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// Fair judgment //
APKR010002362024
IN THE COURT OF PRINCIPAL CIVIL JUDGE (SENIOR DIVISION),
MACHILIPATNAM
Present :- Smt.K.V.L.Hima Bindu,
Principal Civil Judge (Senior Division),
Machilipatnam
Monday, this the 2nd day of March, 2026
A.S.No.54/2024 and A.S.No.55/2024
A.S.No.54/2024
Between:-
1. Mirza Bakar Hussain (Died)
2. Mirza Bheebi Jhan, W/o late Mirza Bakar Hussain, aged about 59 years, Housewife,
3. Mirza Hussain Ali, S/o late Mirza Bakar Hussain, aged about 35 years, Cooly,
4. Mirza Abbas, S/o late Mirza Bakar Hussain, aged about 30 years, Cooly, 1 to 4 are R/o D.No.14/196-82-90, Sundaraiah Nagar, Edepalli, Machilipatnam. Presently R/o Jalalpet, Machilipatnam, Krishna District.
5. Mirza Zynab, D/o late Mirza Bakar Hussain, W/o Suleman, aged about 37 years, Housewife, 2
6. Mirza Shakira, D/o late Mirza Bakar Hussain, W/o Khaza, aged about 36 years, Housewife, 5 & 6 are R/o Pattilakottu center, Machilipatnam, Krishna District. …. Appellants A N D
1. Sakamuri Srinivas Rao @ Srinu, S/o Masthan Rao, aged about 49 years, car driver,
2. Sakamuri Nagendramma, W/o Srinivas Rao @ Srinu, aged about 42 years, Housewife,
Both are R/o D.No.14/196-82-90, Sundaraiah Nagar, Edepalli, Machilipatnam, Krishna District. …. Respondents
A.S.No.55/2024
Between:-
1. Mirza Bakar Hussain (Died)
2. Mirza Bheebi Jhan, W/o late Mirza Bakar Hussain, aged about 59 years, Housewife,
3. Mirza Hussain Ali, S/o late Mirza Bakar Hussain, aged about 35 years, Cooly,
4. Mirza Abbas, S/o late Mirza Bakar Hussain, aged about 30 years, Cooly, 1 to 4 are R/o D.No.14/196-82-90, Sundaraiah Nagar, Edepalli, Machilipatnam. Presently R/o Jalalpet, Machilipatnam, Krishna District.
5. Mirza Zynab, D/o late Mirza Bakar Hussain, W/o Suleman, aged about 37 years, Housewife, 3
6. Mirza Shakira, D/o late Mirza Bakar Hussain, W/o Khaza, aged about 36 years, Housewife, 5 & 6 are R/o Pattilakottu center, Machilipatnam, Krishna District. …. Appellants
A N D
Sakamuri Nagendramma, W/o Srinivas Rao @ Srinu, aged about 42 years, Housewife, R/o D.No.14/196-82-90, Sundaraiah Nagar, Edepalli, Machilipatnam, Krishna District. …. Respondent
On appeal against the Decree and Judgment, dated 19.12.2022 in
OS.No.187/2015 and OS No.54/2015 on the file of Principal Junior Civil
Judge, Machilipatnam.
OS No.187/2015
Between:-
1. Mirza Bakar Hussain (Died)
2. Mirza Bheebi Jhan
3. Mirza Hussain Ali
4. Mirza Abbas
5. Mirza Zynab
6. Mirza Shakira (Plaintiffs 2 to 6 are added as per orders in IA 118/2019 dated 19.02.2019) …. Plaintiffs 4
A N D
1. Sakamuri Srinivas Rao @ Srinu
2. Sakamuri Nagendramma
….. Defendants
OS No.54/2015
Between:-
Sakamuri Nagendramma …. Plaintiff A N D
1. Mirza Bakar Hussain (Died)
2. Mirza Bheebi Jhan
3. Mirza Hussain Ali
4. Mirza Abbas
5. Mirza Zynab
6. Mirza Shakira (Defendants 2 to 6 are added as Lrs of deceased 1st defendant)
….. Defendants
These Appeals were presented before me on 07.01.2026 for final hearing in the presence of Sri Md.Rafi,Advocate for Appellants and of
Sri Ch.Gopi Krishna,Advocate for Respondent No.2 in AS 54/2024 and respondent No.1 remained exparte; Sri Md.Rafi, Advocate for Appellants and of Sri Ch.Gopi Krishna, Advocate for respondent in AS 55/2024; upon perusing the material papers on record, upon hearing the parties 5 and the matter having been stood over for consideration till this day, this
Court delivered the following :-
COMMON JUDGMENT
1.These appeals are arising from out of the two suits between the same parties concerning the same schedule property which are disposed off by way of common judgment. In fact these appeal suits are filed by the unsuccessful appellants / Plaintiffs against the Judgment and decree
dated 19.12.2022 passed in OS 187/2015 on the file of Principal Junior
Civil Judge’s Court, Machilipatnam which was filed seeking the relief of
recovery of possession of the suit schedule property and by the unsuccessful appellants / defendants against the Judgment and decree
dated 19.12.2022 passed in OS 54/2015 on the file of Principal Junior
Civil Judge’s Court, Machilipatnam which was filed seeking the relief of
permanent injunction restraining the defendants and their men from ever interfering with the plaintiff’s peaceful possession and enjoyment of the schedule property and for costs.
Initially the appeal against the judgment and decree in OS 187/2015 was numbered as AS.17 of 2023 and the appeal against the judgment and decree in OS 54/2015 was numbered as AS 18/2023.
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Later pursuant to the orders of the Hon’ble Principal District Judge,
Machilipatnam the same were transferred to the file of this Court and were renumbered as AS.54 of 2024 and AS 55 of 2024 respectively.
Since these appeals have arisen from out of the common judgment, this appellate court is also proceeding further to dispose off these appeals by way of common judgment.
2.For proper and better appreciation of the appeals pending before this court, I deem it pertinent to refer to the pleadings in the main suits.
