THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.344 of 2006 JUDGMENT: The plaintiffs in O.S.No.2 of 1998 on the file of the Principal Junior Civil Judge, Nandyal, are the appellants. They filed the suit against the respondent. Both of them are nephews of one Mr.Pasam Venkateswarlu, the husband of the sole respondent. The suit was filed for the relief of injunction, in respect of suit schedule property of an extent of Ac.2.50 cents of land, in survey No.31/4 of Timmapuram Village, Mahanandi Mandal, Kurnool District. It was pleaded that Venkateswarlu was the actual owner of the property and that he executed a gift settlement deed, on 13.10.1982 (Ex.A.1) to the effect that the property would accrue to the mother of the appellants and after her death to the appellants. It was mentioned in Ex.A.1 that Venkateswarlu and his sister – Nagamma, would have the right to enjoy the usufruct of the property, and after them, it would accrue to the appellants. Nagamma is said to have pre- deceased Venkateswarlu and that Venkateswarlu died on 19.08.1996. The appellants pleaded that they became the owners of the land, after the death of Venkateswarlu and that they are in possession and enjoyment of the said property. Their grievance was that the respondent was trying to interfere with their possession with the help of her supporters. The appellants pleaded that the original of Ex.A.1 was lost in the fire accident and that the certified copy was obtained. The respondent filed a written statement, opposing the suit. She pleaded that Ex.A.1 was procured by the appellants, through fraud and coercion upon Venkateswarlu and that on realizing the same, he executed a deed of cancellation, on 10.01.1983 - Ex.B.1. She has also stated that the gift was not accepted by the appellants at all and that before any concrete steps were taken, the same was cancelled through Ex.B.1. The trial Court framed only one issue for its consideration, viz., whether the appellants are entitled for the relief of permanent injunction as prayed for? On behalf of the appellants, PWs.1 to 3 were examined and Exs.A.1 to A.6 were filed. On behalf of the respondent, DWs.1 to 3 were examined and Exs.B.1-cancellationl deed, was filed. The trial Court dismissed the suit, through its judgment dated 04.07.2003. Thereupon, the appellants filed A.S.No.55 of 2003 in the Court of V Additional District Judge, Fast Track Court, Kurnool, at Nandyal. The appeal was dismissed on 07.01.2006. Hence, this second appeal. Sri C.B. Rammohan Reddy, learned counsel for the appellants, submits that the trial Court and the lower Appellate Court have not appreciated the evidence on record from the correct perspective, and even though the respondent, as DW.1 and another witness examined by her clearly stated that the appellants herein are in possession of the property, the suit and the appeal were dismissed. He contends that the view taken by the trial Court that the suit for injunction simplicitor without there being any prayer for declaration of title, is not maintainable and that the same cannot be sustained in law. Learned counsel submits that the Courts below have committed patent illegality and a substantial question of law arises for consideration. Sri M.S.R.Subrahmanyam, learned counsel for the respondent, on the other hand, submits that hardly any question of law exists and pure questions of fact cannot be gone into in a second appeal. He contends that the very fact that the original of gift deed was not filed, throws any amount of doubt on the claim of the appellants. The suit was filed for the relief of injunction simplicitor. The appellants have narrated the manner in which they acquired the rights over the property. Their source of title was Ex.A.1. It is no doubt true that the original thereof was not filed and a certified copy of it was filed before the trial Court. The respondent pleaded many facts to doubt the transfer through Ex.A.1. Two aspects need to be considered carefully. The first is about the factum of execution of Ex.A.1, and the second is the legality thereof. The record discloses that there was no plea that Ex.A.1 was not executed at all. It is the respondent, who took the plea under Ex.B.1. The fact that a deed of cancellation as regards Ex.B.1 was executed, was mentioned in Ex.A.1 itself. Once the respondent has relied upon Ex.B.1 to contend that Ex.A.1 was cancelled, she cannot doubt the very execution of Ex.A.1. The second aspect is about the legality of Ex.A.1. This can be gone into, only when a suit for declaration of title is filed by either of the parties. The discussion on this aspect is bound to be superficial in a suit for injunction, without leading to any definite conclusion. The possession over the suit schedule property, becomes relevant in a suit for perpetual injunction. If the plaintiff proves his possession with a semblance of title, howsoever weak it may be, relief deserves to be granted, leaving it open to the other party to establish title and recover possession. In the context of proving the possession, there cannot be a better piece of evidence, than the admission by a defendant, that the plaintiff is in possession. Even if the admission is in the form of making out a grievance or complaint, it cannot be ignored. In the instant case, the respondent herself, while deposing as DW.1; and another witness examined on her behalf, as DW.2, admitted that the appellants are in possession of the property. To be precise, the respondent as DW.1 stated “it is true that the plaintiff raised tobacco crop in this year in the suit land”. DW.2 stated that “it is true the plaintiff has raised crop in the lands that were gifted to them.” In case, the respondent felt that the appellants are not entitled to remain in possession, she ought to have taken steps to recover possession in accordance with law. As long as such steps are not initiated, she cannot interfere with the possession of the appellants over the suit schedule property. Hence, a substantial question of law viz., whether a civil Court can deny the relief of perpetual injunction to a plaintiff, even if the defendant therein admitted possession of the plaintiff, arises for consideration. The question is answered in the negative, once it emerged that the appellants are in possession of the suit schedule property and their possession is based upon Ex.A1. It has already been mentioned that the respondent and her another witness admitted the possession of the appellants over the suit schedule property. Therefore, the judgment rendered by the trial Court and the lower Appellate Court cannot be sustained in law. The Second Appeal is accordingly allowed and the suit filed by the appellants is decreed as prayed for. It is, however, directed that it shall be open to the respondent to institute proceedings for declaration of title and recovery of possession, if she so advised, and in such an event, none of the observations made in this set of proceedings shall be treated as final, on the question of title. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 22.11.2011 GJ