IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.681 OF 2008 Between: Damera Kumara Vidyasagar, S/o.Lakshmana Varma, Aged 47 Years, Hindu, Agriculture, R/o.Putrela, Vissannapeta Mandal. - - - Appellant/ Appellant/ Plaintiff. AND The State of A.P., Rep. by the District Collector, Krishna District, Chilakalapudi, Machilipatnam, and 13 others. - - - Respondents/ Respondents/ Defendants. The Court made the following: HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.681 OF 2008 JUDGMENT: The Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), is directed against the Judgment and Decree in A.S.No.33 of 2001, dated 26-09-2007, on the file of the learned Senior Civil Judge, Nuzvid, whereunder and whereby the Judgment and Decree passed in O.S.No.334 of 1996, dated 24-04-2001 by the learned Junior Civil Judge, Tiruvuru, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts, that are necessary for disposal of the present Second Appeal, may be stated as follows : The Plaintiff has purchased the plaint schedule property i.e., Ac. 7.00 of mango garden bearing R.S. No.96 and the patta No.1184 of Putrela village of Vissannapet Revenue Mandal from Sangoju Sumithradevi and Kalangi China Tirupathayya, under two registered sale deeds, dated 25-05-1984 and 15-06-1984. Since the date of purchase, the Plaintiff has been in possession and enjoyment of the plaint schedule property. The defendants 6 to 14 are claiming that they were given D-form pattas in respect of the said land and that they are trying to dispossess him from the plaint schedule property and that the MRO, Vissanapet, is also making attempts through his subordinates to dispossess him from the plaint schedule property and that he is not issuing certified copies of No.2 Adangals in respect of the plaint schedule property. Hence, he filed the suit for permanent injunction restraining the defendants etc., from interfering with the peaceful possession and enjoyment of the land. 4. Defendant No.3 filed the written statement stating that the boundaries mentioned in the schedule are not covered by R.S. No.96. R.S. No.96 is co-related to O.S. No.401, which was never brought under cultivation. Therefore, it is absurd that Ac.7-00 of land within the boundaries mentioned in the plaint schedule property is raithwari land. As per the Revenue records, the said land was surrendered by the land of Katikaneni Radhamadhava Krishna Rao and the total extent of the said land is Ac.373-73 cents in R.S. No.381 and it was taken possession by the Government. In the year 1977, the survey personnel surveyed the land into blocks. In the beginning, survey numbers ended with 932. While granting D-form pattas, fresh survey numbers started with 933 and ended with 971. Defendants Nos. 6 to 14 were granted D- form pattas. Therefore, he prays to dismiss the suit. 5. Defendant No.7 also filed written statement stating that the land in dispute is raithwari land and that the Tahsildar, issued provisional allotment orders to Defendant Nos. 6 to 14 and they are in possession of the same. They were subsequently given raithwari pattas and passbooks. Hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the following issues were settled by the trial Court : 1. Whether the plaintiff is entitled for permanent injunction as prayed for? And 2. To what relief the plaintiff is entitled? 7 . On behalf of the Plaintiff, P.Ws.1 and 2 were examined and Exs. A-1 to A-9 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B.21 were marked. 8. The trial Court, after considering the evidence on record, came to the conclusion that the survey number of the land mentioned in the plaint schedule is not tallying with the survey numbers mentioned in the registered sale deed, that the identity of the property is in dispute, and accordingly dismissed the suit. Challenging the same, plaintiff filed A.S. No.33 of 2001 before the learned Senior Civil Judge, Nuzvid. The learned Senior Civil Judge, after appreciation of evidence, confirmed the judgment and decree of the trial Court. Challenging the same, the present Second Appeal is filed. 9. Heard both the counsel. 10. The substantial questions of law involved in this Appeal are : 1) Whether the Courts below can overlook the evidence adduced by the Plaintiff and the documentary evidence such as registered Sale Deeds Exs. A1 and A2? 2) Whether the Courts below can overlook the documents submitted in the Trial Court such as sale certificate which is a link document Ex.A3 issued by the Statutory Authority in an auction proceedings? 