HON’BLE SRI JUSTICE A.GOPAL REDDY DT. 12-8-2010 S.A.Nos. 856 and 791 of 2011 SA No.856/2011: 1. Nimmagadda Subba Rao (died) and others. …Appellants V. 1. Sureddy Sambasiva Rao and another ..Respondents HON’BLE SRI JUSTICE A.GOPAL REDDY SA Nos. 856 and 791 of 2011 COMMON JUDGMENT: Since both the appeals arise out of one and the same common judgment, they are heard together and being disposed of by this common judgment. The first defendant in OS No.3/1997 on the file of Senior Civil Judge, Nuzvid, and his legal representatives, filed these two appeals against the common judgment and decrees dt. 24-2-2010 passed in AS Nos.125/2005 and 164/2005 on the file of VIII Additional District & Sessions Judge (FTC), Vijayawada, respectively, whereunder the learned Judge dismissed AS No.164/2005 preferred by the first defendant (first appellant herein) and allowed AS No.125/2005 preferred by the plaintiff. During the pendency of the appeals before the lower appellate court, the first defendant died and his legal representatives were added as defendants 3 to 8. The appellants in both the appeals are the defendants. The first respondent in both the appeals is the plaintiff. He filed OS No.3/1997 on the file of Senior Civil Judge, Nuzvid, for permanent injunction restraining the defendants, their men, and agents from interfering with peaceful possession and enjoyment of the plaint schedule property, against the first defendant and another, stating that the plaintiff purchased the plaint schedule land, to an extent of Ac.2-00 cents of dry land situate in Singannagudem village, h/o China Agiripalli Mandal for a sum of Rs.1,00,000/- from the second defendant, namely, Garapati Venkateswara Rao, on 21-8-1996 under a registered sale deed and took possession of the same. Since the date of purchase, he has been in possession and enjoyment of the plaint schedule property by raising tobacco crop. In the month of January, 1997, the first defendant tried to interfere with the possession and enjoyment of the plaint schedule property proclaiming that there was a court litigation and he would not allow the plaintiff to cut the tobacco crop. The second defendant, who is the vendor of the plaintiff remained ex parte. The first defendant filed the written statement stating as follows: The father of the first defendant possessed 75 cents of land. In the year 1963 Devulapalli Venkataramaiah claimed 50 cents of land out of 75 cents and the father of the first defendant obtained a registered sale deed dt. 10-12-1963. The entire land has been in possession and enjoyment of the father of the defendant till his death ie., 24-9-1989 and subsequent to the death the father of the first defendant, the first defendant is continuing in possession of the entire land of Ac.2-75 cents. While so, the Mandal Revenue Officer, Agiripalli issued a notice under Sec. 7 of the A.P. Land Encroachment Act to the first defendant. A notice dt. 31-7-1992 was issued by the advocate on behalf of Gutala Nageswara Rao and others, who were the children of Gutala Naganna, to the first defendant asking him to vacate the land as he is the cultivating tenant. The first defendant did not give any reply. Subsequently, they filed OS No.194/1993 on the file of District Munsif, Nuzvid through the second defendant and his wife and it is pending. Plaintiff is aware of OS No.194/1993 filed by the second defendant and his wife. The alleged sale deed dt. 21- 8-1996 was brought into existence. On the above pleadings, the trial court framed the following issues for trial: 1. Whether the 2nd defendant had right and possession of plaint schedule property on the date of sale deed? 2. Whether the plaintiff is entitled to permanent injunction? 3. Whether the plaintiff is aware about OS No.194/93 on the file of the Distinct Munsif, Nuzvid? 4. Whether the plaintiff approached the court with clean hands? 5. To what relief? On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-14 were marked. On behalf of the first defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-6 were marked. The trial court, on appreciation of the evidence adduced by the parties, on issue No.1 held that the defendant No.2 had no manner of right over the plaint schedule property to alienate the same to P.W.1. On issue Nos.3 and 4, the trial court held that the plaintiff did not approach the court with clean hands when the plaint schedule property is belonging to the Devasthanam and when the vendor of the plaintiff has no manner of right to alienate the same to the plaintiff. On issue No.2, the trial court, on the evidence of P.Ws.1 and 2 and Exs.A-1 to A-14 coupled with the evidence of D.Ws.1 and 2 and Exs.B-1 to B-6 observed that P.W.1 purchased the plaint schedule property from the second defendant under Exs.A-1 and A-2, which is the link document of Ex.A-1 and further the plaintiff established