1

IN THE COURT OF III ADDITIONAL DISTRICT JUDGE, NELLORE.

Thursday, this the 14th day of November, 2019.

Present: Smt.G.Sridevi,
III Additional District Judge,
NELLORE.
***

Appeal Suit No.21/2017

Thonda Venkata Ramanamma,

W/o Vijay, Hindu, aged 40 years,
Resident of Chinthareddipalem,
Nellore Municipal Corporation,
Nellore, SPSR Nellore District. …Appellant

Vs.

1. Illapu Sarojanamma,
W/o Illapu Ramanaiah,
Hindu, aged about 42 years,
Residing at Momidi village,
Chillakur Mandalam,
Nellore District.

2. Illapu Siva,
S/o late Ramanaiah,
Hindu, aged 27 years,
Residing at Momidi village,
Chillakur Mandalam, Nellore District.

3. Nellipudi Chandana,
W/o Venkata Ramanaiah,
Hindu, aged about 25 years,
Residing at Thirumalammapalem,
V.Satram Mandal, SPSR Nellore District.

4. Illapu Lalitha,
D/o late Ramanaiah,
Hindu, aged about 21 years,
Residing at Momidi village,
Chillakur mandalam,
Nellore District. …Respondents
 2

Appeal filed against Judgment and decree dt.26.12.2016 in

O.S.No.217/2013 on the file of III Addl. Junior Civil Judge, Nellore.

O.S.No.217/2013

Between:
Thonda Venkata Ramanamma …Plaintiff

And

1. Illapu Ramanaiah (died),

S/o Naraiah.

2. Illapu Sarojanamma,
W/o late Illapu Ramanaiah.

3. Illapu Siva,
S/o late Ramanaiah.

4. Nellipudi Chandana,
W/o Venkata Ramanaiah.

5. Illapu Lalitha,
D/o Late Ramanaiah.
(Amended as per Orders in
I.A.No.616/16, dt.04.08.2016). …Defendants

This Appeal Suit is coming on 28.10.2019 for final hearing before

this Court in the presence of Sri S. Yesudoss, Advocate for
Appellant/Plaintiff and of Sri O.Abbai Reddy, Advocate for the
respondents 1 to 4/defendants 2 to 5 and having stood over for
consideration to this day, this Court delivered the following:-

// J U D G M E N T //

The unsuccessful plaintiff in O.S.No.217/2013 preferred this appeal

against the impugned decree and judgment dated 26-12-2016 passed by
the III Additional Junior Civil Judge, Nellore.

2. The appellant was the plaintiff, the respondents were defen-

dants and they will hereinafter be referred as plaintiff and defendants as
arrayed in the trial court for convenience.
 3

3. The plaintiff filed the suit for grant of permanent injunction re-
straining the defendants and their men from interfering with the posses-
sion of the plaintiff to an extent of 12 ankanams 96 Sq. yards of house
site in Sy.No.200 of Chintareddypalem, within the limits of Municipal Cor-
poration, Nellore. During the pendency of the suit, the plaint schedule
was amended by incorporating the Sy.No.202 in place of 200.

4. The brief averments of plaint is that the plaintiff alleging that

the plaintiff is the absolute owner of the suit schedule property having
purchased the same from one Illapu Masthnaiah, resident of Chintareddy
palem under a registered sale deed dated 02-04-2013 for valid consider-
ation, since then the plaintiff has been in possession and enjoyment of
the suit schedule property as absolute owner. The defendants who are in
no way concerned with the suit schedule mentioned property trying to
disturb the possession of the plaintiff over the suit property, while so on
12-04-2013, when the plaintiff started to dump soil and to develop the
site, the defendants started disturbing the works of the plaintiff. Hence,
she was constrained to file this suit.

5. The Defendants filed written statement by contending that the

plaintiff has no right, title or interest on the suit schedule property and the
said property belonged to the government which is classified as ‘Gra-
manatham Poramboku Land’ and the ancestors of the 1 st defendant oc-
cupied the same long back and they have been in possession and enjoy-
ment of the same. After the demise of the ancestors, the 1 st defendant
succeeded to the same by way of inheritance and has been in posses-
sion and enjoyment without any interruption till date. Suit property is a
vacant site, the father of the 1 st defendant and their brothers also occu-
pied the adjacent sites of the schedule property and they have been in
possession and enjoyment of the same. The plaintiff shall not have
 4

right, title over the schedule property. Further, there is no documentary

proof to show that the vendor of the plaintiff acquired the schedule prop-
erty and he was in possession of it. The plaintiff stated that the schedule
property is situated by the side of his house property, but the sale deed
does not disclose that the suit property is situated by the side of plaintiff’s
house. Without hearing the words of the villagers, the plaintiff ap-
proached the court by filing the suit. There is no cause of action to file the
suit. Thus, she is not entitled to the relief sought in the suit. Thus, the
suit is liable to be dismissed with costs.