11. The learned counsel appearing for the Appellant contended that the Plaintiff has got perfected title in respect of the land, by adverse possession, that he purchased the property from his vendor, who in turn purchased the property in the Court auction, that in pursuance of the same, he was put in possession of the property that he raised mango garden in the suit schedule land, that the Commissioner’s report would also go to show that he found mango trees in the year 1992 in the suit schedule land, and as such the question of raising mango trees by D-6 to D-14 does not arise, that therefore, a perverse finding has been recorded by the trial Court, which was confirmed by the first appellate Court and hence he prays to decree the suit. 12. On the other hand, The learned counsel appearing for the Defendants contended that as on the date, the right over the schedule of the property has not been established by the plaintiff, that the boundaries as mentioned in the plaint schedule are not tallying with the schedule of the properties as mentioned in the title deeds of the plaintiff, that the plaintiff failed to establish even a prima-facie title and his possession over the property, that, both the courts below gave concurrent findings which needs no interference by this Court and hence he prays to dismiss the Appeal. 13. In view of amendment to Section 100 of C.P.C. filing of second appeal is not routine or formal, but the substantial questions of law should be raised in the second appeal. If both the Courts below gave a perverse finding or the findings are not based upon the admissible evidence then it can be said to be a substantial question of law. The well established principles i.e., prima-facie title, balance of convenience, are to be established for granting injunction. If the injunction is not granted though the above principles are established by the Plaintiff, he will be put to more inconvenience than the defendants. Then, the irreparable injury would be caused to the plaintiff which cannot be compensated in terms of damages. 14. The evidence of plaintiff coupled with Ex.A1 extract of the sale deed, Ex.A8 fasli No.3 Adangal 1404 did not substantiate the land as mentioned therein. Ex.A3 also shows that the property was purchased by the vendor of the Plaintiff in an auction conducted by Co-operative Sub-Registrar for Agricultural Development Bank, Tiruvuru. Prima-facie, all these documents are not in dispute. Even the defendants did not dispute with regard to the documents filed by the Plaintiff but the question is, whether these documents are relating to plaint schedule property or not? 15. As seen from the evidence, it is clear that the plaintiff purchased Ac. 7.00 in R.S. No.96, whereas, the schedule of the plaint shows that he is claiming the title and possession in respect of the land in R.S. No.933. The Mandal Revenue Officer who is examined as DW.1 has categorically stated that the plaint schedule property is situated in R.S. No.933 and it is a Government land, which was acquired in the year 1975 under the Land Ceiling Act. In the year 1996, the Government resurveyed the land and subdivided into blocks, starting from survey No.933/2 to 971 and granted pattas to the landless poor. D-6 to D-13 were granted 48 cents each in Survey No.933/2 to 933/9. The plaint schedule property is not situated in R.S. No.933. Exs.B1 to B.7 are No.3 adangal faslis 1404 to 1406 relating to the land in R.S. No.96 of Putrela village, classified as hill. Therefore, the documentary evidence clearly goes to show that the land which was purchased by the Plaintiff in R.S. No.96 must be a hill. Ex.B4 which is No.3 adangal shows that D-6 to D- 13 are in possession of the lands in R.S. No.933/2 to 933/9. Therefore, the documentary evidence clearly goes to show that the defendants were in possession of the properties. But, how this survey No.933 which was shown in the plaint schedule was co-related to the lands purchased by the plaintiff in Survey No.96 has not been explained by the plaintiff by filing necessary relevant revenue documents. Though the plaintiff shows that in pursuance of Exs.A1 and A2 sale deeds, he purchased Ac.7.00 of land in Survey No.96, but at the same time, the plaintiff is claiming permanent injunction in respect of the land covered by R.S. No.933, which was not explained by the plaintiff. 16. Admittedly, the Plaintiff has no title in respect of the land in Survey No.933. Therefore, both the Courts below rightly held that the plaintiff failed to establish the identity of the property in which he is claiming injunction restraining the defendants and their men from interfering with his possession. When the identity of the property has not been established, the question of granting injunction does not arise. Therefore, none of the findings is shown to be perverse or contrary to law. The findings of both the courts below are based upon proper appreciation of admissible evidence on record. Therefore, there are no grounds to interfere with the judgments of the Courts below. Accordingly, the Second Appeal is dismissed. However, the plaintiff if so advised, can seek necessary steps to get the lands measured from the competent Revenue Officials. There shall be no order as to costs. _______________ K.C. BHANU, J Date: 09-03-2010 DSH.