IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYEIGHTH DAY OF OCTOBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.783 of 2001 Between: The APSRTC, represented by its Managing Director, Musheerabad, Hyderabad ..Appellant AND Abdul Basith .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.279 of 1995 and I.A.No.656 of 1999 on the file of the Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, dated 10-11- 1999, by which the judgment and decree in O.S.No.4155 of 1988 on the file of the IV Assistant Judge, City Civil Court, Hyderabad, dated 26-07-1995 were confirmed. The factual background for the dispute is that the plaintiff in O.S.No.4155 of 1988 claimed to have purchased the suit schedule property under a registered sale deed dated 8-4-1986 and to be in possession since then. He claimed his vendors to have purchased the property in 1958 from the original owner Mir Kauser Ali under a registered sale deed. The defendant acquired the adjacent property called as Unda Begum Bagh for construction of a bus depot and the property is surrounded by a compound wall. In between the property of the plaintiff and the property of the defendant Corporation, there is a big old wall and when the officials of the Corporation came to take measurements on 12-10- 1988, the plaintiff came to know that the Corporation is proposing to lay a road over the suit schedule property for movement of its buses and when the suit property was not acquired by the Corporation in any lawful manner, it cannot lay the road in the property of the plaintiff and therefore, the plaintiff sought for a permanent injunction. The defendant Corporation contested the suit claiming that it was unaware of the possession and enjoyment claimed by the plaintiff, but there are no boundary stones demarcating any such plot and the proposed road is over the land belonging to Quli Quthubshah Urban Development Authority vested in the Municipal Corporation of Hyderabad and the defendant-Corporation had 4.5 acres of land in old Sy.No.266/10, New Town Survey No.1 and the identity of the property claimed by the plaintiff is also not established. The alleged taking of measurements by the officials of the Corporation is also false and hence, the Corporation desired the suit to fail. The trial Court framed the issues on the entitlement of the plaintiff for permanent injunction and during trial, it examined PWs.1 and 2 and DWs.1 and 2 and Exs.A.1 to A.8 and B.1 to B.4 were marked. The trial Court rendered its judgment on 26-07-1995 referring to Ex.A.1-sale deed of the plaintiff and Ex.A.7-title deed of the vendor of the plaintiff and observed that the suit schedule property was admittedly in possession of the plaintiff. The trial Court also noted that the land acquired by the Corporation was bounded by a big old compound wall on all sides and the claim of Dws.1 and 2 about the plaintiff encroaching upon the road outside the compound wall was noted to be not definitely concerning the land acquired by the defendant Corporation, which was inside the compound wall only. The admission of DWs.1 and 2 that the property outside the compound wall is private property was also noted and the trial Court opined that even assuming the plaintiff to be an encroacher over the portion of a road, even a true owner cannot dispossess such encroacher without due process of law. Therefore, it observed that it is for the Government or the Hyderabad Municipal Corporation to take steps for dispossession of the plaintiff from any encroached land, more so, when the plaintiff filed municipal tax receipts, non-agricultural tax demand notice and municipal tax pass book etc. The Corporation was also found to be liable to approach the Hyderabad Municipal Corporation to lay a road and could not have laid a road straightaway and on such factual conclusions, the trial Court considered the plaintiff to be entitled to a permanent injunction as prayed for as he will be entitled to remain in possession of the property, even if he were an encroacher till he is evicted under due process of law. In an appeal against the said judgment and decree, the first appellate Court passed the impugned judgment and decree dated 10-11-1999 in A.S.No.279 of 1995. The first appellate Court, after considering the rival pleadings and contentions, considered the request of the Corporation to receive additional evidence in I.A.No.656 of 1999. The first appellate Court observed that the letter filed along with I.A.No.656 of 1999 to be received as additional evidence as well as the plan filed along with petition could have been filed during the trial of the suit itself and there was no explanation for non-filing of the same. The plan did not contain the date when it was prepared and the person, who signed the letter, could have been examined in the suit itself. Therefore, the first appellate Court refused to receive additional evidence. Concerning the questions in issue in the main suit, the first appellate Court noted the admitted facts that the defendant Corporation acquired 4.5 acres, while to the north of the said property, there is some land to the north of which there is a road. The claim of the plaintiff that the suit property is in between the property of the defendant Corporation and the road and was purchased under Ex.A.1-sale deed was noted to have been corroborated by PW.2 and the admission of DW.1 about the claim of the plaintiff to the property abutting the road beyond the compound wall was also noted. While extensively referring to the evidence of DWs.1 and 2, the first appellate Court observed that DWs.1 and 2 were not aware of the possession and enjoyment of the suit property by the plaintiff or the acquisition of such property by the plaintiff or the physical features of such property. On the contrary, the first appellate Court felt that the evidence of PWs.1 and 2 and Ex.A.1 established the possession and enjoyment of the plaintiff over the suit property and even if Exs.A.3 to A.5 subsequent to the suit were to be ignored, the