THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal No. 260 of 2009 Judgment: This appeal is directed against the judgment and decree dated 24.11.2008 passed in A.S. No. 3 of 2008 by the Senior Civil Judge, Repalle, to the extent of partly allowing the appeal and granting permanent injunction in respect of item No.5 of the suit schedule property, though confirmed the judgment and decree dated 30.10.2000 passed in O.S. No. 58 of 1983 by the I Additional Junior Civil judge, Repalle, in respect of the reliefs relating to item Nos.1 to 4 of the suit schedule property. Originally, the plaintiff, namely Thulluru Krishna Murthy filed the suit in O.S. No. 58 of 1983 against Thulluru Veereswara Rao for partition of the plaint schedule items 1, 2 and 3 into two equal shares and to allot one such share to him and to put him in possession and he also sought declaration of his title and recovery of possession in respect of item No.4 of the plaint schedule. As far as item No.5 of the plaint schedule is concerned, he sought permanent injunction against the defendant claiming that he has been in possession of the said item. Since the findings of the lower appellate Court on item No.5 of the plaint schedule are only disputed in the present appeal, we are not concerned with the other items of the plaint schedule property. Since subsequent to filing of the suit, the defendant Veereswara Rao died, his LRs were brought on record. The case of the plaintiff is as follows. The plaintiff (Thulluru Krishna Murthy), Thulluru Venkateswarlu and the defendant Thulluru Veereswara Rao are the sons of Nagaiah. His elder brother Venkateswarlu took his share out of the joint family property and went out. However, the plaintiff, defendant and their father continued as joint family. The specific case of the plaintiff is that he had encroached item No.5 of the plaint schedule about 12 years prior to filing of the suit and he converted the same into a cultivable land and since then he has been in possession and enjoyment of the said property by paying land revenue. The specific allegation against the defendant is that the defendant was openly threatening that he would occupy item No.5 by force. It is also his case that though he got issued a legal notice to the defendant, there was no reply from the defendant. The original defendant Thulluru Veereswara Rao filed his written statement. His specific case with regard to item No.5 is that the total extent of item No.5 is 0-30 cents and that out of the said extent he had been in possession of 0-20 cents of land and the plaintiff is in possession of 0-10 cents of land. The only issue framed by the trial Court with regard to this item is as follows. Whether the plaintiff is entitled to permanent injunction relating to item No.5 of the plaint schedule? On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A27 were marked. On behalf of the defendant, the defendant himself was examined as DW.1 and DWs.2 to 4 were examined and Exs.B1 to B4 were marked. Initially, after trial, the suit was dismissed on 13.10.1992. Aggrieved by the said judgment, the plaintiff preferred an appeal in A.S. No. 108 of 1992 on the file of the Additional Senior Civil Judge, Tenali. However, the appellate Court remanded the suit again to the trial Court and as per the directions of the appellate Court, the trial Court has given an opportunity to both the parties to adduce oral and documentary evidence. As far as this issue is concerned, on behalf of the plaintiff Ex.A4 B-Form dated 04.05.1982 was marked, which shows that Bolagani Koteswara Rao (DW.3) and the plaintiff encroached Ac.1-60 cents in Survey No.434/1 and out of it, 0-30 cents was encroached by the plaintiff. The plaintiff deposed that during 1970 he encroached 0-30 cents of land and in 1982 B-Form was booked. Admittedly, he has not filed any cist receipts showing the survey number and patta number of this item No.5. Admittedly, no patta was given to the plaintiff. Ex.A23 is B-form notice dated 05.10.1990. Admittedly, the said document was obtained during the pendency of the suit. Ex.A24 is also B-form notice dated 05.10.1991 issued in favour of the plaintiff showing that he occupied 0-30 cents of land in Survey No.434/1 and admittedly it was also obtained during the pendency of the suit. Considering the entire evidence, the trial Court held that there is no proof to show that the plaintiff has encroached item No.5 in the year 1971 and that since then he has been in possession and enjoyment of the said property. It was also observed that Exs.A20 to 22 are only obtained subsequent to the date of filing of the suit. The lower Court also observed that the learned counsel for the plaintiff suggested to DW.1 in his cross- examination that he trespassed into item No.5 of the suit schedule land and he was in possession of it. It is not the case of the plaintiff that the defendant trespassed into the suit land during the pendency of the suit. Accordingly, the trial Court held that the plaintiff is not in possession and enjoyment of item No.5 of the suit schedule property and therefore he is not entitled to permanent injunction as claimed, and accordingly, dismissed the suit as far as item No.5 of the suit schedule is concerned. The lower appellate Court has observed that admittedly item No.5 of the suit schedule is a government tank poramboke land and