that the plaintiff was in possession and enjoyment of the plaint schedule property on the date of filing of the suit; that D.W.1 did not challenge the recitals in Exs.A-1 and A-2 nor it is his case that Exs.A-1 and A-2 were obtained by P.W.1 by fraud; and D.W.1 failed to establish that he is the absolute owner of the plaint schedule property; Exs.B-1 to B-4 are not sufficient to prove that D.W.1 was rightful owner of the plaint schedule property and holding so dismissed the suit referring the matter to the Commissioner, Endowments, Kakinada to enquire about the genuinity of Exs.A-1 and A-2 and decide the ownership over the plaint schedule property. Aggrieved by the judgment, the plaintiff carried the matter in AS No.125/2005 and first defendant in AS No.164/2005. The lower appellate court by the impugned common allowed the appeal, AS No.125/2005, setting aside the judgment and decree passed in OS No.3/1997 and decreed the suit of the plaintiff stating that once the trial court gave a finding that the plaintiff purchased the plaint schedule land from the second defendant under Ex.A-1 and was in possession and enjoyment of plaint schedule property on the date of filing of the suit and the first defendant failed to establish that he is the owner of the plaint schedule property, the trial court ought to have decreed the suit of the plaintiff stating that he is in possession of the plaint schedule property as on the date of filing of the suit. Added to the same, in Ex.A-12-certified copy of Sec.161 Cr.P.C., statement of D.W.1 recorded by the police in the criminal case filed against the plaintiff, it was stated that in the year 1996 the plaintiff raised tobacco crop and the second defendant got a registered sale deed in the year 1994 and in fact 30 or 40 years back, the father of the first defendant purchased the said land orally. In a suit for permanent injunction, what should the court to consider is who was in possession of the property and whether such possession can be protected or not. The trial court has not considered the said aspect to protect the possession of the plaintiff by granting injunction and holding so allowed the appeal filed by the plaintiff and decreed the suit of the plaintiff and consequent to the allowing of the appeal filed by the plaintiff, the lower appellate court dismissed the appeal filed by the first defendant. Aggrieved by the same, the present second appeals have been filed. Learned counsel for the appellants in both the second appeals contends that the lower appellate court went wrong in taking into consideration the statement made under Sec. 161 Cr.P.C., to prove that the plaintiff is in possession of the plaint schedule property, but admittedly, the notice issued under Sec. 7 of the Land Encroachment Act established that the defendant was in possession of the plaint schedule property and therefore, the lower appellate court was not justified in allowing the appeal filed by the plaintiff. This court does not find any merit in the contentions advanced by the learned counsel for the appellants. The evidence of P.W.1 would clearly go to show that he purchased the plaint schedule property under a registered sale deed covered under Ex.A-1 from the second defendant and to prove his possession, he filed Exs.A-3 and A-4-land revenue receipts and Ex.A- 5 adangal for faslis 1390 to 1395. Judgment in OS No.194/1993, which was filed by D-2 against D-1, covered under Ex.A-8 also shows that the defendant was not in possession of the plaint schedule property. Further Ex.A-7-certified copies of adangals for faslis 1402 to 1405 and also the recitals in Exs.A-5,6 and 7 clearly establish that the land in S.No.193 belongs to Devasthanam, but in Ex.A-6 Guttala Venkaiah was shown as pattadar of the Ac.2-00 cents in S.No.193 for fasli 1395. When the vendor of Ex.A-2 was shown as pattadar of the plaint schedule property for fasli 1396 for an extent of Ac.2-00 cents, there is no evidence on record to show how the vendor of Ex.A-2 was shown as encroacher and enjoyer of the said land for faslis 1397 to 1401. Taking into consideration of those facts, the trial court, on issue No.2 held that the vendor of the plaintiff was in possession and later the plaintiff was in possession of the property on the date of filing of the suit. As the plaintiff was in possession of the property as on the date of filing of the suit, to protect his possession he is entitled for grant of permanent injunction. The finding of fact recorded by the lower appellate court based upon due appreciation of evidence on record and does not suffer with any perversity so as to warrant interference in exercise of jurisdiction under Sec. 100 of the Code of Civil Procedure. The Second Appeals are accordingly dismissed. There shall be no order as to costs. _______________ A. GOPAL REDDY, J Date:12-8-2011 kmr