IN THE HIGH COURT OF ANDHRA PRADESH AT AMAR^A)^ i <Sl< ^ TUESDAY, THE TWENTY FOURTH DAY OF JU TWO THOUSANDAND TWENTYFIVE X o PRESENT THE HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL NO: 341 OF 2024 Between: Thiruvalluru Harinath Babu, S/o.Late Raju, aged about 44 Occupation;Private Job, R/o.D.No. 11-4-243/A, Behind Liberty Theatre Rajagarithota, Guntur City, Guntur District, A.P. years ...Appellant/Respondent/Defendant AND 1. Thondmallu Udaya Lakshmi, W/o.Pandu Ranga Swamy, Hindu, aged about 41 years, Occupation;House wife, R/o.D.No. 1-4-243, Behind Liberty Theatre, Rajagarithota, Guntur City, Guntur District, A.P. 2. Chinamurthy Krishna Prasad, S/o.Appa Rao, Hindu, aged about 39 years, Occupation:Software Engineer, R/o.D.No.1-4-243, Behind Liberty Theatre, Rajagarithota, Guntur City, Guntur District, A.P. ...Respondents/Appellants/Plaintiffs Appeal under Section 100 of CPC against Judgment and Decree dated 22-04-2024 passed in A.S.No.52 of 2015, on the file of II Additional District Judge, Guntur, Guntur District, which was preferred against the Judgment and Decree dated 16-02-2015 passed in O.S. No.127 of 2014 on the file of II Additional Junior Civil Judge, Guntur, Guntur District. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Appellate Court as well as Trial Court and material papers in the suit and upon hearing arguments of Sri Kishore Vangara, Advocate for Appellant, and of Sri Rama Chandra Rao Gurram, Advocate for Respondents. This Court doth Order and decree: 1. That the Second Appeal be and hereby is dismissed; 2. That the Judgment and Decree, dated 22-04-2024 in A.S.No.52 of 2015, on the file of the II Additional District Judge, Guntur be and hereby are confirmed; and 3. That the each party be and hereby are directed to bear their own costs in the Second Appeal. Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The II Additional District Judge, Guntur, Guntur District. 2. The II Additional Civil Judge (Junior Division), Guntur, Guntur District. 3. Two CD Copies RAM HIGH COURT DATED:24/06/2025 DECREE SA.No.341 of 2024 0 JUL 2025 ^^sQur^tSec oi ov <>» ★ DISMISSING THE SECOND APPEAL WITHOUT COSTS IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV, TUESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL NO: 341 OF 2024 Appeal under Section 100 of CPC against Judgment and Decree dated 22-04-2024 passed in A.S.No.52 of 2015, on the file of II Additional District Judge, Guntur, Guntur District, which was preferred against the Judgment and Decree dated 16-02-2015 passed in O.S. No.127 of 2014 the file of II Additional Junior Civil Judge, Guntur, Guntur District. on Between: Thiruvalluru Harinath Babu, S/o.Late Raju, aged about 44 years. Occupation Private Job, R/o.D.No.11-4-243/A, Behind Liberty Theatre, Rajagarithota, Guntur City, Guntur District, A.P. ...Appellant/Respondent/Defendant AND 1. Thondmallu Udaya Lakshmi, W/o.Pandu Ranga Swamy, Hindu, aged about 41 years, Occupation:House wife, R/o.D.No.1-4-243, Behind Liberty Theatre, Rajagarithota, Guntur City, Guntur District, A.P. 2. Chinamurthy Krishna Prasad, S/o.Appa Rao, Hindu, aged about 39 years, Occupation;Software Engineer, R/o.D.No. 1-4-243, Behind Liberty Theatre, Rajagarithota, Guntur City, Guntur District, A.P. ...Respondents/Appellants/Plaintiffs lA NO: 1 OF 2024 Petition filed under Section 151 CPC circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay all further proceedings including execution of Decree in O.S.No.127 of 2014 on the file of II Additional Junior Civil Judge Court, Guntur. Counsel for Appellant praying that in the :Sri Kishore Vangara Counsel for Respondents :Sri Rama Chandra Rao Gurram The Court made the following: F HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.341 of 2024 Judgment: This second appeal is filed aggrieved against the judgment and decree, dated 22-4-2024 in A.S.No.52 of 2015, on the file of the II Additional District Judge, Guntur, reversing the judgment and decree, dated 16-02-2015, in O.S.No.127 of 2014 on the file of the II Additional Junior Civil Judge, Guntur. 2. The appellant herein is the defendant and the respondents 1 and 2 are plaintiffs 1 and 2 in O.S.No.127 of 2014 on the file of the II Additional Junior Civil Judge, Guntur. 3. The plaintiff initiated action in O.S.No.127 2014, on the file of the II Additional Junior Civil Judge, Guntur, with a prayer for permanent injunction restraining the defendant, his men from in any way interfering with the plaintiff’s peaceful possession and enjoyment of item No.1 of plaint schedule property either by demolishing the wall of the 1^* plaintiff on the northern side boundary or encroaching or making constructions or otherwise; and for permanent injunction restraining the defendant, his men and confederates from in any way interfering with the 2"^ plaintiffs peaceful possession and enjoyment of item No.2 of plaint schedule property and for costs. St 1 4. The learned II Additional Junior Civil Judge, Guntur, dismissed the suit without costs. