APHC010300232023 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) WEDNESDAY,THE SIXTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL NO: 394/2025 Between: 1. LOLOGU NARASINAIDU, S/O LATE LATCHIMI, 53 YEARS, HINDU, CULTIVATION, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, PATHAPATNAM MANDAL, SRIKAKULAM DISTRICT. 2. GADIYA BHARATI DEVI BHARATHI, W/O G TIRUPATI RAO, 48 YEARS, HINDU, HOUSEHOLD DUTIES, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, PATHAPATNAM MANDAL, SRIKAKULAM DISTRICT. 1. JEERU GANGABHAI, W/o S Ramarao Reddi, 45 Years, Hindu, Housewife 8b Cultivation, R/o Booragam Village, Path Pathapatnam Mandal, Srikakulam District. Appeal under section HEREIN PREFERRED THE PRESENT SECOND APPEAL AGGRIEVED BY THE DECREE AND JUDGEMENT DATED 09.03.2023 IN A.S.N0.3 OF 2021 ON THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE. SRIKAKULAM DISTRICT. AT TEKKALI. WHICH IS PREFERRED BY THE APPELLANTS AGAINST THE DECREE AND JUDGEMENT DATED 24.03.2021 IN 0.S.N0.22 OF 2012 ON THE FILE OF THE HON'BLE JUNIOR CIVIL JUDGE. SRIKAKULAM DISTRICT. AT PATHAPATNAM ON THE FOLLOWING AND AMONG OTHER IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY,THE SIXTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL NO: 394/2025 LOLOGU NARASINAIDU, S/O LATE LATCHIMI, 53 YEARS, HINDU, CULTIVATION, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, PATHAPATNAM MANDAL, SRIKAKULAM DISTRICT. GADIYA BHARATI DEVI BHARATHI, W/O G TIRUPATI RAO, 48 YEARS, HINDU, HOUSEHOLD DUTIES, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, PATHAPATNAM MANDAL, SRIKAKULAM ...APPELLANT(S) AND JEERU GANGABHAI, W/o S Ramarao Reddi, 45 Years, Hindu, Housewife 8b Cultivation, R/o Booragam Village, Pathapatnam Post, Pathapatnam Mandal, Srikakulam District. ...RESPONDENT Appeal under section 100 of CPC against ordersTHE APPELLANTS HEREIN PREFERRED THE PRESENT SECOND APPEAL AGGRIEVED BY THE DECREE AND JUDGEMENT DATED 09.03.2023 IN A.S.N0.3 OF 2021 N THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE. SRIKAKULAM DISTRICT. AT TEKKALI. WHICH IS PREFERRED BY THE APPELLANTS AGAINST THE DECREE AND JUDGEMENT DATED 24.03.2021 IN 0.S.N0.22 OF 2012 ON THE FILE OF THE HON'BLE JUNIOR CIVIL JUDGE. ICT. AT PATHAPATNAM ON THE FOLLOWING AND IN THE HIGH COURT OF ANDHRA PRADESH [3331] THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI LOLOGU NARASINAIDU, S/O LATE LATCHIMI, 53 YEARS, HINDU, CULTIVATION, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, GADIYA BHARATI DEVI BHARATHI, W/O G TIRUPATI RAO, 48 YEARS, HINDU, HOUSEHOLD DUTIES, R/O BOORAGAM VILLAGE, PATHAPATNAM POST, PATHAPATNAM MANDAL, SRIKAKULAM ...APPELLANT(S) JEERU GANGABHAI, W/o S Ramarao Reddi, 45 Years, Hindu, apatnam Post, ...RESPONDENT against ordersTHE APPELLANTS HEREIN PREFERRED THE PRESENT SECOND APPEAL AGGRIEVED BY THE DECREE AND JUDGEMENT DATED 09.03.2023 IN A.S.N0.3 OF 2021 N THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE. SRIKAKULAM DISTRICT. AT TEKKALI. WHICH IS PREFERRED BY THE APPELLANTS AGAINST THE DECREE AND JUDGEMENT DATED 24.03.2021 IN 0.S.N0.22 OF 2012 ON THE FILE OF THE HON'BLE JUNIOR CIVIL JUDGE. ICT. AT PATHAPATNAM ON THE FOLLOWING AND SRS,J S.A.No.394 of 2025 IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to CONDONE THE DELAY of 683 days in re-presenting the present Second Appeal in the interest of Justice, else the Appellant will be put to irreparable loss and hardship. IA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased PLEASED to DISPENSE WITH the filing of (1) Certified Copy of Decree and Judgment dated 24.03.2021 passed in O.S.No.22 of 2012 on the file of the HonBle Junior Civil Judge, Srikakulam Pathapatnam, and (2) Certified Copy of Decree dated 09.03.2023 passed in A.S.No.3 of 2021 on the file of the HonTile Senior Civil Judge, Srikakulam District, at Tekkali in the interest of Justice, else the Appellants will be put to irreparable loss and hardship. Counsel for the Appellant(S): 1. VINOD KUMAR TARLADA Counsel for the Respondent: 1. The Court made the following: :JUDGMENT: The defendants in the suit filed the above second appeal, aggrieved by the judgment and decree dated 09.03.2023 in A.S.No.3 of 2021 on the file of learned Senior Civil Judge, Tekkali, confirming the judgment and decree dated 24.03.2021 in O.S.No.22 of 2012 on the file of learned Junior Civil Judge, Pathapatnam. 