that the plaintiff claimed that he occupied the said land and made it fit for cultivation and that Ex.A4 B-Form dated 04.05.1982 reveals that the plaintiff is the encroacher and that he had occupied an extent of 0-30 cents in Sy.No.434/1. Thus, the appellate Court, mainly relying on Ex.A4, came to the conclusion that the plaintiff has been in possession of item No.5. Sri T.S. Anand, learned counsel for the appellant, submitted that the lower appellate Court has failed to consider that there is no material placed on record by the plaintiff to prove his exclusive possession and enjoyment over item No.5 of the plaint schedule and that it is not the case of the plaintiff that he alone encroached upon the said property and that the lower appellate Court failed to appreciate the evidence on record in proper perspective and thus the judgment of the lower appellate Court is perverse for non-consideration of material available on record. The following substantial questions of law were framed by this Court at the time of admission of the second appeal. 1. Whether the reversing decree and judgment of the lower Court in respect of item No.5 of the plaint schedule property is vitiated for non-consideration of the material available on record, consideration of irrelevant evidence and for perverse reasoning? 2. Whether the lower Court is correct in ignoring the suggestions made by the plaintiff to DW.1 in the cross- examination regarding his trespass and continuous possession of item No.5 of the plaint schedule and granting a decree for injunction against the defendant/respondents? The specific case of the plaintiff is that he occupied item No.5 of the plaint schedule i.e., 0-30 cents in Survey No.434/1 of government land about 12 years prior to filing of the suit and since then he has been in possession of the property. The specific case of the defendant is that he has been in possession of 0-20 cents of land and the plaintiff is in possession of 0-10 cents of land out of total extent of 0-30 cents of item No.5. It was suggested to the defendant that without any right he had encroached total 0-30 cents of land i.e., item No.5. Of course, the said suggestion was denied by him. It was also suggested to him that he had dispossessed the plaintiff from item No.5. The appellate Court has mainly relied on Ex.A4. Ex.A4 is B-Form of Survey No.434/1 issued in the name of B. Koteswara Rao and the plaintiff. It was issued on 04.05.1982. As observed by the trial Court all other documents i.e., Exs.A20 to A24 were obtained subsequent to the date of filing of the suit. Therefore, much importance need not be given to those documents. Though Ex.A4 shows that the plaintiff was in possession of 0-30 cents of land in 1982, but it is clear from the suggestion given to DW.1 that the plaintiff was not in possession of the said land as on the date of filing of the suit. As far as granting of permanent injunction is concerned, the plaintiff has to prove that he has been in possession of the property as on the date of filing of the suit. The trial court observed as follows. “Learned counsel for the plaintiff suggested to DW.1 in his cross-examination that he trespassed into item No.5 of the plaint schedule property and he was in possession of it”. The trial Court also observed as follows. “It is not the case of the plaintiff that the defendant was trespassed into the suit land during the pendency of the suit”. Therefore, the findings of the trial Court is based on proper appreciation of evidence. Unfortunately, the lower appellate Court has not considered the suggestions given to DW.1 in his cross-examination. The lower appellate Court also did not consider whether the documents filed by the plaintiff specifically show that he has been in possession of item No.5. Therefore, as far as 0-20 cents of land is concerned, which is in possession of the defendant, it is clear that the plaintiff is not entitled to the injunction order, since the admitted case of the defendant is that he has been in possession of 0- 20 cents of land out of 0-30 cents of item No.5 and he admitted that remaining 0-10 cents of land is in possession of the plaintiff. When the defendant himself admitted that the plaintiff has been in possession of 0-10 cents of land, it appears that he is entitled for injunction in respect of 0-10 cents of land in item No.5 only. It is settled law that admitted fact need not be proved. As far as the finding of the appellate Court with regard to item No.5 is concerned, the same is vitiated, as the same is not based on proper appreciation of evidence and particularly non-consideration of the suggestions given to Dw.1. Thus, the appellate Court committed irregularity in ignoring the suggestions given by the plaintiff to DW.1 in the cross-examination. Therefore, the findings of the appellate Court are perverse and liable to be set aside. Accordingly, the judgment of the lower appellate Court is set aside, and the suit in respect of 0-20 cents out of 0-30 cents of land in item No.5 of the plaint schedule, which is in possession of the defendant, is dismissed, but the suit in respect of 0-10 cents out of 0-30 cents of land in item No.5 of the plaint schedule, which is in possession of the plaintiff, is decreed. The second appeal is, accordingly, disposed of. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 30th April 2011 Nsr