IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY Second Appeal No.100 of 1993 Between: Smt.Vavilala Lakshmi and others ..... Appellants AND The A.P.Housing Board, Hyderabad, Rep. By its Chairman (Regional Engineer, Warangal) and another. .....Respondents Counsel for the Appellants: Sri T.S.Anand Counsel for the Respondents: Sri D.Ranganath Kumar The Court made the following : Judgment: This Second Appeal is all about saga of remands from one Court to another. The unsuccessful plaintiffs are the appellants in this Second Appeal. For convenience, the parties are referred to as they are arrayed in the suit. The plaintiffs, who claim to have succeeded to the suit property comprising Ac.2-20 guntas in Survey No.1428 of Karimnagar, from Vavilala Rajamma through Vavilala Ram Reddy, filed O.S.No.425 of 1976 (for short ‘the suit’) for permanent injunction, restraining defendant No.1- A.P.Housing Board, defendant No.2- Municipal Council, Karimnagar, and defendant No.3- the contractor engaged by defendant No.1 from interfering with their possession and enjoyment thereof. The case of the plaintiffs is that Vavilala Rajamma was the original owner of the suit property and she adopted Vavilala Ram Reddy, who is husband of plaintiff No.1 and father of plaintiff Nos.2 to 4; that after the death of Vavilala Rajamma and Vavilala Ram Reddy, the plaintiffs succeeded to the suit property and that they are in continuous possession all through. When defendant No.3- contractor tried to commence work over the suit property, the plaintiffs filed the suit. According to the plaintiffs, the total extent owned by Vavilala Rajamma was Ac.9-29 guntas, out of which defendant No.2- Municipal Council acquired Ac.7-09 guntas, and the remaining extent of Ac.2-20 guntas remained vacant and the same is in their possession. Defendant No.1-A.P.Housing Board, in its written statement, while putting the plaintiffs to strict proof of their ownership, denied their possession over the suit property. According to it, two roads, emanating from Karimnagar to Peddapalli and Laxxettipet, were in existence even prior to the acquisition of Ac.7-09 guntas and defendant No.2- Municipal Council continued to be in possession of the suit property and that neither Rajamma nor Ram Reddy have ever raised objections over certain constructions made by it. It further pleaded that it has purchased Ac.3-17 guntas in Survey No.1428, in respect of which the plaintiffs sought for permanent injunction, from defendant No.2. Defendant No.2- Municipal Council also filed a separate written statement, in which it has claimed that the plaintiffs were never in possession of the suit property; that it has perfected its title by adverse possession; and that it has sold Ac.3-17 guntas of property in Survey No.1428 to defendant No.1. At the first instance, the suit was decreed by the trial Court on 29-03-1980. Separate appeals viz., A.S.Nos.20 and 21 of 1980 were filed by defendant Nos.1 and 2 in the Court of District Judge, Karimnagar, who, vide judgment, dated 22nd March, 1982, remanded the matter, by permitting the parties to adduce fresh evidence and get the suit land demarcated through an Advocate-Commissioner. Accordingly, an Advocate-Commissioner was appointed by the trial Court and he has filed his report, which was marked as Ex.C.1. The Advocate- Commissioner was also examined as C.W.1. On appreciation of the evidence, the suit was again decreed by the trial Court on 06-01-1987. The said judgment and decree was questioned by defendant No.1 in A.S.No.13 of 1987. The said appeal was allowed and the matter was again remanded by the lower appellate Court through its judgment, dated 16-03-1988, upon finding certain discrepancies between the documents filed by the plaintiffs and the Advocate-Commissioner’s report, with a direction that another Advocate-Commissioner be appointed to measure the PWD roads and to delineate the suit property. After remand, the trial Court appointed another Advocate-Commissioner, who inspected the suit property, got the survey done with the help of the survey and settlement staff, and filed his report, which was marked as Ex.C.3. For the third time, the trial Court decreed the suit on 27-02-1990. Questioning the said judgment and decree, defendant No.1 carried the matter in appeal by way of A.S.No.11 of 1990. The lower appellate Court, vide judgment, dated 30-11-1992, allowed the said appeal and set aside the judgment and decree passed by the trial Court. Aggrieved thereby, the plaintiffs filed this Second Appeal and the same was partly allowed, earlier, by this Court, vide judgment, dated 24th August, 2004, decreeing the suit to the extent of Ac.1.39 guntas. This was questioned before the Supreme Court by defendant No.1, by filing an SLP. The Supreme Court, after granting leave, disposed of Civil Appeal No.5013 of 2006, whereby it has set aside the judgment of this Court and remanded the matter for deciding the case afresh, after framing substantial questions of law. This is how, this Second Appeal again came to be heard. In the memorandum of grounds, the learned Counsel for the plaintiffs had pointed out that the substantial questions of law are framed vide ground Nos.4 to 7, which read as under: “4.The lower Appellate Court erred in law in holding that the plaintiff should file separate suit for declaration of title and possession. 