Andhra Pradesh High Court - Amravati
Marri Venkata Lakshmi vs Kalvakollu Harinadha Rao on 26 May, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
SECOND APPEAL No. 456 of 2014
JUDGMENT :
This appeal is preferred under Section 100 CPC against the judgment of the Court of the learned Senior Civil Judge, Mangalagiri in A.S.No. 55 of 2011 dated 25.06.2013 reversing the decree and judgment of the Court of the learned Principal Junior Civil Judge, Mangalagiri in O.S.No.1 of 2008 dated 12.10.2011.
2. The defendants are the appellants. The plaintiff in the suit is the respondent and he was the appellant in A.S.No.55 of 2011 in the first appellate Court, while the appellants herein were the respondents therein.
3. The respondent laid the suit initially against Sri Pidugu Srinivasa Rao and the 1st appellant Smt. Marri Venkata Lakshmi for grant of permanent injunction restraining them from interfering with his alleged possession and enjoyment of the plaint schedule property. Sri Pidugu Srinivasa Rao died during pendency of the suit and his legal representatives being the appellants 2 to 5 were brought on record as the defendants 3 to 6 respectively.
4. The property in dispute is described in the plaint schedule as a vacant house site in Ward No.11 of Mangalagiri Municipality in S.No.111-B bearing Door No.11-104A of 444 ¾ Sq.Yards or 281.19 Sq.Mts. within the boundaries mentioned therein. For convenience, it shall be referred hereafter as, 'the suit site'.
5. The case of the respondent in the plaint was that he purchased the suit site for valuable consideration under a registered sale deed dated 24.12.2007 and that he was put in possession of this site by his vendor. It MVR,J S.A.No. 456 of 2014 2 was also the case of the respondent that his vendor had purchased this site under registered sale deed dated 12.01.2005 for valuable consideration and that his vendor was enjoying this property till he sold it to him. Stating that the appellants without any manner of right began to interfere with his possession and enjoyment of the suit site including on 15.01.2008, with the assistance of antisocial elements and since made futile attempt to grab the property, by dispossessing him, he claimed that he was constrained to lay the suit.
6. Sri Pidugu Srinivasa Rao during his lifetime filed written statement opposing the claim of the respondent denying his right, title and interest to the suit site and questioning the very frame of the suit being for bare injunction without seeking declaration of the right and title to it. It was further his case in the written statement that the suit site originally belonged to Smt. Marri Venkata Subbamma, W/o. Sri Ramaiah, who acquired it under a registered release deed dated 17.06.1976 from her mother Smt. Manikyamma as well as her sisters including her minor brother, represented by their mother, and ever since she was in possession and enjoyment of this site. It was further case in the written statement that Smt. Marri Venkata Subbamma out of love and affection executed two gift deeds on 13.07.2004 in favour of Sri Pidugu Srinivasa Rao and the 1st appellant, delivering possession of the sites thereunder respectively. It was also the case in the written statement that both these donees were in possession and enjoyment of the sites so gifted to them ever since then uninterruptedly and including on the date of the suit.
7. It was the further case in the written statement that Sri Manikyala Venkateswara Rao, who executed the sale deed in favour of the vendor of the respondent, is the brother of Smt. Marri Venkata MVR,J S.A.No. 456 of 2014 3 Subbamma, who had nothing to do with the suit site. A reference is also made in the written statement of O.S.No.282 of 2004 filed by Sri Pidugu Srinivasa Rao and the 1st appellant against Sri Manikyala Venkateswara Rao where a temporary injunction was also granted in their favour in I.A.No. 1481 of 2004 on 23.09.2004 by the Court of learned Principal Junior Civil Judge, Mangalagiri.