3.The plaint averments in OS 187/2015 in brief goes to show that :
(i) The 1st plaintiff is the absolute owner of the plaint schedule property situated at Sundarayyanagar in Edepalli in plot No.102 in RS
No.187, old ward No.4 and new ward No.1 of Machilipatnam. Originally the plaint schedule property was allotted by the Government to one
Pothana Venkata Krishna Rao on 02.12.1995 under assignment of house sites in RC. A 34/1995. Since then he was in possession and enjoyment of the vacant site. However due to financial constraints, he intended to sell the schedule property and accordingly entered into possessory agreement of sale on 30.08.2000 with the 1st plaintiff herein for a valuable consideration of Rs.10,000/-. Eversince the date of alleged 7 agreement i.e., 30.08.2000, the 1st plaintiff has been in possession and enjoyment of the schedule property by raising hut in it. The defendants 1 and 2 who are residing near the plaint schedule property in Temple colony, Edepalli had eyesore over the plaint schedule property and on 20.08.2007 made attempt to dispossess the 1st plaintiff from the schedule property which was however resisted by him. As similar attempt was made by him on 21.08.2007, the 1st plaintiff filed suit in OS 507/2007 on the file of I Additional Junior Civil Judge’s Court, Machilipatnam seeking the relief of permanent injunction against the 1st defendant and his men which was decreed vide judgment and decree dated 19.12.2014. During the pendency of the said suit, the 1st plaintiff removed the thatched hut and raised RCC sheet roofed house. However the 1st defendant created some documents in his name and in the name of his wife / 2nd defendant in collusion with the municipal authorities, though he was never in possession and enjoyment of the schedule property at any point of time.
Suppressing the previous litigation in OS 507/2007, the 2nd defendant / wife of 1st defendant got filed suit in OS 54/2015 seeking the relief of permanent injunction by giving mis-description of boundaries and survey numbers. Further in the said suit filed IA 159/2015 seeking the relief of temporary injunction and obtained ad-interim injunction orders on 8 08.04.2015. The said orders were served upon him on 13.04.2015 and under the guise of said injunction orders, the defendants 1 and 2 highhandedly dispossessed the 1st plaintiff from the schedule property.
Hence he approached police and lodged report on 13.04.2015 but they did not take any action, but instructed him to file appropriate proceedings in civil court.
(ii) While submitting that he is contesting the said suit, submitted that the said ad-interim orders were obtained by playing fraud as if the
Tahsildar, Machilipatnam allotted plaint schedule property to the 2nd defendant vide Rc.A.1451 of 2007 dated 23.06.2007. The Tahsildar,
Machilipatnam never assigned any property to the 2nd defendant and it is only a possession certificate issued by misdescribing the boundaries and survey number. As the plaint schedule property was assigned in favour of Pothana Venkata Krishna Rao on 02.12.1995, that the revenue authorities have no right to issue any such possession certificate, contended that without cancellation of any such assignment, the revenue authorities have no right to issue either patta or possession certificate in favour of the 2nd defendant. While stressing upon that he purchased the said property from his vendor Pothana Venkata Krishna Rao under 9 possessory agreement of sale dated 30.08.2000, stressed upon that by submitting fraudulent documents that the 2nd defendant obtained ad- interim injunction orders on the guise of which they highhandedly dispossessed him from the schedule property and hence filed this suit seeking the relief of recovery of possession.
4.(i) Written statement is filed by the 2nd defendant denying the plaint averments. It is submitted that there is no cause of action in filing the present suit and it is a vexatious and frivolous suit filed by the plaintiff. It is submitted that originally in the year 1995 that Mandal Revenue Officer granted patta in respect of plaint schedule property to one Pothana
Venkata Krishna Rao. But he did not raise any house nor availed any benefit given by the government to the landless poor and as such the revenue authorities cancelled the same. Subsequently, in the year 2007 vide Rc.A.1451/2007 dated 23.06.2007 that the 2nd defendant was granted the said land and possession delivered to her on the same day.
Since then she is in possession and enjoyment of the said property by raising ACC shed. Her name was also mutated in the municipal records vide proceedings of transfer dated 09.03.2015. She obtained water connection, electricity connection and paying taxes and other charges pertaining to the schedule property to the concerned departments.
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However that Pothana Venkata Krishna Rao in collusion with the plaintiff herein, with an evil intention, brought into existence the nominal and sham possessory agreement of sale in the name of the plaintiff on
Rs.60/- stamp paper. In fact government allotted B Form patta to
Pothana Venkata Krishna Rao and as such except enjoying the property, he cannot sell the same to any third party without prior permission from the revenue department. Possessory agreement of sale is compulsorily registrable and under the guise of such unregistered possessory agreement of sale, cannot claim any title nor can seek for delivery of possession. While denying that the plaintiff was never in possession and enjoyment of the plaint schedule property by virtue of possessory agreement of sale, in all prayed to dismiss the suit.
(ii) The suit in OS 507/2007 was obtained by the plaintiff fraudulently, getting them exparte, in collusion with her husband behind her back. The plaint schedule property belongs to this defendant but the permanent injunction suit in OS 507/2007 was filed against her husband.
Having obtained collusive decree on 01.12.2014, he got mutated his name in the municipal records on 09.03.2015. In fact under the guise of permanent injunction, that the plaintiff was trying to interfere into her possession and enjoyment on 29.03.2015 and 04.04.2015 and hence 11 she was constrained to file OS 54/2015 seeking the relief of permanent injunction and obtained ad-interim injunction in IA 159/2015 on the file of
I Additional Junior Civil Judge’s Court, Machilipatnam. Since the said ad- interim injunction orders are in force, that the plaintiff cannot seek recovery of possession that too based on alleged possessory agreement of sale. Without seeking any relief of declaration, he cannot seek the relief of recovery of possession and hence the present suit is not maintainable. She contended that this defendant obtained possession over the schedule property on 23.06.2007 and hence the plaintiff has to file the suit for recovery of possession within the limitation period starting from 23.06.2007 but not from 09.03.2015 and hence the suit is barred by limitation. The alleged mutation of name of the plaintiff is not based on any title deeds and hence in all contended that the present suit is devoid of merits and liable to be dismissed.
(iii) After the death of 1st plaintiff, his legal heirs i.e., plaintiffs 2 to 6 were added as per orders in IA 118/2019 dated 19.02.2019. As the defendants did not file additional written statement inspite of granting sufficient time, additional written statement was recorded as nil. The 1st defendant remained exparte.
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5.Taking into consideration the above pleadings the trial court settled the following issues in OS 187/2015 :
(1) Whether the plaintiff is entitled for recovery of possession of the plaint schedule property from the defendants ?
(2) To what relief ?