5.The lower appellate Court having held that the property acquired and the suit property form an un-divisible property and having found that the Municipality has acquired only Ac.7.09 guntas out of Ac.9.29 guntas and the balance of land is still lying vacant and the lower Appellate Court ought to have followed the well established principle of law that possession follows title. 6.The lower Appellate Court ought to have seen that the suit land is vacant land and the defendants have not acquired any rights of ownership much less any acts which is hostile to the plaintiffs. 7.The lower appellate Court’s judgment is highly patchy and perfunctory and did not decide the real issue between the parties.” In addition to the same, after the matter was remanded, the plaintiffs have filed a leave application to permit them to raise additional substantial questions of law, which are as under: “a) Whether the plaintiffs have established their possession as on the date of the filing of the suit in the plaint schedule property? b) Whether in the absence of any evidence either oral or documentary on behalf of the defendants and no witnesses were examined an adverse inference can be drawn? c) Having found that the government acquired Ac.7.09 guntas out of Ac.9.29 guntas in Sy.No.1428 whether the appellate Court is right in holding that Ac.1.39 guntas was available by the date of the suit? d) Whether the appellate Court is right in holding that without seeking the relief of declaration of title and injunction mere suit for permanent injunction is not maintainable? e) Having commented on the way in which the officers of the Housing Board and the municipality and the respective advocates who defended the suit is most deplorable, whether the lower appellate Court is justified in reversing the well considered judgment of the trial Court decreeing the suit on three occasions? f) Whether in the mere suit for permanent injunction the appellate Court is right in going into the question of title? g) Whether the decree and judgment of the lower appellate Court is vitiated by non- consideration of material evidence consideration of irrelevant evidence and by perverse reasoning?” For the purpose of considering whether this Second Appeal raises any substantial questions of law, it is necessary to consider the issues framed by the trial Court, the findings given thereon and the relevant findings of the lower appellate Court. The trial Court framed the following issues: “1.Whether the plaint plan is correct? 2.Whether the plaintiffs got title to and possession of the re-marked suit land shown in the plaint plan within twelve years immediately preceding the date of the suit? 3.Whether the plaintiffs are entitled for perpetual injunction as prayed for? 4.To what relief?” Under issue No.1, the trial Court held that the Advocate-Commissioner, appointed after the second remand of the suit, filed a detailed report, which was marked as Ex.C.3, and that he has opined that the plan filed along with the plaint and also the plan appended to Ex.C.3- report are more or less the same. Accordingly, issue No.1 was held in favour of the plaintiffs. On issue No.2, the trial Court relied on the oral evidence of PWs.2 and 5, who are patwari and malipatel, apart from PWs.3 and 4- the adjoining owners, who have upheld the title of the plaintiffs and also their possession. In this process, the trial Court has also placed reliance on Ex.C.3- report of the Advocate-Commissioner. Indeed the trial Court, having found that, according to Ex.C.3, two roads have been laid over the two extents of the land, admeasuring Ac.0-11 guntas and Ac.0-10 guntas respectively, forming part of Ac.2-20 guntas for which the suit is filed, still passed the decree of perpetual injunction in favour of the plaintiffs over the entire extent of Ac.2-20 guntas. Having regard to the findings on issues Nos.1 and 2, the trial Court has found issue No.3 in favour of the plaintiffs and accordingly, granted permanent injunction. In the appeal filed by defendant No.1, the lower appellate Court re-appreciated the evidence and found that the trial Court has committed a serious error in appreciating the evidence on record. The lower appellate Court has found that Ex.A.1- pahani for the year 1975-76, which is the main piece of evidence produced by the plaintiffs, contains blanks in crucial columns viz., column Nos.16 and 23. The lower appellate Court has also found that the possession of Ac.5-30 guntas was handed over by the Commissioner and Special Officer, Karimnagar Municipality, to the Regional Housing Engineer, A.P.Housing Board, Warangal, as per the plan enclosed. It has further held that the copy of the plan, supplied by defendant No.2- Municipal Council to the Inspector of Survey and Land Records, who was appointed as Commissioner in the first instance, discloses that the Commissioner and Special Officer, Karimnagar Municipality, handed over possession of the land physically on 29-05-1976 and that, by then, the land was surveyed and a mistake committed in proceedings marked as Ex.B.2 was detected. The lower appellate Court also referred to Ex.B.4- the resolution passed by defendant No.2- Municipal Council, consequent on the mistake found in mentioning the survey number, requesting the Government to modify GO.Ms.No.284, M.A., dated 24- 02-1976, and accord permission for effecting sale of