first appellate Court has no hesitation to conclude that the plaintiff was entitled to grant of permanent injunction until he is evicted from the suit property by due process of law. Consequently, the first appellate Court dismissed the appeal without costs. The Corporation contended in the second appeal that the identity of the property was not established by the plaintiff and the inconsistencies and vagueness in the evidence for the plaintiff were ignored. The Corporation intended to only open a passage to connect the public road and the plaintiff could not have been concluded to be in lawful possession of the property of the Government/Municipal road. The appellant, therefore, claimed that substantial questions of law arise for consideration in the second appeal about the maintainability of the suit for mere injunction without a declaration and without prima facie proof of lawful right and title and also about the non-joinder of necessary party/the true owner. The appellant also contended that when the property is Government vacant Municipal road, the plaintiff could not have had any title or injunction in his favour and the rejection of additional evidence also is illegal. This Court admitted the second appeal on 8-11-2001 only having regard to the question whether the suit for injunction without declaration of title is maintainable? Heard Sri K. Madhava Reddy, learned standing counsel for the appellant Corporation and Sri H. Venu Gopal, learned counsel for the respondent-plaintiff. The points that arise for consideration in the second appeal are, - 1) Whether the suit for injunction without declaration of title is maintainable? 2) Whether any other substantial questions of law arise for consideration on the material on record? Point No.2: The suit is for a permanent injunction simpliciter and the evidence of the plaintiff found corroboration from an independent witness-PW.2 and the claims of DWs.1 and 2, the officials of the appellant Corporation, were obviously based on any knowledge about the suit dispute in the performance of their official duties and not on personal knowledge. As noted by the trial and first appellate Courts, the land of 4.5 acres acquired by the appellant Corporation was admittedly within a compound wall on all four sides and the suit schedule property is undoubtedly not part of the land so acquired. Even the claim of the appellant Corporation about the suit schedule property, which it wanted to utilize for formation of a connecting passage between the bus depot and the public road is that it either belonged to the Government or the Municipal Corporation of Hyderabad and was the subject of an encroachment by the plaintiff. The plaintiff based his claim for lawful possession of the suit schedule property on the strength of a registered sale deed in his favour about two years prior to the suit with his vendor acquiring the property under a registered sale deed from the original owner about 30 years prior to the suit. The possession of the plaintiff of the plaint schedule property by the date of the suit does not appear to be in dispute from the very claim that he was an encroacher and the claim to lawful possession based on registered documents tracing the property to be private property for more than 30 years could not have been considered to be displaced by the evidence of DWs.1 and 2. Even if Exs.A.3 to A.5 relating to payment of taxes subsequent to the suit were to be ignored, Exs.A.1 and A.7 corroborated by the evidence of PWs.1 and 2 and not contradicted straightaway by the evidence of Dws.1 and 2 could have been rightly taken as the basis for probablising the possession of the plaintiff as on the date of the suit by the trial and first appellate courts and such possession could not have been considered to be ex facie illegal or unlawful not deserving protection with an equitable relief of permanent injunction in the absence of probablising such possession to be as an encroacher. The findings of the trial and the first appellate Courts in this regard, therefore, are neither assailable nor perverse nor unreasonable nor not based on the evidence on record nor are involving any substantial questions of law, which alone can form the subject of consideration in a second appeal. It has to be noted that both the trial and first appellate Courts have left open the question of entitlement of the Government or the Municipal Corporation to take steps for dispossession of the plaintiff from the suit schedule property on the ground of his being an encroacher, for which purpose the appellant Corporation could approach the Government or the Municipal Corporation for appropriate action in this regard and no party should be understood as precluded from such option left open by the trial and first appellate Courts. While this Court is not interfering with the findings of fact in the second appeal, the liberty so given to the appellant Corporation by the trial and first appellate Courts is clarified to be still available to it. This point is answered accordingly. Point No.1: Though the question whether a suit for mere injunction without seeking declaration of title is maintainable is formulated as substantial question of law for admitting the appeal, it is not in dispute by both the learned counsel for both parties that a suit for permanent injunction simpliciter without seeking declaration of title is per se not barred by any provision or principle of law though there may be cases on the facts and circumstances involved in them where a request for an injunction without getting a declaration of title might have been considered by the court to be unsustainable on its own. Such a contingency does not arise in the present case where the possession of the plaintiff is not in dispute and the unlawfulness of his possession was not adjudicated by the trial and the first appellate Courts. Hence, on this point also, the appellant should fail. Accordingly, the second appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 28-10-2010 Ksn