THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal No. 1145 of 2008 Judgment: This appeal is directed against the judgment and decree dated 04.07.2008 passed in A.S. No.299 of 2007 by the II Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Chief Judge has set aside the judgment and decree dated 08.03.2007 passed in O.S. No. 817 of 2003 by the III Junior Civil Judge, City Civil Court, Hyderabad, and granted permanent injunction in favour of the respondent herein. The parties hereinafter will be referred to as they are arrayed before the trial Court for the sake of convenience. The brief facts of the case as seen from the record are as follows. Originally, the suit schedule property belonged to one Gajula Ramalingamma, who purchased the said property under a registered sale deed dated 14.06.1930. Subsequently, as admitted by both the parties, B. Anjaneyulu became the owner of the property. B. Anjaneyulu offered to sell the property to B. Butchaiah, the husband of the first defendant. It appears that dispute arose between B. Anjaneyulu and B. Butchaiah. B. Butchaiah filed a suit in OS No.614 of 1979 on the file of the I Additional Chief Judge, City Civil Court, Hyderabad, for specific performance against B. Anjaneyulu in respect of the suit schedule property i.e., 67 ½ sq. yards of land with House No.4-7-895 situated at Komati Basti, Esamia bazaar, Hyderabad. The said suit was decreed on 28.06.1983 and in spite of depositing the balance sale consideration, as B. Anjaneyulu did not execute the registered sale deed, on his behalf i.e., on behalf of B. Anjaneyulu, the then learned I Additional Judge, City Civil Court, Hyderabad, executed a sale deed in favour of B. Butchaiah in EP No.41 of 1984 on 22.04.1989 (as seen from the contents of Ex.B2). B. Butchaiah executed a Will in favour of his wife, the first defendant on 24.01.1994 bequeathing the suit schedule house and further directed that after the demise of the first defendant his daughters i.e., defendants 2 and 3 shall have equal shares in the suit schedule property. The case of the plaintiff is that he was the tenant of the suit schedule house No.4-7-895 initially on a monthly rent of Rs.10/- in the year 1959 and subsequently the rent was enhanced from time to time i.e., to Rs.18/- and Rs.25/- and when his landlords namely B. Anjaneyulu and his mother Sathemma offered to sell the property the husband of the first defendant B. Butchaiah raised some dispute. It appears that a suit in OS No.659 of 1991 was filed for cancellation of Ex.B2 sale deed. Since the copy of the plaint in OS 659 of 1991 or any connected documents are not made available, it is not clear whether the suit schedule property in both the suits is one and the same or not. The plaintiff’s further case is that during the pendency of OS No.659 of 1991 the defendants obtained possession of the suit schedule property and caused loss and damage by pulling down the existing building, wooden beams, take rafters, wooden staircase, wooden frames etc., and sold away them. The plaintiff had installed electric meter No.H1 4222 and also water meter No.08355 which was taken in the name of the plaintiff after purchase of the schedule property. The defendants also sold away the construction material, bricks, steel and other materials. It is his further case that then he filed a suit in OS No.659 of 1991 for cancellation of sale deed obtained illegally by late Butchaiah and the said suit was decreed in favour of the plaintiff. Despite the same, late Butchaiah and the defendants refused to deliver the possession of the property. Then the plaintiff filed OS No.1279 of 1999 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad, for recovery of possession of the suit schedule property. The said suit was decreed, vide judgment and decree dated 04.04.2001. Since the defendants failed to honour the said decree, he filed EP No.128 of 2001 and the bailiff of the Court, vide panchanama dated 05.07.2002 evicted the defendants and put the plaintiff in possession of the property and since then the plaintiff has been in absolute possession and enjoyment of the suit schedule property. It is alleged that on 18.01.2003 the defendants brought some strangers to the suit schedule property and threatened the plaintiff’s representatives and again on 26.01.2003 when the plaintiff tried to put up a shed some strangers came on behalf of the defendants and obstructed the plaintiff from putting up the shed and tried to dispossess the plaintiff. In the circumstances, the plaintiff filed the suit for injunction against the defendants. The first defendant filed the written statement and denied the material averments made by the plaintiff. Her specific case is that originally the property belonged to Gajula Ramalingamma and subsequently her husband became the absolute owner of the property and he gifted the property to her. She denied that during the pendency of the suit in O.S. No.659 of 1991 her husband raised dispute or caused damage to the property. Her main case is that she is an illiterate woman and not worldly-wise and senior citizen and she could not pursue the suit in OS No.1279 of 1999, however the decree in OS No.1279 of 1999 was never implemented and she was never dispossessed and that the alleged panchanama or recovery of possession through court Bailiff are all false, baseless and created. It is her specific case that she is the absolute owner and continuing in possession of the suit schedule property. Defendants 2 and 3 have filed a memo adopting the written statement filed by the first defendant. The trial Court has framed the following issues. 