THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No. 962 of 2011 J U D G M E N T: This Second Appeal is directed against the judgment and decree in A.S.No. 94 of 2007 on the file of the Judge, Family Court- cum-Additional District Judge at Mahaboobnagar, dated 16.09.2010 by which the judgment and decree in O.S.No. 82 of 1996 on the file of the Senior Civil Judge’s Court, Mahaboobnagar, dated 21.06.2007 dismissing the suit with costs were confirmed and the appeal was dismissed with costs. The factual background for the Second Appeal is that, the deceased 1st plaintiff, whose legal representatives are plaintiffs 2 to 6, sought for permanent injunction against defendants 1 to 3 in respect of the suit schedule property of 333 square yards to the North of the residential house of the plaintiffs in Door No. 12-48 of Amangal Village and Mandal. It was claimed that the father of the 1st plaintiff Sri Ram Reddy, his brothers Sri Laxma Reddy and Sri Sarva Reddy and son- in-law Sri Kantha Redy jointly purchased Ac.1.00 of land in Survey No. 667 of Amangal Village from Smt. Nallabolu Laxmidevamma on 24.11.1964 for Rs.500/- under an ordinary sale deed and partitioned the site among themselves. The father of the 1st plaintiff constructed the house in question and when it came to light that Survey No. 665 is also covered by the suit land and house, Smt. Nallabolu Laxmidevamma executed another sale deed, dated 17.04.1970. The plaintiffs are in continuous and peaceful possession since then and portion of the house was let out to tenants. When the 1st plaintiff wanted to construct shops adjoining the main road, the defendants obstructed the same on 01.09.1996 and hence, the suit. The defendants resisted the suit contending that the grand father of the 1st defendant Sri T. Yellaiah and the grand father of defendants 2 and 3 Sri Parushu Ramulu were the original protected tenants of Survey No. 665 of an extent of Ac.15.33 guntas, Survey No. 667/A of an extent of Ac.2.00, Survey No. 668/AA of an extent of Ac.5.00 and Survey No. 669/AA of an extent of Ac.6.00. The defendants as legal heirs of the protected tenants are cultivating the lands and have heritable rights under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. The purchase from the pattadar was illegal without any surrender by the cultivating tenants and there was no mutation in the name of the 1st plaintiff in the revenue records. The defendants contended that the sale deed dated 17.04.1970 was created for the purpose of the suit and the pattadars sold some land with the consent of the protected tenants. The defendants therefore, pleaded that the plaintiffs, without having title, cannot make the construction in the site in question and hence, they desired the suit to fail. The trial Court framed the following issues for trial: 1) Whether the plaintiff is entitled to perpetual injunction as prayed for? 2) Whether the plaintiff was in illegal possession on the date of the suit? 3) To what relief? During trial, P.Ws.1 to 6 and D.Ws.1 to 3 were examined and Exs.A1 to A26, Exs.B1 to B15, Exs. C1 to C9 and Ex.X1 were marked. The trial Court rendered its judgment observing that the relief of permanent injunction is an equitable and discretionary remedy. The trial Court noted the suit to have not been amended for declaration of right and title of the plaintiffs over the front yard portion of their house in spite of the defence and the trial Court observed that P.W.1 admitted that he did not file the document dated 24.11.1964 into the Court. It was also noted that Ex.A22 relinquishment-cum-sale deed was admitted to be unregistered without mentioning any boundaries. P.W.1 was also noted to have admitted that their names were not mutated in the revenue records and the trial Court also observed that the Mandal Revenue Officer of Amangal, examined as P.W.3, did not bring any other registers, except Ex.X1 - Protected Tenancy Register. The trial Court also observed that Ex.A22 was marked subject to objection and considered that it is a compulsorily registerable document, whether it is a relinquishment deed or a sale deed and needs payment of stamp duty and penalty. Even if the stamp duty and penalty were to be paid, the defect of non-registration could not have been cured and referring to the contention that the document could be looked into for collateral purposes, the trial Court was of the opinion that the incurable defects of Ex.A22 make it not available for establishing the existence of any valid or legal right in favour of the plaintiffs in the suit property. The trial Court was of the opinion that the document was inadmissible even for collateral purposes. The trial Court also observed that the conduct of the plaintiffs, as seen from the photographs, also indicated violation of the orders of status quo granted by the Court in the suit which was also further corroborated by Ex.C9 Commissioner’s Report. The trial Court referred to the evidence of D.Ws.1 to 3 and considered that the interests of the defendants were also involved in respect the properties covered by Survey Nos. 668/A, 667/A, 669/AA and 665 as shown by the authentic