6.The plaint averments in OS 54/2015 in brief goes to show that :
The plaintiff is the absolute owner of the plaint schedule property consisting of tin shed house vide door No.14/196-82-90 in plot No.102, of an extent of 111 square yards at Sundaraiahnagar, Edepalli in RS
No.186 of old ward No.4 and new ward No.1, Machilipatnam. Originally government / Tahsildar, Machilipatnam allotted vacant site of an extent of 111 square yards of site vide Rc.A 1451 of 2007 dated 23.06.2007 and delivered vacant possession of the same on the same date. Ever since then, she constructed house and is in continuous possession and enjoyment of the same and a patta was also issued in her name. Vide assessment No.1070034843, the municipal authorities are also collecting property tax. She obtained electricity service connection vide SC
No.047205 and paying electricity consumption charges. The plaintiff is illiterate and did not notice that though the government issued patta in her name, that the municipal authorities levied tax in the name of her 13 husband. Though she paid the taxes, the receipts were issued in the name of her husband. Recently after her husband quarreled and deserted her, she realized the same and questioned the municipal authorities. They promised to mutate the same in her name on application, but instead they mutated the property in the name of plaintiff.
With her efforts, she could even obtain tap connection to the schedule property with her expenses. Due to the recent developments and rise of prices, the defendant developed eyesore over the plaint schedule property, more so, as the plaintiff is a lady without any male support.
Hence on 29.03.2015, at about 10.00 A.M., the defendant came along with rowdy elements and tried to occupy the schedule property by throwing her out of the property. As she raised hues and cries, her neighbours intervened and rescued her. Again on 04.04.2015 the defendant along with rowdy elements came at about 11.00 A.M., and highhandedly tried to dispossess her which she could withstand with the assistance of her neighbours. However he left threatening her. Hence she gave report to Chilakalapudi police but they did not take any action against him and hence she was constrained to approach this court seeking the relief of permanent injunction.
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7.Written statement is filed by the defendant denying the plaint averments and the right and possession of the plaintiff as contended by her. It is submitted that the defendant is the absolute owner of the plaint schedule property. Originally the schedule property was assigned by the government to Pothana Venkata Krishna Rao in Rc.A.34 of 1994 on 02.12.1995 and on the same day that he was put into possession and enjoyment of the same. However later, due to financial crisis, he intended to sell the schedule property and hence the defendant approached him and they both entered into possessory agreement of sale dated 30.08.2000 for a valuable consideration of Rs.10,000/-. The defendant was put into possession of the schedule property on the same date and since then, he is in possession and enjoyment of the same by raising hut. The plaintiff who is residing in Temple colony, Edepalli had eyesore over the defendant and on 20.08.2007 the husband of the plaintiff made illegal attempts to dispossess this defendant from the schedule property. He resisted the same and preferred suit in OS 507/2007 on 21.08.2007 on the file of I Additional Junior Civil Judge’s
Court, Machilipatnam against the husband of the plaintiff. The said suit was decreed on 19.12.2014. During the pendency of the suit, removed the thatched hut and raised RCC sheet roofed house. However this 15 plaintiff along with her husband created some documents pertaining to the schedule property in collusion with the municipal authorities though they are not in possession of the schedule property at any point of time.
Suppressing the filing of suit in OS 507/2007 and the decree dated 19.12.2014, that the plaintiff filed the present suit with all false allegations and by giving misdescription of the boundaries and survey number obtained ad-interim orders fraudulently. Further under the guise of the ad-interim orders, she along with her husband highhandedly dispossessed this defendant from the schedule property. Thus he approached police on 13.04.2015 but they did not take any action as the dispute is civil in nature. He filed the agreement of sale dated 30.08.2000 in OS 507/2007 and got the said document impounded before the District
Registrar, Machilipatnam. The plaintiff fraudulently obtained ad-interim injunction in IA 159/2015 as if the Tahsildar, Machilipatnam vide orders in
Rc.A 1451/2007 dated 23.06.2007 allotted the schedule property to them. In fact it is only a possession certificate and moreover it was issued by mis-describing the boundaries and survey number. When the plaint schedule property was assigned to Pothana Venkata Krishna Rao on 02.12.1995, the Tahsildar does not have any right to issue possession certificate. Further the said assignment patta in the name of Pothana 16
Venkata Krishna Rao is not cancelled till date. This being so, under the guise of ad-interim injunction orders, that the plaintiff dispossessed this defendant and claiming possession over the same. Thus in all, contended that the case of the plaintiff is rested on all fabricated documents and devoid of merits and while disputing their alleged possession and enjoyment in any manner, at any point of time, prayed to dismiss the present suit as devoid of merits.
8.Taking into consideration the above pleadings the trial court settled the following issues in OS 54/2015 :
(i) Whether the plaintiff is entitled for permanent injunction as prayed for ?
(ii) To what relief ?
9.During the course of joint trial, the evidence was recorded in OS 187/2015 and to establish his contention, the 4th plaintiff in OS 187/2015 was got examined as PW1 and third party to the proceeding as PW2 and son of 1st plaintiff as PW3 and got marked Exs.A1 to Ex.A8 on their behalf. The 2nd defendant got examined herself as DW1 and to corroborate her testimony regarding her title and possession she got examined third parties as DW2, DW3 and DW5 and the Tahsildar as
DW4 and placed reliance on Exs.B1 to Ex.B7.
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10.Having considered the oral and the documentary evidence adduced by both the parties and considering the material on record, the trial court was pleased to dismissed the suit without costs in OS 187/2015 and decreed the suit without costs in OS 54/2015. Aggrieved by the said judgment, the plaintiff approached this court challenging the same and arrayed the following grounds for appeal :-
Grounds for appeal in AS 54/2024 :-
(i) The decree and judgment of the Lower Court is contrary to law, weight of evidence and the probabilities of the case.
(ii) The Lower court ought to have decreed the suit instead of dismissing the suit.
(iii) The Lower court ought to have observed that the respondents / defendants failed to prove their case in the suit.
(iv) The Lower Court ought to have seen that the evidence of PWs1 to 3 who are examined on behalf of the plaintiffs.
(v) The Lower court ought to have seen that Ex.A1 house site patta issued in favour of vendor of the original plaintiff dated 03.12.1995 by the
MRO, Machilipatnam.
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(vi) The Lower court ought to have considered the possessory agreement of sale dated 30.08.2000 executed by Pothana Venkata
Krishna Rao in favour of the original plaintiff.