1. Whether the plaintiff is entitled to perpetual injunction as prayed for? 2. To what relief? On behalf of the plaintiff, the plaintiff himself was examined as PW.1, his son was examined as PW.2 and one M. Srirama Murthy was examined as PW.3 and Exs.A1 to A4 were marked. On behalf of the defendants, the first defendant was examined as DW.1 and defendants 2 and 3 were examined as DWs.2 and 3 respectively and Exs.B1 to B5 were marked. The lower Court, on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff has not filed any documents to show his title over the property and further admitted that he is not in possession of the property by the time of filing of the suit and therefore he is not entitled for injunction and accordingly dismissed the suit. The lower appellate Court observed that admittedly the first defendant could not pursue her defence in OS No.1279 of 1999 and allowed the same to be decreed against her and that in the absence of any rebuttal evidence presumption can be attached to Exs.A3 and A4 that the delivery is effected as indicated in those proceedings and the defendants are interfering with the possession of the plaintiff and therefore the plaintiff is entitled to injunction and accordingly reversed the finding of the trial Court and decreed the suit. Aggrieved by the same, the defendants preferred the present second appeal before this Court. During the pendency of the second appeal before this Court, the appellants filed SAMP No.1236 of 2009 to receive certain documents and since the documents appear to be relevant the said petition was allowed. Now the documents filed by the appellants/defendants only reveal that the judgment in O.S. No.614 of 1979 filed by B. Butchaiah was ultimately confirmed and the appeal preferred by the plaintiff was dismissed. The main submission of the learned counsel for the appellants- defendants is that the plaintiff has obtained ex parte judgment in O.S. No.1279 of 1999 by playing fraud and therefore the said judgment is null and void. It is also his submission that the said judgment was never executed and the possession of the property was never delivered to the plaintiff. It is also his submission that the plaintiff in his plaint averments did not state how he acquired title and without tracing his title and without filing any documents in support of his case he has simply relied on the judgment obtained in O.S. No.1279 of 1999 and on the panchanama said to have been prepared by the Court Bailiff and the receipt said to have been issued by the plaintiff to the Bailiff. His main submission is that when the Bailiff is not examined, the recitals of Exs.A3 and A4 cannot be looked into. It is further submitted that the recitals of Ex.A4 also go to show that the judgment debtor was absent and her daughter was present and it is not referred as to which debtor was present at the time of execution of the decree. Learned counsel for the respondent-plaintiff submitted that since the plaintiff has already obtained a decree in O.S. No.1279 of 1999, now the defendants cannot plead that they have title to the suit schedule property. The defendants having suffered a decree and which was executed by the Bailiff of the Court, now cannot say that they can interfere with the possession of the plaintiff. His main submission is that the appellate Court, having considered the report of the Bailiff and also the panchanama showing the delivery of possession in pursuance of the decree by the Court Bailiff, has rightly accepted the case of the plaintiff and there is no need to disturb the same and no substantial question of law arises in this case. It is also his submission that though the learned counsel for the defendants is contending that fraud was played in obtaining ex parte decree in O.S. No.1279 of 1999, but the defendants have not taken such plea in their written statement and when they have not taken such plea in the written statement now they cannot plead fraud or collusion. The following substantial question of law is framed by this Court. “Whether there is any perversity in the judgment of the appellate Court and whether it is liable to be set aside?” As seen from the record, B. Butchaiah, the husband of the first defendant, filed a suit for specific performance of the agreement of sale dated 06.05.1978 in O.S. No.614 of 1979. It appears that B. Anjaneyuulu obtained an agreement of sale from Lanka Venkateswarlu and filed a suit in O.S. No.129 of 1979 against Lanka Venkateswarlu for specific performance of agreement executed in his favour. In the said suit B. Butchaiah was impleaded as second defendant and one Rajaiah was also impleaded as third defendant. Both the suits were tried together. The suit filed by the plaintiff in O.S. No.614 of 79 was dismissed. So far as O.S. No.129 of 1979 is concerned, the relief of specific performance was rejected, but, however, it was directed to refund the money that was already paid. Then L. Venkateswarlu executed a registered sale deed on 22.01.1982. B. Butchaiah filed an appeal against the judgment in O.S. No. 614 of 1979 before the Chief Judge, City Civil Court, Hyderabad and the same was numbered as A.S. No. 480 of 1982, and subsequently the said appeal was allowed reversing the findings of the Additional Judge on 28.06.1983. Challenging the said judgment of the appellate Court in A.S. No. 480 of 1982, L. Venkateswarlu filed the appeal in S.A. No.183 of 1984 contending that he is a bona fide purchaser for value. Admittedly, the appeal filed by L. Venkateswarlu was dismissed. It was observed that once the appeal is allowed, it dates back to the date of filing of the plaint. The sale deed was executed only on 22.01.1982, therefore, the doctrine of lis pendens applies and when once the principle of lis pendens applies the bona fides of the purchase or other factors cannot outweigh the Court. It was also observed that both the parties have knowledge about the dismissal of the suit. Anyhow, there is no need to discuss the above said issues in detail. Once the contention of L. Venkateswarlu, the plaintiff in this case, was negatived in the earlier round of litigation, now he cannot set up his title and probably, in the above circumstances, the plaintiff has not filed the certified copies of the plaint in O.S. No.659 of 1991 and in O.S. No.1279 of 1999. It has to be seen that the plaintiff has filed the suit for bare injunction. It is settled law that