IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.1253 of 2009 Between: K.Ramakrishna and two others … Petitioner And Sadras Srilatha and two others … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPAL No. 1253 OF 2009 ORDER:- This second appeal by the defendant is directed against the decree and judgment of the Family-cum-Additional District Judge, East Godavari at Rajahmundry in allowing the appeal filed by the plaintiffs in A.S.No.63 of 2008 by judgment dated 12.11.2009 decreeing the suit in O.S.No.608 of 2002, which was dismissed by I Additional Junior Civil Judge, Rajahmundry on 27.03.2008, filed for permanent injunction. The 1st and 2nd Plaintiffs filed the above suit for permanent injunction claiming that the 1st plaintiff is the absolute owner of item Nos.1 and 2 of the suit schedule properties and the 2nd plaintiff is the absolute owner of item No.3 of the suit schedule properties, having purchased the same by both of them under two registered sale deeds, both dated 23.03.2002. However, item Nos.1 to 3 of the suit schedule properties are contiguous plots and since the properties are being vacant sites, no tax was levied. After purchase of the suit schedule properties when the plaintiffs wanted to clean and clear the bushes in the site, the defendants who are the owners of the lands situated towards the north of the suit schedule properties started causing obstruction and tried to interfere with the peaceful possession and enjoyment of the suit schedule properties. Contesting the suit, the 3rd defendant filed a written statement denying the averments in the plaint, stating that the suit is not maintainable under law as the vendors of the plaintiffs have no title over the suit schedule properties and in fact, there is an exchange deed dated 11.04.1969-Ex.A4, between the defendants’ predecessors and Madireddy Subrahmanyeswara Rao and as a matter of fact, the suit schedule properties are part of R.S.No.278/1A and are in possession and enjoyment of the defendants and further it was stated that the 2nd defendant is not residing in India and as such, his interfering with the plaintiffs’ possession does not arise and that the 2nd plaintiff being non- existing, the suit is not maintainable. The 1st and 2nd defendants filed a memo adopting the written statement of the 3rd defendant. The plaintiffs filed a rejoinder denying the averments made in the written statement, wherein it was stated that the 2nd plaintiff has got legal entity and is competent to sue, to which the 3rd defendant filed an additional written statement. On the rival pleadings, the trial Court settled the following issues and additional issue for trial: 1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? 2. To what relief? Additional Issue 1. Whether the suit is maintainable under law? To prove the claim of the plaintiffs, 1st plaintiff’s husband was examined as P.W.1, and one more witness was examined as P.W.2 and Exs.A1 to A5 were marked. On behalf of the defendants, 1st defendant himself examined as D.W.1 and one more witness was examined as D.W.2, but no documents were marked. An Advocate Commissioner was appointed, through whom Ex.C1-Report and Ex.C2-Plan were marked. The trial court after appreciating the oral and documentary evidence, observed that the 1st plaintiff has not entered into the witness box to speak about the facts of the case and as such, an adverse inference can be drawn against her. The 2nd plaintiff is an alleged trust represented by the 1st plaintiff and when she has not entered into the witness box to speak about the facts mentioned in the plaint, suit for mere injunction is not maintainable under law. P.W.2, who is a chance witness deposed that when he was in the office of P.W.1, he noticed that P.W.1 and plaintiffs were going to suit schedule properties along with their vendors and in his presence the vendors of the plaintiffs have handed over the possession to the plaintiffs and he got erected the barbed wire fencing to the south and west of the suit schedule properties, which goes to show that he is the client of P.W.1 and got erected the fencing at the instance of P.W.1 and thereby, discarded his evidence. P.W.1, who is no other than the husband of the 1st plaintiff deposed that except Ex.A3, there is no documentary proof to show that the 2nd plaintiff was having money to purchase the property under Ex.A3 and the 1st plaintiff was also an advocate and Ex.A4 registered extract of the exchange deed was obtained by them after filing of the suit. When there is an exchange deed between the parties predecessor-in-title, and when the plaintiffs are claiming possession over the suit schedule properties basing on their title and title of predecessors-in-title and when they contend that the suit schedule properties are vacant sites and there is no tax for them, the plaintiffs ought to have sought for the relief of declaration and injunction, instead of mere injunction. The commissioner’s report – Ex.C1 discloses that the suit schedule properties were measured with the help of Surveyor without looking into the link documents and town map. D.W.1 admitted in the cross-examination that the suit schedule properties are situated in survey No.278/1C. P.W.1, husband of the 1st plaintiff deposed in the cross-examination that he did not come across any document showing the measurements of the properties covered under Ex.A1 and they did not get the suit schedule properties localized by surveyor before filing the suit and did not ask for localization of the suit schedule properties with reference to the survey field and did not come across the field sketch for survey No.278 and also admitted that under Ex.A4 exchange deed an extent of Ac.1-80 cents belongs to Madireddy’s family was given to K.Vimaladevi for Ac.1-40 cents of land and the pathway referred in Ex.A4 was given to Kanumilli people and they have not come across any document showing the measurement of land given to Madireddy’s people under Ex.A4. He also stated that there is a road between his house and disputed property, which is suggesting the inference that P.W.1 is immediate neighbour to the suit schedule properties, but the plaintiffs have not chosen to examine any vendors of the plaintiffs much less the family members of the Madireddy’s people. The plaintiffs having purchased the suit schedule properties on 23.03.2002, filed the suit on 06.05.2002 and when the