(vii) The Lower Court ought to have considered Ex.A3 judgment and decree in OS No.507/2007 on the file of I Additional Junior Civil Judge,
Machilipatnam dated 19.12.2014.
(viii) The Lower Court ought to have considered Ex.A5 to Ex.A7 in favour of the original plaintiff.
(ix) The Lower Court ought to have considered the Apex Court decisions in favour of the plaintiffs case as per the documents and case of the plaintiffs.
(x) The Lower Court ought not to have considered the evidence of DWs1 to DW5 and Ex.B1 to Ex.B7. There is no sanctity of the evidence of
DWs1 to DW5 and no legality to the documents Ex.B1 to Ex.B7.
(xi) The Lower Court ought to have considered that the 1st defendant set exparte, even though he is the husband of 2nd defendant and also defendant in OS No.507/2007 judgment marked as Ex.A3 i.e., filed for decree of permanent injunction against the 1st defendant to the same schedule property and adverse inference should be drawn.
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(xii) It is submitted that the Trial Court failed to take into the consideration of the fact that the vendor of the original plaintiff is in possession and enjoyment of the plaint schedule property since long time i.e., 02.12.1995 and thereafter he sold the same to the original plaintiff through possessory agreement of sale dated 30.08.2000. But unfortunately the Trial Court failed to believe Ex.A1 and Ex.A2.
(xiii) The Lower Court did not frame the issues properly.
(xiv) The Lower Court render great injustice to the Appellants / plaintiffs by dismissing the suit.
(xv) The Lower Court ought to have disbelieved the evidence of DWs1 to
DW5 who are examined on behalf of the respondents / defendants.
(xvi) The judgment of the Lower Court is in the form of a special pleading against the plaintiffs and in favour of the defendants, is liable to be set aside.
11.The Grounds for appeal in AS 55/2024 are :-
(i) The decree and judgment of the Lower Court is contrary to law, weight of evidence and the probabilities of the case.
(ii) The Lower court ought to have decreed the suit instead of dismissing the suit.
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(iii) The Lower court ought to have observed that the respondents / defendants failed to prove their case in the suit.
(iv) The Lower Court ought to have seen that the evidence of PWs1 to
PW3 who are examined on behalf of the plaintiffs.
(v) The Lower court ought to seen that Ex.A1 house site patta issued in favour of vendor of the original plaintiff dated 03.12.1995 by the MRO,
Machilipatnam marked in OS No.187/2015.
(vi) The Lower court ought to have considered the possessory agreement of sale dated 30.08.2000 executed by Pothana Venkata
Krishna Rao in favour of the original plaintiff.
(vii) The Lower Court ought to have considered Ex.A3 judgment and decree in OS No.507/2007 on the file of I Additional Junior Civil Judge,
Machilipatnam dated 19.12.2014.
(viii) The Lower Court ought to have considered Ex.A5 to Ex.A7 in favour of the original plaintiff in OS No.187/2015.
(ix) The Lower Court ought to have considered the Apex Court decisions in favour of the plaintiffs case as per the documents and case of the plaintiffs.
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(x) The Lower Court ought not to have considered the evidence of DWs1 to DW5 and Ex.B1 to Ex.B7 marked in OS No.187/2015. There is no sanctity of the evidence of DWs1 to DW5 and no legality to the documents Ex.B1 to Ex.B7 marked in OS No.187/2015.
(xi) The Lower Court ought to have considered that the 1st defendant set exparte in OS No.187/2015, even though he is the husband of 2nd defendant and also defendant in OS No.507/2007 judgment marked as
Ex.A3 i.e., filed for decree of permanent injunction against the 1st defendant to the same schedule property and adverse inference should be drawn.
(xii) It is submitted that the Trial Court failed to take into the consideration of the fact that the vendor of the original plaintiff is in possession and enjoyment of the plaint schedule property since long time i.e., 02.12.1995 and thereafter he sold the same to the original plaintiff through possessory agreement of sale dated 30.08.2000. But unfortunately the Trial Court failed to believe Ex.A1 and Ex.A2 marked in
OS No.187/2015.
(xiii) The Lower Court did not frame the issues properly.
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(xiv) The Lower Court render great injustice to the Appellants / plaintiffs by dismissing the suit.
(xv) The Lower Court ought to have disbelieved the evidence of DWs1 to
DW5 who are examined on behalf of the respondents / defendants.
(xvi) The judgment of the Lower Court is in the form of a special pleading against the plaintiffs and in favour of the defendants, is liable to be set aside.
Thus in all, prayed that their appeals be allowed decreeing the suit in favour of the appellants/plaintiffs in AS 54/2024 by setting aside the
Judgment and decree of the lower court in OS 187/2015 and dismissing the suit in favour of appellants / defendants in AS 55/2024 by setting aside the judgment and decree of the lower court in OS 54/2015, in the interests of justice. Hence these appeals.
12.For convenience sake, the parties are referred hereinafter as they are referred in the plaint in OS 187/2015. That is the appellant / plaintiff in OS 187/2015 is referred as plaintiff and the respondents / defendants in OS 187/2015 are referred as defendants for convenience sake.
13.Notice was given to the defendants in OS 187/2015 and plaintiff in
OS 54/2015, after the appeals were numbered, who marked their
23 appearance before this Court while respondent No.1 in AS 54/2024 did not mark his presence. Heard both sides. Perused the material on record. Both the counsels having adduced oral arguments on their behalf, further submitted to consider the written arguments and citations filed before the trial court.
14.Now the point which raises for consideration is :
1. Whether the judgment and decree in OS 187 of 2015 and OS 54/2015 passed by the learned Principal Civil Judge (Junior Division)
Machilipatnam, is sustainable in law, or does it warrant any interference by this Court ?
2. Result of the appeals ?
POINT No.1 :
15.As appearing from the record, pursuant to the memo filed, taking into consideration the no objection of the other party and in view of the fact that the parties in both the suits and the schedule property herein are one and the same, and to avoid conflicting judgments that they were permitted to adduce evidence in OS 187/2015 which shall be read as part and parcel of the evidence in OS 54/2015. Thus for convenience sake, the parties in OS 187/2015 shall be referred herein as the plaintiffs and defendants respectively.
