THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal Nos.99 and 257 of 2011 COMMON JUDGMENT: These two appeals are by the same appellant. The parties are also common, except for their ranking. While there are 7 respondents in S.A.No.99 of 2011, there is only one respondent in S.A.No.257 of 2011 and incidentally, he happens to be the 3rd respondent in S.A.No.99 of 2011. For the sake of convenience, the parties are referred to as arrayed in S.A.No.99 of 2011. The appellant filed O.S.No.644 of 2001 in the Court of I Additional Senior Civil Judge, Nellore, against respondents 1, 2 and 3, for the relief of perpetual injunction, in respect of Acs.4.44 cents of land, in two bits. She pleaded that her father – Dubagunta Ramakrishnaiah, had two wives by name, Venkamma and Subbamma, and she is the daughter of Venkamma. Respondents 1 and 2 are said to be the sons of Subbamma. Respondent No.3 is the son of respondent No.1. According to the appellant, Ramakrishnaiah executed a settlement deed, on 04.10.1957 (marked as Ex.A.7), settling the suit schedule property upon her mother Venkamma, with a stipulation that Venkamma would have life interest in the property, and after her death, her children would succeed to the same. The appellant pleaded that her father Ramakrishnaiah settled separate properties upon Subbamma and her children - respondents 1 and 2 and still respondents 1, 2 and 3 are started interfering with her possession over the suit schedule property. The 3rd respondent, on the other hand, filed O.S.No.1152 of 2001 in the same Court, for perpetual injunction, in respect of half of the said property, viz., Acs.2.22 cents. He pleaded that the said property has devolved upon defendants 1 and 2, on the death of Ramakrishnaiah, and in the family partition, half of it has fallen to his share. The trial Court clubbed both the suits. Through a common judgment, dated 09.06.2005, it dismissed both the suits. The appellant filed A.S.No.135 of 2005 in the Court of I Additional District Judge, Nellore, feeling aggrieved by the dismissal of O.S.No.644 of 2001. The 3rd respondent, on the other hand, filed A.S.No.113 of 2005 in the same Court against the decree in O.S.No.1152 of 2001. Through separate judgments dated 30.11.2009, the lower Appellate Court dismissed A.S.No.135 of 2005 and allowed A.S.No.113 of 2005. Hence, these two second appeals. Heard Sri S.V.Muni Reddy, learned counsel for the appellant, and Sri Y.Srinivas Murthy, learned counsel for the contesting respondents. Only one issue has arisen for consideration in both the suits, viz., “Whether the plaintiffs are entitled for perpetual injunction?” Common evidence was recorded. On behalf of the appellant, PWs.1 to 6 were examined and Exs.A.1 to A.6 were filed. On behalf of the respondents, DWs.1 to 5 were examined and Exs.B.1 to B.30 were filed and Ex.X.1 was taken on record. Curiously enough, the appellant and the 3rd respondent, who filed the suits, did not get any relief. The lower Appellate Court has granted the relief in favour of the respondents and denied it to the appellant. In a suit for perpetual injunction, what becomes material is the factum of possession over the suit schedule property by the plaintiff. It is, no doubt, true that the appellant herein pleaded possession over the suit schedule property. According to her, the possession was recovered from respondents 1 and 2, few months before the suit was filed. In other words, she admitted the possession of respondents 1 and 2 over the suit schedule property, few months prior to the filing of the suit. It was not her case that that the possession was delivered through any process known to law. In case, it was with the consent of the parties, the same ought to have been proved. The evidence on record is silent as to the so-called delivery, or recovery of possession. Whatever be the ambiguity in this regard, in case the appellant had the semblance of title over the property and she is in actual physical possession of the same, the relief could certainly have been granted. However, in her evidence, she has totally deviated from the case presented through plaint. While the suit is for the relief of perpetual injunction, she stated that it was filed for the relief of recovery of possession. In clear terms, she admitted that respondents 1 and 2 were in possession of the property, in equal extents. She has further pleaded that they were giving her certain quantity of paddy in return. In view of this clear admission, there was absolutely no scope for the trial Court to grant the relief of injunction in favour of the appellant. The trial Court and the lower Appellate Court have taken these admissions into account and rendered the judgments accordingly. So far as the suit filed by the 3rd respondent is concerned, for all practical purposes, the appellant had minimised the burden to prove his possession of the property. The admission she made vis-à-vis her claim, became handy for the 3rd respondent and though the trial Court dismissed the suit, the lower Appellate Court decreed the same. This Court does not find any substantial question of law and the concurrent findings of fact recorded by the trial Court and the lower Appellate Court do not warrant interference. The Second appeals are accordingly dismissed. It is, however, left open to the appellant to file a suit for declaration and recovery of possession, if she is so advised. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:13.12.2011 GJ