IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.710 OF 2000 Between: Mada Munemma ..... Appellant And Raja Venkata Subbaiah …Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.710 OF 2000 JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.13 of 1997, on the file of the Principal Senior Civil Judge’s Court, Gudur, dated 08.02.2000, by which the judgment and decree in O.S.No.257 of 1988, on the file of the District Munsif’s Court, Sullurpet, dated 23.09.1996, granting a permanent injunction in favour of the appellant herein were reversed and the suit in O.S.No.257 of 1988 was dismissed without costs. 2. O.S.No.257 of 1988 was filed by the appellant herein claiming that her husband purchased the suit schedule property of 3 cents and odd from M. Raja Reddy under an oral sale in 1945 for Rs.50/- in which her husband constructed a thatched house and running a tea shop till his death. The appellant claimed that after the death of her husband, she and her sons were residing in the house in the property as absolute owners perfecting their right by adverse possession also. The defendant was claimed to be having no right or possession and to have threatened to dispossess the plaintiff on which the suit for permanent injunction was filed. 3. The contention of the respondent herein/defendant in the suit is that the property belonging to Kalathur Raja Reddy is part of S.No.6/2 of Sullurpet of an extent of 41 cents out of which the defendant purchased 12 cents under a registered sale deed, dated 02.03.1985, from the son of Kalathur Raja Reddy who got the suit property in a family partition, dated 29.11.1984. The plaintiff and her husband were in permissive possession of the suit property with the permission of Kalathur Raja Reddy for putting up a thatched shed to run a tea stall subject to the liability to vacate the same as and when Kalathur Raja Reddy demands to vacate. The plaintiff and her husband again requested the defendant at the time of his purchase to permit them to stay on for some time till an alternative accommodation is secured which was agreed to by the defendant on humanitarian considerations. When the defendant asked the plaintiff to deliver vacant possession in July, 1988, she filed the unjust suit on fabricated documents and as she did not approach the Court with clean hands and did not seek declaration of title, the suit is not maintainable. 4. On such pleadings, the trial Court framed issues on the title and possession of the plaintiff over the suit site and her entitlement for a permanent injunction. 5. During trial, P.Ws.1 to 3 and D.W.1 were examined and Exs.A-1 to A-11 and B-1 and B-2 were marked. The trial Court rendered its judgment on 23.09.1996 noting that admittedly, 41 cents in S.No.6/2 of Sullurpet originally belonged to Kalathur Raja Reddy. The plaintiff was noted to be relying on Exs.A-1 and A-4-ownership certificates issued by the Gram Panchayat, Exs.A- 2 and A-3-house tax receipts, Exs.A-5 to A-7-vacant land tax receipts, Exs.A-9 and A-10-demand notices and Ex.A-11- survivor’s sketch, the genuineness of which documents was disputed by the defendant. The trial Court did not place much reliance on Ex.B-2-Settlement Deed by the original owner Muppalla Kamalamma in favour of Kalathur Raja Reddy being only on 23.08.1966, much later to the alleged sale of the suit land in 1945 itself by the said Kalathur Raja Reddy in favour of the plaintiff’s husband and the subsequent sale deed from K. Madhusudan Reddy, son of Kalathur Raja Reddy in favour of the defendant under Ex.B-1, dated 02.03.1995, assuming that Kalathur Raja Reddy, residing at Sullurpet, was looking after the properties of his sister Muppalla Kamalamma since earlier and might have sold the property to the plaintiff’s husband as alleged. The trial Court also presumed that the defendant might have purchased the remaining extent in the suit survey number and cannot claim entitlement to the suit land. However, the trial Court recognized that the defendant, if he had purchased the suit site under Ex.B-1, can file a separate suit for recovery of possession and as the plaintiff cannot be treated as a trespasser or encroacher, she is entitled to protect her possession which is prima facie legal. Consequently, the trial Court decreed the suit without costs. 6. In appeal, the first Appellate Court in the impugned judgment, after referring extensively to the rival contentions, evidence, the judgment of the trial Court and the grounds of appeal, observed that the plaintiff has to prove her title and possession as claimed and noted the discrepancy between the pleading and evidence of the plaintiff about the purchase from Kalathur Raja Reddy being oral or under an agreement of sale. The first Appellate Court also noted that while Ex.B-2 clearly shows the title of Kalathur Raja Reddy from 23.08.1966, he had no right to sell in 1945 and the Appellate Court, therefore, discredited the claim that the plaintiff was in possession under a valid title. The Appellate Court also opined that it was not proved that the defendant used any force to vacate the plaintiff and the plaintiff has no right to seek the equitable relief of permanent injunction. The Appellate Court also observed that when the plaintiff did not prove valid title and disputed the title of the defendant, she is not entitled for permanent injunction and consequently set aside the judgment and decree of the trial Court and dismissed the suit without costs. 7. The Second Appeal is directed against the said findings contending that the first Appellate Court did not consider the question of adverse possession and having found the plaintiff to be in possession of suit property, should have confirmed the injunction in her favour. The plaintiff claimed that six substantial questions of law arise in the Second Appeal. 8. This Court while admitting the Second Appeal framed the following substantial question of law. “Whether the decree and judgment of the Appellate Court reversing the decree and judgment of the trial Court be sustained especially in the light of the findings recorded in para 13 of the judgment of the Appellate Court?” 9. Sri B. Srinarayana, learned counsel representing Sri M. Ravindranath Reddy, learned counsel for the appellant and Sri G. Jagadeeswar, learned counsel for the respondent are heard. 