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16.While it is the case of the plaintiff that he acquired right, title and possession over the schedule property by virtue of possessory agreement of sale / Ex.A2, having purchased the same from its original owner Pothana Venkata Krishna Rao, that since the date of Ex.A2 that he was in possession and enjoyment of the schedule property. However that under the guise of ad-interim injunction obtained by the defendant in
OS.54/2015, that the defendant forcibly occupied the schedule property
and hence prayed this court to grant the relief of recovery of possession from the defendant. On the other hand, it is the case of the 2nd defendant that the government granted possession certificate to her under Ex.B1 and since then she has been in possession and enjoyment of the schedule property and also paying property tax, water tax etc., and having constructed tin sheet house that she was even provided electricity service connection and paying electricity charges. Thus any averment of the plaintiff having been dispossessed from the schedule property by the defendant is utterly false and while submitting that the plaintiff throughout is trying to highhandedly interfere into her possession and enjoyment, prayed to grant the relief of permanent injunction.
17.In fact, OS 187/2015 was filed by the sole plaintiff / 1st plaintiff herein and in view of the fact that he was bedridden and unable to speak 25 that his son got himself examined as PW1. This being so, during the pendency of the suit, the 1st plaintiff died on 15.01.2019 and hence his legal representatives were brought on record.
18.This being so, as submitted by PW1, the plaint schedule property was originally assigned to Pothana Venkata Krishna Rao on 02.12.1995 under Ex.A1. Subsequently, due to financial constraint that he intended to sell the said property and so, the 1st plaintiff agreed to purchase the same. Accordingly, possessory agreement of sale / Ex.A2 was entered into by both the parties on 30.08.2000. As per the 1st plaintiff, since the date of Ex.A2, that he has been in continuous possession and enjoyment of the schedule property, which is a vacant site.
19.It is to be noted here that the 2nd defendant / DW1 is admitting that initially the plaint schedule property was assigned to Pothana Venkata
Krishna Rao as alleged. However it is her contention that subsequently, since he failed to construct any house in the schedule property as per the terms under Ex.A1, that the government has issued possessory certificate in her favour and put her into possession of the same. It is by virtue of the said possessory certificate / Ex.B1 that the 2nd defendant is claiming her right and possession over the schedule property.
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20.To suffice her contention, the 2nd defendant even got examined the
Tahsildar as DW4 who testified that on perusal of Ex.B1, that it appears to have been issued by their office, but however that in view of computerization of all the records, that no record pertaining to Ex.B1 were available in their office. During the course of cross examination, it is elicited that Ex.B1 is only a possession certificate and in fact no land is allotted under Ex.B1. The said fact elicited, definitely effects the case of the 2nd defendant / DW1 since as per her contention, it is by virtue of
Ex.B1 that she has been put into possession and enjoyment of the said property, but as per DW4, it is recognizing her possession that a possession certificate seems to have been issued by them.
21.As admitted by DW4, possession certificate will generally be issued on production of electricity bill or water tax or government assessment by the beneficiary. Thus that recognizing the long and continuous possession of an individual that in general possession certificate would be issued and as appearing on record, and as per the statement of DW1 herself, she was put into possession in the said property by virtue of
Ex.B1. Thus the manner in which Ex.B1 was issued or DW1 came into possession of plaint schedule property itself is ambiguous. Moreover 27 admittedly there is a correction and overwriting in the place of plot number as “102”. Admittedly the same is not countersigned.
22.Moreover as admitted by DW4, in general, when there is any land assigned to an individual or a government servant, and if any of the conditions imposed thereon are not complied, then the government though has a right to resume possession, but the same would be through separate proceedings issued to that effect. Though the 2nd defendant /
DW1 contended that the patta issued in favour of Pothana Venkata
Krishna Rao was cancelled and that she has been issued possession certificate, apparently there is no such proceedings brought on record to show cancellation of any such patta as alleged by her. Though the
Tahsildar was got examined as DW4, nothing could be elicited to that effect either.
23.Keeping these aspects on one side, I deem it pertinent to reproduce the descriptive particulars of the plaint schedule property as mentioned in both the suits.
24.Plaint schedule property as described in OS 187/2015 :
ACC sheet roofed house bearing D.No.14/196-82-90, in an extent of 111 square yards situated in RS No.187 of Sundaraiah Nagar,
Edepalli, Machilipatnam bearing plot No.102 of old ward No.4 and new ward No.1 of Machilipatnam bounded by :
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East : Plot No.103
South :Road
West :Plot No.101
North : Plot No.109
The plaint schedule property as described in OS 54/2015 :
Tin roofed shed with site built on cement walls in an extent of 111 square yards in RS No.186 of Sundaraiah Nagar, Edepalli,
Machilipatnam bearing plot No.102 of old ward No.4 and new ward No.1 in D.No.14/196-82-90 of Machilipatnam bounded by :
East : Plot No.109
South :Plot No.103
West :Road
North : Plot No.101
25.In fact by examining himself as PW1 and two independent witnesses as PW2 and PW3 the 1st plaintiff is asserting his right over the schedule property while the 2nd defendant got herself examined as DW1 and to corroborate her testimony got examined DW2, DW3 and DW5 on her behalf to speak with regard to her alleged right, title and possession over the same schedule property. As elicited by the plaintiffs, during the cross examination of DW1, DW4 and also as appearing from Ex.B1, the
RS number is shown as 186 while the survey number is shown as 187 in the plaint schedule property in OS 187/2015. Both the parties are 29 claiming right over the same schedule property, but apparently there is a vast difference in the boundaries and in RS number of the said property.
It is nobody’s case that the other has any mistaken identity with regard to the schedule property. In light of the said variation in the descriptive particulars of the property itself, unless and until the schedule property is properly identified, no proper adjudication can be arrived at. Apparently none of the parties made any recourse to get the property identified, nor any such material adduced on record to show which of the descriptive particulars actually tallies with the property on ground.
26.This being so, as admitted by PW1, as on the date of possessory agreement of sale / Ex.A2, that the schedule property was a vacant site.
