BVLNC,J S.A.No.836 OF 2002

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APHC010064342004

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3368]

THURSDAY, THE EIGHT DAY OF MAY

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

SECOND APPEAL No: 836/2002

Between:

1. ABDUL SHUKUR (DIED)

2. SHAIK MOHD. ABDULLA, S/o.LATE ABDUL SHUKKUR,

MUSLIM, AGED ABOUT 58 YEARS, R/o.2

nd

WARD, ADONI,

KURNOOL DISTRICT.

3. NOUSHAD SYED, S/o.LATE ABDUL SHUKKUR, MUSLIM, AGED

ABOUT 55 YEARS, R/o.2

nd

WARD, ADONI, KURNOOL

DISTRICT.

4. SHAKEE AHMAD SYED, S/o.LATE ABDUL SHUKKUR, MUSLIM,

AGED ABOUT 48 YEARS, R/o.2

nd

WARD, ADONI, KURNOOL

DISTRICT.

APPELLANTS No.2 TO 4 ARE BROUGHT ON RECOR D AS L.Rs.

OF THE DECEASED SOLE APPELLANT AS PER COURT

ORDER DATED 10.09.2024 PASSED IN I.A.No.3 OF 2024.

...APPELLANTS

AND

1. SYED NIZAMUDDIN @ AFZAL MIAH, S/o.SYED MEERA

MOHIDDIN HUSSAINI, MUSLIM, AGED ABOUT 60 YEARS,

R/o.D.No.89, HAWANNAPET, ADONI, KURNOOL DISTRICT.

...RESPONDENT(S):

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Counsel for the Appellants:

1. A.V. SIVAIAH

Counsel for the Respondent(S):

1. A.M. QURESHI

The Court made the following:

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

S.A.No.836 OF 2002

Between:

1. Abdul Shukur (died).

2. Shaik Mohd. Abdulla, S/o.Late Abdul Shukkur,

Muslim, Aged about 58 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

3. Nushad Syed, S/o.Late Abdul Shukkur,

Muslim, Aged about 55 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

4. Shakeel Ahmad Syed, S/o.Late Abdul Shukkur,

Muslim, Aged about 48 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

Appellants No.2 to 4 are brought on record

as L.Rs. of the deceased sole appellant as

per Court Order dated 10.09.2024 passed in

I.A.No.3 of 2024. …. APPELLANTS

Versus

Syed Nizamuddin @ Afzal Miah,

S/o.Syed Meera Mohiddin Hussaini,

Muslim, Aged About 60 years,

R/o.D.No.89, Hawannapet,

Adoni, Kurnool District. …. RESPONDENT

DATE OF JUDGMENT PRONOUNCED : 08.05.2025

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SUBMITTED FOR APPROVAL :

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the Judgment? Yes/No

_____________________________

JUSTICE B.V.L.N.CHAKRAVARTHI

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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ S.A.No.836 OF 2002

% 08.05.2025

# Between:

1. Abdul Shukur (died)

2. Shaik Mohd. Abdulla, S/o.Late Abdul Shukkur,

Muslim, Aged about 58 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

3. Nushad Syed, S/o.Late Abdul Shukkur,

Muslim, Aged about 55 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

4. Shakeel Ahmad Syed, S/o.Late Abdul Shukkur,

Muslim, Aged about 48 years,

R/o.2

nd

Ward, Adoni, Kurnool District.

Appellants No.2 to 4 are brought on record

as L.Rs. of the deceased sole appellant as

per Court Order dated 10.09.2024 passed in

I.A.No.3 of 2024. …. APPELLANTS

Versus

Syed Nizamuddin @ Afzal Miah,

S/o.Syed Meera Mohiddin Hussaini,

Muslim, Aged About 60 years,

R/o.D.No.89, Hawannapet,

Adoni, Kurnool District. …. RESPONDENT

! Counsel for the Appellants : Sri A.V.Sivaiah

^ Counsel for the

Respondent : Sri A.M.Qureshi

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< Gist:

> Head Note:

? Cases referred:

1. AIR 2008 SC 2033

2. AIR 2017 CC 2859 (HYD)

This Court made the following:

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THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

SECOND APPEAL No.836 OF 2002

J U D G M E N T:

This Second Appeal preferred by the appellant/defendant under

Section 100 of the Code of Civil Procedure 1908, assailing the decree

and judgment, dated 15.07.2002, on the file of the learned Senior Civil

Judge, Adoni, passed in A.S.No.13 of 1997.

02. Heard Sri A.V.Sivaiah, learned counsel for the

Appellant/Defendant. Perused the material on record.

PLEADINGS:

03. The appellant is the defendant. The respondent is the plaintiff in

the suit. The parties in this Second Appeal shall hereinafter be referred

to as arraigned in the Original Suit, for convenience and clarity.

04. The suit in O.S.No.2/1984 on the file of the learned Addl.District

Musnif, Adoni, was filed seeking the relief of permanent injunction,

restraining the defendant from interfering with the peaceful possession

and enjoyment of schedule mentioned open site (Asharkhana) by the

plaintiff.

05. The learned trial Court partly decreed the suit granting permanent

injunction in favour of plaintiff, to the extent of performing Ashar in the

plaint schedule site, on every Milad-un-Nabi day and dismissed the rest

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of the suit claim vide judgment and decree dated 07.10.1996. The

plaintiff preferred appeal in A.S.13/1997 on the file of the learned Senior

Civil Judge, Adoni, challenging the judgment and decree of the learned

trial Court. The learned Senior Civil Judge, Adoni, vide judgment and

decree dated 15.07.2002 allowed the first appeal with costs, setting

aside the judgment and decree of the learned trial Court.

