IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SEVENTH DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1357 OF 2005 Between: Seetha Veeraswamy …Appellant A n d Vemuru Rathnamma and two others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.1357 OF 2005 ORDER: This second appeal is directed against the judgment and decree dated 30.08.2005 in A.S.No.32 of 2002, on the file of the Senior Civil Judge, Gudur, wherein the said appeal filed by the respondents herein was allowed, setting aside the judgment and decree dated 13.08.2002 in O.S.No.86 of 1996, on the file of the Junior Civil Judge, Gudur, whereunder the said suit filed by the appellant herein for permanent injunction, was decreed. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The appellant/plaintiff filed the suit for permanent injunction restraining the respondents/defendants from interfering with his possession and enjoyment of the plaint schedule land of Ac.3.34 cents in Sy.No.193/B4 of Nelaballi village, Nellore District. According to the appellant/plaintiff, the grandfather of the plaintiff i.e., Seetha Ramakrishnaiah Setty’s brother Rangaiah Setty executed a registered settlement deed dated 17-11-1928 in favour of Ramakrishnaiah Setty in respect of some properties, including the suit land and after the death of Ramakrishnaiah Setty, his son Vardaiah was in possession and enjoyment and after his death, his son, the plaintiff, became the absolute owner and has been in possession and enjoyment of the suit land. Alleging that the defendants were trying to interfere with his possession on account of political disputes, the plaintiff filed the suit for injunction. 4. The respondents/defendants filed written statement contending that their brother Vemuru Ramachandra Reddy purchased the suit land and other properties in the joint family from Gummidi Rangamma under a registered sale deed dated 17.10.1970 and he also purchased Ac.0- 60 cents from Gottipalli Krishna Reddy and that the joint family of the defendants and their brother had been in possession and enjoyment of the said lands together with the various fruit bearing and other trees existing on the land. The defendants further pleaded that in 1980 themselves and their brother Ramachandra Reddy divided their properties and that Ramachandra Reddy died issueless and the defendants became entitled for the suit land along with other lands. The defendants further contended that there was a sub-division of land on 03.10.1975 and an extent of Ac.3-34 cents was assigned in Sy.No.193/B4 and the settlement deed dated 17.11.1928 is in respect of one-third share out of Ac.9-74 cents in Sy.No.193/B and 193/C and the plaintiff has not filed any document to show that he was in possession of any portion of the land situate in Sy.No.193/B4. The defendants further contended that the plaintiff was never in possession and enjoyment of the plaint schedule land situate in Sy.No.193/B4. 5. On the strength of the pleadings, the trial Court framed the following issues: i) Whether the plaintiff is entitled for permanent injunction as prayed for? ii) To what relief 6. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-10 were marked on behalf of the plaintiff. D.W.1 was examined and Exs.B-1 to B-20 were marked on behalf of the defendants. Ex.A-11, Exs.B-21 and B-22 were marked in the appeal by the learned Senior Civil Judge. 7. The learned Junior Civil Judge decreed the suit based on the admission of defendants that plaintiff’s father Vardaiah was also one of the joint pattadars in Sy.No.193 and holding that it is probable that plaintiff is in possession of the suit land. Aggrieved by the same, the defendants preferred an appeal in A.S.No.32 of 2002. By the impugned judgment and decree, the learned Senior Civil Judge allowed the appeal and set aside the judgment of the trial Court and consequently dismissed the suit. Hence, the present second appeal by the plaintiff. 8. The appellant filed the suit against the defendants for bare injunction in respect of plaint schedule land of Ac.3-34 cents situate in Sy.No.193/B4. According to the appellant, the suit land was his ancestral property, his grandfather Seetha Ramakrishnaiah Setty having got the same from his brother Rangaiah Setty under a registered settlement deed Ex.A-1 dated 17.11.1928. It is not disputed that Ex.A-1 is in respect of one-third share in Ac.,9-74 cents situate in 193/B and 193/C. The plaintiff claims to be in possession of the land ever since the death of his father Vardaiah. He filed Exs.A-5 to A-10, the certified copies of the adangals for Faslis 1397 to 1400 and 1403 and 1404. The learned Appellate Judge has referred to the adangals in detail and held that in Ex.A-5 the name of plaintiff’s father Vardaiah is shown as pattadar and enjoyer for Fasli 1397 (1989) but, however, in