the plaintiff must prove that he has been in possession of the property. Here, there is no need to consider in detail under what circumstances the first defendant herein was set ex parte in O.S. No. 1279 of 1999 in view of the admission made by the plaintiff himself in his evidence. The plaintiff’s specific case is that after the Court Bailiff delivered possession to him on 05.07.2002 he has been in peaceful possession of the property and that the defendants are interfering with his possession and they tried to interfere on 18.01.2003 and on 26.01.2003. When he was examined before the Court, in para 6 of his chief examination he has mentioned that he is in absolute possession and enjoyment of the suit schedule property. But, when he was cross-examined he answered as follows. “According to me Srinivas my son is in possession and enjoyment of the property. I have filed the documents before the Court to show that my son Srinivasu is in possession of the property. I will produce my son Srinivas as a witness in this suit. I will produce the witness but I am not in a position to disclose the names of witnesses to whom I am going to produce before the Court”. The lower Court noted as follows. “The witness is very arrogant and not in a position to give answer to the questions put by the counsel for defendant he is raising his voice against counsel for the defendant. The counsel for the plaintiff controlled the witness but he is not given hearing the words of his counsel.” The plaintiff has further deposed as follows. “I am in possession of the schedule of the property till 2001. Since 2001 I am not in possession of the schedule property. Since two years the defendant is in possession of a room which was constructed by me. Except that room there is no constructions in the schedule property. At one stage PW.1 claims that the defendant is in possession of a room constructed by him and at another stage he says that though he tried to put up a shed the defendants and their men did not allow him to put up a shed. If the evidence of plaintiff is accepted that the defendant has been in possession of the shed put up by him the recitals of panchanama said to have been prepared by the Bailiff and the recitals of delivery of possession become false. Therefore, no reliance can be placed on such documents. Thus, it is clear that the plaintiff himself admitted that he was not in possession of the property on the date of filing of the suit. PW.2 is the son of PW.1. According to him, he had vacated the suit schedule property in the third week of January 2003. The evidence of both these witnesses reveal that there is a tin shed in the suit schedule property. They claim that they have constructed the tin shed. In fact on this ground alone the judgment of the appellate Court can be set aside because the finding of the appellate Court that the plaintiff has been in possession of the property is in contra to the evidence of PWs.1 and 2. Coming to the documents filed by the plaintiff, the plaintiff filed a copy of decree in O.S. No.1279 of 1999. The said decree reveals that the schedule property is open piece of land admeasuring 67 ½ sq. yards. Ex.A4 is the certified copy of panchanama prepared by the Court Bailiff. The contents of panchanama reveal that when the Court Bailiff along with panchas went to the suit schedule premises, the defendants were not present and that the daughter of the defendant alone was present. It has to be seen that the daughters of the defendants are also parties to the suit in O.S. No.1279 of 1999, but the panchanama reveals that the judgment debtors were not present, but the daughter of the defendant was present. The panchanama also reveals that the possession of the vacant land was handed over to the plaintiff and Ex.A3 delivery receipt also shows that the possession of the vacant site was handed over to the plaintiff. But it is the case of the plaintiff that a shed was there in the suit schedule property. Admittedly, the house number even as per the pleadings of both the parties is 4-7-895. The plaintiff had categorically deposed in his evidence that on 26.01.2003 when he tried to put up a shed some strangers claiming themselves to have come on behalf of the defendants prevented him from putting up the shed. The question of drawing presumption on the ground that the Bailiff has performed his duty in the course of his official duty and the same is presumed to be correct, will not apply to the facts of this case. A cursory look at the documents filed by the defendants also clarifies the position. The defendants have filed Ex.B5 ration card which shows that the defendants have been issued ration card on 19.12.1997. They have also filed proper tax receipt issued by the Municipal Corporation, Hyderabad, showing the payment of tax for the door Nos.4-7-894 and 895. These documents falsify the case of the plaintiff that he had been in possession of the property. It is settled law that the plaintiff has to stand or fall basing on his own case and even if there is some weaknesses in the case of the defendants, that cannot be a ground to decree the suit. When the plaintiff has categorically admitted that the defendants have been in possession of the property on the date of filing of the suit, it is clear that the plaintiff is not entitled for the relief of injunction. The appellate Court has not considered the evidence on record and misread the evidence and therefore the findings of the appellate Court are perverse and are liable to be set aside. Since the findings of the lower appellate Court are factually incorrect, there is no need to refer to the decisions cited by the learned counsel for the appellants and further discussion is not required. Accordingly, the second appeal is allowed and the impugned judgment and decree passed by the lower appellate Court is set aside and the judgment and decree passed by the lower Court is confirmed. However, in the circumstances, no costs. ___________________ B. CHANDRA KUMAR, J. Date: 30th April 2011 Nsr