quite clear that plaintiff has not been in possession and enjoyment over the suit land. Defendant also produced Ex.B-2, which is a sale deed in respect of the land in S.No.126/4 obtained from Vadde Saidaiah, son of Vadde Narsaiah. The validity and genuineness of Exs.A-12 and B- 2 cannot be decided in this suit, because, as already stated above, it is only a suit of mere injunction. The pahanies filed by the defendant under Exs.B-4 to B-7 would clearly show the name of Vadde Narsaiah as the possessor of the suit land. Vadde Narsaiah is the brother of Vadde Gurvaiah, who was the vendor in Ex.A-2. The specific case of the defendant is that Vadde Gurvaiah and Vadde Narsaiah divided their properties and the land in S.No.126/4 fell to the share of Vadde Narsaiah and, therefore, his name was mentioned as possessor in Exs.B-4 to B-7, and that is why he got executed Ex.B-2 from his son in view of the agreement of sale executed by the father of the plaintiff. Thus, according to defendant Vadde Narsaiah was his predecessor in title. Though the plaintiff contends that Exs.B-4 to B-7 are concocted documents, plaintiff did not seek the rectification of revenue records. Moreover, defendant examined DWs.2 to 4, 6 and 7, who categorically deposed that defendant has been in possession and enjoyment of the suit land since long time. Moreover, DWs.3 and 4 are said to be the adjacent land owners of the suit land. Though DWs.2 to 4, 6 and 7 are cross-examined by the plaintiff, nothing useful has been elicited therefrom by the plaintiff to show that defendant has not been in possession of the suit land. Though PW-3 is examined by the plaintiff to show that when PW-3 was ploughing the land with the help of tractor defendant obstructed, he deposed that he does not know whether the defendant cultivated the suit land or not. On a perusal of the evidence of PW-3, it is quite apparent that he has no knowledge of the suit land. In the plaint it is pleaded by plaintiff that he leased out the suit land to some others all these days and he was residing at Hyderabad. In such an event, nothing prevented the plaintiff from examining any of the persons to whom he leased out the suit land or the adjoining landlords of the suit land. But, he did not examine any of such persons for the reasons best known to him. 16. The lower appellate Court, on reappraisal of the evidence, did not find any valid ground to interfere with the findings recorded by the trial Court. 17. The trial Court assigned valid reasons in finding that the plaintiff failed to prove his possession over the suit land as on the date of filing of the suit. The appellate Court on re-appreciation confirmed the finding of the trial Court. I do not see any valid ground to interfere with the finding as confirmed by the lower appellate Court with regard to the finding that the defendant being in possession and enjoyment over the suit land on the date of filing the suit. There is no substantial question of law involved in this Second Appeal warranting admission. 18. Accordingly, the Second Appeal is dismissed at the admission stage. There shall be no order as to costs. ___________________________ B. SESHASAYANA REDDY, J August 11, 2010. PN THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY SECOND APPEAL No.568 of 2010 August 11, 2010 [1] AIR 1951 SC 177