IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.1046 OF 2010 Between: Mylarappa and others .....APPELLANTS AND P. Narsappa ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.1046 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 12.03.2010, in A.S.No.15 of 2009, on the file of the Senior Civil Judge, Hindupur, whereunder and whereby, the judgment and decree, dated 22.06.2009, in O.S.No.109 of 2001, on the file of the Junior Civil Judge, Hindupur, decreeing the suit restraining the appellants/defendants perpetually from interfering with the possession and enjoyment of the respondent/plaintiff of the suit schedule property in any manner, were confirmed. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: Plaintiff purchased the suit schedule property in a public auction held in Court for Rs.11,000/- for Item No.1 and Rs.9,000/- for Item No.2 on 16.02.1997 in E.P.No.17 of 1985 in O.S.No.1 of 1981 on the file of the Senior Civil Judge, Penukonda. The sale was confirmed on 10.09.1999. The Sale Certificate has been issued in the name of the plaintiff. On 05.03.2001, the plaintiff filed E.A.No.69 of 1999 in E.P.No.17 of 1985 in O.S.No.1 of 1981 on the file of the Senior Civil Judge, Penukonda, for delivery of possession. On 14.03.2001, the delivery was effected and since then, the plaintiff has been in possession and enjoyment of the suit schedule property. The defendants, who were in possession of the suit schedule property prior to the delivery of the possession to the plaintiff, were trying to dispossess the plaintiff by using criminal force. They had following in the village and for the past one week, the defendants were making hectic efforts to dispossess the plaintiff. As such the suit was filed, to protect possession of the plaintiff, for perpetual injunction. The plaintiff prays to restrain the defendants from interfering with the possession and enjoyment of the plaintiff of the suit schedule property by granting perpetual injunction. 3. Defendant No.1 filed written statement and defendant Nos.2 and 3 adopted the same. 4. It is averred in the written statement that the defendants agreed that the suit schedule property was auctioned, but they denied that the suit schedule property was delivered to the plaintiff on 14.03.2001. They further admitted that the delivery was only a paper delivery and there was stay order granted by this Court. They further stated that they purchased the suit schedule property under a registered sale deed for a consideration from its full owner on 23.12.1985 and that they have been in possession and enjoyment of the same. They further stated that they raised paddy crop at the time of institution of the suit and that the suit schedule property was not in possession of the plaintiff. As the defendants were in possession and enjoyment of the suit schedule property, there was no question of using brutal force for them to dispossess the plaintiff. Hence, they pray to dismiss the suit. 5. Basing on the above pleadings, the following issues were framed by the trial Court: “1. Whether the plaintiff is in possession of the suit property being original owner? 2. Whether the defendants are absolute owners of the suit property? 3. To what relief?” 6. During trial, on behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A4 were got marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B1 and B2 were got marked. 7. The trial Court, accepting the evidence of plaintiff, came to the conclusion that the plaintiff has got title to the suit schedule property by virtue of Ex.A1 – Sale Certificate; that in pursuance of the Sale Certificate, the suit schedule property has been delivered to the plaintiff through process of Court; that as on the date of filing of the suit, the plaintiff was in possession and enjoyment of the suit schedule property and accordingly, decreed the suit. On appeal, the said judgment and decree were confirmed. Challenging the same, the present appeal is filed by the defendants. 8. Learned counsel for the appellants/defendants contended that the Delivery Warrant and Amin’s Report and Delivery Receipt, Exs.A2 and A4 respectively, are only paper delivery giving symbolic possession of the property; that the evidence of the appellants would go to show that even after delivery of possession of the suit schedule property, the appellants harvested the standing crop thereon; that the respondent/plaintiff himself admitted that the appellants were in possession and enjoyment of the suit schedule property and therefore, the question of granting perpetual injunction does not arise; that the substantial question of law is whether the respondent/plaintiff is entitled for perpetual injunction when he is not in possession of the suit schedule property and hence, he prays to set aside the impugned judgment. 9. Now the point for determination is whether there is any substantial question of law involved in this appeal? 