6. Based on the above pleadings, the trial court framed the fol-
lowing issues:

 Whether the plaintiff is entitled for permanent injunction, as

prayed for?
 To what relief?

7. During the course of trial, on behalf of plaintiff, PW1 is exam-

ined, Illapu Subbamma, wife of Vendor of the plaintiff was examined as
P.W.2 and marked Exs.A.1 to A.9. The 1 st defendant himself examined as
D.W.1, besides examined D.Ws.2to 6 and got marked Exs.B.1 and B.2.

8. Upon hearing, the trial court dismissed the suit against the
plaintiff. Aggrieved by the impugned Decree and Judgment of the trial
court, the plaintiff preferred the present appeal on various grounds.

9. The main contentions urged in the grounds of appeal are that

– The trial court did not consider the admissions made by the defendants
and throw the entire burden on the defendants.
 5

10. Whereas, the counsel for the defendants/respondents refut-

ing the contentions of plaintiffs, argued totally in support of the findings
recorded by the trial court and finally prayed for dismissal of the appeal
confirming the impugned decree and judgment of the trial court.

11. Considering the rival contentions and perusing the material

available on record including oral and documentary evidence, the sole
point that arises for determination is:

“Whether the plaintiff/appellant is in lawful possession and

enjoyment of the schedule property as on the date of filing of
the suit, if so, whether the defendants made any attempt to in-
fringe or invade the legal rights of the plaintiff? If so, is the
plaintiff/appellant is entitled to claim a preventive relief of per-
petual injunction restraining the defendants/respondents and
their men from interfering with the peaceful possession and
enjoyment of the schedule property by the plaintiff/appellant?

POINT :

12. The main and material controversy between the parties as is

projected through the pleadings, oral and documentary evidence
is about right, title and possession pertaining to the suit schedule
property.

13. Before adverting to adjudicate upon the real controversy be-

tween the parties as to whether the plaintiff is in possession and enjoy-
ment of the suit schedule property or whether the defendants have been
in possession and enjoyment of the suit schedule property as on the
date of the institution of the suit.
 6

14. This suit is filed for bare injunction. While deciding such suit,
it is the duty of the court to record its finding only with regard to lawful
possession and enjoyment of the property as on the date of filing of suit
and infringement or invasion of legal rights of the plaintiffs by the defen-
dants. But the title cannot be looked into except for limited purpose of
deciding lawful possession.

15. As per Sec.38 of Specific Relief Act, the circumstances un-

der which the perpetual injunction may be granted to the plaintiff to pre-
vent the breach of an obligation existing in his favour, whether expressly
or implication, when such obligation arises from contract or when the de-
fendant invades or threatens to invade the plaintiff’s right to, or enjoy-
ment of, property, under the circumstances mentioned in (a) to (d) of
Class III of Sec. 38.

16. The Hon’ble High Court of Andhra Pradesh in a decision re-

ported in 2008 (1) 430 [Alla Seshukumar and another Vs. Alla Radha
Krishna], His Lordship Justice Dr.G. Yethirajulu held that:

“In a suit for injunction simplicitor complicated questions of ti-

tle not to be gone into. The person not having title but being
in settled possession of property on the date of suit is entitled
to injunction even against true owner.”

His Lordship relied on several decisions reported in AIR 1972 SC

2299 [M.K.Setty Vs. M.V.L.Rao]; AIR 1980 Kerala 224 [Karthiyayani
Amma Vs. Kumaresan]; and AIR 2004 SCW 4205 = 2004(2) ALT 24.1
(DN SC) [Rama Gowda Vs. M.Varadappa Naidu]. In all the above deci-
sions, the Hon’ble Apex Court and Kerala High Court were of the view
that, the plaintiff can on the strength of his possession resist interference
from persons who have no better title than himself to the suit property.
So, from this principle, it is abundantly clear that, in a suit for
 7

injunction simplicitor, the court need not go into complicated questions of

title and the persons having better title than others, who is in settled pos-
session, entitled to claim injunction.