certified copies of the documents filed by the defendants. As the suit is one for bare injunction and not for declaration of any rights or ownership or title, the trial Court confined its appreciation of the documents filed by the defendants only for the purpose of appreciating their right to the suit schedule property against which the plaintiffs are seeking an equitable relief of injunction. As the plaintiffs were considered to be unable to establish the existence of recognizable rights in their favour in respect of the suit schedule property and as they have also not approached the Court with clean hands, the trial Court dismissed the suit with costs. In the appeal, the impugned judgment was rendered by the 1st appellate Court in which it again referred to the background to the appeal and considered the points whether the appellants/plaintiffs were in possession and enjoyment of the suit schedule property as on the date of filing of the suit and if so, whether the appellants/plaintiffs can seek relief of permanent injunction as prayed for in the suit. The appellate Court also considered whether there were any grounds to interfere with the judgment and decree of the trial Court. Considering the merits of the rival contentions in its discussion, the 1st appellate Court noted that the original sale document, dated 24.11.1964 was not filed by the plaintiffs. The same was considered to create a doubt in the mind of the Court about the right, title and possession of the plaintiffs over the suit land, in the absence of any explanation for its non-production. The sheet anchor of the case of the plaintiffs was noted to be Ex.A22 unregistered document, dated 17.04.1970 and after extracting the contents of Ex.A22, the appellate Court opined that it is a sale deed requiring registration under the Registration Act and inadmissible in evidence, in view of its non- registration. The appellate Court also noted that though stamp duty and penalty were claimed to have been paid after the document was impounded, the document could not have been considered as a release deed or a relinquishment deed, due to which the decision cited by the plaintiffs has no application. The proposition of law that the unregistered sale deed could have been looked into for collateral purpose, was not disputed by the appellate Court, but the appellate Court was of the opinion that Ex.A22 could not have been looked into for the purpose of establishing the title of the plaintiffs. It also observed that no person connected with Ex.A22 was examined, though Ex.A22 has attestors and in view of the suggestion to P.W.1 that Ex.A22 was a fabricated document, the plaintiffs have the burden to prove the due execution of Ex.A22 by Smt. Laxmidevamma. While Ex.A22 did not trace the title of Laxmidevamma, in respect of the suit property, the failure of the plaintiffs to prove Ex.A22 leads to failure of establishment of their prima facie title. The 1st appellate Court therefore, was of the opinion that the plaintiffs could not establish their possession over the suit land through their oral and documentary evidence. The appellate Court also noted that the absence of mutation in favour of the plaintiffs is also admitted and there was no mention of survey number in the document filed by P.W.1. The evidence of P.Ws.2 to 6 was also analyzed by the appellate Court as not strengthening the case of the plaintiffs and failure to establish the title or possession should lead to the failure of the suit. The appellate Court found prima facie material to believe that the ancestors of the defendants were the protected tenants in respect of Survey No. 665 and prima facie they were found to be having right and interest in respect of the suit schedule property. The appellate Court observed that the suit is for bare injunction and not for declaration of any right or ownership or title and detailed investigation into the documents filed by the defendants need not be done except for observing that the defendants were able to demonstrate before the Court that they got interest in the suit property. The appellate Court therefore, concluded that in view of the cloud over the plaintiffs’ title and their failure to establish their possession by the date of the suit, the appropriate remedy for the plaintiffs would be to file a suit for declaration and for possession and a suit for injunction simpliciter is not maintainable. The conduct of the plaintiffs during the pendency of the suit in trying to meddle with the suit schedule property in spite of the order of status quo was also considered to be a ground for disentitling the plaintiffs to seek an equitable relief. The appellate Court hence, concluded that the plaintiffs have to succeed or fail on their own strength and they failed to establish their possession. In the above backdrop, the appellate Court held that there are no grounds to interfere with the judgment and decree of the trial Court and accordingly, the first appeal was dismissed with costs. The unsuccessful plaintiffs are again before this Court with the Second Appeal, contending that the sale deed, dated 24.11.1964 is not relating to the