THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SA NO. 361 OF 1999 Date of Judgment: 10.3.2011 Between: Velineni Sivaiah …Appellant and Velineni Somaiah and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SA NO. 361 OF 1999 JUDGMENT: Plaintiff is the appellant. He filed a suit for permanent injunction before the learned Munsif Magistrate at Ponnur in O.S No. 41 of 1983 claiming that the plaint schedule property was gifted to him by one Velineni Sriramulu, his grand father as well as the father of defendants 1 and 2 who are his paternal uncles. The said gift dated 9.3.1981 was relied upon by the plaintiff and marked as Ex.A5 and its copy as Ex.A1. The plaintiff also relied upon Exs. A2 to A5, ryth pass book and cist receipts relevant to the date of the suit to show that he was in possession of the suit schedule property even as per the said revenue records. The respondents/defendants who are paternal uncles of the plaintiff and sons of Velineni Sriramulu, the donor of the plaintiff, disputed the gift deed as proposed by the plaintiff, by contending that there was already a partition among them and the said partition having been given effect to by metes and bounds, the donor of the plaintiff had no legal authority to execute the said gift deed. They also produced documents, particularly Exs.B1 to B13 to establish that they had paid the house tax for the house which existed on the suit schedule property and they also filed the ryth pass book. The written statement, however, specifically claimed that though the partition had taken place in 1965, the document of partition was lost in the cyclone of 1977. The trial Court considered the evidence on record and particularly Ex.B14 which was the partition deed dated 17.10.1972, which was referred to in the written statement. The trial Court disbelieved the said document on the ground that according to the pleadings in written statement, the said document was lost in cyclone and consequently it disbelieved Exs.B2 to B13. The trial Court accepted the plaintiff’s documents being Exs.A1 to A5 and it was of the opinion that the title of the plaintiff coupled with revenue and tax receipts entitled him to the decree of perpetual injunction and decreed the suit. On appeal, the lower appellate Court has reversed the said decree, but without meeting the findings of the trial Court. The lower appellate court states in the impugned judgment that once Ex.B14 has no probative value and neither the said document nor other documents nor the evidence of D.W.2 can be believed. So far as the plaintiff is concerned, the lower appellate court felt that he did not file any document to show the enjoyment of the property by his donor. The lower appellate court has not appreciated that on the facts and circumstances of this case the defendants being of lack of title and competence of the donor of plaintiff to execute the gift settlement deed in view of the partition alleged, the incidental title had to be looked into by the court below, though the suit was for permanent injunction. The lower appellate court noticed this position in para-11 of its judgment, but has reached to a conclusion that the plaintiff has failed to establish absolute title to the property. The absolute title of the property is not necessary to be established and only incidental aspect of title has to be gone into. The lower appellate court has also committed error in thinking that the plaintiff has to establish his title positively including that of the donor. Such requirement as placed by the lower appellate court would convert the suit into one for declaration of title which would be far beyond the scope of the suit. The lower appellate court has also not met the reasoning of the trial court and has reversed the decree of the trial court by adopting the aforesaid erroneous approach. I am, therefore, of the view that the scrutiny of title as was required by the lower appellate court was not warranted keeping in view the suit being for mere permanent injunction and the aspect of title being only incidental, it is just and appropriate to remit the appeal to the lower appellate court for fresh disposal. The substantial question of law framed under ground No. 5 (a) – What is the extent of scrutiny of title bythe court in a suit for perpetual injunction? – is answered accordingly in favour of the appellant. The second appeal is allowed, the impugned judgment is set aside and the first appeal is remitted to the lower appellate court for fresh disposal on merits. The lower appellate court shall give notice to both sides, hear and determine the appeal afresh in accordance with law. However, there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 10.3.2011 KR