THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 385 OF 1999 Date of Judgment: 28.10.2010 Between: Smt. Vadde Padmarani …Appellant and Venna Nageswara Rao and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 385 OF 1999 JUDGMENT: This second appeal is preferred by defendant No.1 who is aggrieved by the judgment and decree of the lower appellate court reversing the judgment and decree of the trial Court. The respondent No.1/plaintiff filed a suit for injunction being OS No. 914 of 1988 before the I-Addl. District Munsif, Vijayawada with respect to suit schedule property which is described in the plaint schedule as follows, “An extent of two cents equivalent to 96 square yards =80.26 sq. metres of site with thatched house material placed therefor intended to reconstruct the collapsed house, bearing door No. 11/76, Ward No. 9, Assessment No. 1165 of Kankpadu, Kankipadu Grama Panchayat, Sub-Registrar of Kankipadu, Krishna District and within following boundaries: East: House of Medandravu Sambasiva Rao; South: House of Medandravu Venkateswara Rao; North: House of Patchipala Pitchaiah; East: Joint site of Patchipala Pitchaiah and Patchipala Somayya;” The plaintiff’s case was that originally he, his mother and his family members were residing in the aforesaid suit schedule property which was a thatched house and after the death of his mother, the plaintiff and his family members were continuing to be in possession over the suit schedule property for the last over 30 years. The plaintiff also claimed that on 1.4.1988 the suit house collapsed on account of its old age and when the plaintiff wanted to reconstruct and renovate the same, the defendants obstructed, leading to filing of the present suit. The plaintiff examined P.Ws 1 to 4 and marked Exs.A1 to A20 in support of his case. The defendants, on the contrary, claimed that the suit property belonged to the ancestors of defendants 2 to 4. The defendant No.1 who is contesting the suit claimed that he purchased 48 ¼ sq. yards under a registered sale deed dated 11.5.1987 from defendants 2 and 3 and also purchased another equal extent of 48 ¼ sq. yards from defendant No.4 under a registered sale deed Ex.B2, dated 25.5.1987. The defendant No.1 also claimed that he received Ex.B3, a link document dated 9.10.1905 along with registered sale deeds, referred to above and on the basis of the said three documents and the evidence of D.Ws. 1 to 4, the defendants asserted title and possession to the suit schedule property. The trial Court, however, framed only one issue as to whether the plaintiff is entitled to injunction as prayed for. On consideration of oral and documentary evidence, the trial Court rejected the plaintiff’s main document Ex.A1 which is the residential certificate issued by Sarpanch on the ground the said Sarpanch was not examined. Other documents Exs. A2 to A4 which are demand notices for payment houses taxes were also rejected on the ground that they relate to the year 1970, whereas the suit was filed on 9.8.1988. The trial court, therefore, came to the conclusion that none of the documents being in the name of the plaintiff’s mother, the plaintiff’s possession on the date of suit was not established and consequently dismissed the suit. On appeal, the lower appellate court has reversed the said findings and it has decreed the plaintiff’s suit accepting Exs.A1 to A4. The lower appellate court went further and adjudicated upon the title of defendants and came to the conclusion that the said title documents of the defendants relate to Gramakanta land and therefore, they do not confer any title on the defendants and consequently it allowed the appeal. Aggrieved by the said judgment and decree, the defendant No.1 has preferred this second appeal and the same was admitted on 23.4.1999 on the substantial questions of law as framed in grounds 10 (1) to (h) of the memorandum of appeal. In this appeal, Mr. M.L. Ali, learned counsel for the appellant has elaborately made submissions criticizing the judgment of the lower appellate court by pointing out the plaint allegations as well as evidence of plaintiff and his witnesses, and also several admissions of P.W.1 where he admits that he was residing far away from the village in which the suit property is situate, on account of his employment. The learned counsel also points out that there is no evidence to show the possession of the plaintiff on the date of suit and the documents produced by the plaintiff do not stand in the name of his mother who is said to be in possession of the property for over 30 years. The learned also criticized the findings of the lower appellate court against Exs.B1 to B3 by contending that the said findings were arrived at on a clear misreading of the said documents and the adjudication of the title of the defendants was unnecessary in the present suit which is for injunction. The learned counsel for the respondents Mr. P.S.P. Suresh Kumar, on the other hand, supports the lower appellate court’s judgment on the ground that it has rightly considered Exs.A1 to A4 which speak of the possession of the plaintiff over the suit schedule property evidenced by Ex.A1, residential certificate issued by Sarpanch of the Village and Exs.A2 to A4 which are demand notices evidencing payment of house tax for the suit house bearing No. 11/76 dated 20.12.1972, 3.2.1972 and 16.11.1978. He also explains that the so-called admissions of P.W.1 relied upon by the learned counsel for the appellant had to be read in the context of the entire deposition of P.W.1 which shows that he was staying at the place of his posting, and his family members continued to reside at the village in the suit house and after the suit house had fallen down as stated in the plaint, his family was residing with him. He, therefore, submits that the plaintiff’s possession on the date of suit and his constructive possession thereafter has not been properly appreciated by the trial court, but the lower appellate court has rightly considered the same and allowed the appeal and as such no interference is warranted with the said findings. Learned counsel for the appellant has placed reliance upon a decision