10. Grant or refusal of injunction is covered by three well established principles viz., prima facie title, balance of convenience and irreparable injury, if the injunction is not granted. In view of the fact that the suit was filed for perpetual injunction against the appellants/defendants not to interfere with the possession and enjoyment of the respondent/plaintiff of the suit schedule property, it is for the respondent to establish that he was in possession and enjoyment of the suit schedule property by the date of filing of the suit. Even in a case of grant of perpetual injunction, the Court has to incidentally go into the question of title. As seen from the documents filed by the respondent, Ex.A1 is the certified copy of the Sale Certificate issued by the Court on 10.09.1999. So, by virtue of Ex.A1 – Sale Certificate, the respondent has got prima facie title in respect of the suit schedule property. Besides the oral evidence of PWs.1 and 2, the respondent also relied upon the recitals in Exs.A2 to A4, which are the certified copies of Delivery Warrant and Amin’s Report; Elders Report and Delivery Receipt, respectively. As seen from Ex.A2, the Delivery Warrant issued by the Amin, dated 15.03.2001, it would clearly go to show that the suit schedule property was delivered to the respondent/plaintiff. There is a presumption in law under Section 114 (h) of the Indian Evidence Act, 1872, (for short, “the Act”), with regard to the performance of the official acts, unless the same are rebutted. Therefore, by virtue of Exs.A2 and A4, a presumption can be drawn that the property in question has been delivered to the respondent on 14.03.2001. If the appellants want to rebut that presumption, they have to adduce necessary evidence to show that the contents in Exs.A2 and A4 are not correct. To rebut the said presumption, there is no evidence to show that they are not written as on the date as mentioned therein and the contents therein are not true and correct. 11. No doubt, the evidence of DW.2 would go to show that Ex.A4 was written at a different place than the place where the suit schedule property is located. But, such oral evidence cannot be accepted which runs contrary to document. Once a document is filed, the parties to the document cannot be permitted to lead oral evidence to deny the contents in the document. Therefore, the admission of DW.2 that Ex.A4 was scribed in a different village cannot be accepted. As seen from Ex.A4, it is clear that delivery has been effected on 14.03.2001 to the respondent/plaintiff and as seen from Ex.A2, which is the Delivery Warrant executed by the Amin, it would clearly go to show that the property in question was physically delivered to the respondent on 14.03.2001 through process of Court. 12. One of the contentions of the learned counsel for the appellants is that the respondent admitted that the appellants were in possession of the property in question even after the Delivery Receipt for the purpose of harvesting the crop. But, that cannot be accepted because there is no such recital in Exs.A2 and A4 that there was standing crop existing as on the date of the Delivery Warrant. The other contention is that the respondent admitted that the appellants were in possession of the property in question. But as seen from the evidence of PW.1, there is no such admission. He only admitted that the suit schedule property was in the possession of the appellants till delivery through process of Court. So, it cannot be an admission that after the delivery of the property, the appellants were in possession of the suit schedule property. Further, the appellants have not filed any document to show that they have got prima facie title to the suit schedule property. Exs.B1 and B2, Adangal and No.2 Adangal for 1417 Fasli respectively, filed by the appellants do not relate to the period prior to 2001 or prior to the filing of the suit. Therefore, those documents need no credence for the purpose of deciding possession of the suit schedule property. Therefore, both the Courts below rightly appreciated the evidence on record and there is no perverse finding or it is not the case of the appellants herein that the findings of both the Courts below are not based upon any admissible evidence or inadmissible evidence has been taken into consideration for the purpose of deciding the issue. In the absence of such perverse finding, the impugned judgments need no interference by this Court. The appeal is devoid of merit and is liable to be dismissed, as there is no substantial question of law involved in the Second Appeal. 13. It is stated by the learned counsel for the appellants that on 12.03.2001, in C.M.P.No.21287 of 2000 in C.M.S.A.No.33 of 2000, stay has been granted by this Court and by virtue of the stay of execution, the appellants were in possession of the property. But, that cannot be a factor to decide that the appellants were in possession of the property prior to filing of the suit. Whether the respondent/plaintiff is entitled for perpetual injunction as on the date of filing of the suit is the crux of the matter to grant injunction. Even otherwise, this Court has not granted injunction in favour of the appellants, but it is only stay of execution, which does not mean that the appellants are in possession of the suit schedule property. Therefore, the contention of the learned counsel for the appellants on this aspect is wholly devoid of merit and untenable. 14. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C. BHANU, J January 31, 2011 MD THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.1046 OF 2010 January 31, 2011