THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.704 of 2004 JUDGMENT: Respondents 1 and 2 herein filed O.S.No.87 of 1992 in the Court of III Additional Junior Civil Judge, Ongole for the relief of perpetual injunction in respect of suit schedule property viz., land in Survey Nos.376 and 42/1 of Ongole Revenue Village. During the pendnecy of the suit, the 1st respondent, by name Bolineni Rangaiah died and his legal representatives i.e., respondents 3 and 4 were brought on record. Further, the suit was initially filed against appellants 1 and 2 and respondents 5 to 7 were added as defendants 3 to 5. For the sake of convenience, the parties are referred to as arrayed in the suit The case of the plaintiffs was that they are in possession and enjoyment of about Ac.3.00 of land in the two Survey Numbers referred to above, thirty years prior to the filing of the suit; they developed the low lying poramboke area and that at one stage, notices were issued to them under Section 7 of the A.P. Land Encroachment Act (for short ‘the Act’). They pleaded that defendants 1 and 2 started interfering with their possession claiming that pattas were granted in their favour. It was urged that they have not been evicted from the land and they are entitled for the relief of perpetual injunction. Defendants 1 and 2 filed a written statement stating that the plaintiffs are not in possession of the land and that they have been evicted by defendants 3 to 5 in accordance with the procedure prescribed by law. It was also stated that after the plaintiffs are evicted, pattas were granted in their favour. A separate written statement was filed by defendants 3 to 5 almost on the same lines. The trial Court dismissed the suit, through judgment dated 07.04.1999. The plaintiffs filed A.S.No.79 of 1999 in the Court of IV Additional District & Sessions Judge (Fast Track Court), Ongole. The appeal was allowed on 21.10.2003. Hence, this second appeal. Sri S.Venkateswarlu, learned counsel for defendants 1,2 and 6 submits that the trial Court recorded a clear finding to the effect that the plaintiffs are not in possession of the land and that they have been evicted in accordance with law. He contends that once the pattas were granted in favour of defendants 1 and 2, the plaintiffs were not entitled to any relief whatever. Learned counsel further submits that the lower appellate Court has granted injunction, though the trial Court dismissed the suit by finding that the plaintiffs are not in possession of the land. Smt. K.Lalitha, learned counsel for the plaintiffs on the other hand submits that her clients are in possession of the property for almost three decades prior to the filing of the suit. She contends that even if they are treated as encroachers, the only course open to defendants 3 to 5 was to initiate proceedings in accordance with law and that though notices under Section 7 of the Act, marked as Exs.A.1 and A.2, were issued, the further proceedings were not taken at all. Learned Government Pleader for Appeals appearing for defendants 3 to 5 submits that the procedure in accordance with law was followed and pattas were granted in favour of defendants 1 to 3 only after the plaintiffs were evicted. The plaintiff did not assert any title in themselves. Their case was of long standing possession over a piece of Government land and prayed for the relief of perpetual injunction. While defendants 1 and 2 pleaded that they were granted pattas in respect of the land after eviction of the plaintiffs, defendants 3 to 5 disputed the very possession of the plaintiffs over the land. The trial Court framed only one issue for its consideration viz., whether the plaintiffs are entitled for permanent injunction as prayed for?. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A.1 and A.2, the notices, dated 20.06.1982 and 25.05.1982 respectively issued under Section 7 of the Act were filed. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 to B.3, the Photostat copies of eviction order and possession receipt of the year 1992, Ex.B.4, the Photostat copy of particulars of beneficiaries and B.5, DKT patta dated 07.02.1992 said to have been issued in favour of defendant No.2 were filed. On dismissal of the suit, the plaintiffs carried the matter in appeal. The lower appellate Court framed two points for its consideration viz., (i) whether defendants 3 to 5 evicted the plaintiffs as per law; (ii) and whether the plaintiffs are entitled to permanent injunction. The appeal was allowed. In a suit for perpetual injunction, the plaintiff is required to prove to the satisfaction of the Court that he is in possession and enjoyment of the suit schedule property with a semblance of right. Even if there is any doubt as regards his title over the property, injunction deserves to be granted in case the possession is proved. The only exception is that such a relief cannot be granted against a true owner, whom the plaintiff recognizes. The suit schedule property in the instant case is a Government land. The plaintiffs pleaded that they occupied it about 30 years prior to the filing of the suit, developed it and made it fit for cultivation. The fact that the plaintiffs encroached the land is evident from Exs.A.1 and A.2, notices issued under Section 7 of the Act. An effective dispossession of an encroacher can take place, if only an order under Section 6 of the Act is passed on a consideration of the explanation submitted in response to the notices issued under Section 7 of the Act. Defendants 3 to 5 were not even aware as to the issuance of Exs.A.1 and A.2, much less they were able to satisfy the Court that the plaintiffs were evicted by them. Defendants 1 and 2 pleaded that they have been assigned land and were inducted into possession. That could have happened, if only the persons, who were already in possession of the land viz., the plaintiffs, were evicted in accordance with law. In the instant case, the record clearly disclosed that the plaintiffs were not dispossessed at all. Hence, they were entitled to be granted the relief of perpetual injunction without prejudice to the right of defendants 3 to 5 to take necessary steps in accordance with law. The lower appellate Court considered the matter exactly on these lines and decreed the suit. Learned counsel for defendants 1 and 2 is not able to point out any substantial question of law or serious error in the judgment under appeal. Therefore, the second appeal is dismissed. There shall be no order as to costs. It is however left open to the appellants herein to pursue the remedies in accordance with law. There shall be no order as to costs. __________ 03.12.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.704 of 2004 Date: 03.12.2011 JSU