HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1022 of 2007 Date:08-12-2011 Between: Mohd.Ghousuddin and another …Appellants And Mohd.Samiullah …Respondent HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1022 of 2007 JUDGMENT: This second appeal is directed against the decree and judgment dated 06.06.2007 passed by the V Additional District Judge, Warangal in A.S.No.158 of 2006 whereby and whereunder the learned Additional District Judge reversed the judgment and decree dated 27.09.2006 passed by the II Additional Junior Civil Judge, Warangal in O.S.No.1297 of 2003. 2. The plaintiffs who filed the suit for injunction simplicitor before the II Additional Junior Civil Judge, Warangal are the appellants in this second appeal. They filed the suit in respect of a dilapidated house covered by a site. The trial Court decreed the suit. The defendants preferred A.S.No.158 of 2006. The learned first appellate Court reversed the decree and judgment passed by the trial Court holding that the plaintiffs are not entitled for permanent injunction and thereby set aside the judgment passed by the trial Court. Feeling aggrieved, the plaintiffs preferred the present second appeal. 3. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 4. For the sake of convenience, the parties will be referred to as “the plaintiffs and the defendant” as referred in the suit. 5. The second appeal has been admitted on being satisfied that the following substantial questions of law arise for consideration: a) Whether the learned Judge is right in a suit for simplicitor injunction that the payment of property taxes will not prove possession in respect of the property. b) Whether the learned Judge is right in rejecting Exs.A-1 to A-7 documents filed by the appellants on the premise of the misconceived notion that the payment of property taxes will not prove possession. c) Whether the learned appellate court is right in holding that the possession of the appellants is proved at one point of time coupled with dispossession is not proved at any point of time and the respondent has not proved his possession at any point of time still refusing to grant injunction simplicitor. d) Whether the reversal finding of the appellate Court is justifiable in law or perverse being contrary to settled law. e) Whether the appellate Court is justified in not drawing adverse inference for the plea taken by the respondent which is approbating and reprobating. 6. The brief facts relevant for considering the second appeal may be stated as follows: According to the plaintiffs, their grandfather Imamuddin was the original owner of 300 square yards of site and after the death of Imamuddin, their father Kareemuddin got the property and was enjoying till his death and after the death of their father, they got the suit schedule property and that they are in possession and enjoyment of the same. It is the version of the plaintiffs that they succeeded to the suit schedule property after the death of their father and since then they have been in possession and enjoyment of the same. Contending that the defendant without having any manner of right was trying to trespass into the schedule mentioned property, they filed the suit for injunction simplicitor. 7. The case set up by the defendant is that there was a partition between Imamuddin and Sharfuddin, the brothers, the defendant’s father Niamathullah purchased 170 square yards of property from Kareemuddin in the year 1943, after the death of his father, the defendant got the property. Similarly, the contention of the defendant is that his sister Sharfunnisa Begum purchased 130 ½ square yards out of 300 square yards under a registered sale deed dated 27.12.1957 from Sharfuddin who is the junior paternal grandfather of the plaintiffs, she went abroad and died there and thereafter he got the property and has been in possession and enjoyment of the same. 8. Before the learned trial Court, the first plaintiff was examined as PW-1 and another witness by name Mohd.Naseeruddin as PW-2 and on behalf of the plaintiffs, Exs.A-1 to A-7 were marked. The defendant examined himself as DW-1 and marked Exs:B-1 to B-3. Ex.A-1, a cash receipt dated 18.03.2003 shows that Imamuddin paid taxes for the period 2002-03. Ex.A-6 is also a cash receipt under which Imamuddin paid taxes for the period 2003-04. Ex.A-7 is the another tax receipt dated 17.12.2003 under which Imamuddin said to have paid taxes up to March, 2004. 9. The first plaintiff who was examined as PW-1 stated in his deposition that the plaintiffs have been in possession and enjoyment of the property. PW-2 also stated that the plaintiffs have been in possession and enjoyment of the property. Though the evidence of PW-2 is accepted by the learned trial Court, the first appellate Court held that PW-2 is not even resident of Hanamkonda where the schedule mentioned property is situate, he being stranger to the schedule mentioned property residing elsewhere, his evidence is not much helpful to the plaintiffs in proof of their possession. 10. On the other hand, the defendant also filed Ex.B-2 cash receipt, dated 25.04.2003, and Ex.B-3 cash receipt. All these cash receipts were issued in the name of Imamuddin. This apart, there is oral evidence of the defendant who was examined as DW-1 showing that he has been in possession and enjoyment of the schedule mentioned property. 11. The question that fell for consideration before the trial Court and also the first appellate Court was whether the learned trial Court is right in passing a decree for permanent injunction in favour of the plaintiffs in a suit for injunction simplicitor purely basing on the cash receipts when the defendant also produced some cash receipts relating to the plaint schedule property. 