Shri Nagaboina Satyanarayana Alias Sathibabu v. Smt.Sapa Raja Rajeswari

THE HON'BLE SRI JUSTI CE C.V.NAGARJUNA REDDY SECOND APPEAL No.420 of 2017 Between:

Shri Nagaboina Satyanarayana alias Sathibabu and others ..Appellants and Smt.Sapa Raja Rajeswari ..Respondent Counsel for the appellants: Mr.S.S.Prakash Counsel for the respondent: Mr.Kuriti Bhaskara Rao The Court made the following:

JUDGMENT:

This second appeal is filed against judgment and decree, dated 09.09.2016, in A.S.No.148 of 2015 on the file of VII Additional District Judge (Fast Tract Court), Visakhapatnam, whereby she has confirmed judgment and decree, dated 23.07.2015, in O.S.No.1016 of 2011 on the file of V Additional Junior Civil Judge, Visakhapatnam. 2.

I have heard Mr.S.S.Prakash, learned counsel for the appellants, and Mr.K.Bhaskara Rao, learned counsel for the respondent. 3.

The respondent filed the aforementioned suit for perpetual injunction in respect of the suit schedule property in plot No.71, bearing door No.65-1-45/5, claiming it to have been situated in survey No.10/2 of Gullalapalem Village.

4.

The case of the respondent, in short, is that her husband was granted a patta by the Mandal Revenue Officer, Visakhapatnam on 13.08.1987 and the said document was marked as Ex.A-1; that a thatched house was constructed over the suit schedule property and electricity connection was obtained by the family of the respondent consisting of herself, her husband and two sons; that the respondent's husband died intestate leaving behind him, the respondent and two sons and that they have been jointly enjoying the said property without any interruption. The respondent further pleaded that on 23.09.2011, the appellants came to the suit schedule property and tried to remove the thatched hut, compelling her to file the aforementioned suit for permanent injunction. 5.

It is the pleaded case of the appellants that the mother of appellant No.1 viz., Nakaraboyina Appalanarasamma purchased plot admeasuring

122.44 sq.yds. in survey No.10/3 of Gullalapalem Village under registered sale deed, dated 13.07.2010, from appellant Nos.2 and 3 and four others of Cherakapu family; that she got constructed AC sheet roof house in an extent of 60 sq.yds. out of the said land; that the remaining extent was occupied by Doppa Ramana with whom she got disputes and that the respondent suppressed all the material facts and filed the suit. The appellants disputed the existence of the suit schedule property. 6.

On behalf of the respondent, she examined herself as P.W.1 and also examined P.W.2 and got marked Exs.A-1 to A-7. On behalf of the appellants, appellant No.1 examined himself as D.W.1 and appellant No.2 examined himself as D.W.2 besides examining DWs.3 and 4 and got marked Exs.B-1 to B-3.

7.

Having regard to the respective pleadings of the parties, the trial Court framed an omnibus issue viz., "Whether the plaintiff is entitled to permanent injunction as prayed for?"

8.

On consideration of the oral and documentary evidence, the trial Court decreed the suit by holding that the respondent was able to prove her prima facie case, prima facie title and also her possession as on the date of filing of the suit. Assailing the said judgment, the appellants filed A.S.No.148 of 2015 before VII Additional District Judge (Fast Track Court), Visakhapatnam. The lower appellate Court framed the following points for consideration:

"1. Whether the plaintiff is in peaceful possession and enjoyment of the plaint schedule property as its absolute owner and the same was interfered by the defendants?

2. Whether the suit schedule property is not in existence?

3. Whether the suit is not maintainable when admittedly the plaintiff is not in physical possession of the plaint schedule property?

4. Whether the plaintiff is entitled for permanent injunction as prayed for?

5. Whether there are any grounds to interfere with trial Court's decree and judgment of the lower Court?"

9.

On a thorough re-appreciation of the evidence, the lower appellate Court confirmed the judgment of the trial Court by holding all the points in favour of the respondent. Feeling aggrieved by these two judgments, the unsuccessful defendants filed this appeal.

10.

Mr.S.S.Prakash, learned counsel for the appellants, has strenuously submitted that the Courts below have not properly considered the plea of his clients with reference to the evidence on record. 11.

Mr.Kuriti Bhaskara Rao, learned counsel for the respondent, while opposing the above submission, has contended that both the Courts below have thoroughly considered the evidence on record and rendered a finding of fact that the suit schedule property is in occupation of the respondent based on Ex.A-1 title.

12.

I have carefully considered the submissions of the learned counsel for both the parties with reference to the record. As noted above, it is the pleaded case of the respondent that a patta in respect of the suit schedule property was granted in favour of her husband on 13.08.1987 and that a thatched hut was raised on the said property and her family had been living therein after obtaining electricity connection. In support of her plea, she filed Ex.A-1 patta, Ex.A-2 electricity bill and Ex.A-3 electricity bill receipt, dated 21.05.2011. While dealing with point No.2 viz.,

"Whether the suit schedule property is not in existence?" along with point Nos. 1 and 3, the lower appellate Court rendered a categorical finding that Exs.A-1 to A-4 clearly show that the suit schedule property was assigned to the husband of the respondent; that after his demise, the respondent had been in possession and enjoyment of the same by paying electricity consumption charges for door No.65-1-45/5 and that therefore, the plea of the appellants that the suit schedule property is not in existence is not correct.

13.

Though the appellants pleaded that the mother of appellant No.1 purchased the suit schedule property under registered sale deed, dated 13.07.2010, no such document was filed. No iota of evidence was filed showing either prima facie title or possession of the appellants over the suit schedule property. Though it is the pleaded case of the appellants that the property claimed by the respondent is situated in survey No.10/3 and that she wrongly claimed it to be located in survey No.10/2, no evidence was produced by them in support thereof. In a suit for injunction, the main issue that requires to be adjudicated is whether the plaintiff was in possession of the suit schedule property as on the date of filing of the suit. No contra evidence, which would overweigh the documentary evidence produced by the respondent, was produced by the appellants. Therefore, it cannot be said that the Courts below have committed any error giving rise to a substantial question of law warranting this Court's interference with their judgments under Section 100 C.P.C. 14.

For the aforementioned reasons, I do not find any merit in this Second Appeal and the same is, accordingly, dismissed.

15.

As a sequel to dismissal of the second appeal, S.A.M.P.Nos.926, 927 and 1080 of 2017 filed by the appellants for interim reliefs shall stand dismissed as infructuous.

______________________________ C.V.NAGARJUNA REDDY, J 16th June, 2017 GHN