17. In another decision reported in 2008 (3) ALT 538 [Kaneez

Fathima and another Vs. Samru Sultana and others], His Lordship
Justice L.Narasimha Reddy held that:

“The court was under impression that, unless a plaintiff

in a suit for perpetual injunction proves his title, possession
even if established, cannot be recognized. This is totally op-
posed to the settled principles of law. Basically, the finding as
to the possession, must be recorded, in a suit of this nature,
and the verification of title, on the limited sense, must be un-
dertaken, if necessity arises.”

Even if, the principle laid down in the above decision is applied to
the facts of the present case, the civil court in a bare injunction suit, can -
not undertake to decide title of the parties, but it can be gone into in lim-
ited sense.

18. Similar view was expressed in a decision reported in 2008 (6)

ALT 676 [Surampudi Sudarsana Rao Vs. Nanduri Venkata Seetha
Ramanjanaeyulu and others], wherein His Lordship Justice P.S.-
Narayana held that:

“For grant of perpetual injunction, the finding has to be

recorded as to possession and upheld injunction granted by
the first appellate court”.
 8

From the reading of the principles laid down in the above deci-
sions, it is abundantly clear that no court in a suit for bare injunction need
not decide the title to the property, though disputed. In view of the above
principles, the plaintiffs are entitled to protect their possession from their
unlawful or forcible taking possession of property by any person.

19. In the instant case on hand, the plaintiff as P.W.1 categori-

cally deposed in her cross-examination that “My paternal uncle Mas-
thanaiah got suit property in a partition between himself and my father, in
the said partition, my father got 12 ankanams and Masthanaiah got 12
ankanams. There are no register document for said partition. I do not
know whether my paternal uncle mentioned in Ex.A.1 that he got the
property under a partition”.

“There is no document to show that suit property originally be-

longed to Masthanaih.”

“There is no document to show that Masthanaiah had in posses-

sion of suit property”.

“It is true that in Ex.A.1, it is mentioned the suit property is not agri-
culture land. It is true that after obtaining Ex.A.1 I filed this suit”

“I do not know the survey number shown in suit property. I have

paid cist for entire extent. I have not filed any document to show that I
am in possession of suit property. I do not know the village is situated in
Sy.No.202”

20. On close perusal of the entire evidence of P.W.1/plaintiff goes

to show that she does not anything about the schedule property,
 9

with regard to its extent, survey number and any documents pertaining to
the possession of plaintiff. The clear admission of P.W.1, which is clear
that the plaintiff is not lawful possession of plaint schedule property at the
time of filing of the suit.

21. Now coming to evidence spoken by P.W.2, who is vendor’s

wife of P.W.1, wherein she categorically deposed that “It is true that we
have not filed any document to show that the suit property was in pos-
session of my husband. Ellappu Chinnaiah and Ellapu Thirupalaiah are
having sites on the front side of suit property”

22. The evidence spoken by P.W.2, who is wife of vendor of

P.W.1 did not corroborated with the version of the plaintiff, except sup-
ported the version of plaintiff regarding purchase of property from her
husband and executed Ex.A.1 in favour of plaintiff.

23. This is a suit for granting permanent injunction. The plaintiff

is a dominant litigant, hence the burden heavily lies on. The plaintiffs
mainly relied on the documentary evidence of Ex.A1. Whether the evi-
dence adduced by the plaintiff proves her possession. In Exs.A.1 and
A.2, it is shown that Illapu Masthanaih got the suit property from his an-
cestors and it is not assigned land. The contention of the plaintiff is that
the schedule property is a private land is falsified through the contents of
Ex.B.1, which clearly proved that land in Sy.No.202 is a government po-
ramboke land for which the government is pattadar. Land in Sy.No.200 is
shown as non-agricultural land and it is not shown as house sites. No
material on record to prove that suit schedule property is ancestral prop-
erty of Illapu Masthanaiah and his brothers..

24. It is a well established principle the plaintiff must establishes

her case on the strength of his own documentary evidence. It is well
 10

established principle that issuance of Pattadar passbook and entries in

record does not create any title. Mere issuance of pass book, cists re-
ceipts and adangals, does not create any title in view of the judgment of
our Hon’ble Apex court i.e., AIR 1954 S.C.526, their Lordships observed
that “the plaintiff must establishes his case basing on his own strength of
documents, but not depend on the latches and lecunas of the defen-
dants”. But obviously for different reasons the plaintiffs did not produce
subsequent documents. In the instant case, on careful observation of
Ex.A1 to A9, it is crystal clear that the plaintiff except asserting that she is
in possession and enjoyment of suit schedule property, did not produce
any documentary proof in support and did not approach the court with
clean hands i.e., that the plaintiff is not in lawful possession by filing of
the suit.