Even the descriptive particulars of the schedule property is shown as vacant site in Ex.A2. Admittedly though the 1st plaintiff was contending himself to have been in possession and enjoyment of the schedule property from the date of execution of Ex.A2, it is to be appreciated here that keeping the aspect that the land assigned to Pothana Venkata
Krishna Rao was shown to be non-transferable under Ex.A1, the fact remains that Ex.A2 is a mere possessory agreement of sale and hence no better title flows to the plaintiff under the said document. As admitted by PW1, they did not file any document before this court to show that 30 they have been in possession and enjoyment of the schedule property since 2000 till 2015. It is to be taken note of here that as per the 2nd defendant, the 1st plaintiff preferred suit in OS 507/2007 on the file of I
Additional Junior Civil Judge’s Court, Machilipatnam and obtained
exparte decree on 19.12.2014. It is argued that under the guise of said judgment and decree (Ex.A3), that he highhandedly got his name mutated in the revenue records. Ex.A6 is the proceeding of transfer of title of property dated 24.03.2015 whose content goes to read as under :
“Sri/Smt.Meerza Baker Hussain, s/o Meerza Mohammad has submitted an application along with a copy of title transfer document bearing No.OS 507/2007 dated 19.12.2014 enclosed in the file, wherein it was stated that he / she purchased / legal haired the house bearing door No.14/196-82-90 and assessmentNo.1070034843fromSmt.Sakhamuri
Nagendramma, w/o Sakhamuri Srinivasa Rao.
Your application has been processed and the mutation has been effected in the name of Meerza Baker Hussain and the necessary corrections have been made in the demand register.”
27.Apparently the said content and as appearing from the record, the name of the 1st plaintiff appears to have been entered into the revenue records for the first time under Ex.A6, and apparently no revenue records filed to the effect to reflect alleged prior possession or occupation. On the 31 other hand, as submitted by the 2nd defendant / DW1 after she has been put into possession and enjoyment of the schedule property under
Ex.B1, that she got the property tax assessed under assessment
No.1070034843 and filed bunch of property tax demand notice and receipts (Ex.B2). Ex.B5 are the water tax demand notices. However it is submitted by her that though Ex.B1 / possessory certificate was issued in her name, that the property was assessed in the name of her husband
Srinivasa Rao. Whatever may be propriety of mentioning the name of her husband to be the person paying the property tax, water tax, electricity bills etc., in one manner or the other, they suffice the fact that the 2nd defendant / DW1 is in occupation of the schedule property. This being so, she further placed reliance on Ex.B7 which is proceedings of transfer of title of property dated 09.03.2015 which reads :
“Sri/Smt.Sakhamuri Nagendramma, w/o Sakhamuri Srinivasa Rao has submitted an application along with a copy of title transfer document bearing No.1451/2007 dated 23.06.2007 enclosed in the file, wherein it was stated that he / she purchased / legal haired the house bearing door No.14/196-82-90 and assessment No.1070034843 from Sri.Sakhamuri Srinivasa Rao, s/o Sakhamuri Mastan Rao.
Your application has been processed and the mutation has been effected in the name of Sakhamuri Nagendramma and the necessary corrections have been made in the demand register.” 32
28.Appreciating Ex.A6 and Ex.B7, the said documents were dated 24.03.2015 and 09.03.2015. Though Ex.B7 seems to have been issued based on Ex.B1 wherein the Rc.A 1451 of 2007 is the proceedings referred in the said document, under which the said possessory certificate was issued, it is quite astonishing to notice Ex.A6 to have been issued based on the judgment and decree in OS 507/2007 which is passed by the court in a mere suit for permanent injunction. Further in
Ex.B7, it is mentioned that DW1 acquired the property from Sakhamuri
Srinivas Rao which in fact is a blatant lie and not in consonance with any of the documents. Thus it requires no further explanation to say that the mutation has been carried out in a mechanical manner without proper verification. All said and done, it cannot be ignored that revenue records does not confer any right or title over any property. But in this specific case, even based on Ex.A6, this court is of considerable opinion, that it is not appropriate to rest the case on any tax imposed upon the 1st plaintiff based on the said entry made on the basis of judgment and decree pertaining to the suit for permanent injunction.
29.To substantiate their contention, the counsel for the plaintiff placed reliance on the judgments of their Lordship in Union of India and others vs. Vasavi Cooperative Housing Society Limited and others reported in 33
Civil Appeal No.4702 of 2004 dated 07.01.2014 stressing on a point that in a suit, burden always lies on a plaintiff to make out and establish a clear case for granting such a relief. He cannot rest his case on the weakness of the defendant. Plaintiff could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge onus on it irrespective of the question as to whether the defendants have proved their title or not. Further it was observed in the said matter that the revenue records does not confer any title. Even if entries in record of rights carry evidentiary value, that itself would not confer any title on plaintiff in the suit.” Thus the proposition of law laid down squarely fixes into the facts of this case and as established, no title can be conferred based on record of rights or revenue records more so, as observed above, when there are apparent irregularities noted in the contents of it throwing shroud of veil over the manner in which any such documents were issued.
30.To substantiate their contention, it is argued by the plaintiff that he was dispossessed from the schedule property by the defendant and that in a suit filed under section 6 of Specific Relief Act, that the plaintiff will be entitled for recovery of possession of the plaint schedule property and that no relief of declaration of title be pleaded. To suffice their stand, they 34 placed reliance on judgment of their Lordship in Katta Penchala Swamy and others vs. Mopuru Veera Raghava Reddy reported in (2015) 1 ALT
667. In the said decision while referring to the judgment in Kanakadhara
Constructions vs. K.Jhansi Lakshmibai and others, it was observed that “in a suit of this nature, the question of title is not germane. Section 6 of the Act envisages a suit for possession on the premise of dispossession of the plaintiff without his consent of immovable property otherwise than in due course of law. When the suit is filed under section 6 of the Act for possession, the sole consideration for the court is possession. The scope of enquiry is thus limited to possession within 6 months immediately preceeding the date of filing of the suit. In such a suit, the defendant cannot set up a defense of title in himself. The only defense that can legitimately be set up is antecedent possession. It is obvious from the sub-section (1) of section 6 of the Act itself, which says that the person dispossessed can recover possession not withstanding any other title that may be set up in such suit. The scope of enquiry is limited to the question of possession.” Same analogy was laid down in the case in
Kamarapu Veera Lakshmi and others vs. Vemula Krishna Murthy reported in (1999) 2 ALT 276 and also in Mogilipuvvu Annapurnaiah Vs 35
Malampati Narsimharao and another reported in (1982) AIR (AP) 253 relied upon by the plaintiff.