8. Further reference was also made in the written statement of O.S.No.300 of 2005 filed by Sri Pidugu Srinivasa Rao and the 1st appellant against Sri Manikyala Venkateswara Rao for permanent injunction in respect of the property gifted to Sri Pidugu Srinivasa Rao and that Sri Manikyala Venkateswara Rao himself filed O.S.No.299 of 2005 for bare injunction in respect of the property covered by the gift deed in favour of the 1st appellant on the file of the above Court, where there was a compromise in Lok Adalat on 09.11.2005. By virtue of this compromise, a part of the site was relinquished in favour of Sri Manikyala Venkateswara Rao as per the averments in the written statement and that Sri Pidugu Srinivasa Rao and the 1st appellant also applied to Mangalagiri municipality for mutation of the property left over as per the award of the Lok Adalat dated 09.11.2005 on 03.09.2007 while issuing a remainder on 24.12.2007.
9. Thus asserting their right, title and interest to the suit site in the written statement, it was requested that the suit as laid could not be maintained and discretionary relief could not be granted in favour of the respondent since the claim was based on misstatement of facts, approach being with unclean hands and without any supporting material. The 1st appellant adopted the written statement so filed.
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10. On the above pleadings, the following issues were settled for trial:
"1. Whether the plaintiff is having lawful possession and valid title over the plaint schedule property or not?
2. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants, their men etc., from interfering with the plaintiff's peaceful possession and enjoyment over the plaint schedule property with costs or not?
3. To what relief?"
11. At the trial, the respondent examined himself as P.W.1 and relied on Ex.A2 to Ex.A11 to support his contention. He also examined P.W.2, an alleged tenant of the suit site, of his vendor. The 2nd appellant examined herself as D.W.1 and the appellants relied on Ex.B1 to Ex.B13 to support their claim at the trial.
12. Basing on the material and the evidence let in by the parties, the learned trial Judge observed that there is a serious dispute relating to title among these parties in respect of the suit site and thus the suit as filed could not be maintained. The trial Court also disbelieved the version of the respondent of his alleged possession and enjoyment of the suit site and thus holding, findings were recorded on issues 1 and 2 against the appellants. Consequently, the suit was dismissed with costs.
13. In the appeal preferred by the respondent, basing on the material and considering the evidence, the learned appellate Judge held that the learned trial Judge was not right in recording an observation that the respondent did not have title since the suit filed was one for permanent injunction and consideration of such question or issue did not arise. The learned appellate judge also held that the evidence let in by the MVR,J S.A.No. 456 of 2014 5 respondent was sufficient to hold that he is in possession and enjoyment of the suit site, particularly relying on the nature of evidence let in through the second appellant as D.W.1. Thus, basing on the nature of evidence let in on behalf of the appellants, the learned appellate Judge considering the documentary evidence under Ex.A1 and Ex.A2 let in by the respondent as well as considering the outcome of O.S.No.153 of 2004 filed by Sri Manikyala Venkateswara Rao against Smt. Marri Venkata Subbamma for grant of permanent injunction, sought to be proved through Ex.A10 and Ex.A11, relying on Ex.A9-C.C.of commissioner's report along with rough sketch in I.A.No.3942 of 2004 in O.S.No.382 of 2004 on the file of the Court of the learned Principal Junior Civil Judge, Mangalagiri drawing support from the testimony of P.W.2, upheld the case of the respondent of his possession and enjoyment of the suit site. Thus the suit was decreed in favour of the respondent and against the appellants, allowing the appeal preferred by him.
14. Against this appellate judgment and decree therein, the present second appeal is preferred.
15. Sri Prabhala Rajasekhar, learned counsel for the appellants, strenuously contended assailing the findings recorded by the learned appellate judge while Sri Naga Praveen Vankayalapati, learned counsel for the respondent, with equal vehemence supported the reasons assigned in the appellate judgment calling for no interference.
16. This second appeal was admitted by an order dated 18.07.2014 predominantly on the questions of law raised and set out in the grounds of appeal, on behalf of the appellants. These questions of law for determination in this second appeal are as follows:
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1.Whether the plaintiff is entitled for a decree of permanent injunction in the absence of any documentary evidence of proving his possession over suit schedule property under Sections 37 and 38 of the Specific Relief Act, 1963?