Ex.A-6 adangal for 1398 (1990) and in Ex.A-7 adangal for Fasli 1399, the pattadar’s name is left blank and enjoyers name is noted as Vardaiah. However, in Exs.A- 9 and A-10 relating to Fasli 1403 and 1404 (1994 and 1995) the name of enjoyer is noted as Vemuru Pitchi Reddy, who is the 1st defendant. The defendants also filed Exs.B-18 to B-20 certified copies of adangals for Faslis 1402 to 1404 which correspond to Exs.A-9 and A- 10. Thus, though in the earlier adangals Exs.A-5 to A-8 the name of plaintiff’s father was noted as pattadar and enjoyer in Exs.B-18 to B-20, which include Exs.A-9 and A- 10, the name of 1st defendant came to be noted as enjoyer in respect of the same extent of Ac.3.34 cents in Sy.No.193/B4. The plaintiff had no explanation as to how, when and under what circumstances the name of D-1 came to be noted as enjoyer in respect of the suit lands. Exs.A-9 and A-10 are filed by the plaintiff himself and they relate to the period immediately preceding the filing of the suit. None of the adangals filed by the plaintiff would show that his name was noted as person in possession and enjoyment of the suit land. On the other hand, though the earlier adangals mention the name of plaintiff’s father Varadaiah, as person in possession, the subsequent adangals and those relating to the period just prior to filing of the suit would disclose that D-1 was in possession and enjoyment of the suit land for which there was no explanation from the plaintiff. The plaintiff does not dispute the genuineness of the entries in the adangals Exs.A-9 and A-10 which were filed by him. The plaintiff has not adduced any evidence to show that he was in possession and enjoyment of the suit land by the date of filing of the suit. 9. According to the defendants, there was sub- division of the land situate in Sy.No.193/B in the year 1975 and for an extent of Ac.3-34 cents a separate sub- division No.193/B4 was assigned. The same is not disputed by the plaintiff. It is the case of the defendants that prior to the sub-division, their brother Ramachandra Reddy obtained loan from Primary Agricultural Development Bank, Gudur and discharged the same on 17.06.1981 and subsequent to sub-division also he obtained crop loan from Syndicate Bank, Gudur on the security of suit land of Ac.3-34 cents in Sy.No.193/B4 and the said loan was closed on 16.11.1994 by D-1. In support of the same, the defendants filed Ex.B-3 receipt for discharge of the loan and Ex.B-4 clearance certificate issued by the bank. 10. In a suit for bare injunction, the plaintiff has to necessarily establish that he was in possession and enjoyment of the land by the date of filing of the suit. The title of the plaintiff can also be gone into incidentally. The defendants have disputed the claim of the plaintiff both in respect of title and possession. Ex.A-1 the registered settlement deed on which the plaintiff seeks to rely upon as the basis for his claim of title was in respect of joint one-third share in an extent of nine acres and odd in Sy.Nos.193/B and 193/C. There is nothing on record to show that subsequent to the sub-division of the land in Sy.No.193/B in the year 1975, the suit land of an extent of Ac.3-34 cents belonged to the plaintiff. Even going by the entries in the adangals, the plaintiff’s name is nowhere noted and his father Vardaiah’s name is noted as pattadar for the earlier period and D-1’s name is noted as person in possession and enjoyment for the subsequent period and even by the date of filing of the suit. The evidence on record also shows that D-1’s brother Ramachandra Reddy obtained crop loans from the banks by pledging the suit land as security. The trial Court, without appreciating the evidence in its proper perspective, granted a decree for permanent injunction on the ground that plaintiff’s father Varadaiah was one of the joint pattadars of Sy.No.193 and, therefore, assuming that plaintiff is in possession of the schedule land, Sy.No.193 comprises a large extent which includes the suit land of Ac.3-34 cents which was assigned a separate number in Sy.No.193/B4. Simply because the plaintiff’s father Varadaiah was one of the joint pattadars in respect of the land in Sy.No.193, no inference can be drawn to the effect that the plaintiff was in possession and enjoyment of the suit land of Ac.3-34 cents which is situate in Sy.No.193/B4. Even according to the plaintiff, the conveyance under Ex.A-1 is only in respect of Ac.2-52 cents whereas the suit land is an extent of Ac.3-34 cents. The said discrepancy is not explained by the plaintiff and even the boundaries of the land as stated by P.W.1 in his evidence do not tally with those mentioned in the plaint schedule and this circumstance also shows that the plaintiff is not sure of the location of the plaint schedule land. On the other hand, the adangals Ex.A-9 and A-10 filed by the plaintiff himself disprove his claim of possession of suit land by the date of the suit. The appellate Court has, therefore, on proper appreciation of the evidence and by a reasoned order reversed the finding of the trial Court. The impugned judgment and decree passed by the appellate Court on proper re- appraisal of the evidence on record and reaching at a correct conclusion and setting aside the decree for injunction granted by the trial Court, does not call for any interference in the present second appeal. 