THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.180 of 1999 JUDGMENT: The plaintiffs in O.S.No.165 of 1996 are the appellants. They filed the suit against the respondents for the relief of declaration to the effect that the suit schedule Well in an extent of Ac.0.02 cents of land is part of Ac.0.44 cents in Survey No.3/3 of Amatam Ravivalasa Village, purchased by their father and that the respondents do not have any right over it. They have also prayed for the relief of perpetual injunction against the respondents as regards the Well. The appellants pleaded that Ac.0.44 cents of land was purchased by their father through a sale deed, dated 28.01.1981, Ex.A1, and thereafter, a Well was dug on the southern side. The property is said to have fallen to the share of appellant No.2 in the family partition. It was urged that the respondents, who are in possession of the property on the southern side are trying to interfere with the Well. On behalf of the respondents, a written statement was filed. It is stated that the total extent of the land in Survey No.3/3 is Ac.0.46 cents and that the original owner, by name Naru Appalanaidu and his family members sold only Acs.0.44 cents of land under a sale deed, dated 03.05.1979, Ex.B3, in favour of the vendor of the appellants, by name Simma Appala Narasi. It was clearly mentioned therein that the southern boundary for Ac.0.44 cents is Attada Bangarayya and that there is no justification for the appellants in filing the suit. According to them, Naru Appalanaidu is the father-in- law of respondent No.1 and he gave an extent of Acs.0.60 cents of land in Survey No.3/3 and a Well situated in Ac.0.02 cents in Survey No.3/3 and that he is in possession and enjoyment of the Well of Ac.0.02 cents. The trial Court decreed the suit through judgment, dated 02.07.1997. The respondents filed A.S.No.69 of 1997 in the Court of the Additional District Judge, Vizianagaram. The appeal was allowed on 24.11.1998. Hence, this second appeal. Sri Vedula Venkata Ramana, learned Senior Counsel for the appellants, submits that the evidence on record and in particular, the report of the Commissioner appointed by the trial Court clearly disclosed that the suit Well is part of Acs.0.44 cents purchased under Ex.A1 and there was no justification for the lower appellate Court in reversing the decree passed by the trial Court. He further submits that the respondents failed to establish their title to the suit schedule property and the only alternative available was to uphold the claim of the appellants on the basis of Ex.A1. The learned Senior Counsel also submits that the lower appellate Court has taken into account the decree passed in O.S.No.109 of 1992 on the file of the Principal District Munsif, Vizianagaram and during the pendency of the appeal, the decree was set aside and thereafter, the suit itself was dismissed on 16.01.2001. He made reference to the said judgment, which is filed as an additional evidence with an application under Order 41 Rule 27 C.P.C. Sri Venkateswara Rao Gudapati, learned counsel for the respondents, on the other hand, submits that the very fact that the original owner retained Ac.0.02 cents of land and sold away Ac.0.44 cents of land in Survey No.3/3, discloses his intention to retain that for the purpose of his giving it to his son-in-law, respondent No.1 herein. He further submits that the appellants are very much parties to O.S.No.109 of 2009 filed by the respondents herein for the relief of injunction and it was only during the pendency of the second appeal that the trial Court therein has dismissed the suit ignoring the judgment in A.S.No.69 of 1997 filed as an exhibit in that suit. He also contends that the vendor under Ex.B3 filed an affidavit in O.S.No.109 of 1992 and clearly stated that no Well existed in the land sold by him under Ex.A1 and this fact is not rebutted by the appellants. The suit filed by the appellants was for the relief of declaration of title and perpetual injunction in respect of a Well situated in Ac.0.02 cents of land. The trial Court framed two issues for its consideration, namely (1) Whether plaintiff No.2 is the owner and possessor of the suit Well in Survey No.3/3 and P.No.139? (2) Whether the plaintiffs are entitled for permanent injunction? An additional issue namely, whether the plaintiffs are entitled for declaration that plaintiff No.2 is the absolute owner of the plaint schedule land and Well situated in S.No.3/3 as prayed for, was framed. On behalf of the appellants, P.Ws.1 and 2 were examined and Exs.A1 to A6 were marked. D.Ws.1 to 3 were examined by the respondents and Exs.B1 to B3 were marked. The report submitted by the Commissioner and the record maintained by him were taken on record. The suit was decreed as prayed for. The lower appellate Court framed only one point for its consideration touching on the controversy and allowed the appeal. The subject matter of the suit is a small extent of Ac.0.02 cents of land and a Well therein. However, the litigation is spread over about two