10. QUESTION: Admittedly, the suit property originally belonged to Kalathur Raja Reddy whether it was since Ex.B-2- registered Settlement Deed, dated 23.08.1966, or earlier and it is seen from the material on record that even before Ex.B-2, as Muppalla Kamalamma was residing at Hospet in Karnataka with her husband, her brother Kalathur Raja Reddy was looking after the properties located at Sullurpet. It is also admitted even in the written statement of the defendant that during the life of Kalathur Raja Reddy, the plaintiff’s husband was permitted to come into possession of the suit land to raise a thatched house and run a tea stall therein which permissive possession continued even till the purchase of 12 cents of land by the defendant said to be including the suit land of about 3 cents also. Even according to the defendant, the plaintiff’s husband and the plaintiff requested the defendant also to continue to permit them to be in permissive possession of the suit property till they secure alternative accommodation which request was accepted by the defendant in the first instance. The defendant’s own version is that it was only in July, 1988, that he demanded the plaintiff to deliver vacant possession of the suit land on which the plaintiff filed an unjust suit. Thus, irrespective of the rival contentions of the parties about the purchase by the plaintiff’s husband from Kalathur Raja Reddy or the purchase by the defendant from the son of Kalathur Raja Reddy, the nature of possession of the plaintiff’s husband and after him, the plaintiff, continued to be permissive and, therefore, legal till the filing of the suit. 11. Even the trial Court in its judgment had noted about the right of the defendant to file a suit for recovery of possession of the suit property on the strength of his document of title and to evict the plaintiff from the suit site under due process of law, but unfortunately granted a permanent injunction without subjecting it to any such qualification or restriction. 12. The first Appellate Court went to the other extreme by noting that in any view, the plaintiff has to be evicted under due process of law but reasoned that the equitable relief of permanent injunction could not have been asked when the plaintiff disputed the title of the real owners. In effect and substance, the first Appellate Court attempted to determine the title to the suit property in the suit for permanent injunction by the plaintiff without the title of the defendant being the subject matter of any issue framed in the suit or the point framed in the first appeal. When the title of the defendant was not the subject of consideration in the suit or the first appeal, any conclusive determination of the same could not have been arrived at by either Court, while the observations of the first Appellate Court about the questions arising about the competence of Kalathur Raja Reddy to alienate the suit property in any manner prior to Ex.B-2-registered Settlement Deed, dated 23.08.1966, and the absence of consistency between the pleadings and evidence of the plaintiff about the acquisition of title by her husband, etc., are not relevant observations, in the suit for permanent injunction simpliciter, as any final determination of the question of title of the plaintiff also would have arisen only if the request for permanent injunction could not have been decided without determination of such title. 13. As the pleadings and the evidence of the parties are not in conflict about the permissive possession of the plaintiff by the date of the suit, the determination of the question of title is not incidental for determination of the request for permanent injunction and even if the contentions of the defendant are true, the remedy of the defendant would be to take recourse to due process of law to recover possession of the property from the plaintiff who was admittedly in permissive possession. 14. Sri G. Jagadeeswar, learned counsel for the defendant/respondent stated that in fact, the defendant had already filed a suit for eviction against the plaintiff in the Court of Junior Civil Judge, Sullurpet, and it is pending. Therefore, it would be, but legal and appropriate that the conflicting claims of the parties to title over the suit property should be left to be decided on merits in accordance with law on the evidence to be placed before the Court by both the parties in that suit, instead of expressing any opinion on that question in this dispute on a request for a permanent injunction only. 15. When the plaintiff was admittedly in permissive possession by the date of the suit which is lawful possession, the trial and the first Appellate Courts should have qualified the relief to be granted to be restraint against interference with possession otherwise than in due process of law and should neither have granted an unqualified permanent injunction nor should have dismissed the suit in toto. When the defendant admitted to have made a request to the plaintiff to vacate the said site prior to the suit with which the plaintiff did not comply, the apprehensions of the plaintiff about possible dispossession could not have been considered as unreal and at the same time, when the defendant is claiming title under a registered sale deed from the admitted owner’s son who was claimed to have got the property in a family partition, the permanent injunction granted or to be granted could not have been totally unqualified. Therefore, the relief has to be moulded accordingly while interfering with the judgment of the first Appellate Court on the admitted facts and circumstances. 16. In the result, the judgment and decree in A.S.No.13 of 1997, on the file of the Principal Senior Civil Judge’s Court, Gudur, dated 08.02.2000, are set aside and the said appeal is dismissed without costs and the judgment and decree in O.S.No.257 of 1988, on the file of the District Munsif’s Court, Sullurpet, dated 23.09.1996, are modified by clarifying that the permanent injunction granted is subject to the eviction of the plaintiff by following the due process of law by the defendant and it is also made clear that the suit for eviction filed by the defendant shall be decided on merits in accordance with law uninfluenced by any observations made in the judgments of the trial Court or the first Appellate Court or this Court on the question of title over the suit property. 17. Accordingly, the Second Appeal is allowed without costs. _____________________ G. BHAVANI PRASAD, J Date: 2nd November, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.710 OF 2000 November 2, 2010. KL