Andhra Pradesh High Court - Amravati
Lakkoji Mohan Rao vs Lakkoji Viswanadham on 7 April, 2022
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO: S.A.No.166 of 2022
PROCEEDING SHEET
Sl.N Date ORDER OFFICE
o. NOTE
07.04.2022 BSB, J
Heard the learned counsel for the
appellant/1st defendant.
The suit is filed for permanent injunction
and the same has been decreed inspite of the
contention of the appellant that irrespective of
the decree granted in the earlier suit for
partition, the parties are in possession of
different extents in view of the settlement by
the elders but without considering the same,
the trial Court decreed the suit and the first
appellate Court dismissed the appeal. It is
further contended that in view of the dispute as
to the extent of the property, mere suit for
injunction is not maintainable and the plaintiff
ought to have filed suit for declaration of title
as well. In this regard, among several other
substantial questions of law mentioned by the
appellant, the following two main questions are
relevant for consideration.
1. The courts below erred in law by allowing
the suit and confirming the same inspite
of rightly contending that the law does
not insist on existence of title in favour of
the plaintiff in a suit of that nature
reference in title will be only to ensure
that the possession claimed by the
plaintiff are not of an outright trespauser
or encroacher, but is a person having
semblance of right, any one who wants
pronouncement upon the title in his
favour must file a suit for declaration of
title.
2. The courts below ought to have seen that
the plaintiff and defendants are none
other than step brother, both parties
enjoying properties as joint family
properties, once defendant disputing the
extent share of plaintiff, the plaintiff
without seeking for declaration of title
and seeking relief in a suit for permanent
injunction is not maintainable under the
law.
In addition thereto, it is also necessary to
formulate question of law as to whether the
Courts below have properly appreciated the
evidence on record.
As such, it is a fit case to admit the
appeal.
ADMIT.
Notice to respondents.
Post on 29.04.2022.
Learned counsel for the appellant is permitted to take out personal service of notice to the respondents through RPAD and file proof thereof.
_________________ B.S.BHANUMATHI,J PNV