suit property and its non-production would not have been fatal. Ex.A22 was executed only to correct the anomaly and the observations of the trial Court and the appellate Court about the nature of Ex.A22 were factually and legally incorrect and it could not have been considered to be totally inadmissible in evidence. The effect of Section 49 of the Registration Act was not properly appreciated and the document could have been looked into for collateral purpose of proving the possession in the suit for permanent injunction. The various other documents filed by the plaintiffs were in corroboration of the claims of possession and the discrepancies between the written statement and the evidence should have led to the non-acceptance of the case of the defendants. Exs.C4 and C5 should have been not accepted, as the Mandal Revenue Office was not in existence at all in 1981. The detailed written arguments submitted were not even considered in full by the appellate Court and non-existent facts were assumed and probablized facts were ignored by the Courts below including the alleged construction of the compound wall in violation of the order of status quo . The appellants therefore, contended that substantial questions of law arise for consideration in the Second Appeal about considering a plea not raised in the written statement and evidence, not considering all the written arguments, refusing to consider Ex.A22, consideration of the effect of non-production of the document, dated 24.11.1964, consideration of the nature of the document Ex.A22, non-consideration of the other material documents, existence of the Occupancy Rights Certificates and fabrication of the documents by the defendants. Sri S. Ashok Anand Kumar, learned counsel for the appellants and Sri Y. Koteswara Rao, learned counsel for the respondents are heard at the stage of admission. The point for consideration is whether any substantial questions of law arise for consideration in the Second Appeal. The judgment of the trial Court showed that the entire consideration of the questions in issue between the parties on their pleadings revolved round pure questions of fact and if there is some shade of a legal question that was only regarding the nature of Ex.A22 claimed to be relinquishment-cum-sale deed in respect of the suit property, executed by Smt. Laxmidevamma. Even in the appellate judgment, the consideration primarily proceeded on questions of fact with various precedents being considered only with reference to the nature and effect of Ex.A22. The primary questions raised by the defendants in the Second Appeal also related to the manner in which the Courts below dealt with Ex.A22 and failed to arrive at logical conclusions on the basis of Ex.A22 with reference to the question of possession of the suit property by the date of the suit with the plaintiffs. These questions would have, of course, arisen had Ex.A22 been proved in accordance with law during the trial and the finding of the appellate Court was that it was not proved in accordance with law as none connected with the execution of Ex.A22 was examined, though it had attestors. In view of the specific suggestion to P.W.1 that Ex.A22 is a fabricated document, the burden lies on the plaintiffs to establish the due execution of Ex.A22, according to the appellate Court. The failure to establish the due execution of Ex.A22 was one of the primary grounds on which the appellate Court concluded that the plaintiffs failed to establish their prima facie title over the suit land. The plaintiffs referred to execution of Ex.A22 by Smt. Nallabolu Laxmidevamma in para 3 of the plaint, obviously, to correct the mistake in not specifying S.No. 665 in the original sale deed, dated 24.11.1964. The suit land being covered by Survey No. 665 is not in dispute and in the written statement, the defendants specifically denied the allegation about the execution of Ex.A22. P.W.1 produced Ex.A22 during the chief examination on 18.03.2004 stating it to be an unregistered relinquishment cum sale deed while admitting that he did not file the document dated 24.11.1964 for the purchase of land in Survey No. 667. It was specifically suggested to P.W.1 that false documents were created in respect of the suit property and there was a specific suggestion that Ex.A22 is a fabricated document cooked up for the purpose of the suit, apart from other questions put to him about the contents of Ex.A22. The evidence of P.Ws. 2 to 6 made no reference to the execution of Ex.A22 and D.W.1, the 1st defendant specifically stated that the purchase of the land in Survey Nos. 667 and 665 on 24.11.1964 and 17.04.1970 is false and baseless and the said documents were created by the 1st plaintiff to grab the land. D.W.2 denied being aware of the alleged purchase under Ex.A22 and P.W.3, who is the Mandal Revenue Officer, also did not produce any material in support of execution of Ex.A22. While this was the oral evidence, Ex.A22 appears to have contained the signatures of two attestors and the scribe and it was not stated in evidence about the availability or non-availability of any persons so connected with Ex.A22 for