of the Supreme Court reported in Nagar Palik, Jind Vs. Jagat Singh, Advocate [1] to emphasis the proposition that in a suit for injunction where the plaintiff is claiming title, the burden is on the plaintiff to prove his title to the land. Learned counsel for the respondents has placed reliance upon a decision of the Supreme Court reported in Rame Gowda (D) by L.Rs. Vs. M. Varadappa naidu (D) by L.R.s and another [2] in which law relating to injunction where the plaintiff claims to be in settled peaceful possession, was laid down and particularly the proposition that even a trespasser is entitled to injunction on the basis of his settled and effective possession without necessity of establishing the title, provided that the defendants against whom the plaintiff seeks the relief, have no better title. The said decision was also followed by this Court in a decision reported in Alla Seshukumar and another Vs. Alla Radha Krishna [3]. The learned counsel also relied upon a decision of the Supreme Court reported in Boodireddy Chandraiah and others Vs. Arigela laxmi and another [4] to contend that under Section 100 of the Civil Procedure Code this Court would not interfere with the judgment of the lower appellate court even if two views are possible with respect to the findings of the lower appellate court. The aforesaid legal position is well settled and there cannot be any controversy with regard to the propositions advanced by the learned counsel for the parties on the basis of the decisions referred to above in this case. However, I am not satisfied with the judgments of the trial Court as well as lower appellate court and the reasons therefor are as follows, Firstly, as far as the trial Court is concerned, it has rejected the plaintiff’s documents merely on the ground that they are not in the name of the plaintiff’s mother. The said rejection is apparently in ignorance of and contrary to plaint averments in para-3 of the plaint. The trial Court has, however, understood as if the plaintiff was claiming that his mother was in possession, and the documents produced are not in his mother’s name. The said approach of the trial Court is, therefore, clearly erroneous and non-consideration of the vital documents of the plaintiff by the trial Court vitiates its findings, particularly the present suit being one for injunction. The lower appellate court also made a similar, but different error by accepting the very same documents without appreciating that none of the plaintiff’s documents relate to or substantiate his possession on the date of suit, while Ex.A1 is of 1987, Exs.A2 to A4 are much earlier thereto and they cannot be said to establish the plaintiff’s possession as on the date of suit i.e., 9.8.1988. Secondly, the ‘suit schedule’, which is already extracted above, shows that the plaintiff’s specific case was with respect to house bearing No. 11/76 which was standing on 96 sq. yards of land; the defence of first defendant was with respect to two different pieces of vacant land covered under Exs.B1 and B2. The schedule appended to Exs.B1 and B2 does not refer to any house property and the northern boundary of both the said sale deeds does not appear to tally with the boundaries in the suit schedule property. Since the plaintiff and the defendants, both are claiming title and possession with regard to the suit schedule property based on the aforesaid documents, the issue of identity also assumes importance, but no such issue was framed by the trial Court. The error committed by the trial Court is further evident from the fact that it has proceeded to non-suit the plaintiff on the basis of the so-called admissions of P.W.1 without appreciating the entire evidence of P.W.1. The context in which the statement of P.W.1 was recorded, therefore, had to be appreciated and alleged admissions had to be appreciated, not in isolation, but in entirety of his deposition. The lower appellate court, on the other hand, committed a serious error in rejecting the defendants’ title based on documents Exs. B1 and B2 merely on the ground that there is a reference to Gramakanta land in the said documents. The present suit being for injunction, adjudication of title, that too of the defendants, was not necessary and even if necessary, it could have been confined only to find whether the defendants have better title than the plaintiff. As mentioned above, the identity of the suit schedule property vis-à-vis the title and possession claimed by either of the parties remained obscure in both the courts. Both the parties are guilty of not producing relevant documents in support of their respective cases and the learned counsel for the respondent, during the hearing, also mentioned that several documents available in his file to establish possession as on the date of suit were not produced. Keeping in view the advancement of substantial cause of justice, I feel it appropriate to set aside both the impugned judgments and decrees and remit the suit to the trial Court for fresh disposal by framing the following additional issue as well, (1) Whether the suit schedule property and the property claimed by the defendants under Exs. B1 and B2, is one and the same and is identical with each other? The trial Court shall permit both the parties, one opportunity each, to lead additional evidence, if any, if they so desire, both oral and documentary, and shall decide the suit afresh on the issue already framed by it and on the additional issue as framed above. Since a considerable time is lost during the pendency of these proceedings right from the trial Court to this Court, it is desirable that the trial Court decides the suit afresh expeditiously and in any case before 31st March, 2011. The Second Appeal is accordingly allowed. No costs. Status quo as existing pending this second appeal by virtue of the interim order in CMP No. 8532 of 1999, dated 23.4.1999 shall continue to operate till the trial Court decides disposal of the suit. _________________________ VILAS V. AFZULPURKAR, J Dt. 28.10.2010 KR [1] (1995) 3 Supreme Court Cases 426 [2] AIR 2004 SUPREME COURT 4609 [3] 2008 (1) ALT 430 [4] AIR 2008 SUPREME COURT 380