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed A.S.No.52 of 2015, on the file of the II Additional The learned II Additional District Judge, Guntur, District Judge, Guntur, allowed the appeal suit by decreeing the suit in favour of the plaintiffs. Aggrieved thereby, the defendant approached this Court^by way of the second appeal. 2 VGKR, J, ^ sa_341_2024 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of plaintiffs, in brief, as set out in the plaint averments in O.S.No.127of 2014, is as follows: (a) It is pleaded that the plaintiffs are the sister and brother and they children of one Chinamurthy Apparao and they are the absolute owners of the plaint schedule properties. The 1®* plaintiff acquired item No.1 of plaint schedule properties under a registered gift deed dated 20-11-2010 executed by the said Apparao and since then, she had been in peaceful possession and enjoyment of the same without any objection or obstruction from anybody. The 2'"'^ plaintiff purchased item No.2 of plaint schedule properties from Chinamurthy Sambrajyam and others under a registered sale deed dated 20-11-2010 and since then, he has been in peaceful possession and enjoyment of the same without any objection or obstruction over the Both the items are comprising as single and contiguous plot. As such, the plaintiffs are enjoying their respective properties jointly. Previously, a tiled house was there under joint possession and it was removed one year back, now it is vacant site of the plaintiffs, (b) It is further pleaded that the defendant is the owner of property situated on the northern side wall of the plaint schedule properties. There is a wall on the northern boundary of the plaint schedule properties and the said wall belongs to the plaintiffs and the defendant is not having any right or title over the said wall, (c) It is further pleaded that the defendant hatched up a plan to grab the plaint schedule properties by encroaching from northern side boundary by demolishing the wall of the plaintiffs on northern side boundary. On 13-3-2014, the defendant along with his men, coolies, workers etc., came to the plaint schedule properties to demolish its northern side boundary wall. The plaintiffs obstructed them and asked not to do such illegal activities are one same. 3 VGKR, J. sa 341 2024 without having any right. Hence, the plaintiffs are constrained to file the suit for permanent injunction, as prayed for. 7. Brief averments in the written staterhent filed by the defendant before the trial Court are as follows: (a) It is contended that the defendant filed a suit in O.S.No.281 of 2014 on the file of the Principal Senior Civil Judge, Guntur and the plaintiffs herein received notices in the said suit. The plaintiffs filed the present suit without The plaintiffs having right and title over some extent of the property, encroached into the property of the defendant and constructed a temporary wall with hollow bricks and claiming injunction against him. The plaintiffs without having right and title over the property and by encroaching his property, filed the suit, (b) It is further contended that there is no prima facie case and balance of convenience in favour of the plaintiffs. The defendant was constrained to file a suit for declaration to his title over the property and for removal of encroachments by the plaintiffs herein, (c) It is admitted that himself and the plaintiffs are neighbours. It is further contended that the defendant’s property is the northern boundary of the plaintiffs’ property herein and the southern side boundary of the The defendant’s property was defendant’s property is Municipal road, purchased by his mother viz., Tiruvalluru Lakshmi Devi and was allotted to her the year 1989 and subsequently, the same was registered in her favour with absolute rights by the Revenue authorities after receiving sale consideration. She was issued patta for vacant house site property. Subsequently, she executed a registered gift deed in favour of her son i.e., the defendant herein 19-02-2007 and from then onwards, the property had been in peaceful in on possession and enjoyment of the defendant, (d) It is further contended that the defendant and the plaintiffs removed old constructions and they are trying to construct a house in their respective At that stage, the plaintiffs herein, who are his neighbours. ^ properties. 