2.Whether the Lower Appellate Court committed an error in following and applying ratio laid by the Apex Court in case of A. Sudhakar Vs. P.Butchi Reddy, reproted in AIR 2008 SC Page No.2033?
17. These two questions of law are now considered for determination.
18. In a suit for permanent injunction, it is settled proposition of law that the burden always rests on the plaintiff to establish his claim making out possession of the property in dispute, with lawful right and interest. The plaintiff cannot rely on any laches or deficiencies in the case set up by the defendants while opposing such claim. Once he establishes his claim and discharges his burden, then the defendant is called upon to rebut such evidence placed by the plaintiff.
19. The learned counsel for the appellants also relied on a recent Judgment of Hon'ble Supreme Court in Balkrishna Dattatraya Galande Vs. Balakrishna Rambharose Gupta and another1 canvassing the proposition that it is for the plaintiff to establish his claim in a suit for permanent injunction and that while deciding the question of grant of injunction, possession of the property on the date of the suit should be taken into consideration and that the evidence to be let in by the plaintiff in respect of possession cannot be based upon inferences drawn from the circumstances. Thus, it is contended by the learned counsel that in view of the above ruling of Hon'ble Supreme Court it is necessary for the respondent to establish and prove that he was in actual possession of the 1 . AIR 2019 SC 933 MVR,J S.A.No. 456 of 2014 7 suit site to seek such relief of prohibitory injunction in terms of Section 38 of the Specific Relief Act.
20. The question of title in the given circumstances, basing on facts in issue can also be considered by the Court in a suit for permanent injunction. The law in this respect is summarized in Anathula Sudhakar Vs. P. Butchi Reddy2. The 1st appellate Court also considered the effect of this ruling. However, it is the contention of the learned counsel for the appellants that the ratio laid down with reference to consideration of right and title in a suit for permanent injunction in the above authoritative ruling of the Hon'ble Supreme Court was followed more in breach by the appellate Court than in proper application. In para 21 of the above ruling, it is observed in this context as under:
21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue.
The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the 2 . 2008(4) SCC 594 MVR,J S.A.No. 456 of 2014 8 matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
21. Another ruling relied on by Sri P. Raja Sekhar, learned counsel for the appellants in this context is in Jarkhand State Housing Society Vs. Didar Singh & Another3. In para-11 of this ruling with reference to necessity to establish title, it is observed as under:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
22. The claim of the respondent is based on the alleged purchase of the suit site under Ex.A1 sale deed dated 24.12.2007 whereunder he claimed that he was put in possession of the suit site by his vendor. Ex.A2 is the sale deed dated 12.01.2005 under which, according to the respondent, his vendor had purchased the suit site from Sri Manikyala Venkateswara Rao and that he was put in possession of the suit site thereunder.
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23. Except these two sale deeds, the respondent did not produce any other material in the nature of documentary proof to establish that he was in possession and enjoyment of the suit site on the date of filing the suit (the suit was filed on 17.01.2008 in the trial Court).
24. The respondent deposed in terms of plaint pleadings, at the trial. As seen from the plaint, there is not even reference to the name of his vendor under Ex.A1 and that of his vendor's vendor under Ex.A2. In the affidavit filed in lieu of his examination in chief as P.W.1 similar situation is seen.
25. Apart from producing Ex.A1 and Ex.A2, the respondent had also produced Ex.A3 to Ex.A11. However in his deposition as P.W.1, there is no explanation offered by him bringing out necessary facts, the purpose of relying on Ex.A3 to Ex.A11. This omission is now referred, having regard to the nature of the defence raised by the appellant in their written statement and evidence of the 2nd appellant as D.W.1.
