THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL No. 530, 648 of 2009 & CRP.No. 4074 of 2009. COMMON JUDGEMENT: Aggrieved by the common Judgement and Decree dt. 25.3.2009 in A.S.No. 47 of 2005 and 49 of 2005 passed by the learned II Additional District Judge, Nalgonda at Suryapet confirming the common Judgement and Decree dt. 31.8.2005 in O.S.Nos. 49 of 2000 and 79 of 2001 passed by the Senior Civil Judge, Suryapet, both the plaintiffs in the above suits filed the present second appeals. C.R.P.No. 4074 of 2009 is filed by the appellant in A.S.No. 49 of 2005 against the order dismissing the I.A.No. 2159 of 2008 filed under Order 41 Rule 27 C.P.C. seeking the lower appellate court to receive the documents as additional evidence. At the outset, it was pointed out to the learned Counsel for the petitioner that in view of Section 105 C.P.C., the correctness or otherwise of any interim order can always be questioned in the appeal filed against the final order and as such rejection of additional evidence application by the lower appellate court while dismissing the appeal can as well be questioned in this second appeal filed against the decree of the appellate court itself. The learned Counsel for the petitioner also accepted the said legal position and submits that revision petition is filed as an abundant precaution. Though S.A.No. 530 of 2009 is filed against the decree in A.S.No. 49 of 2005, a specific ground is raised with respect to rejection of the application for additional evidence. In view of the undisputed legal position, C.R.P.No. 4074 of 2009 is unnecessary as the issue raised in the said C.R.P. forms part of consideration in S.A.No. 530 of 2009. Therefore, the C.R.P.No. 4074 of 2009 is dismissed as unnecessary. For the sake of convenience, the parties as appearing in the suit O.S.No. 49 of 2000 are referred to as under: The defendant No.2 in O.S.No. 49 of 2000 is the admitted owner of land of an extent of 0.12 gts in S.No. 482 situated at the crossroads of Tonda Tirumalagiri. There is no controversy that he sold Ac. 0.06 gts of land to the plaintiff in O.S.No. 49 of 2000 under a registered sale deed dt. 3.6.1989. The said Ac. 0.06 gts of land is said to be on western half of the said survey number belonging to the defendant No.2. The plaintiff in O.S.No. 49 of 2000 alleges that in addition to the said registered sale deed, the defendant No.2 also sold the remaining Ac.0.06 gts., on eastern side to him together with two RCC rooms under an unregistered sale deed dt. 23.10.1990. Stating that the plaintiff is paying non- agricultural tax in respect of the said eastern Ac. 0.06 gts and alleging that the defendants 1 and 2 are interfering and denying his title, he filed suit O.S.No. 49 of 2000 on 10.8.2000 for declaration of ownership and consequential injunction. The defendants resisted the suit on the ground that the defendant No.1 purchased the said eastern half of Ac. 0.06 gts under a registered sale deed dt. 30.4.1991 and he filed O.S.No. 79 of 2001 for perpetual injunction and sought injunction against the plaintiff in O.S.No. 49 of 2000. In the said suit, the 1st defendant alleges that he has purchased eastern half of Ac. 0.06 gts under a registered sale deed dt. 30.4.1991 vide document No. 568 of 1991 and has been put in possession of the said land and admits that the plaintiff in O.S.No. 49 of 2000 is the admitted owner of western half side and he had already filed O.S.No. 49 of 2000 and that he has no right to interfere with the possession of plaintiff in O.S.No. 79 of 2001. Latter suit was filed on 23.7.2001. Both the suits were tried together and evidence was recorded in O.S.No. 49 of 2000. The trial court by its common judgement rejected the case of the plaintiff in O.S.No. 49 of 2000 on the ground that his claim having been based upon an unregistered sale deed, the same cannot be looked into. The trial court also doubted the genuineness of the sale deed and declined to grant the relief of declaration to the said plaintiff. To the extent of consequential relief of injunction also, the same was also denied by rejecting Exs:A.2 and A.3 by holding that it is not safe to rely upon the said exhibits. While considering the suit of the 1st defendant, the trial court proceeded to deny the relief to him also by holding that though the registered sale deed is produced, the certified copies of pahanies Exs: B.2 and B.3 relied upon by the 1st defendant are not sufficient to prove the possession and consequently the relief of injunction sought for by the 1st defendant in O.S.No. 79 of 200 was also denied. As both the suits were dismissed, both the plaintiffs filed separate appeals before the lower appellate court in A.S.Nos. 47 and 49 of 2005. Both the appeals have been dismissed by the impugned common judgement of the lower appellate court by holding that Ex:A.1 sale deed dt. 23.10.1990 relied on by the plaintiff in O.S.No. 49 of 2000 being unregistered cannot be looked into for any reason as it does not create any title nor possession can be held established based on the said document. The lower appellate court also rejected the registered sale deed and the pahanies relied upon by the 1st defendant marked as Exs: B.1 to B.3 by concurring with the trial court that these documents are not sufficient to grant the relief and consequently, dismissal of both the suits was upheld by the lower appellate. Aggrieved by the same, both the plaintiffs filed the present second appeals. Heard Sri.M.S.N.Prasad, the learned Counsel appearing for the appellant in S.A.No. 530 of 2009 arising out of A.S.No. 49 of 2005 and Sri. Sreenivas Rao, the learned Counsel for the appellant in S.A.No. 648 of 2009 arising out of A.S.No. 47 of 2005. S.A.No. 530 of 2009 was admitted on 3.7.2009 on the following substantial question of law: “Whether the findings of both the courts below are perverse and they are not based upon any admissible evidence.” S.A.No. 648 of 2009 was admitted on 30.7.2009 on the following