11. The learned counsel for the appellant would rely upon a decision in GANAPURAM BRAMARAMBA V. ANNEPARTHY ANANTHARAMAIAH[1] wherein this Court, following the decision of the Apex Court in AMBIKA PRASAD THAKUR AND OTHERS V. RAM EKBAL RAI (DEAD) BY LRs AND OTHERS [2], held as follows: “If a thing or a state of this is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illus. (d) to S.114. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognized both in India. This is rule of evidence by which one can presume the continuity of things backwards. The presumption of continuity weakness with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.’ 12. The principle laid down in the above decision pertaining to presumption that can be drawn under Section 114 of the Evidence Act regarding the continuity of existing thing or state of things both backward and forward cannot be disputed. To what extent such a presumption can be drawn, however, depends on the nature of the thing and the surrounding circumstances, as held by the Apex Court. Exs.A-9 and A-10 filed by the plaintiff himself would show that D-1 was in possession and enjoyment of the suit land since a few years prior to filing of the suit. On the other hand, there is no evidence to show that the plaintiff was in possession of the suit land by the date of filing of the suit. Under those circumstances, applying the principle laid down in the above decision regarding the presumption of continuance of the existing things backward, the resultant position would be to draw a presumption in favour of the defendant’s continuance of possession of the suit land. The above decision would have been of some help to the plaintiff in the absence of Exs.A-9 and A-10. But in the facts and circumstances of the present case and in the light of Exs.A-9 and A-10, the above decision is of no avail to the plaintiff. 13. The question as to who among the parties was in possession and enjoyment of the suit land by the date of filing of the suit is purely a question of fact and the finding recorded by the appellate Court to the effect that the plaintiff failed to establish that he was in possession and enjoyment of the suit land is unassailable, as the said finding is based on proper appreciation of evidence and supported by valid reasons. 14. The learned counsel for the respondents would contend that there is no question of law, much less substantial question of law, involved in the present case and hence the second appeal is not maintainable in view of Section 100 CPC. 15. I n THIAGARAJAN V. SRI VENUGOPALASWAMY B.KOIL[3], the Apex Court held that the High Court in its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The court observed that: “to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible”. 16. In H.P.PYAREJAN V. DASAPPA[4], the Apex Court observed as follows: “it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 CPC (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence.” 17. In CHANDRIKA SINGH (DEAD) BY LRs & ANOTHER v. SARJUG SINGH & ANOTHER[5], the Apex Court reiterated the legal position that the High Court under Section 100 CPC has limited jurisdiction. To deal with cases having a substantial question of law, this Court observed as under: “12….. While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the Courts below are binding on the High Court….” 18. I n CHACKO & ANOTHER v. MAHADEVAN[6], while dealing with the jurisdiction of Sections 96 and 100 CPC, this Court laid down as under: “6……It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC, the High Court cannot interfere with the findings of fact of the first appellate Court, and it is confined only to questions of law.” 19. In view of the principles laid down in the above decisions and view of the fact that there is no question of law, much less substantial question of law involved, warranting interference of this Court in exercise of powers under Section 100 CPC, the second appeal is liable to be dismissed. 20. In the result, the second appeal is dismissed. There shall be no order as to costs. ________________________ G.V.SEETHAPATHY, J 07th September, 2011 Lrkm [1] 2004(5) ALT 597 [2] AIR 1966 SC 605 [3] (2004) 5 SCC 762 [4] (2006) 2 SCC 496 [5] (2006) 12 SCC 49 [6] (2007) 7 SCC 363