26. It is not in dispute that an extent of Ac.0-60 cents in D.No.111/1B of Mangalagiri belonged to Sri Manikyala Ramaiah, Son of Sri Kotaiah, a resident of Kaja Village. It was purchased by him under Ex.B1 sale deed for Rs.1500/- on 11.01.1964 from Sri Namburi Appalacharyulu, Son of Krishnamacharyulu and others. Sri Manikyala Ramaiah is none other than the father of Sri Manikyala Venkateswara Rao and Smt. Marri Venkata Subbamma. He died on 18.05.1975 (as per Ex.P10). After the lifetime of Sri Ramaiah as seen from Ex.B2 on 17.06.1976, a release or relinquishment was executed for consideration of Rs.2,000/- in respect of Ac.0-60 cents covered by Ex.B1 by Smt. Manikyala Manikyamma, W/o. Sri Ramaiah not only on her behalf but also on behalf of her minor son Sri MVR,J S.A.No. 456 of 2014 10 Manikyala Venkateswara Rao. Other executants of Ex.B2 were sisters of Smt. Marri Venkata Subbamma. The recitals in Ex.B2 are to the effect that Smt. Marri Venkata Subbamma was delivered possession of this entire Ac.0-60 cents thereunder.
27. However, as seen from the material, Sri Manikyala Venkateswara Rao asserted his right and interest to the above extent of Ac.0-60 cents and against Smt. Marri Venkata Subbamma in O.S.No.153 of 2004 on the file of the Court of the learned Principal Junior Civil Judge, Mangalagiri, as seen from Ex.B10 and sought relief of permanent injunction against her restraining her from interfering with his possession and enjoyment of this entire extent of Ac.0-60 cents. The above suit was decreed in favour of Sri Manikyala Venkateswara Rao by the judgment dated 11.08.2004. Ex.A11 consists of certified copies of decree and judgment therein. It was an ex parte decree passed against Smt. Marri Venkata Subbamma in favour of Sri Manikyala Venkateswara Rao.
28. It is contended by Sri P. Raja Sekhar, learned counsel for the appellants that Sri Manikyala Venkateswara Rao did not question Ex.B2 release deed at any time including upon attaining majority. This contention now cannot be accepted in as much as neither there is pleading in the written statement nor it was so set up during trial or in the first appeal, on behalf of the appellants since it raised for the first time, in this second appeal.
29. Obviously, during pendency of O.S.No. 153 of 2004 (which was filed on 30.06.2004 in the court of the learned Principal Junior Civil Judge, Mangalagiri), Smt. Marri Venkata Subbamma executed Ex.B3 and Ex.B4 in favour of Sri Pidugu Srinivasarao and the 1st appellant respectively.
MVR,J S.A.No. 456 of 2014 11 Recitals in those documents are to the effect that the beneficiaries therein were already in possession and enjoyment of the respective extents stated therein and that these documents were executed to confirm their possession and enjoyment of their respective extents. Thus, they stand in the nature of acknowledgments of such enjoyment with an effect to transfer right and title in their favour. The contention of the appellants is also that Smt. Marri Venkata Subbamma continued to be in possession and enjoyment of this extent of Ac.0-60 cents including one covered by Ex.B3 and Ex.B4, proved by Ex.B5 and Ex.B6 property tax receipts and demand notices issued to her by Mangalagiri municipality.
30. O.S.No.282 of 2004 was instituted by Sri Pidugu Srinivasa Rao and the 1st appellant against Sri Manikyala Venkateswara Rao on the file of the Court of the learned Principal Junior Civil Judge, Mangalagiri with reference to the extent covered by Ex.B3 and Ex.B4 on the premise that he was interfering with their possession and enjoyment of these sites. Ex.A7 is the certified copy of the plaint in O.S.No.282 of 2004. A temporary injunction was granted in favour of Sri Pidugu Srinivasa Rao and the 1st appellant during pendency of the above suit, as seen from Ex.B8 dated 23.09.2004 in I.A.No.1481 of 2004.
31. Both of them also instituted O.S.No.300 of 2005 on the file of the same Court. Ex.A3 is the certified copy of the plaint in O.S.No.300 of 2005. Relief of permanent injunction was sought in the above suit against Manikyala Venkateswara Rao by the plaintiff therein with reference to Ac.0-09 cents of land in D.No.111-1B concerned to Door No. 11-104A of Mangalagiri Municipality referrable to the land covered by Ex.B3-Gift Deed. It was alleged in this plaint that Sri Manikyala Venkateswara Rao was MVR,J S.A.No. 456 of 2014 12 interfering with possession and enjoyment of the above land without any manner of right and interest.