land admeasuring Ac.6-00 in various survey numbers including the extent of Ac.3-17 guntas in Survey No.1428 in favour of defendant No.1. The lower appellate Court also referred to various other documentary evidence in holding that out of Ac.3-17 guntas handed over in Survey No.1428 by defendant No.2 to defendant No.1, an extent of Ac.1-38 guntas forms part of Ac.7-09 guntas of land acquired by defendant No.2- Municipal Council and that the remaining extent of Ac.1-19 guntas is part of the unacquired land and that Ac.0-21 guntas of the unacquired land was covered by roads. At the hearing, Sri T.S.Anand, learned Counsel for the appellants, questioned the correctness of the judgment of the lower appellate Court by contending that Ex.A.1- pahani clinchingly establishes that the plaintiffs were in possession of the property in question. He has also criticised the various observations made by the lower appellate Court regarding the correctness of the plaint plan etc., and submitted that the approach of the lower appellate Court is perverse and that the dismissal of the appeal was the result of a completely erroneous appreciation of the documentary evidence. Alternatively, the learned Counsel referred to the findings of the lower appellate Court in Para 27 of its judgment and contended that on the basis of the said findings, the plaintiffs are entitled to succeed at least to the extent of Ac.0-20 guntas. Sri D.Ranganath Kumar, learned Counsel for the defendant No.1, strenuously opposed these contentions and contended that the plaintiffs failed to raise any substantial questions of law and that the findings of the lower appellate Court being based on the appreciation of the evidence on record, this Court cannot interfere with the same, while exercising its jurisdiction under Section 100 of the Civil Procedure Code (for short ‘the CPC’). Though the plaintiffs have raised many grounds, which are purported to be substantial questions of law, in my considered opinion, many of those grounds do not constitute substantial questions of law and even if some of them do constitute such questions of law, they do not really arise in this Second Appeal. To put it in a nutshell, the controversy between the parties is whether the extent of Ac.2-20 guntas, which was left over after acquisition of Ac.7-09 guntas by defendant No.2- Municipal Council from Vavilala Rajamma, is in possession of the plaintiffs or handed over by defendant No.2 to Defendant No.1. Both the parties adduced their respective documentary evidence in support of their pleas. While the trial Court on the basis of the evidence of PWs.1 to 5 and Ex.A.1 to A.3, apart from Ex.C.3- report of the Advocate-Commissioner, gave a finding that the extent of Ac.2-20 guntas is not part of the land admeasuring Ac.7-09 guntas, acquired by defendant No.2, it has also rendered a finding, based on Ex.C.3- report, that defendant No.1 has raised certain constructions over Ac.1-17 guntas of land marked as ‘B’ and that roads marked as ‘F’ and ‘G’ were laid over the extents of Ac.0-11 guntas and Ac.0-10 guntas respectively. The trial Court further held that the extents of Ac.0-21 guntas, Ac.1-19 guntas and Ac.0-20 guntas marked as ‘C’, ‘D’ and ‘E’ respectively are vacant and that the plaintiffs are entitled to grant of injunction. Consequently, the trial Court passed a decree for injunction. As noted above, the lower appellate Court gave a categorical finding that out of Ac.3-17 guntas of land in Survey No.1428, which was handed over by defendant No.2 to defendant No.1, an extent of Ac.1-38 guntas is part of the land admeasuring Ac.7-09 guntas, acquired by the defendant No.2-Municipal Council and that the remaining extent of Ac.1-19 guntas is part of unacquired land and that Ac.0-21 guntas out of unacquired land was covered by the roads and there remained a balance of only 0-20 guntas. This finding clearly shows that the said extent of Ac.0-20 guntas is not part of the land, which was acquired by defendant No.2- Municipal Council and was handed over to defendant No.1. Though, ordinarily, the plaintiffs may be entitled to grant of injunction to that extent, defendant No.2- Municipal Council has specifically raised the contention that it has been in continuous possession of the suit property and that it has perfected its title by adverse possession. This is the obvious reason why the lower appellate Court opined that the plaintiffs ought to have filed a suit for declaration and the mere suit for injunction simplicitor, in the face of the above-contentious claims, is not maintainable. In my considered opinion, this Court, while exercising its jurisdiction under Section 100 of the CPC, will not embark upon re-appreciation of evidence and come to a different conclusion from the one, which was arrived at by the lower appellate Court, even if on the basis of such re- appreciation, such a conclusion is possible. Unless the findings of the Courts below are totally perverse or are not based on evidence, this Court will not interfere with the findings of fact arrived at, by the Court below, on the basis of such re-appreciation of evidence. For the above reasons, I do not find any substantial questions of law arising in the Second Appeal and the same is, accordingly, dismissed. There shall be no order as to costs. ___________________________ (C.V.NAGARJUNA REDDY, J) 24th February, 2010 lur