plaint pleadings are silent regarding the barbed wire fencing on the western and southern side, the plaintiffs have not come to the Court with clean hands seeking equitable relief of injunction. When the title of the plaintiffs is in cloud, the plaintiffs ought to have produced strong evidence to succeed their case. Keeping the same in view, the trial court dismissed the suit. On appeal being filed, the lower appellate court on reanalyzing the entire evidence held that according to Section 120 of Indian Evidence Act, 1872 husband is a competent witness to depose on behalf of the wife. P.W.1 being the husband of the 1st plaintiff is a competent witness to speak about the facts of the case and further no suggestion was given to P.W.1 that the 1st plaintiff alone has exclusive knowledge about the facts of the case and that she being withheld from giving evidence and in the absence of any such suggestion, the finding of the trial court that non- examination of the 1st plaintiff is fatal, is not sustainable. Coming to the evidence P.W.1, husband of the 1st plaintiff deposed that he is looking after the affairs of the 1st plaintiff and was authorized to file the affidavit on her behalf, and his wife is the absolute owner of item Nos.1 and 2 of the suit schedule properties having purchased the same under registered sale deed dated 23.03.2002 from Kadiam Veera Venkata Rao and his son Kadiam Venkata Nagesh for a valuable consideration of Rs.50,000/- . The 2nd plaintiff is an absolute owner of item No.3 of the suit schedule properties having purchased under registered sale deed dated 23.03.2002 for a consideration of Rs.20,000/-. Item Nos.1 to 3 of the suit schedule properties are contiguous plots. The vendors of the plaintiffs got the property under registered sale deed dated 02.11.1978 in favour of Kadiam Veera Venkata Rao and they were in peaceful possession and enjoyment of the same ever since their purchase till it was purchased by the plaintiffs. The defendants who are the owners of the land situated towards north of the suit schedule properties started causing obstruction and are trying to interfere with the peaceful possession of the plaintiffs and the plaintiffs being the absolute owners of the suit schedule properties are in peaceful possession and enjoyment of the same and the defendants have got absolutely no right to interfere with the peaceful possession and enjoyment of the suit schedule properties. Ex.A1 is the registered sale deed, dated 02.11.1978 in favour of vendor of the plaintiffs, Ex.A2 is the registered sale deed dated 23.03.2002 in favour of the 1st plaintiff and Ex.A3 is the registered sale deed dated 23.03.2002 in favour of the 2nd plaintiff. Merely because P.W.2 is third party to the proceedings and deposed that he is a client of P.W.1, his evidence cannot be discarded. The 1st defendant who was examined as D.W.1 deposed that Exs.A2 and A3 alleged sale deeds are invalid and fictitious document, and that plaintiffs’ vendors have no right, title, interest or possession over the suit schedule properties at any time and the description of the properties is mischievous and incorrect. He further deposed that at no point of time K.Veera Venkata Rao ever came into occupation, possessed or enjoyed the suit schedule properties. The suit schedule properties are always been part of land in R.S.No.278/1A owned and possessed by the 2nd and 3rd defendants and their predecessor late Kanumilli Rama Rao. The site presently claimed by the plaintiffs should be actually part of a road formed even in the year 1961 and it is reserved only for usage as passage or pathway. The defendants have not produced the title deeds before the Commissioner in order to measure the suit schedule properties and they have not cooperated with the Commissioner. The finding of the trial Court that the admission made by D.W.1 that the suit schedule properties are situated in R.S.No.278/1C cannot be taken into consideration as the plaintiffs have to succeed or fall on their own case, is erroneous. Admittedly, in Ex.A5 gift deed executed by the father of the defendants in favour of the mother of the defendants, there is a clear recital that the southern boundary is the property belonging to the vendors’ vendor of the plaintiffs, which itself is sufficient to prove that the vendors of the plaintiffs have got right, title and possession over the suit schedule properties. The admission of D.W.1 that the southern boundary i.e., disputed property is separated by two heights wall and is enclosed by a barbed wire fencing also proves the correctness of the Commissioner’s report and the factual position. P.W.1 also admitted that he has no right over the property situated in R.S.No.278/1C, which was given to Subrahmanyeswara Rao i.e., vendors’ vendor of the plaintiffs and Ex.A4 is the registration extract of exchange deed between the vendors’ vendor of the plaintiffs and the father of the defendants. When the defendants categorically admitted that they have no right over the property situated in R.S.No.278/1C, and admitted about the exchange deed under Ex.A4 and when the suit schedule properties are being part of R.S.No.278/1C, to which the defendants have not claimed right, plaintiffs are entitled to injunction. In that view of the matter, the lower appellate court after reanalyzing the entire evidence, rightly granted injunction basing upon the title deeds - Exs.A1 and A2, exchange deed - Ex.A4 and Gift deed - Ex.A5 and the report of the Commissioner – Ex.C1, which established the factum of the possession of the vendors’ vendor of the plaintiffs. In view of the above, the contention of the learned counsel for the appellants/defendants that the 1st plaintiff has not entered into the witness box and existence of the 2nd plaintiff has not been established to maintain the suit, does not merit any consideration. The findings of fact reached by the lower appellate court on appreciation of the evidence in proper perspective does not suffer from any adversity that too when the defendants have not claimed any right over the property situated in R.S.No.278/1C, which forms part of the suit schedule properties. No question of law much less substantial question of law arises for consideration to admit the second appeal. The second appeal fails and is accordingly dismissed at the stage of admission. No costs. __________________ A. GOPAL REDDY. J 12th March 2010 Lmv.