32. O.S.No.299 of 2005 was instituted on the file of the Court of the learned Principal Junior Civil Judge, Mangalagiri by Sri Manikyala Venkateswara Rao against Sri Pidugu Srinivasa Rao and the 1st appellant, who were the plaintiffs in O.S.No.300 of 2005 on the file of the very same court for grant of permanent injunction to restrain them from interfering with his possession and enjoyment of the house site and a shed in 240 Sq.yards in D.No.111-1B bearing Door No.11-104A of Mangalagiri.
33. It is pertinent to note that both these suits in O.S.No.300 of 2005 and O.S.No.299 of 2005 were instituted in the above Court on the very same day viz., 07.11.2005. It is also pertinent to note that by the date of institution of O.S.No.299 of 2005, Sri Manikyala Venkateswara Rao, as per the recitals in Ex.A2 had already sold away the site covered by O.S.No.300 of 2005 (Ex.A2 sale deed is dated 12.01.2005).
34. All these three suits viz., O.S.No. 282 of 2004, O.S.No.300 of 2005 and O.S.No.299 of 2005 were settled in Lok Adalat at Mangalagiri on 09.11.2005. Ex.A4 is the certified copy of the award of Lok Adalat relating to O.S.No.300 of 2005. Its contents are that O.S.No.300 of 2005 was decreed as per the compromise entered into by the parties (Ex.B9 is copy of the same award).
35. Ex.A6 is the certified copy of the award in O.S.No.299 of 2005 passed by the Lok Adalat. Its contents are that the suit in O.S.No.299 of 2005 was decreed without costs.
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36. Ex.B10 is the copy of the award in O.S.No.282 of 2004 (Ex.A8 is its certified copy). As per its contents, the suit in O.S.No.282 of 2004 was dismissed and without costs.
37. As seen from the original record produced from the trial Court in this second appeal, the memorandum of compromise or terms of compromise is not enclosed to any of these awards of Lok Adalat. However, in the course of hearing, the learned counsel for the appellant produced a copy of Ex.B10 along with the terms of compromise enclosed to it. But, this terms of compromise being not a part of the material record and hence cannot now be considered which is not a part of material record. Though it is a valuable document for both the parties to rely on, apparently no care was taken on behalf of both these parties to get this terms of compromise marked and exhibited along with any one of the awards so produced during course of the trial.
38. These documents, particularly with reference to these three suits in O.S.No.282 of 2004, O.S.No.300 of 2005 and O.S.No.299 of 2005 and along with the settlement reached at Lok Adalat through awards are considered and discussed now, in order to evaluate the contention of the parties as to existence or subsistence of a dispute relating to right, title and interest to the suit site.
39. They leave no manner of doubt that by the date of institution of the suit concerned to this appeal viz., O.S.No.1 of 2008, there was a serious dispute relating to title to the suit site. This inference has to be particularly drawn having regard to the decree passed in O.S.No.300 of 2005 by means of Ex.A4/Ex.B9 Lok Adalat award, in favour of Sri Pidugu Srinivasa Rao and the 1st appellant restraining the vendor of the vendor of MVR,J S.A.No. 456 of 2014 14 the respondent from interfering with their possession and enjoyment of this plot. This award being dated 09.11.2005 was passed long prior to institution of O.S.No.1 of 2008.
40. The mischief on the part of Sri Manikyala Venkateswara Rao in suppressing the fact that he had sold away the site under Ex.A2 to vendor of the respondent before Lok Adalat ,when the parties entered into such compromise, is well exposed. Having sold away the property under Ex.A2 to which by reason of these awards he had no right or interest or title, apparently he played fraud on the court as rightly contended for the appellants. He was satisfied with the award passed in his favour in O.S.No.299 of 2005 obviously with reference to the land covered by Ex.B4-Gift Deed and while Sri Pidugu Srinivasa Rao and the 1st appellant accepted their claim in respect of the present suit site covered by Ex.B3- Gift Deed. The nature of this understanding, possibly reflected in the terms of compromise entered into in between these parties, thus holds any amount of significance in this context.
