THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.58 of 2004 JUDGMENT: Defendant No.1 in O.S.No.113 of 1993 on the file of the Principal Junior Civil Judge, Srikakulam is the appellant. Initially, the suit was filed by respondent No.1 for the relief of perpetual injunction against the appellant and respondent No.3 in respect of item Nos.1 and 2 of the suit schedule property, admeasuring Ac.0.26 cents and Ac.0.4 cents respectively. During the pendency of the suit, respondent No.1 alienated the suit schedule property in favour of respondent No.2. Therefore, respondent No.2 got himself impleaded in the suit as plaintiff No.2. The plea of respondent No.1 was that the suit schedule property was held by his father late Chandrasekhara Rao and on his death, it devolved upon him. He stated that on account of his employment, he was far away from his native place and taking advantage of the same, the appellant and respondent No.3 tried to encroach into the property. Defendant No.2 i.e. respondent No.2 herein remained ex parte. The suit was contested by the appellant. He pleaded that in a family partition among respondent No.1 and his three other brothers, by names Ramana Murthy, Appala Narayana and Gopala Rao, the suit schedule property has fallen to the share of Ramana Murthy and that he in turn, through his G.P.A., sold the property to the appellant under two sale deeds executed on 26.07.1993. It was pleaded that ever since the purchase, the appellant is in possession of the property and that pattadar pass books and title deeds were also issued to him by the competent authority. The trial Court dismissed the suit through judgment, dated 24.08.1999. Respondent Nos.1 and 2 filed A.S.No.14 of 2003 in the Court of the Additional Senior Civil Judge, Srikakulam. The appeal was allowed on 27.10.2003. Hence, this second appeal. Sri M.V.S.Suresh Kumar, learned counsel for the appellant, submits that the lower appellate Court committed an error in decreeing the suit, though respondent Nos.1 and 2 failed to prove their possession over the property. He contends that respondent No.1 was not clear as to his plea and there were several inconsistencies. He further submits that in the plaint, the plea was that the property devolved through succession, whereas in the course of trial, he came forward with the plea of partition through Ex.A7. Learned counsel further submits that the lower appellate Court has devoted most of its discussion to the weakness of the case of the appellant, than to verify whether respondent Nos.1 and 2 have made out a case for grant of injunction at all. Sri M.Ram Mohan, learned counsel for respondent No.1, on the other hand, submits that being the true and absolute owner of the suit schedule property and being in possession, respondent No.1 is entitled to the relief of perpetual injunction. He submits that the very basis for the claim of the appellant vis-à-vis the land was shaky and untenable, since the so-called sale deeds were not executed by any of the brothers of respondent No.1. He further submits that if in fact, the appellant purchased the property from anyone, the sale deed could have been proved only by examining the vendors. Learned counsel submits that the evidence on record clearly discloses that the so-called G.P.A., who executed Exs.B2 and B3 is a fraudulent person and taking advantage of the absence of respondent No.1 and his brothers, the said G.P.A. played mischief. The appeal arises out of a reversing judgment. The suit was filed for the relief of injunction simplicitor. The trial Court framed only one issue for its consideration, namely whether the plaintiff is entitled for permanent injunction as prayed for. On behalf of respondent Nos.1 and 2, P.Ws.1 to 6 were examined and Exs.A1 to A11 were filed. On behalf of the appellant, D.Ws.1 and 2 were examined and Exs.B1 to B19 were filed. The suit was dismissed and in the appeal preferred by respondent Nos.1 and 2, the lower appellate Court framed only one point for its consideration, namely whether plaintiff No.1 or defendant No.1 or D.W.2 was in possession of the suit schedule property as on the date of filing of the suit. The point was answered in favour of respondent Nos.1 and 2 and the appeal was allowed. In a suit for injunction, it is essential for a plaintiff to prove his possession over the suit schedule property as on the date of filing of the suit. The scrutiny of the plea about the title would be only to satisfy the Court that the possession, even if established, by the plaintiff is not that of an outright stranger or trespasser and that he holds a semblance of right vis-à-vis the property. This is obviously to overcome the prohibition ordained by law that relief of injunction cannot be granted against a true owner. However, the plaintiff cannot be required to prove title as in the case of a suit for declaration of title. The examination of title or its source in a suit for injunction is always relative, in its purport. Much would depend upon the nature of resistance offered by the defendant. In case the defendant in a suit of this nature claims a right or title, the Court would be forced to examine whether it is relatively superior than the one pleaded by the plaintiff. Barring this, the Court cannot pronounce upon the legality or otherwise of the title pleaded either by the plaintiff or the defendant. In the instant case, respondent No.1 pleaded that the property was owned by his father and it has accrued to him. He further pleaded that the land was given on lease to various individuals since he is employed elsewhere. The appellant on the other hand pleaded that he purchased the property from one of the brothers of respondent No.1. If this plea were to have been accepted, he deserves to be treated as a true owner and even if respondent No.1 proved possession over the property, the Court cannot, but reject the relief since it would be against a true owner. It is in this context that the necessity or occasion to examine the plea of the appellant had arisen. The purchase was through Exs.B2 and B3. They were not executed by the person who is shown as vendor. It was through a G.P.A., who was examined as D.W.2. A perusal of the evidence of D.W.2 discloses that he is not a person of reliable character and he is known for his dubious dealings. Whatever be his background, the easiest way for the appellant to establish his right or to provide the link would have been to examine the person shown as transferor. It is not his case that the transferor, by name Ramana Murthy is not alive or not available. It is also not a case where he made an effort to get the witness, but did not succeed. Naturally, a presumption as provided for under Section 114 of the Evidence At deserves to be drawn. A contention is advanced by Sri M.V.S.Suresh Kumar, learned counsel for the appellant, that there is a clear inconsistency between the plea of respondent No.1 as pleaded in the plaint on the one hand, and as advanced in the evidence on the other. This inconsistency is about the factum of partition. In the plaint, there is no reference to partition. It appears to be on account of the fact that the suit is not filed against any of the brothers. Once the appellant came forward with the plea that the suit schedule property has fallen to the share of Ramana Murthy and that the latter in turn, sold it in his favour, respondent No.1 had to place before the Court, the purport of the partition among the brothers through Ex.A7. It is only one of the co-parceners or the co-sharers in the family of respondent No.1 that could have doubted or assailed the validity or truth of Ex.A7. Being a stranger to the family, the appellant cannot urge a ground touching upon the legality of Ex.A7. The lower appellate Court, which is last forum of facts, had analysed the oral and documentary evidence thoroughly and arrived at a conclusion that respondent Nos.1 and 2 proved their case for the relief of perpetual injunction and decreed the suit. It is not as if that mere grant of injunction in favour of respondent Nos.1 and 2 would draw curtain to the entire controversy. In case the appellant is of the view that he holds valid title, he can seek a declaration thereof from a Court of competent jurisdiction and pray for consequential reliefs. This Court does not find any substantial question of law in this second appeal. Hence, the second appeal is dismissed. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:18.11.2011 Note L.R. copy to be marked. kdl