Andhra HC (Pre-Telangana)
Dakkili Siva Narapa Reddy vs Gaddam Penchala Reddy on 16 February, 2004
Equivalent citations: AIR2004AP306, 2004(2)ALD786, AIR 2004 ANDHRA PRADESH 306, (2004) 2 ANDHLD 786
JUDGMENT P.S. Narayana, J.
1. Heard Sri Dasaradha Rami Reddy, learned Counsel representing the appellant-defendant and Sri Gangarami Reddy, learned Counsel representing the respondent-plaintiff and also Cross-objector.
2. Sri Dasaradha Rami Reddy, learned Counsel representing appellant-defendant had drawn the attention of this Court to the following substantial questions of law specified in Ground No. 9 (i) to (vii):
(i) Whether the appellate Court below in granting permanent injunction in favour of the respondent herein for limited period against the Co-owner is bad in law or not?
(ii) Whether the appellate Court is justified in granting permanent injunction to the respondent herein for a period of 3 years and also direct him to file a suit for declaration on the basis of possessory title having held in its finding that the respondent herein failed to show incidentally the right and title over the suit scheduled property and that he is in prima facie possession for succeeding the suit for permanent injunction is bad in law and perverse?
(iii) Whether the Appellate Court is below is justified in granting permanent injunction based on mere on suspicion and possible bias on the appellant without any evidence and when there was no issue as well to support his findings is bad or not?
(iv) Whether the Appellate Court below is justified in granting permanent injunction for limited period and direct the respondent to file suit for declaration basing on his possessory title which is no expected by law is correct or not?
(v) Whether the Appellate Court below is justified in giving a finding without framing an issue?
(vi) Whether the lower Appellate Court is justified in granting permanent injunction without properly evaluating the evidence of D.W.I to D.W.5?
(vii) The Court below are justified in granting permanent injunction by misconstruing the evidence of D.W.1 to D.W.5 which itself is a substantial question of law.
The learned Counsel also had submitted that this piece of land was not divided in partition and the same was kept jointly and hence, there cannot be any injunction against a co-owner. Even otherwise, the learned Counsel commented on the question of burden of proof that since the respondent-plaintiff was unable to produce any acceptable evidence except marking Ex.A.1 and some oral evidence, which had been let in, the burden was not discharged and in this view of the matter, the plaintiff who had approached the Court is bound to fail. The learned Counsel also submitted that the Appellate Court in view of the apprehension expressed by the respondent-plaintiff-Cross-Objector that the coconut trees are being damaged, had granted injunction for a limited period with a direction to approach the Court for the relief of declaration of title, if he is so advised. The Counsel also had mentioned that in the facts and circumstances of the case, inasmuch as the appellant is a co-owner, there cannot be a perpetual injunction as against him. The learned Counsel had taken this Court through the findings recorded by the Court of first instance and also the findings recorded by the appellate Court in this regard. The learned Counsel also had placed a reliance on Banarsi Das v. Brig. Maharaja Sukhjit Singh and Anr., AIR 1998 SC 179.
3. Per contra, Sri Gangarami Reddy, learned Counsel representing the respondent-plaintiff-Cross-objector had pointed out to the grounds raised in the cross-objections filed and had submitted that when a finding was recorded that the plaintiff has been in long uninterrupted possession for atleast a period of 20 years, on the strength of possessory title, the plaintiff is definitely entitled to the relief of perpetual injunction against the whole world except the true owner. The learned Counsel also had drawn the attention of this Court to the evidence of P.Ws.1 and 5, father-in-law of the plaintiff and the plaintiff as well and also the supporting evidence of P.Ws.3 and 4. The learned Counsel pointed out that the nature of the property also may have to be looked into while granting the relief. The material available on record would clearly disclose that the property is only a channel poramboke and hence, there is no question of keeping this property joint at the time of partition as contended by the appellant-defendant. The learned Counsel also would contend that in such a case, the question of co-ownership and not granting a perpetual injunction as against such a co-owner definitely would not arise. The learned Counsel also had placed reliance on Nair Service Society Ltd, v. K.CMexander and Ors., AR 1968 SC 1165 and Prataprai N. Kothari v. John Braganza, .
4. Heard both the learned Counsel and also perused the findings recorded by the Court of first instance and also the appellate Court as well.