41. There is an averment in the written statement that Sri Manikyala Venkateswara Rao was given away certain extent upon entering into such award. But, the details of the same and how it was given away, have not been specified therein. In cross-examination, the second appellant as D.W.1, stated about it. It is in consonance with this settlement or adjustment among these parties. She stated that Ac.0-05 cents of land was given away by her husband viz., Sri Pidugu Srinivasa Rao to Sri Manikyala Venkateswara Rao by way of adjustment. Her further statement in cross-examination confirmed this fact, when she stated that they gave away Ac.0-05 cents to Sri Manikyala Venkateswara Rao, out of the property gifted by her mother. It was her further statement in the MVR,J S.A.No. 456 of 2014 15 cross-examination that the property in dispute in O.S.No.282 of 2004 consisted of Ac.0-16 cents which was also shown in the plaint schedule in O.S.No.282 of 2004.
42. In the back drop of such material, when the learned trial Judge held that there is a serious dispute relating to title among the parties in respect of suit site, observations recorded by the 1st appellate Court in judgment as if such inference is unnecessary, is without any basis.
43. As rightly contended by Sri P. Raja Sekhar, learned counsel for the appellant, the purport and import of the ratio in Anathula Sudhakar in relation to considering a dispute based on title for grant of relief of permanent injunction was not considered and applied by the learned 1st appellate Judge properly.
44. In view of this serious dispute relating to title of the suit site projected from the defence set up by the appellants at the trial, the suit for injunction simplicitor could not have been maintained by the respondent.
45. The learned appellate Judge was carried away by the statements elicited from the second appellant as D.W.1. In cross- examination, she went to the extent of stating that she did not know the contents of her affidavit filed in lieu of examination in chief and that it was not read over to her or explained. However, later part of cross- examination of this witness on behalf of the respondent himself brought out the material as referred to supra, to accept her testimony otherwise.
46. Placing reliance on the statements of D.W.1 by the learned appellate judge sans testimony of P.W.1, who is none other than the respondent in this context, is not proper. When burden in a suit for MVR,J S.A.No. 456 of 2014 16 permanent injunction is on the plaintiff viz., the respondent in this case, even if the evidence of the appellants viz., the defendants is not of such nature to inspire confidence to accept the defence, it could not have been considered as the strength of the plaintiff viz., the respondent. Even otherwise, as already stated, the respondent absolutely failed to reason out the purpose of producing the awards relating to the above suits discussed supra. Very production of these documents indicates that the respondent was aware of a serious dispute affecting title to the suit site.
47. Cross-examination of the respondent on behalf of the appellants elicited certain statements to the effect that he enquired regarding source of title and possession of his vendor prior to Ex.A1 and so also flow of title to the suit site. He further stated that he obtained all link documents from his vendor, when he purchased the suit site under Ex.A1. He further stated that he had known how his vendor's vendor acquired this site.
48. When these statements are taken into consideration, particularly when he had chosen to produce the awards of the Lok Adalat referred to above, it did reinforce that the respondent was aware that there is a serious cloud cast upon the title he claimed by virtue of Ex.A1 to the suit site. In such an event, he should have filed a suit for a comprehensive relief of declaration of his right, title and interest to the suit site against Sri Pidugu Srinivasa Rao and the 1st appellant without filing a suit for permanent injunction.
49. With reference to possession of the suit site claimed by the respondent, his oral testimony is not sufficient by itself in the absence of any other documentary proof. Ex.A1 and Ex.A2 cannot be proper MVR,J S.A.No. 456 of 2014 17 substitutes for the proof to be adduced in this context. Evidence of P.W.2, who claimed to be tenant of the vendor of the respondent, was rightly rejected by the learned trial Judge offering valid reasons. Except his assertion orally, no documentary proof was laid at the trial to make out that P.W.2 was a tenant of the site in question at any stage nor nature of his possession and enjoyment of this property was established. He claimed that he was retrading tyres. If it was his activity, there should have been certain documents to show that he conducted this activity from the property in dispute. Cross-examination of P.W.2 itself makes out that there is no documentary proof establishing that he resided in the property in dispute in between the years 2004 and 2007. These circumstances are sufficient to reject the version of P.W.2.