31.The counsel for the defendants on the other hand stressed upon the judgment of the Honourable Apex Court in Manjit Singh and others vs. Shanthi Devi and another reported in 2010 15 SCC 578 wherein it was observed that unless the plaintiff avers in the plaint and proves that she has been dispossessed subsequently, she was not entitled for the relief of recovery of possession on the basis of possessory title. Thus argued that only based on Ex.A2 / agreement of sale wherein the plaintiff is contending the delivery of possession of the schedule property by
Venkata Krishna Rao / original owner, unless and until he avers and proves of dispossession by the defendant herein, that he is not entitled for the relief of recovery of possession.
32.Though the plaintiff’s placed reliance on the judgment of their lordship in H.B.L.Aircraft Batteries Ltd., Vs Commissioner of Central
Excise, Hyderabad reported in (2004) 5 SCC 664, the set of facts does not fit into the facts and circumstances of the present case.
33.Appreciating their contentions as argued, it is to be taken note of here that the plaintiff filed the suit under section 6 of Specific Relief Act.
36
Thus stressed upon that without seeking for the relief of declaration of title, since the point for consideration is only his earlier possession which he established under Ex.A2, that he is entitled for recovery of possession of schedule property.
34. However it cannot be ignored that to be entitled for the said relief under Section 6 of Specific Relief Act, it is to be established that the plaintiff was dispossessed from the schedule property within 6 months from the date of filing of the suit and that till then he was in possession and enjoyment of the same.
35.Be that as it may, the above discussion clearly reflects that there is a cloud over the title over the schedule property, wherein both the parties are asserting their right, title and possession. Unless and until there is any proper finding given as to the authenticity of the documents and the manner in which either the plaintiff or the 2nd defendant can be said to have gained title over the same, that without seeking for any relief of declaration to recognize his right and title, bare suit seeking for recovery of possession does not lie. For the said aspect, no benefit flows to the plaintiffs by contending that recognizing their title and possession in an earlier suit that permanent injunction was granted to them in OS 37 507/2007. Apparently it is an exparte decree and the 2nd defendant herein is not a party to the suit and in light of the discussion made above, when the 2nd defendant is claiming her right and possession over the schedule property, without determining the title, the relief of recovery of possession cannot be determined. Even otherwise, even in the said suit, the plaintiffs placed reliance on Ex.A2/agreement of sale only to suffice their contention of alleged possession.
36.Most importantly, if under Ex.A3, the plaintiffs obtained permanent injunction contending their alleged possession and enjoyment over the schedule property during the period 2007, and also obtained decree to that effect in the year 2014, then it is imperative upon them to suffice, if so, that within 6 months of the date of filing of this suit that they were dispossessed from the schedule property. Apparently except bare oral assertion, there is nothing on record to suffice the same. Further as already mentioned above, as per the plaintiff under the guise of ad-interim orders in IA.159/2015 in OS.54/2015 that the defendants 1 and 2 have highhandedly dispossessed him from schedule property on 13.04.2015. However, as appearing from the testimony of DW1, since the issuance of Ex.B1/possession certificate that she has been in possession of the schedule property. She even filed property tax demand 38 notice and receipts for the period 2009 to 2013. Even the electricity bills and receipts pertaining to the period 2009 to 2015 for the service connection obtained for the schedule property. If it were the contention of the plaintiff that he was in possession of the schedule property since the date of Ex.A2 which is also reflected in suit in OS.507/2007 till his dispossession on 13.04.2015, how then the 2nd defendant produced electricity bills and receipts for the said intermittent periods dated 12.02.2015, 17.03.2012, 19.02.2011, 07.07.2009, 18.05.2009, 19.10.2009, 19.11.2009, etc., The water tax demand notices were also
dated 30.11.2013, 17.06.2014, 03.12.2012, 16.05.2012 and 03.01.2015.
When these Ex.B3 and Ex.B5 are pertaining to the schedule property for the period from Ex.B1 and covering the periods till 2015, in the name of husband of 2nd defendant, then it is for the plaintiff to show that he was in actual possession of the schedule property as alleged and that he was dispossessed within 6 months from the date of this suit. Apparently except relying on Ex.A2/agreement and Ex.A6/proceedings of transfer of title, no such document filed before this court to suffice his alleged possession since 2007 atleast. Though the plaintiff is further stressing upon Ex.A3 judgment in OS.507/2007 in the suit for permanent injunction, admittedly it is an exparte decree and the documents under 39
Ex.B3 and Ex.B5 are reflecting percontra. Thus any contention of the plaintiff for having filed the suit under section 6 of Specific Relief Act also does not entail any benefit upon him either.
37.Even if considering Ex.A6 to suffice his possession it seems to have been issued only on 24.03.2015 and Ex.B7 pertaining to the 2nd defendant is dated 09.03.2015. If by placing reliance on Ex.A6, the plaintiff wants to stress upon his earlier possession, how then Ex.B7
dated 09.03.2015 came up to be issued remained unexplained.
38.Apparently, except by placing reliance on Ex.A2 / agreement of sale, the plaintiff did not submit any other documents to suffice his contention of alleged possession at the relevant point of time nor any evidence adduced to show that he was dispossessed by the 2nd defendant in any manner. Thus of no avail.
39.Appreciating the case of the 2nd defendant, she rested her case upon the revenue records and the oral testimony of the neighbours, examined as DW2, DW3 and DW5, to suffice her alleged possession over the schedule property. However, as already discussed above, there is a glaring variation in the boundaries of the schedule property, so also the manner in which Ex.B1 possession certificate has been issued. DW1 40 is contending herself to have been put into possession of the schedule property under Ex.B1 on the same date percontra the plaintiff is claiming himself to be rightful owner of the schedule property, definitely there is a cloud over her title and in these circumstances, bare suit for injunction does not lie.
40.To substantiate their contention of entitlement of permanent injunction to be granted in their favour, the counsel for the defendant placed reliance on the judgment of their Lordship in Kaneez Fathima and another vs. Samru Sulthana and others reported in 2008 (3) ALT 538 and also in Ramavath Hasla Naik vs. Sabhavath Gomli Bai reported in 2011 (2) ALT 690, wherein it was observed that in a suit for perpetual injunction that there must be a finding as to the possession and the verification of the title on the limited sense, must be undertaken if necessity arises. Thus stressed upon that since admittedly it is the defendant No.2 who is in possession of the schedule property that she is entitled for the relief of perpetual injunction.