being examined to prove the same. It was also not stated that no other evidence, oral or documentary, was available to corroborate Laxmidevamma or the attestors or the scribe subscribing their signatures to Ex.A22. In such state of evidence, the conclusion of the 1st appellate Court that due execution of Ex.A22 was not proved, cannot be faulted. If Ex.A22 was merely filed into the Court and marked as an exhibit and was not proved in evidence, then the questions about the nature of Ex.A22, proper stamp duty and penalty that could have been collected on the said document and the purpose for which it has been executed, do not arise. The grounds of appeal herein primarily revolve round the incorrectness of the views taken by the trial and the appellate Courts on such questions and if Ex.A22 was not proved at all, these consequential questions could not have been considered to have arisen for consideration before any of the three Courts and the other questions raised by the appellants in the Second Appeal are questions of fact pure and simple and do not involve any shade of a legal issue. It is well settled under Section 100 of the Code of Civil Procedure and Order 42 Rule 2 that identification and formulation of substantial questions of law are sine qua non for entertaining a Second Appeal by the High Court which cannot be entertained as a matter of course. As no substantial questions of law appear to have arisen in the Second Appeal, in the absence of proof of Ex.A22, the Second Appeal ex facie appears to be unsustainable. On the consequences of not entertaining the Second Appeal, the situation is clear that both the Courts below had only gone into the question of entitlement of plaintiffs to permanent injunction in a suit for injunction simpliciter and did not travel beyond that, though incidentally they discussed the title of the parties as sought to be projected by them through their oral and documentary evidence. The trial Court was clear in its conclusion that since the suit was filed for bare injunction and not for declaration of any rights or ownership or title, the documents filed by the defendants have been gone into only for the purpose of appreciating their interests in the suit schedule property against which the plaintiffs are seeking the equitable relief of injunction. The trial Court also clearly stated that the plaintiffs are held to be not entitled to grant of equitable relief of injunction as prayed for, as they are unable to establish the existence of recognizable rights in their favour in respect of the suit schedule property apart from their not approaching the Court with clean hands. Inability to establish the existence of recognizable rights in the suit property cannot be equated to the absence of existence of such recognizable rights for the plaintiffs as well. Thus, the trial Court has obviously left open the question of title of either party over the disputed property. The appellate Court was no different, for it had specifically considered the question of entitlement of the plaintiffs to permanent injunction with reference to their possession and enjoyment of the suit schedule property as on the date of the suit and in the points framed by it for consideration, it made no reference to any question of title. It was clear in its conclusions that the suit is filed for a bare injunction and not for declaration of any right or ownership or title and that being the case, detailed investigation into the documents filed by the defendants need not be done. It only observed that the defendants were able to demonstrate that they got interest in the suit property. The appellate Court also clearly stated with reference to a precedent from the Apex Court that it is only the failure of the plaintiffs to establish their title and the cloud over their title that makes the appropriate remedy a suit for declaration and possession, more so when the plaintiffs also failed to establish their possession over the suit property. It was for that reason, the appellate Court concluded that the suit for injunction simpliciter in the manner framed is not maintainable. The conclusions of the Courts below therefore, are only with reference to the question of entitlement of the plaintiffs to permanent injunction and the observation of the 1st appellate Court that the appropriate remedy is suit for declaration and possession, leaves the question of title open for consideration on merits in accordance with law in any such suit to which the plaintiffs may take recourse to on the evidence to be placed before the judicial forum in such suit by both the parties. As the options of the parties to have their rights to the suit property declared are not permanently foreclosed by both the Courts, it is for the plaintiffs to choose their further course of action in this regard uninfluenced by their failure to have their right to a permanent injunction established in this litigation. With such liberty to the plaintiffs, the Second Appeal should therefore, fail. The Second Appeal is accordingly dismissed. No costs. -------------------------------- (G. BHAVANI PRASAD, J) 26th December 2011 ksld