decades. The undisputed facts are that the total extent of the land in Survey No.3/3 is Ac.0.46 cents. The original owner, by name Naru Appalanaidu and his other family members sold an extent of Ac.0.44 cents of land under Ex.B3 in favour of one Sri Simma Appala Narasi. From him, the father of the appellants purchased Acs.0.44 cents of land through Ex.A1, dated 28.01.1981. The controversy turns around the fact as to whether the Well is situated in Ac.0.02 cents of land that was retained by Naru Appalanaidu or whether it is in Ac.0.44 cents of land sold by him. While the appellants assert that the Well is within Ac.0.44 cents of land, respondent No.1 pleaded that it is in Ac.0.02 cents of land retained by his father-in-law, Naru Appalanaidu, and the Well together with the appurtenant land in Survey No.3/5 was given to him. The present suit was preceded by O.S.No.109 of 1992 filed by respondent No.1 against the appellants for the relief of perpetual injunction. He pleaded almost the same facts and the suit came to be decreed ex parte on 14.02.1996. Without even mentioning a word about it, the appellants filed O.S.No.165 of 1996. The respondents filed the decree in O.S.No.109 of 1992 as Ex.B1. Almost simultaneously, they filed I.A.No.498 of 1996 under Order 9 Rule 13 C.P.C. with a prayer to set aside the ex parte decree. Even during the pendency of the application, O.S.No.165 of 1996 was decreed. Whatever may have been the justification for the trial Court in granting the relief of declaration of title, there was no justification for it to grant injunction in favour of the appellants in the teeth of the decree in O.S.No.109 of 1992 as between the same parties and in respect of the same property. The lower appellate Court has taken this as one of the factors and reversed the decree passed by the trial Court in O.S.No.165 of 1996. The second appeal is pending before this Court since 1999. It is not known as to when the ex parte decree in O.S.No.109 of 1992 was set aside. However, the trial Court took up that suit for trial at a time when the second appeal was pending before this Court. On their part, the respondents filed the judgment in A.S.No.69 of 1997 which arose out of O.S.No.165 of 1996. Being a Court subordinate to the District Court, the learned Principal Junior Civil Judge, Vizianagaram ought to have followed the judgment in A.S.No.69 of 1997 marked as Ex.A1. However, he has chosen to ignore it only on the ground that the second appeal was pending before this Court against the judgment therein. Such an approach is totally untenable in law. In case the pendency of the second appeal had any impact upon the suit before him, he ought not to have proceeded with the suit at all, awaiting the outcome of the second appeal. Be that as it may, as long as Ex.B1 i.e. ex parte decree in favour of the respondents was in force, the inevitable consequence was that no injunction could have been granted in favour of the appellants. The fact that O.S.No.109 of 1992 was dismissed during the pendency of the second appeal, does not make much difference. Coming to the relief as regards declaration of title, it has already been pointed out that the original owner of Ac.0.46 cents of land in survey No.3/3 has retained Ac.0.02 cents of land and sold away Ac.0.44 cents. It is also important to note that the land in Survey No.3/5 on the southern side of Ac.0.02 cents was owned by the same individual. Unless there existed a specific purpose for retention of those Ac.0.02 cents of land, he would have sold the entire Ac.0.46 cents of land. The father of the appellants purchased Ac.0.44 cents of land under Ex.A1 from one Simma Appala Narasi, who would certainly be in a better position to reveal the correct state of affairs. He has filed an affidavit in O.S.No.109 of 1992 stating that Ac.0.02 cents of land in which there existed a Well was not purchased by him under Ex.B3, and in the land sold by him under Ex.A1, there did not exist any Well. This statement remained unrebutted. The lower appellate Court made a specific reference to this. The occasion for the appellants to claim the relief of declaration vis-à-vis the respondents would have arisen if only the latter made any claim against the land covered by Ex.A1. That was not even the allegation. The trial Court mostly concentrated upon the absence of any deeds of conveyance in favour of the respondents as regards the land in survey No.3/5 and Ac.0.02 cents of land in survey No.3/3. The fact that respondent No.1 was given those two items of land by his father- in- law, since the wife of appellant No.1 was not worldly-wise, was not taken note of. The report of the Commissioner appointed by the Court is equivocal and there is no finding to the effect that the Well is in Acs.0.44 cents, covered by Ex.A1. This Court does not find any substantial question of law in the second appeal. The second appeal is accordingly dismissed. There shall be no order as to costs. _________________________ L.NARASIMHA REDDY,J Dt:25.08.2010 Note: L.R. copy to be marked. kdl