41.On the same analogy rested upon another case in Ramavath Hasla
Naik vs. Sabhavath Gomli Bai reported in 2011 (2) ALT 690. However it is to be noted that in the said judgment, it was also observed by their 41
Lordship that person in settled possession of property on the date of suit is entitled for injunction even against true owner, irrespective of his not having title to the same. But the said set of facts does not fit into the facts and circumstances of the present case as the said analogy was laid down in case where the person was found to be in settled possession as per the guidelines laid down and further the said matter pertained to the party in occupation of the schedule property who is wife of the defendant and found to be having occupied the joint family property.
42.The counsel for defendant further relied upon the judgment of the
Honourable Apex Court in Rame Gowda (D) by Lrs vs. M.Varadappa
Naidu (D) by Lrs and another reported in 2003 (8) Supreme 928 wherein by referring to the catena of decisions relied by both the parties therein, it was observed that a suit for injunction is maintainable without declaration of title. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof.
43.They further relied upon the judgment of the Honourable Apex
Court in Seera Simhachalam vs. Pedaredla Simhachalam reported in 2000 2 ALD 292 wherein it is observed that when a suit is filed on the 42 basis that the plaintiff was in lawful possession and enjoyment of the schedule property and the defendants were illegally trying to interfere into their possession and enjoyment, it is not necessary for the plaintiff to seek for declaration of his title or for cancellation of the sale deed. It is well settled that a sham or nominal sale deed need not be set aside or canceled and it is only when it is a real transaction that the said same has to be set aside or canceled since the documents relied by the plaintiff only for the purpose of establishing his possession, that there is no strength in the contention that mere suit for injunction is not maintainable.
44.The counsel for defendant further relied upon the judgment of the
Honourable Apex Court in Chellingi Narayana Murthy vs. Chillingi
Satyanarayana and others reported in AIR 2008 Andhra Pradesh 25, wherein in a suit for permanent injunction, based on agreement of sale, it was observed that the relief of injunction is an equitable relief and the same cannot be granted to the plaintiff who has not established his readiness and willingness to perform his part of contract and failed to seek the relief of specific performance. However it is to be noted here that the defendant in the said case is the original owner of the schedule property and while appreciating the entitlement of the plaintiff to grant 43 injunction against its owner based on agreement of sale, that the said principle was laid down and hence the same does not fit into the facts and circumstances of this case and is not applicable.
45.All said and done, it is apposite to mention that when there is a cloud over the title and when there is a rival claim made by the parties touching the merits of the case, that bare suit for permanent injunction is not maintainable. It cannot be ignored either that as appearing from the record, there was litigation prevailing between both the parties since 2007 and in these circumstances, any contention that declaration of title need not be sought for is not tenable. It is apt to refer here the judgment of their lordship in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs &
Ors on 25 March, 2008 wherein it was categorically held that :- para 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in 44 addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
It is further held in para 17 as :- 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.
45
(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 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.
46
(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. (in their own words).
46. Thus, when apparently both the parties are claiming right and title over the schedule property, without determining the said aspects, it is not just and appropriate to proceed further. It is stressed upon by placing reliance on A.Kishore @ Kantha Rao Vs G.Srinivasulu reported in (2004) 3 AndhLD 817 and on K.R.Subrahmanayam and another vs. A.Raja
Reddy reported in (2002) 5 ALT 404 and on G.Uday Kiran Reddy vs.
G.Ramakrishna Reddy and others reported in (2011) 3 ALT 600 and on
Anga Bhooloka Rao vs. Smt.Noorjahan Begum reported in 2011 (2) ALT 373 and on Rayadurgam Pedda Reddappa (Died) and others vs.
Rayadurgam Narasimha Reddy (Died) and others reported in 2006 (6)
ALT 292 that even if the possessory agreement of sale is not registered and effected by S.49 of Registration Act, that the same be taken into consideration for collateral purpose of establishing the delivery of 47 possession by the original owner and hence that he is entitled for recovery of possession based on Ex.A2. However as discussed above, when there is a cloud over the title of possession and there is also variation over the boundaries of the schedule property and also RS number, unless and until the same are clarified, merely because the plaintiffs are admitting possession of the 2nd defendant over the schedule property, since there is a cloud over her title, this court is of considerable opinion that it is not just and appropriate to grant the relief of permanent injunction to the defendant merely based on possession. It cannot be ignored that the above analogy was laid down while appreciating the nature of possession as claimed by the tenant. In the present case, both the parties are claiming title over the schedule property and hence the same does not fit into the facts and circumstances of the present case.
Further as discussed above, there is no cogent and convincing evidence on record to show that the plaintiff was dispossessed from the schedule property within 6 months from the date of suit and hence no relief of recovery of possession be granted as prayed for. So also, in the said set of facts, when there is rival claim regarding the right and title over the schedule property, the litigation being carried on for over a considerable period of time, definitely bare suit for permanent injunction does not lie.
48
Thus this court is of considerable opinion that both the suits are liable to be dismissed.
47.In view of the above discussion, this Court finds no merits in the plaintiff’s case and the grounds of appeal pleaded in OS 187/2015 are not sustainable. As the trial court has reached a proper conclusion and the judgment is in accordance with the law and the facts on record, this
Court does not find any illegality to set aside the judgment and decree in
OS 187/2015.
48.However at the same time, in light of discussion made above, this court is of considerable opinion that the finding arrived by the trial court in OS 54/2015 needs interference and is liable to be set aside.
Accordingly, point No.1 is answered.
POINT No.2:-
49.In the result, the appeal in AS 54/2024 is dismissed confirming the
Judgment and decree dt.19.12.2022 in OS.187/2015 passed by the learned Principal Civil Judge (Junior Division), Machilipatnam. The appeal in AS 55/2024 is allowed, setting aside the Judgment and decree dt.19.12.2022 in OS.54/2015 passed by the learned Principal Civil Judge 49 (Junior Division), Machilipatnam. In the facts and circumstances of the case, both the parties do bear their own costs.
Partly typed by me and partly typed to my dictation by the stenographer grade -II on my laptop, corrected and pronounced by me in the open court on this the 2nd day, March, 2026.
Sd/- K.V.L.Hima Bindu,
Prl.Civil Judge (Senior Division), Machilipatnam.
APPENDIX OF EVIDENCE
NIL
Sd/- K.V.L.Hima Bindu,
Prl.Civil Judge (Senior Division),
Machilipatnam.
// True Copy //
PCJ (SD), MTM