5. Before considering the respective contentions of the parties, it may be appropriate to have a look at the grounds raised by the plaintiff as Cross-objector being aggrieved of the limited injunction granted by the appellate Court. The said grounds are specified as hereunder:
(i) Whether the lower appellate Court acted legally in confining the permanent injunction for a period of three years having held that the plaintiff is in long and uninterrupted possession for a period of 20 years.
(ii) Whether the lower appellate Court is justified in saying that the plaintiff failed to prove the title over the suit schedule property even though the evidence on record clearly shows that the Cross-Objector has established prima facie title over the suit schedule property.
(iii) Whether the lower appellate Court has considered the oral and documentary evidence on record in its proper perspective and the conclusions arrived at are sustainable.
(iv) Having held that the Cross-objector is in possession and enjoyment for more than 20 years whether the lower appellate Court is justified in confining the injunction for a period of three years.
(v) Whether the lower appellate Court has applied the principles while considering the appeal filed against the grant of permanent injunction.
6. One G. Penchala Reddy, the plaintiff instituted the suit in O.S.244 of 1994 on the file of the District Munsif, Venkatagiri for permanent injunction restraining the defendant and his men from in any manner interfering with his peaceful possession and enjoyment of the plaint schedule property and for costs of the suit. It was pleaded in the plaint that he is the illatom son-in-law of one D. Sankara Reddy and he has been managing the properties of the said D. Sankara Reddy and both these families orally divided their properties more than 40 years ago and had been enjoying their respective shares separately. It was further pleaded that the said Sankara Reddy got a vacant site to the south of his house in triangular shape as "CDE" in the plaint sketch and there was an irrigation channel abutting the "CD" boundary of the site till about seven months back and the public authorities changed the said channel and now it runs underneath the road on the south of the suit site shown as "CDE" in the plaint sketch and that the plaintiff has been using the said site for keeping his double bullock cart. The plaintiff also had pleaded that he had planted two coconut trees about 18 years ago in the said site and has been enjoying the usufruct all these years and the defendant has no right or whatsoever. It was further pleaded that due to the misunderstandings between the women folk, the defendant is attempting to disturb his possession and hence, the suit was instituted.
7. The appellant herein as defendant filed written statement denying the allegations and taking a specific stand that the plaintiff is not the owner of the said site and he was never in possession and enjoyment of the said property. It was pleaded that the house property was partitioned only 15 years ago and the plaint sketch was not drawn correctly and it was further pleaded that these coconut trees were planted jointly by D. Sankara Reddy, the defendant and his brother Venkataramireddy together and the usufruct from these trees were being enjoyed. It was also pleaded that there is no thorny fencing on the eastern side and southern side of the plaint schedule "CDE" site. It was also pleaded that father of D, Sankara Reddy and the father of D. Venkataramireddy, who is brother of the defendant and the defendant were living in the same house till last 15 years and about 15 years back, they decided to partition the house and the agricultural lands were partitioned long back and they demolished the old house which was in a dilapidated condition and that one P. Eshwaraiah of Lingasamudram Village who is well acquainted with Vasthu Sastra, after examining the site advised them to exclude the "CDE" site from partition at the time of partition as it was against the principles of Vasthu and also advised them to keep "CDE" portion which is an extent of about 3 ankanams jointly and accordingly the house site was divided into two equal portions out of which, one portion on the southern side fell to the share of D. Sankara Reddy and the other on the northern side fell to the share of the defendant and his brother Venkataramireddy and that the northern portion was divided amongst the defendant and his brother equally and the disputed "CDE" site is not part of the house of D. Sankara Reddy and it is an independent and exclusive property and that D. Sankara Reddy, the defendant and his brother have been using the said site jointly since 15 years and hence, the relief of injunction cannot be granted. On the strength of the respective pleadings of the parties, the Court of first instance settled the following issues;
(1) Whether the plaintiff is in possession and enjoyment of the plaint schedule property on the date of filing of this suit?
(2) Whether the defendant is in joint possession of the plaint schedule along with Dakkili Sankara Reddy ?
(3) Whether there is cause of action for filing this suit?
(4) Whether the plaintiff is entitled for permanent injunction as prayed for ?
(5) To what relief?
8. On behalf plaintiff PW1 to PW5 and on behalf of the defendant, D.Ws.1 to 5 were examined. The only document marked Ex.A.1 is the Xerox copy of the household supply card bearing No. 175425. It is needless to say that this document does not throw much light on the aspect of possession.