25. In view of the specific dispute regarding title, it is the duty of

the court to decide whether the possession if any of the plaintiff is lawful
or not, if the possession of the plaintiffs is without any title, certainly, their
possession is unlawful, if they are in possession under lawful title, their
possession is lawful. The plaintiffs are entitled to claim a discretionary
relief of a permanent injunction only if they are able to prove their lawful
possession as on the date of filing the suit.

26. When the plaintiff did not prove her lawful possession over
the suit schedule property, the possession of restraining any person mak-
ing attempts to take forcible possession and all where an attempt to in-
fringe or invade the legal rights of the plaintiff does not arise. On this
ground the plaintiff is not entitled to claim permanent injunction restrain-
ing the defendants from ever interfering with peaceful possession and
enjoyment of the suit schedule property.

27. On careful analysis of testimony of P.W.1, initially he pleaded

that he was in possession and enjoyment of schedule property as per
 11

Ex.A.1, and as per Ex.B.1, the schedule land was delivered to the defen-
dants. It is evident from the admission of P.W.1 that he was not in pos-
session and enjoyment of suit schedule land which he claimed to be in
possession initially. Therefore this court is of considered view, on account
of his glaring admission that the plaintiff P.W.1 was not in possession and
enjoyment of suit schedule property by the time of filing of the suit.

28. On careful analysis of the evidence of D.W.1, though he was

put to cross-examination at length, the learned counsel for plaintiff failed
to elicit that the defendants tried to invade and obstruct the plaintiff’s law-
ful possession and enjoyment of the plaint schedule property at any
given point of time and also failed to elicit that the defendants are not in
possession and enjoyment of suit schedule property.

29. In a suit for bare injunction, mere mentioning in the aver-

ments of plaint that the plaintiff was in lawful possession and enjoyment
of suit schedule property is not suffice to conclude that it is true. The
plaintiff should establish through cogent and satisfactory evidence, either
by oral or documentary evidence and the plaintiff must also prove that
the defendants interfered or made an attempt to interfere the possession
and enjoyment of the property of the plaintiff or made an attempt to in-
fringe or invade the legal rights of the plaintiff, which gives rise to cause
of action to file the suit for bare injunction.

30. In the instant case on hand, the cause of action for the suit
arose when the defendants are giving out that they will disturb the
peaceful possession and enjoyment of the plaintiff in the suit land without
rights. But in fact the plaint does not disclose any specific attempt made
by the defendants to interfere with the possession and enjoyment of the
property. But, the open declaration in the village is suffice to give rise
 12

the cause of action, for the reason that if their intention is translated into
an action, certainly it amounts to infringement or invasion of legal right of
plaintiff to continue the possession and enjoyment of the suit schedule
land.

31. It is settled law that a person who is in settled possession is

entitled to claim an equitable relief of permanent injunction restraining
any person, or making attempts to take forcible possession except by
due process of law. Here in the instant case on hand the plaintiff failed to
establish her possession and enjoyment and also invasion by the defen-
dants over the suit schedule property as discussed supra.

32. On over all consideration of the facts and circumstances and

on reappraisal of entire evidence on record, this court finds no illegality in
the appreciation of the evidence by the trial court and the trial court
rightly declined to grant relief of permanent injunction basing on oral and
documentary evidence available on record. Hence this court finds no
grounds to set aside the impugned decree and judgment of the trial
court. Thereby, the finding of the trial court is hereby confirmed holding
this point in favour of respondents/defendants and against the
plaintiff/appellant. In view of the foregoing discussions, this court finds
that the appeal is devoid of merits and deserves to be dismissed.

33. In the result, this appeal suit is dismissed confirming the im-
pugned decree and judgment passed by the court of III Addl. Junior Civil
Judge, Nellore in O.S.No.217/2013 dated 26-12-2016. But in the facts
and circumstances, without costs.

Directly typed to my dictation by the Stenographer Gr.II, corrected

and pronounced by me in open Court, this the 14th day of November,
2019.

Sd/- G.Sridevi,
III ADDL. DISTRICT JUDGE,
NELLORE.
 13

APPENDIX OF EVIDENCE
NIL
Id/- G.S.,
III A.D.J

Copy to the III Addl. Junior Civil Judge, Nellore.

//True Copy//