2. For the sake of convenience and brevity, the parties herein are referred to as per their array in the suit O.S.No.22 of 2012. Page 3 of 12 SRS,J S.A.No.394 of 2025 3. The plaintiff filed the suit for a perpetual injunction. In the plaint, it was contended that the plaintiff is the absolute owner of the plaint schedule property to an extent of Ac.1-14 cents in survey No.25/2, Buragam village of Pathapatnam Mandal. The mother of the plaintiff purchased the property under a registered sale deed bearing document No.1170/1964 dated 23.06.1964 from the Tamma family of Parlakhemundi. The revenue authorities also issued a pattadar passbook and title deed. Subsequently, the plaintiff’s mother, Smt. Jeeru Manikyam executed a registered gift settlement deed vide document No.1312/2004 dated 02.11.2004 in favour of the plaintiff. The plaintiff has been in possession and enjoyment of the property. b) While so, the plaintiff’s brother Devanand filed O.S.No.135 of 2006, seeking perpetual injunction against the plaintiff, her mother and others. He also filed I.A.No.449 of 2006 seeking a temporary injunction. The I.A. was dismissed on 08.07.2007 with an observation that the ‘plaintiff in the present suit’ has been in possession and enjoyment of the plaint schedule property in the said suit. The said Devanand executed different documents to different persons. On 26.03.2012, when the plaintiff was preparing the seed bed and undertaking repair works, the defendants, brother and sister, who are strangers to the plaint schedule property, without any right or title, interfered and threatened to dispossess the plaintiff from the property. Hence, the suit was filed. 4. Defendant No.1 filed a written statement, and defendant No.2 filed a memo adopting the same. It was contended, inter alia, that late Kappa Venkata Swamy, the maternal grandfather of Devananda Reddy, executed a Will dated 06.12.1974 in favour of Devanand Reddy. After the death of said Venkata Swamy, Devanand Reddy became the absolute owner of the suit schedule property along with the other properties. On the application made by Devanand Reddy, the pattadar passbook and title deed issued in favour of the plaintiff’s mother Manikyamma, were cancelled vide Rc.No.31/2006/A dated SRS,J S.A.No.394 of 2025 10.03.2006. Defendant No.2 purchased the property from said Devanand Reddy, and she is a bona fide purchaser. Hence, prayed to dismiss the suit. 5. During the trial, the plaintiff herself was examined as PW1 and examined PWs 2 to 4. Exs.A1 to A19 were marked. Defendant No.2 examined herself as DW1 and examined DWs 2 to 4. Exs.B1 to B10 were marked. The vendor of defendant No.2 was examined as DW3. 6. The trial Court, on careful consideration of oral and documentary evidence, including the evidence of vendor of DW3, concluded that the plaintiff’s mother Manikyamma purchased the suit schedule property under two registered documents, dated 23.06.1964 and 08.05.1978 (Exs.A10 and A11) and later the plaintiff’s mother executed a registered settlement deed dated 02.11.2004 (Ex.A12) in favour of the plaintiff. Subsequently, the plaintiff sold part of the property under a registered document, dated 23.07.2008, Ex.A8. The Trial Court recorded a finding that the vendor of defendant No.2 was unsuccessful in getting an injunction in I.A.No.449 of 2006 in O.S.No.135 of 2006, and the plaintiff has been in possession and enjoyment of the suit schedule property. 7. Regarding the plea of the defendants concerning the maintainability of the suit for perpetual injunction, the trial Court held that the suit for perpetual injunction is maintainable. By recording categorical findings, the trial Court eventually decreed the suit for perpetual injunction 8. Aggrieved by the said judgment and decree, the defendants filed an appeal A.S.No.03 of 2021. The first appellate Court, being the final fact-finding Court on appreciation of both oral and documentary evidence, dismissed the appeal by judgment and decree dated 09.03.2023. Assailing the said judgment and decree, the above second appeal is filed. 9. Heard Sri Vinod Kumar Tarlada, learned counsel for appellants. SRS,J S.A.No.394 of 2025 10. Learned counsel for the appellants would contend that the cancellation of the pattadar passbook and title deed by the revenue authorities, granted in favour of the plaintiff’s mother, would demonstrate that the plaintiff’s mother neither owned nor in possession of the property. He would further contend that the Courts below failed to appreciate the oral and documentary evidence in a proper perspective. He also would submit that the suit for injunction simpliciter is not maintainable when there is a cloud over the title. 11. Based on the pleadings and contentions, the following substantial questions of law would arise for consideration: 1. Whether the suit filed by the plaintiff for a perpetual injunction maintainable? 2. Whether the plaintiff proved possession over the suit property on the date of filing of the suit. 12. A narration of the facts and findings recorded by the trial court and appellate court referred to supra, the plaintiff in the suit is asserting title and possession over the suit schedule property by a registered gift settlement deed dated 02.11.2004, Ex.A12, executed by her mother. The plaintiff also asserted and proved title of the mother over the suit schedule property by marking two registered sale deeds dated 08.05.1978 and 18.06.1964 (Exs.A10 and A11). 