9. On appreciation of the oral evidence which had been let in on behalf of both the parties, the Court of first instance came to the conclusion that the nature of the property is a channel poramboke vested in the Government and the plaintiff has been in possession of this property and ultimately had arrived at a conclusion that the plaintiff is entitled for the relief of perpetual injunction as against the defendant. Aggrieved by the same, the defendant preferred A.S.7 of 1998 on the file of the Principal Senior Civil Judge, Gudur and the appellate Court after framing the points for determination, ultimately had modified the judgment and decree of the Court of first instance granting permanent injunction for a period of 3 years only and in the meanwhile and in the interests of ends of justice, the plaintiff is directed to file a suit for declaration on the basis of possessory title. Aggrieved by the same, the present second appeal is filed.
10. It is no doubt true that as contended by Sri Dasaratharami Reddy, learned Counsel representing the appellant-defendant, both parties had let in only oral evidence and there is no documentary evidence available on record. The nature of the property also may have to be taken into consideration while deciding a suit for perpetual injunction. It is not in controversy that this is a small vacant piece of land. The evidence available on record shows that this is a property actually vested in the Government, which is a channel poramboke. It is no doubt true that the Government was not impleaded as a party since there is no cause of action against it and inasmuch as the private party, the defendant had interfered with the possession of the plaintiff, the suit was filed by the plaintiff as against the defendant only.
11. The evidence of P.W.3 - P. Vishwanadham, Village Administrative Officer and P.W.4 - P. Pulla Reddy, then Sarpanch of the Village had been taken into consideration and a finding had been recorded that the ground of excluding the piece of land from partition would not arise since it is a channel poramboke land. It is no doubt true that D.W.3 was examined who had deposed about this aspect. Apart from this evidence, there is evidence of D.Ws.1 and 5 also in this regard who had deposed that they have some interest in the subject-matter of litigation. It is needless to say that the factum of possession and who had been in possession on a particular date at a particular point of time predominantly is a question of fact. Whatever the reasons may be, the appellate Court had also confirmed the said findings but taking into consideration that the facts are peculiar, had thought of granting injunction for a limited period. In my considered opinion, the approach adopted by the appellate Court in granting such relief and restricting it for a limited period cannot be sustained. It is needless to say that a person in actual possession of the property can maintain the action for injunction against the whole world except the true owner, especially on the strength of possessory title, the said view was expressed by the Apex Court in Prataprai N. Kothari v. John Braganza (supra). No doubt, the learned Counsel for respondent-plaintiff also had placed reliance on Nair Service Society Limited v. K.C. Alexander and Ors., (supra). Elaborate submissions were made on the aspect of burden of proof. It is no doubt true that when both parties had let in oral evidence, it would be very difficult to record findings but on appreciation of the oral evidence, when concurrent findings relating to possession had been recorded in view of the limitations imposed on this Court under Section 100 CPC, this Court cannot disturb such findings.
12. The next question, which may have to be decided, is that whether the limited relief of injunction granted by the appellate Court has to be modified by this Court or to be left as it is. Cross-objections had been moved before this Court by the respondent-plaintiff being aggrieved of the said finding in relation to the relief portion having accepted that the plaintiff has been in possession of the small piece of land limiting the relief of injunction for a particular period would not be just. However, it is clarified that since the property is a channel poramboke land vested in the Government or the local body as the case may be, it is needless to say that this judgment and decree would not be binding on such parties who are not parties to the litigation. Suffice to say that this is a controversy between these parties to the litigation and in view of the concurrent findings recorded relating to the nature of the land, the stand taken by the appellant-defendant that this property was excluded as a piece to be kept apart out of partition cannot be sustained for the reason that the very nature of the property would not admit of such stand to be accepted by this Court. Hence, the said submission made by the learned Counsel for appellant-defendant cannot be accepted.
13. Viewed from any angle, the appellant-defendant is bound to fail and for the reasons recorded above, the respondent-plaintiff-cross-objector is bound to succeed. The relief granted by the appellate Court for a period of 3 years cannot be sustained and hence, it is modified and perpetual injunction as prayed for is granted so far as it relates to the defendant in the suit is concerned.
14. Accordingly the Second Appeal is dismissed and Cross-Objections arc allowed, In view of the close relationship between the parties, this Court is not inclined to make any order in relation to costs.