IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTYFOURTH DAY OF NOVEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.1315 of 2003 Between: Neethipudi Solman and 3 others .. Appellants AND Arisetti Lakshmi .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.28 of 1995 on the file of the Senior Civil Judge, Tadepalligudem, dated 18-03-2002. The parties are referred to herein as they are arrayed before the trial court. The plaintiff filed the suit for a permanent injunction against four defendants in respect of the suit schedule property of 161 square yards within the specified boundaries. The plaintiff claimed that the suit schedule property originally belonged to Juvvala Gabriel, the grandfather of the plaintiff and her husband, who executed a registered Settlement Deed dated 08-01-1968 in favour of the plaintiff and delivered possession. The suit schedule property is part of 10 cents of vacant site, gifted to the plaintiff and the plaintiff, in uninterrupted possession since then, sold the western half of the site remaining after the panchayat laid a road on the portion of the land to M. Peddiraju under a registered sale deed dated 18-08-1986. The plaintiff levelled the remaining land with a view to construct a house at which time the defendants threatened her and interfered with her possession resulting in the suit. The defendants resisted the suit contending that the site originally belonged to Gabriel and his brother Bharani Babu, the grandfather of the 2nd defendant and it was only Ac.0.07 cents in extent. Gabriel and Bharani Babu got equal shares in the said site in their partition and the eastern half fell to the share of Bharani Babu 60 or 70 years back. After the death of his father, the 4th defendant is in possession since about 30 years and he executed a Settlement deed in favour of the 2nd defendant on 23-08-1986 and delivered possession of the eastern half to the 2nd defendant. The Settlement deed executed by Gabriel in favour of the plaintiff is neither correct nor binding on the defendants. Hence, the defendants desired the suit to fail. The trial Court framed issues on the possession of the plaintiff by the date of the suit, the cause of action for the plaintiff to file the suit and the relief to which the plaintiff is entitled. During trial, the trial Court examined PWs.1 to 4 and DWs.1 to 3 and marked Exs.A.1 and B.1. It rendered its judgment on 6-7-1995 referring to the rival contentions and evidence and observed that there was no proof of the extent of the site being only Ac.0.07 cents and the trial Court also noted that there was no attempt at any time to have the earlier settlement deed dated 08-01-1968 set aside in any manner. The trial Court also noted that when there were two documents with respect to the same property, the earlier registered document should prevail as laid down in AIR 1960 Madras 498 and consequently, concluded that Ex.A.1 should prevail over Ex.B.1 settlement deed dated 23-08-1986. In view of silence of the defendants in the meanwhile without taking any steps for rectification and in view of positive evidence of PWs.1 to 4, the trial Court decided to decree the suit with costs, more so, as DW.2 is not aware of Ex.A.1 and he was made to speak that he was present at the time of measurement and DW.3 was also the scribe of Ex.A.1 sale deed dated 18-08-1986 executed by the plaintiff in favour of a third party. In appeal against the said judgment in A.S.No.28 of 1995, the Senior Civil Judge, Tadepalligudem, decided on 18-03-2002 that the appeal should fail with costs. The first Appellate Court, after referring to the rival contentions and evidence, opined that the plaintiff has to prove, prima facie, possession, balance of convenience and irreparable injury to claim a permanent injunction and the plaintiff, who sold away half of the property to M. Peddiraju, examined as PW.3 and who prima facie probablised her title through Ex.A.1 settlement, which was made much earlier to Ex.B.1-Gift deed, has to succeed as against the defendants who were relying on a much later document, which cannot prevail over the earlier document. The first Appellate Court also felt that the title of the parties cannot be conclusively decided in injunction suit though the title can be gone through. The first Appellate Court concurred with the trial Court and dismissed the appeal. The dismissal of the first appeal led the defendants to approach this Court with this second appeal contending that Ex.B.1 could not have been discarded and when there was an oral partition and allotment of his share to the predecessor-in-title of the 2nd defendant, the suit ought not to have been decreed. At the time of admission of the second appeal, this court framed a substantial question of law as to whether in a suit for injunction, the settlement deed would be sufficient to prove possession? Heard Sri K. Jyothi Prasad, learned counsel for the appellants and Sri S. Subba Reddy, learned counsel for respondent. The only point for consideration is the substantial question framed by the Court at the time of admission of the second appeal. The deed of Settlement in favour of the plaintiff was in 1968 16½ years prior to the deed of Settlement in favour of the 2nd defendant by the 4th defendant. Ex.A.1-registered Settlement deed clearly recites the absolute ownership, possession and enjoyment of Ac.0.10 cents of house site with Juvvala Gabriel, who out of love and affection settled the said site and also the other properties on the plaintiff under the document. The document also recites delivery of possession of the gifted property and there is no reason to presume that the recitals of the document could or would not have been acted upon and the fact that the plaintiff exercised her rights of ownership over whatever vacant site is left after the panchayat laid a road on a portion of the land is very evident from the document executed by her in favour of PW.3 M. Peddiraju in respect of a portion of the site in question. The defendants did not produce any material to show or corroborate the claim of Bharani Babu being the brother of Gabriel or Bharani Babu being allotted half share in the site in question or the 4th defendant exercising any right, possession or enjoyment after Bharani Babu in the said site and suddenly, the 4th defendant executes a registered settlement deed in favour of the 2nd defendant on 23-08-1986, of course claiming title and possession, five days after the sale to PW.3. The defendants also did not produce any evidence worth acceptance about the alleged discrepancies in the extent of land claimed to be only Ac.0.07 cents and not Ac.0.10 cents. The plaintiff, her husband and the purchaser from her on the basis of purchase of a portion of the land from the plaintiff spoke consistently about the plaintiff’s claim, whereas the 4th defendant, whose evidence is tainted with interestedness, cannot be claimed to have been satisfactorily corroborated by DW.2 or DW.3, when DW.2 was unaware of Ex.A.1 and DW.3 was scribe of the sale deed dated 18-08-1986 executed by the plaintiff. That apart, in the absence of any other convincing evidence as to the two registered documents effecting the property, the earlier document has to prevail in the light of the principle laid down in the decision referred to by the trial Court and under the circumstances, in view of the principle that possession follows title, the deed of Settlement has to be considered sufficient to prove the prima facie possession of the plaintiff by the date of the suit entitling her to the suit reliefs. The first Appellate Court itself made it clear that it is only incidentally going into the question of title and in the suit for mere injunction simpliciter, title of the parties to the properties is not being decided and therefore, it is always open to either party in the suit to take recourse to appropriate legal remedies for declaration of their title to the property in full or in part and any such rights cannot be considered prejudiced by the result of this suit for permanent injunction. The Second Appeal has to, therefore, fail subject to such observation and in the peculiar facts and circumstances of the case, without costs. Accordingly, the Second Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-11-2010 Ksn