13. The plaintiff and vendor of defendant No.2 (i.e. DW3) are sister and brother. The vendor of defendant No.2 asserted title to the schedule property by way of a Will dated 06.12.1974 (Ex.B5) said to have been executed by the grandfather. 14. Learned counsel for the appellant contends that the suit for perpetual injunction is not maintainable when there is a cloud over the title of the property. The answer to the said question is no longer res integra. Page 6 of 12 SRS,J S.A.No.394 of 2025 15. In Anathula Sudhakar v. P. Buchi Reddy1, the Hon’ble Apex Court, after discussing the various other authorities summarized at para No.21: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the 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 the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (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 [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). 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 1 (2008) 4 SCC 594 SRS,J S.A.No.394 of 2025 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) 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. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. (emphasis is added) 16. In the case at hand, the trial Court as well as the appellate Court, being the final fact-finding Court, considered both the oral and documentary evidence and concluded that the plaintiff is the absolute owner of the suit schedule property and proved the possession over the plaint schedule property. Regarding the Will propounded by the vendor of defendant No.2 i.e. DW3, based on pleading and evidence, the trial Court as well as the first appellate Court found that the defendants failed to prove title as well as possession over the suit schedule property. 17. The plaintiff, as stated supra, established her possession over the suit schedule property and both the Courts below, after considering oral and documentary evidence, recorded findings concurrently. The findings recorded by the courts below normally will not be disturbed unless the findings suffer from non-consideration of documents; failure to consider evidence etc., SRS,J S.A.No.394 of 2025 Normally, the Court, while exercising jurisdiction under Section 100 of C.P.C., will not re-appreciate the evidence. 18. The scope of Section 100 of CPC vis-à-vis the concurrent findings of fact recorded by the Courts below is well settled. 19. Dealing with the scope of Section 100 of CPC, the Hon’ble Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors.2 held as follows: “Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity.” 20. The Hon’ble Apex Court in Hero Vinoth Vs. Seshammal3, held thus: “19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, 2 (2001) 4 SCC 262 3 AIR 2009 SC 1481 SRS,J S.A.No.394 of 2025 being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where 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 by ignoring material evidence. It was furthermore held: 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in SRS,J S.A.No.394 of 2025 the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001). 24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:- (i) … (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.” 21. A conspectus of judgments referred to supra on the scope of interference by the High Court in second appeal, this Court, while exercising jurisdiction under Section 100 of CPC, must confine itself to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below, where the Courts below have exercised the discretion judicially. Further, the existence of a substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substantiate its own opinion unless the findings of the Courts are manifestly perverse and contrary to the evidence on record. If the findings are based on inadmissible evidence or failure to SRS,J S.A.No.394 of 2025 consider relevant evidence High Court, under Section 100 of CPC, can interfere. 22. However, in the present second appeal, the findings of fact recorded by the Courts below, the Court of first instance and final fact finding Court, are based on appreciation of oral and documentary evidence, and it does not call for any interference of this Court as per Section 100 of CPC. This Court finds no question of law, much less substantial questions of law, involved in the present second appeal. Hence, the second appeal fails and is liable to be dismissed. 23. Accordingly, the Second Appeal is dismissed at the admission stage. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed. ___________________________ JUSTICE SUBBA REDDY SATTI Dated: 16.07.2025 IKN SRS,J S.A.No.394 of 2025 HON’BLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL No.394 of 2025 16.07.2025 IKN