substantial question of law: “Whether the concurrent findings of both the courts below are perverse.” Heard both the learned Counsel who have made submissions with respect to their cases. From the narration of facts as above, it would be noticed that while the plaintiff in O.S.No. 49 of 2000 claims eastern half in the said survey number admeasuring Ac. 0.06 gts under un registered sale deed dt. 23.10.1990. The 1st defendant also claims under Ex:B.1 the registered sale deed dt. 30.4.1991 the very same eastern side land. In support of his claim, the plaintiff also filed Exs: A.2 to A.11 which are primarily copies of permission granted by the Grampanchayat, approved plan and non-agricultural tax paid receipts for the years 1993-94 and 1999-2000. All the said documents are rejected by both the courts below. Similarly, the documents filed by the 1st defendant Exs: B.1 registered sale deed supported by certified copies of pahanies for the years 1999-2000 and 2000-2001 marked as Exs:B.2 and B.3 have also been rejected on the ground that the said documents are not sufficient to establish the claim of the 1st defendant. A reading of the judgments of both the courts below show that the approach adopted by the courts below is absolutely erroneous. The courts below are required to adjudicate upon the suit for declaration of title and consequential perpetual injunction filed by the plaintiff in O.S.No. 49 of 2000 and the cross-suit O.S.No. 79 of 2001 filed by the 1st defendant merely for injunction. Since both the suits were filed for different reliefs, the consideration in both the suits therefore was conceptually different. While the former suit will have to be decided on the basis of proof of title by the plaintiff and the latter suit has to be decided on the basis of the possession of the plaintiff as on the date of suit. The plaintiff in the former suit bases is claim on the basis of an unregistered sale deed whereas the 1st defendant who is the plaintiff in the latter suit bases his claim on the basis of a registered sale deed. The courts below ought to have examined the respective claims on the basis of comparison of respective documents and oral evidence adduced by either of the plaintiffs and ought to have assessed as to who has a better title. Dismissing both the appeals by the lower appellate court is totally erroneous and amounts to rejection of the case of a party, which could otherwise be sustainable on the basis of the evidence adduced before the courts below. Though I have allowed both the learned Counsel to make detail submissions of facts with reference to their documents, in view of the order proposed to be passed in these appeals, I am refraining from making any observations or giving any findings on respective merits of the parties as argued by their respective counsel. Suffice it to say that the judgement of the lower appellate court runs hardly into two paragraphs without any reasoning and non-consideration of legal issues. It is well settled that in a suit for declaration, the plaintiff seeking such relief must establish his title as against the defendant to the satisfaction of the court and thereafter if he is held entitled to the main relief, the consequential relief would also follow. Whereas in a suit for injunction, the plaintiff has to establish his possession as on the date of suit and that the person against whom the injunction is sought does not have better title than him. Irrespective of the fact that the plaintiff is not holding title, based on the proof of possession, the suit for injunction has to be considered. I n M.Kallappa Setty vs. M.V. Lakshminarayana Rao[1], the Supreme Court held as under: “So far as the question of possession is concerned, as mentioned earlier, both the trial court and the 1st appellate court have accepted the plaintiff’s case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from the persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and 1st appellate court have done, that the plaintiff was in possession of the property ever since 1947, then his possession has to be protected as against interference by some one who is not proved to have a better title than himself to the property. On the finding arrived at by the fact finding courts, as regards possession, the plaintiff was entitled to the second relief asked for by him. Even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the Judgment of the trial court as affirmed by the 1st appellate court, regarding relief No.2” The appellate court has not kept in mind either of these aspects in mind. The lower appellate court dismissed both the appeals filed by both the plaintiff without appreciation of evidence. It is well settled that as a final fact finding court, the lower appellate court must discharge its duties in accordance with Order 41 rule 31 CPC which is a mandatory provision. I am therefore satisfied that the impugned judgement is erroneous and defective and is liable to be set aside. As mentioned above, the application for additional evidence filed by the plaintiff in the latter suit has also to be considered on its own merits by the lower appellate court along with the appeals. In the result, the second appeals are allowed. The impugned common judgment is set aside. Both the appeals are remitted to the lower appellate court for fresh consideration. The lower appellate court shall separately consider the application filed by the plaintiff in I.A.No. 2159 of 2008 in A.S.No. 49 of 2005 on its own merits while hearing the appeals. Since the suits are of the year 2000 and 2001, it would be just and proper to direct the lower appellate court to decide the appeals within three months from the date of receipt of a copy of this judgment. There shall be no order as to costs. _______________________________ VILAS V.AFZULPURKAR,J 02.08.2010. KRB. THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL No. 530, 648 of 2009 & CRP.No. 4074 of 2009. COMMON JUDGEMENT: Dt. 02.08.2010 [1] AIR 1972 SC 2299