HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.34 OF 2004 DATED: 08.06.2011 BETWEEN: Gorrenkala Ellamma and another .. Appellants And Manda Kanukaiah .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.34 OF 2004 JUDGMENT: This second appeal is filed against the judgment and decree dated 29.08.2003, passed by the III Additional District Judge, Karimnagar in A.S.No.32 of 2002 confirming the judgment and decree dated 22.07.2002 passed by the Principal Junior Civil Judge, Karimnagar in O.S.No.72 of 1996. The unsuccessful defendants are the appellants. For the sake of convenience, the parties will be referred to as ‘the plaintiff and the defendants’ The plaintiff instituted O.S.No.72 of 1996 seeking the relief of perpetual injunction in respect of the land of an extent of Ac.2.00 cents situated in Survey No.67/B of Gattududdenapalli in Karimnagar District. The learned Principal Junior Civil Judge, Karimnagar tried and disposed of the suit passing decree of perpetual injunction in favour of the plaintiff and against the defendants. The defendants preferred A.S.N.32 of 2002 which was heard and disposed of by the III Additional District Judge, Karimnagar, who confirmed the decree and judgment passed by the Principal Junior Civil Judge, Karimnagar. Thus the defendants are before this Court, in the present appeal. According to the plaintiff, he purchased Ac.2.00 cents of land in Survey No.67/B in Gattududdenapalli Village of Manakondur Mandal from its original owner Mohd Yousufuddin under a registered sale deed dated 11.02.1991 and has been in possession and enjoyment of the same since the date of purchase. He asserted that when the defendants without any manner of right tried to take possession of the land from him forcibly, he filed the suit for permanent injunction. On the other hand, the contention of the defendants as it would appear from the written statement filed by them is that when they offered to purchase Ac.4.11 guntas of land in Survey No.67/B the plaintiff himself got executed a registered sale deed in their favour through the sons of original pattedar Mohd. Yousufuddin for an extent of Ac.2.17 guntas and he attested as a witness in the said registered sale deed. It is their case that the plaintiff agreed to sell the land to an extent of Ac.2.00 to them and there was an agreement between the parties, that having received the sale consideration, the plaintiff resiled from the terms and did not execute the registered sale deed. The main contention of the defendants is that in pahanies their name has been recorded as possessors of the entire land. Therefore, they say that the plaintiff is not entitled for the relief of perpetual injunction, though they have not obtained any registered sale deed from the plaintiff. Before the learned trial Court, PWs.1 and 2 were examined and Exs.A.1 to A3 were marked on behalf of the plaintiff. On the other hand, DWs.1 to 4 were examined and Exs.B.1 to B.11 were marked on behalf of the defendants. Both the Courts below have recorded concurrent findings to the effect that though Ex.B.1 registered sale deed executed by the sons of Mohd.Yousufuddin in favour of the defendants reveal that they purchased Ac.2.17 guntas of land in Survey No.67/B, the defendants failed to prove that they also purchased Ac.2.00 guntas of land from the plaintiff which admittedly belongs to him. As rightly held by both the Courts below that even if it is considered that the defendants proved that the plaintiff attested Ex.B.1-sale deed, it is not possible to infer that the plaintiff also sold his land of an extent of Ac.2.00 to the defendants. Both the Courts below took into consideration in fact that in the existing boundaries recited in Ex.B.1-registered sale deed the plaintiff is recorded as adjacent land owner. Therefore, even by the date of Ex.B.1 the plaintiff is the owner of the adjacent land which was sold under Ex.B.1 to the defendants. In some of the pahanies the possession of the plaintiff was also recorded and in pattedar column the name of Mohd. Yousufuddin is mentioned. Both the Courts below without being swayed away by the entries in the pahanies, considered the entire evidence on record and rightly arrived at the conclusion that the plaintiff is the owner of the plaint schedule land and he was in possession of the land on the date of the suit. It has been contended by the learned counsel appearing for the defendants that in O.S.No.198 of 2000 filed earlier by the defendants, the trial Court in I.A.No.654 of 2000 granted temporary injunction against the plaintiff and in favour of the defendants on 27.11.2000 and the said finding operates as res judicata insofar as factum of possession is concerned and that the plaintiff is precluded from agitating the same issue in the present case. I absolutely see no force in the contention urged by the learned counsel appearing for the defendants. In M/S DEVIDAYAL ROLLING MILLS v PRAKASHCHIMANLAL PARIKH AND OTHERS[1] and GANGAI VINAYAGAR TEMPLE AND OTHERS v MEENAKASHI AMMAL AND OTHERS[2] the Hon’ble Supreme Court had categorically held that the orders passed in interlocutory application did not decide any issue finally and they cannot be considered as binding nor it could operate as res judicata in the subsequent proceedings. In the instant case, therefore, it is not open for the defendants to contend that the order in I.A.No.654 of 2000 in O.S.No.198 of 2000 passed earlier against the plaintiff will operate as res judicata. It is also not possible to accept the contention that the said finding can be taken as one of the items of evidence regarding the possession of the defendants. Further both the Courts below having gone through the pleadings and evidence on record, specifically recorded a finding that the plaintiff has title to the schedule mentioned land and he has been in possession of the land on the date of suit ad he is entitled for perpetual injunction. The said finding is based on evidence and it cannot be said to be perverse. The defendants cannot insist that a finding has to be recorded by the Courts below entirely basing on the entries made in the pahanies while arriving at a decision as to the factum of possession the Courts will have to take into consideration, the pleadings of the parties and the entire evidence on record and also the circumstances under which the dispute had arisen. This Court will not interfere with the concurrent findings of fact arrived at by both the Courts below even though a different view is possible on facts and evidence. This Court will entertain second appeal only when substantial question of law is involved for consideration and this Court will not interfere with the concurrent findings relating to fact unless they are perverse. For the reasons mentioned above, I absolutely see no merit in the second appeal and accordingly dismiss the same without any order as to costs. ________________ Date: 08.06.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.34 OF 2004 DATE: 08.06.2010 [1] (1993)2S.C.J.369 [2] 2009(8)SCJ 202