IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTY NINETH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU SECOND APPEAL NO.1072 OF 2009 Between : Kapu Lakshmidevamma ... PETITIONER A N D Harijana Hanumanthappa and another …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL NO.1072 OF 2009 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) is directed against the judgment and decree, dated 08.06.2009 passed in A.S.No.3 of 2009 on the file of Senior Civil Judge, Hindupur, whereunder and whereby, the judgment and decree, dated 11.12.2008, passed in Original Suit No.387 of 2001 on the file of Junior Civil Judge, Hindupur, were confirmed. 2. The plaintiff filed the suit for permanent injunction restraining the defendants and their men from interfering with her peaceful possession and enjoyment of the plaint schedule property. 3. After hearing both sides the suit was dismissed on the ground that there was no sub division of the property and there was no evidence adduced by the plaintiff that she is in exclusive possession of the property. On appeal, the said judgment and decree were confirmed. 4. Heard. 5. In order to get a permanent injunction, the plaintiff has to establish that she was in possession and enjoyment of the suit schedule property by the date of the suit; that balance of convenience or irreparable injury in her favour and she must show that the incidental title for property in which she sought permanent injunction with her. Where a person is in lawful possession of the property and her possession is threatened to be interfered with by the defendants, the plaintiff is entitled to sue for grant of perpetual injunction. 6. Since the plaintiff is seeking permanent injunction stating that she was in possession of the property, the trial Court as well as the first appellate Court ought to have considered the evidence adduced by both the parties, with regard to as to who was in possession of the property as on the date of filing of the suit. That aspect of the case has not been considered at all by both the Courts below. Undoubtedly, even to grant injunction it would be necessary for the Court to adjudicate upon the question of incidental title and possession. Invariably, the question of possession in the present will have to be taken into account. Sub Section 1 of Section 39 of the Specific Relief Act, 1963 (for short, ‘the Act’), subject to the other provisions contained in or referred to in Chapter VIII of the Act, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in her favour, whether expressly or by necessary implication. Therefore, the impugned judgment is liable to be set aside. 7. Accordingly, the Second Appeal is allowed setting aside the impugned judgment and decree dated 08.06.2009 in A.S.No.3 of 2009 on the file of Senior Civil Judge, Hindupur. However, the matter is remanded to the first appellate Court for fresh disposal of the appeal after appreciating the evidence adduced and documents filed by both the parties and decide the controversy in accordance with law. There shall be no order as to costs. _______________ K.C.BHANU, J JANUARY 29, 2011. YVL