4 VGKR, J. 341 2024 sa suddenly constructed a hollow brick wall in the defendant’s property illegally. Therefore, it is prayed that the plaintiffs herein, for unlawful gain and to encroach the defendant’s property, filed the suit and the same is liable to be dismissed. 8. On the basis of the above pleadings, the learned II Additional Junior Civil Judge, Guntur, framed the following issues for trial: (1) Whether the plaintiff is entitled for permanent injunction restraining the defendant and his men from in any way interfering with the possession and enjoyment of item No.1 of the plaint schedule property either by demolishing the wall of the 1®^ plaintiff in the northern side boundary or encroaching or making constructions ? (2) Whether the plaintiff is entitled for permanent injunction restraining the defendant and his men from in any way interfering with the 2"^ plaintiff’s peaceful possession and enjoyment of item No.2 of plaint schedule property ? and (3) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-11 were marked. On behalf of the defendant, D.W.1 was examined and Exs.B-1 to B-7 were marked. 10. The learned II Additional Junior Civil Judge, Guntur, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit without costs. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.52 of 2015 on the file of the II Additional District Judge, Guntur, wherein the following points came up for consideration: 1) Whether the impugned judgment is erroneous in refusing to grant permanent injunction, though the pleadings and evidence disclose otherwise ? and 2) Whether I.A.No.702/2016, I.A.No.568/2022 and I.A.No.1123/2022 make out a legal need for additional evidence ? 5 VGKR, J. sa 341 2024 11. The learned li Additional District Judge, Guntur i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant and allowed the appeal suit filed by the plaintiffs by decreeing the suit. Felt aggrieved of the same, the defendant in O.S.No.127 of 2014 filed the present second appeal before this Court. 12. On hearing both sides’ counsels at the time of admission of the second appeal, on 24-4-2025, this Court framed the following substantial questions of law: Whether the learned first appellate Court was right in holding that the suit for permanent injunction without claiming declaration of title, as filed by the respondents/appellants/plaintiffs was maintainable ? and (1) Whether there is a genuine dispute with regard to the title of the plaintiffs’ schedule property ? (2) 13. Heard Sri Kishore Vangara, learned counsel for the appellant/ defendant and Sri Ramachandra Rao Gurram, learned counsel for the respondents/plaintiffs. 14. Law is well settled that under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In the case of Bhagwan Sharma v. Bani Ghosh\ the Apex Court held as follows: / AIR 1993 SC 398 6 VGKR, J. ijA sa_341 2024 “The High Court was certainly entitled to go into the question whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” as to In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar^, the Apex Court held as follows: “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory ♦ provisions of law applicable or its settled position on the basis of pronouncements made, by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 15. The undisputed facts are that the plaintiffs herein filed O.S.No.127 of 2014 before the II Additional Junior Civil Judge, Guntur, on 18-3-2014, for seeking the relief of permanent injunction against the defendant and subsequent to the filing of the said suit, the defendant herein filed O.S.No.281 of 2014 on the file of the Principal Senior Civil Judge, Guntur, seeking the relief of declaration of title and mandatory injunction directing the plaintiffs to remove the compound wall which was constructed by the plaintiffs herein. It is also not in dispute that the suit for declaration filed by the defendant in O.S.No.281 of 2014 was dismissed by the learned Principal Senior Civil Judge, Guntur, against which, the defendant herein filed an appeal vide A.S.No.88 of 2022 which is pending before the I Additional District Judge, Guntur. 