50. As rightly contended for the appellants relying on the judgment of Hon'ble Supreme Court in Balkrishna Dattatraya Galande , possession cannot be sought to be established by drawing inferences and basing on such material, which is not in any manner suggesting certainty and being concrete.
51. The contentions on behalf of the respondent in the light of the reasons offered supra, particularly basing on the outcome of O.S.No.153 of 2004 against Smt. Marri Venkata Subbamma from whom Sri Pidugu Srinivasa Rao and the 1st appellant claimed the suit site, cannot offer any consolation.
52. An attempt is also made on behalf of the respondent by their learned counsel, relying on the observations of the commissioner in his report in I.A.No. 3942 of 2004 in O.S.No. 282 of 2004 (Ex.A9) to contend that these observations prove that the vendor of the vendor of the MVR,J S.A.No. 456 of 2014 18 respondent was in possession and enjoyment of the suit site. Unfortunately, learned appellate Judge took into consideration the contents of Ex.A9. They were not considered by the trial Court, rightly. Ex.A9 has not been proved at the trial. Learned commissioner, who recorded such observations, was not examined at the trial. In view of Section 33 of the Indian Evidence Act, in the absence of examination of the person who authored this commissioner's report, this report cannot be looked into. Hence, it cannot enure to the contention of the respondent in any manner.
53. As rightly observed by the learned trial Judge, since values of the suit site have increased enormously, which remained vacant in Mangalagiri Town, by institution of this suit, apparently an attempt was made to grab the same. The fact that the families of Sri Pidugu Srinivasa Rao and the 1st appellant have been living far away from Mangalagiri town cannot by itself make out that they did not have any interest to hold on to this property, particularly when there is material proving that they did have right, title and interest to it. Though the suit filed was only for the relief of permanent injunction, in the given facts of this case, question of title necessarily should have been considered at the trial, following the requirements observed in Anathula Sudhakar referred to supra.
54. Therefore, the reasons assigned by the learned appellate Judge in the judgment under appeal, are without any basis and the claim of the respondents could not have been accepted, unmindful of effect of burden of proof and relying on the oral testimony alone adduced on behalf of the appellants without considering the effect of documentary evidence on record. When the learned trial Judge in his discretion had chosen to reject the claim of the respondent, who had benefit and advantage of observing MVR,J S.A.No. 456 of 2014 19 the demeanour of the witnesses and conduct of the parties before him, the discretion so exercised could not have been interfered with by the learned appellate Judge on such basis or grounds, which appeared superficial, without any firm foundation.
55. Thus these two questions of law are considered now holding that the decree and judgment of the appellate Court require interference. The judgment of the appellate Court is perverse. Necessarily it has to be set aside holding that the trial Court decided the matter in proper perspective considering all the legal parameters. Thus, these two questions of law are held in favour of the appellants and against the respondent.
56. In the result, this second appeal is allowed setting aside the decree and judgment in A.S.No.55 of 2011 on the file of the learned Senior Civil Judge, Mangalagiri dated 25.06.2013. Consequently, the decree and judgment of the Court of the learned Principal Junior Civil Judge, Mangalagiri in O.S.No.1 of 2008 dated 12.10.2011 is restored conforming the dismissal of the suit with costs. The respondent is directed to pay costs in this appeal to the appellants and shall suffer his own costs.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 26.05.2020 Note: Note: Judgment pronounced through Bluejeans (virtual) mode, since this mode is adopted on account of the prevalence of Covid-19 pandemic, from the 15th Court.
RR MVR,J S.A.No. 456 of 2014 20 HON'BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No. 456 of 2014 Dt: 26.05.2020 RR