THE HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.692 of 2010 JUDGMENT: The plaintiffs, who were unsuccessful in the Court below in obtaining permanent injunction, filed this second appeal against the judgment and decree dated 26.02.2010 passed by the III Additional Senior Civil Judge, Kakinada in A.S.No.267 of 2009, whereby the learned Judge dismissed the appeal confirming the judgment and decree dated 14.08.2008 passed by the Principal Junior Civil Judge, Kakinada dismissing O.S.No.1141 of 2001. The plaintiffs filed the above suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the plaint schedule property stating that the plaint schedule property is poramboke land situated in Kajuluru Village and belongs to the fifth defendant-State of Andhra Pradesh. They occupied the schedule property about 35 years back and developed the same by removing shrubs, bushes and other waste plants, and made it cultivable. After starting cultivation, the Government also collected revenue from them by recognising their possession and enjoyment of the schedule land. Earlier the plaintiffs used to cultivate only single crop, and thereafter, as there are irrigation sources, they are cultivating two crops per year. It is also stated that though defendants 1 to 4 have no manner of right and possession over the schedule property, they are making attempts to grab the land. Even the fifth defendant-Government is not entitled to interfere with the plaintiffs’ peaceful possession and enjoyment over the schedule property, and therefore, they (plaintiffs) are entitled to permanent injunction. The first defendant filed a written statement, which was adopted by defendants 2 to 4, whereas, the fifth defendant remained ex parte. In the said written statement, it is stated that the plaint schedule property is the poramboke land and belongs to the fifth defendant, but denied that the plaintiffs occupied the same about 35 years back and cultivating the same. It was invented only for the purpose of filing the suit and to obtain injunction by suppressing the real facts. Originally, the schedule property was used to be cultivated by the father of the first defendant-Bheemudu, who was in possession and enjoyment since 1948 till his death and his name was mutated in the village records. After his death, the defendants occupied the schedule property and cultivating the same. Due to financial problems, the first defendant mortgaged the schedule property to the first plaintiff for Rs.2000/- till he reimburses the said money to the first plaintiff. Accordingly, the first defendant paid Rs.2000/- and asked the first plaintiff to vacate the property, but he refused. The Government granted patta in respect of the schedule property to Bheemudu and he used to pay taxes to the Government from time to time. However, the said receipts were lost in the cyclone that took place in 1996. Therefore, they applied to the Joint Collector, Kakinada for handing over possession of the property and the Joint Collector sent notices to the plaintiffs to attend the enquiry. At that stage, the plaintiffs filed the above suit. Based on the above pleadings, the trial Court framed the following issues for trial: i) “Whether the plaintiffs are entitled for permanent injunction as prayed for? ii) To what relief?” In order to prove the case, on behalf of the plaintiffs, the second plaintiff examined herself as P.W.1 and also examined one more witnesses as P.W.2 and got marked Exs.A.1 to A.17. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to B.4 were marked apart from Ex.X.1 Adangal. The lower Court, after considering Exs.A.1 to A.13 tax receipts held that they do not relate to the schedule property and therefore, no importance can be given to the said documents; that issuance of Ex.A.14-notice to the second plaintiff by the Mandal Revenue Officer, Kajuluru with regard to the property in Survey No.746/1 admeasuring Ac.0.23 cents an Survey No.789/1 admeasuring Ac.0.40 cents, totalling Ac.0.63 cents, has not been denied; that there are some corrections with regard to the extent and some white fluid was pasted in the second line as per Ex.A.14 deleting the other survey numbers; that since the document was marked on behalf of the plaintiffs, they have to explain the corrections; that as seen from the plaint schedule property, the plaintiffs are asking the relief for injunction to an extent of Ac.2.00, but Ex.A.14 shows that without having any title, the plaintiffs are in possession of the property; that according to P.W.1 she could not give the particulars with regard to existence of land available in each survey number and she admitted that though the property stood in the name of the first plaintiff, the first plaintiff was not examined as a witness; that P.W.1 has not denied the receiving of Ex.A.14 and sending of Ex.A.15, which clearly disclose that the plaintiffs are in occupation of the land in violation of the provisions of The Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ‘Act No.9 of 1977’), and accordingly dismissed the suit. On an appeal being filed, the lower appellate Court dismissed the same confirming the order of the trial Court holding that Ex.A.16 and A.17 are postal acknowledgements; that the assigned lands cannot be transferred or alienated to third parties even the plaintiffs are in possession of the schedule property somehow or other, they are not entitled to seek injunction against the legal representatives of original assignee i.e., D.1 to D.4 and much less against the Government who are under obligation to take action against the impugned and illegal transfers under Act No.9 of 1977 and that is the reason why the Mandal Revenue Officer issued Ex.A.14 notice to the plaintiffs to vacate the land and hand over the same to the original assignee and that immediately on issuing the notice, the plaintiffs filed the above suit and therefore, they are not entitled to seek injunction against the legal representatives of the original assignee and the Government in taking action against the plaintiffs. Heard the learned counsel appearing for the appellants and gone through the entire record. Grant of permanent injunction is a discretionary nature. Section 38 of the Specific Relief Act, 1963 (for short ‘the Act’) enumerates that perpetual injunction can be granted to the plaintiff only to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Sub-section (2) of Section 38 of the Act contemplates that when any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Sub-section (3) of Section 38 of the Act contemplates that when the defendant invades or threatens to invade the plaintiff’s right to, or enjoy of, property, the Court may grant a perpetual injunction as specified under clauses (a) to (d) of sub-section (3) of Section 38 of the Act. Section 8 of Act No.9 of 1977 prohibits institution of suit or other legal proceedings against any person, officer or authority for anything which is in good faith done or intended to be done in pursuance of Act or any rules made thereunder. Section 3 of Act No.9 of 1977 prohibits transfer of assigned lands before or after commencement of the said Act. When the Mandal Revenue Officer issued notice under Ex.A.14 for consequential breach of the transfer made in contravention of Act No.9 of 1977, Section 8 of Act No.9 of 1977 prohibits institution of suit or other legal proceedings against any person, officer or authority for anything which is in good faith done or intended to be done in pursuance of Act or any rules made thereunder. In view of the same, when admittedly the cause of action for filing the suit is issuance of Ex.A.14 notice for eviction pointing out to the plaintiffs that their possession is in violation of the Act, the above suit itself is not maintainable. In view of the concurrent findings arrived at by the both the Courts below, no question of law, much less substantial question of law, arises for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _________________ A. GOPAL REDDY, J Date: 30.07.2010 va