16. The case of the plaintiffs is that both the plaintiffs are sister and brother and they are the children of one Chinamurthy Apparao and the 1®‘ plaintiff got item No.1 of the plaint schedule properties under a registered gift deed dated 20-11-2010 and the 2^^^^ plaintiff purchased item No.2 of plaint ( ^ AIR 1999 SC 471 7 VGKR, J. sa 341 2024 schedule properties from one Chinamurthy Sambrajyam and others under a registered sale deed dated 20-11-2010 and since then, both the plaintiffs are in possession and enjoyment over the plaint schedule properties. To discharge their prima facie case, they relied on Exs.A-1 and A-2, certified copies of gift deed and sale deed, respectively and they also relied on certificates issued by the Tahsildar, Guntur, under Exs.A-3 and A-4 and they also filed receipts issued by the Municipal Corporation under Exs.A-5 to A-8 and Ex.A-9 three photographs with CD. The contention of both the plaintiffs is that both the items of schedule properties are comprising as single and contiguous plot and the plaintiffs are enjoying their respective properties jointly. The trial Court, after completion of trial, dismissed the suit against which, a first appeal has been filed before the II Additional District Judge, Guntur, by the plaintiffs and on re-appreciation of the entire evidence on record, the first appellate Judge allowed the appeal filed by the plaintiffs and granted the relief of permanent injunction against the defendants by restraining the defendants from ever interfering into the possession and enjoyment over the plaint schedule properties. It is an admitted fact that the suit was filed under Section 38 of the Specific Relief Act for granting the relief of permanent injunction. It is well settled that permanent injunction can be granted only to a person who is in actual possession of the property. The initial burden lies upon the plaintiff to prove that he was in actual peaceful possession of the property as on the date of suit. As stated supra, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is must for granting permanent injunction. The initial burden is on the plaintiff to prove that he is in possession and enjoyment over the plaint schedule property. f 17. It was pleaded by the plaintiffs in the plaint itself that the defendant is the owner of the property situated on the northern side of the wall of the plaint schedule properties and there is a waH on the northern boundary of the plaint schedule properties and the said wall belongs to the plaintiffs.^As seen 8 VGKR, J. sa 341 2024 from the written statement filed by the defendant, he admitted in the written statement itself about the construction of a compound wall by the plaintiffs. The defendant pleaded in the written statement that the plaintiffs herein encroached into his property and constructed the wall. \ As seen from the evidence of D.W.1, there was a clear admission by the defendant in his evidence in cross-examination that there are two walls between his property and the plaintiffs’ property i.e. one is northern boundary wall of the plaintiffs and another is his southern boundary wall and in between the said two walls, there is a gap of 4 feet for flow of rain water. The above own admissions of the defendant clearly go to show that both the properties i.e., the properties of the plaintiffs and the defendant are separated by way of wall on the northern side of the property of the plaintiffs. .18. The learned counsel for appellant relied on T.y. Ramkrishna Reddy v. M. Mallappa^. In the aforesaid case, the Apex Court held follows: as “The issue is no more res Integra. The position has been crystallized by this Court in case (2008) 4 SCC 594. It could be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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. No doubt, this Court has held that 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 straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.” ^2021 (5) ALD231 (SC) 9 VGKR, J. sa 341 2024 hand, the plaintiffs herein pleaded in the plaint itself that plaintiff acquired item No.1 of the In the case on they are sister and brother and the 1 schedule properties under original of Ex.A-1 and the 2"'* plaintiff purchased item No.2 of plaint schedule properties under original of Ex.A-2 and both the single and contiguous plot and both the plaintiffs are items are comprising as enjoying their respective properties jointly. The construction of a compound wall on the northern side was clearly stated by the plaintiffs in the plaint itself. Moreover, the construction of a compound wall by the plaintiffs was admitted by the defendant in the written statement itself. After receipt of suit summons the defendant filed another comprehensive suit for the in the present suit relief of declaration and mandatory injunction directing the plaintiffs to remove After full-fledged trial, the learned the wall constructed in his property. Principal Senior Civil Judge, Guntur a first appeal was first appellate Court i.e., the I Additional District Judge, Guntur. dismissed the said suit against which, filed vide