12. The learned first appellate Court held that all the cash receipts are either just before instituting the suit or subsequent to the institution of the suit and they are in the name of Imamuddin. The cash receipts filed by the defendant are also in the name of Imamuddin, in the absence of any other reliable and convincing evidence showing that the plaintiffs are in possession of the plaint schedule property on the date of institution of the suit, they are not entitled for permanent injunction and the learned trial Court erroneously passed a decree for permanent injunction. The learned first appellate Court also held that since both the parties filed cash receipts which are in the name of Imamuddin and also as no document is filed by the plaintiffs in their name showing their possession on the date of instituting the suit, they are not entitled for permanent injunction in a suit for simple injunction. 13. All the substantial questions of law which have been raised by the appellants in the second appeal relate to only one question whether the learned first appellate Court is right in reversing the decree ignoring the oral evidence of PWs.1 and 2 and holding that the mere tax receipts are not sufficient to prove possession of the plaintiffs. 14. The learned first appellate Court gave convincing reasons basing on the evidence available on record that the oral evidence of PWs.1 and 2 is not enough to prove the possession of the plaintiffs for the reason that PW-1 is one of the plaintiffs and PW-2 is a person residing elsewhere and he has no personal knowledge about the possession in respect of the suit schedule property. The learned first appellate Court also expressed the view that without considering the evidence let in by the defendant, by merely relying on the tax receipts in the name of Imamuddin and there being no document in the name of the plaintiffs showing their possession on the date of the suit, they are not entitled for decree of permanent injunction. The learned first appellate Court also took into consideration the fact that as per the evidence of PW-1, his father left suit house in the year 1975 itself and died in another house, that PW-1 went to Secunderabad in the year 1980 and has been residing there itself since then. The learned first appellate Court further took into consideration that his brother was residing in Subedari area in a rented house, but to prove the said fact, the brother of PW-1 was not examined. Further, the learned first appellate Court held that admittedly the plaint schedule property is a dilapidated house and to prove possession in respect of such property, there must be some convincing evidence other than the tax receipts and as the plaintiffs failed to adduce any convincing evidence to prove their factual possession in respect of the plaint schedule property, they are not entitled for permanent injunction. The learned first appellate Court also considered the aspect that the plaintiffs failed to examine any residents of the locality where the suit schedule property is situate and thereby held that they failed to adduce any satisfactory oral evidence in respect of their possession. Considering all these aspects, the learned first appellate Court reversed the finding of the learned trial Court and thereby dismissed the suit filed by the plaintiffs. 15. I absolutely see no force in the contention urged by the learned counsel appearing for the appellants that the first appellate Court did not give any reasons for its decision while reversing the judgment of the learned trial Court. The judgment of the learned first appellate Court is based on evidence and on a proper reappraisal of the evidence before it. 16. In GURDEV KAUR AND OTHERS[1] (2007) 1 SCC 546, the Supreme Court held that while deciding the second appeal under Section 100 of CPC, the High Court can interfere only where substantial questions of law are involved and have been formulated in the memorandum of appeal. I n ARUMUGHAM (DEAD) BY LRS. AND OTHERS v. SUNDARAMBAL AND ANOTHER[2] the Supreme Court held that the High Court in second appeal cannot interfere with the judgment of the first appellate court merely on the ground that the first appellate court failed to advert to the reasons ascribed by the trial Court, and the first appellate court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party. 17. Thus, the law is now well settled that the findings of fact recorded by the first appellate Court shall not be interfered with in the second appeal unless they are not based on evidence on record or based on no evidence and that they are perverse. In the instant case, the findings of fact recorded by the learned first appellate Court are based on evidence available on record and they cannot be said to be perverse. 18. The learned first appellate Court in its well considered judgment rightly reversed the decree and judgment passed by trial Court on proper appreciation of evidence applying the principles correctly to the question relating to granting or refusing relief of permanent injunction in a suit for injunction simplicitor. The findings of fact and law recorded by the learned first appellate Court, therefore, do not call for any interference in the second appeal and the second appeal being devoid of any merit is liable to be dismissed. 19. In the result, the second appeal is dismissed. There shall be no order as to costs. ________________ R. KANTH RAO,J Date:08- 12-2011 CCM HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1022 of 2007 Date:08-12-2011 [1] (1999) 4 SCC 350 [2] (1999) 4 SCC 350