A.S.No.88 of 2022, which is pending before the 19. It is the specific case of the plaintiffs that the defendant is the owner the northern side wall of the plaint schedule the northern boundaries of the plaint of the property situated on properties and there is a wall on and the said wall belongs to the plaintiffs. As noticed schedule properties , the defendant also admitted in the written statement itself about the supra construction of a wall by the plaintiffs and he also admitted in his evidence in between his property and the plaintiffs’ cross-examination itself that in property, fhere were two walls. It is not in dispute by both sides that the defendant herein filed a comprehensive suif for the relief of declaration of his title over the plaint schedule properties and to remove the wall constructed by after full-fledged trial, that said suit was dismissed against first appeal has been filed which is pending before the I Additional record prima facie goes to show that the plaintiffs and which, a District Judge, Guntur. The evidence on the plaintiffs are in properties and the own possession and enjoyment over the plaint schedule admissions of appellant/defendant clearly go to show VGKR, J. sa_341_2024 separated the property of the plaintiffs and the The possession of the 10 that the wall which had defendant was constructed by the plaintiffs. property and construction of compound wall by the plaintiffs was admitted by the appellant himself. 20. In the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs^, the Apex Court held as follows: ■21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under; (a) (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 dejure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title substantially arise for consideration may directly and as without a finding thereon, it will not be possible to decide the issue of possession. The Apex Court further held as follows: “21. (c) But a finding on title cannot be there are necessary pleadings and specific, or implied as noticed in Annaimuthu Thevar v. Alagammal (2005) 6 see 202). Where the averments regarding title are absent in a plaint and where there is no recorded in a suit for injunction, unless appropriate issue regarding title (either 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. (d) In the case on hand possession of the plaintiffs and construction of compound wall by the plaintiffs is admitted by the defendant, admitted by the defendant that he filed a suit for the relief of declaration of title It is also (2008) 4 see 594 11 VGKR, J. sa_341_2024 and mandatory injunction for removal of the said wail, the said suit was dismissed by the learned trial Judge after completion of trial. Whether the appellant/defendant is having title in the plaint schedule properties, that has to be decided in the comprehensive suit in O.S.No.281 of 2014 against which, a first appeal has been filed and the same is pending vide A.S.No.88 of 2022. The material on record prima facie goes to show that the plaintiffs are in possession and enjoyment over the plaint schedule properties and as noticed supra, there was a wail which is separated in between the properties of the plaintiffs and the property of the defendant is admitted by the defendant. It is also a fact that the comprehensive suit filed by the defendant for declaration and mandatory injunction to remove the construction of wall by the plaintiffs dismissed by the learned trial Judge and first appeal is pending. The possession of the plaintiffs and construction of the compound wall by the plaintiffs is proved. On appreciation of the entire evidence on record, the learned first appellate Judge rightly allowed the appeal filed by the plaintiffs and granted the relief of permanent injunction. I do not find any illegality in the judgment and decree passed by the learned first appellate Judge. was 21. In the result, the second appeal is dismissed confirming the Judgment and decree, dated 22-4-2024 in A.S.No.52 of 2015, on the file of the II Additional District Judge, Guntur. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal. Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To. 1. The II Additional District Judge, Guntur, Guntur District, records) 2. The II Additional Civil Judge (Junior Division), Guntur, Guntur District. 3. One CC to Sri Kishore Vangara, Advocate [OPUC] 4. One CC to Sri Rama Chandra Rao Gurram, Advocate [OPUC] 5. The Section Officer, VR Section, High Court of AP at Amaravati. 6. Two CD Copies (With BSV Hf IH COURT DATED;24/06/2025 JUDGMENT AND DECREE SA.No.341 of 2024 3 tOJUL 2025 m Co <9\ DISMISSING THE SECOND APPEAL WITHOUT COSTS