06. The case of the plaintiff is that the grandfather of the plaintiff,

later his father and himself, performing the Pedda Ashar (the function

celebrated on Milad-un-Nabi day every year) in between 04.00 p.m. and

05.30 p.m. in the schedule mentioned Asharkhana site, they also

performing the Urus of Syed Khaja Ameenuddin Hussaini Uruf Syed

Masoom Peera Hussaini, from 09.06.1969. The plaintiff has been

performing the Pedda Asher. The plaint schedule Asharkhana was given

to Sri Nawab Nawaj Khan by his ancestors, and later to the grandfather

and father of plaintiff, they were receiving Rs.105/- from the Wakf Board

for performing the religious ceremonies. While so, the defendant, who is

nearby resident, with an ulterior motive to grab the plaint schedule

property, has been attempting to occupy the same high-handedly. On

13.01.1994 the defendant attempted to keep his vehicle in the plaint

schedule site, but it was resisted. The defendant threatening to occupy

the site. Hence, the suit for permanent injunction.

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07. The case of the defendant is that the plaint schedule site belongs

to Wakf Board. Brother of the defendant during his lifetime sent an

application to lease the plaint schedule site to him, for running fuel

depot. Wakf Board leased the schedule site on a rent of Rs.10/- per

month on 16.01.1969. Since then, defendant’s brother running charcoal

depot in the name of “Rayalaseema Charcoal Wood Depot”. After death

of his brother, the defendant is running the said Fuel Depot. It was

closed one year back i.e., prior to 25.02.1994. In the said open site,

there is a big neem tree. One of the branches fallen down on the shed,

then shed collapsed. Electricity connection was disconnected. The

defendant has been parking his vehicle for the 8 years. Now the

defendant wanted to restore the Fuel Depot, by erecting new shed.

About 2½ months ago, the plaintiff approached him and requested to

give half of the plaint schedule property to him, but defendant refused

his request; Hence, the plaintiff filed a false suit. The present suit is not

maintainable against a lessee. There is no cause of action to file the suit.

ISSUES:

08. Basing on the above pleadings, the trial Court settled the

following issues for trial:

1. Whether the plaintiff is entitled for permanent injunction as

prayed for?

2. To what relief?

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EVIDENCE:

09. During trial, on behalf of the plaintiff, five witnesses were

examined as P.Ws-1 to 5, and 11 documents were marked as Exs.A-1

to A-11. On behalf of the defendant, five witnesses were examined as

D. Ws-1 to 5, and 22 documents were marked as Exs.B-1 to B-22. On

behalf of third party, two documents were marked as Exs.X-1 and X-2.

FINDING OF THE TRIAL COURT :

10. The learned trial Court on consideration of the above oral and

documentary evidence, held that the plaintiff proved that he has been

showing Ashar, in the schedule site once in a year on Milad-un-Nabi

day. But he did not prove continuous possession of the suit site. Hence,

the plaintiff is not entitled to permanent injunction as prayed for, and

however, entitled to injunction to the extent of his right to show Ashar in

the schedule site, on every Milad-un-Nabi day. Accordingly, partly

decreed the suit and dismissed the rest of the suit claim.

FINDING OF THE FIRST APPELLATE COURT :

11. The learned Senior Civil Judge, Adoni, on the question Whether

the suit site is being used to perform Ashar on Milad-un-Nabi? Whether

it amounts to lawful possession of the plaintiff? held that the plaintiff

proved the possession and enjoyment of the suit premises and has been

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performing Ashar Shariff on Mild-un-Nabi evert year. Consequently,

allowed the appeal, setting aside the decree and judgment of the

learned Junior Civil Judge, Adoni, dated 07.10.1996, and decreed the

suit for permanent injunction as prayed for, with costs.

12. Challenging judgment of the learned First Appellate Court, the

Second Appeal preferred by the defendant. The Second Appeal was

admitted on 25.02.2002, for the following substantial questions of law.

13. SUBSTANTIAL QUESTIONS OF LAW:

1. Whether the lower Appellate Court is right in decreeing the

suit even in the absence of that pleading that the plaintiff was

in possession of the schedule land as on the date of suit?

2. Whether a suit for permanent injunction lies even without the

plaintiff’s possession of the suit schedule site?

3. Whether the lower Appellate Court is right in placing the

burden on the Appellant?

4. Whether the lower Appellate Court is right in decreeing the

suit without any evidence?

5. Whether the lower Appellate Court is right in holding that

Ex.A-1 (1971) shows possession of the plaintiff as on the date

of suit?

6. Whether the lower Appellate Court is right in holding that the

plaintiff is in possession based on the evidence of defendant?

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14. CONTENTIONS OF THE RESPECTIVE COUNSEL IN THE

SECOND APPEAL :

The learned counsel for the appellant/defendant would contend

that the learned trial Court found that the suit site was not in

possession of the plaintiff. However, restrained the defendant from

interfering with the right of the plaintiff from performing Ashar on Milad-

un-Nabi every year, as performed earlier by the plaintiff, his father and

Sri Nawab Nawaj Khan in the suit site.

He would further contend that the learned First Appellate Judge

did not appreciate the evidence in right perspective and came to a

wrong opinion regarding possession of the suit site and erroneously

decreed the suit, though the plaintiff is not in possession of the suit site

on the date of suit.

He would further submit that, Ex.B-1 would disclose that the suit

site belongs to Wakf Board and it was leased to the brother of the

defendant, and the evidence on record would disclose that the brother

of the defendant established wood business in the name and style of

“Rayalaseema Charcoal Wood Depot” by constructing a shed in the

said site. After death of defendant’s brother, defendant has been

continued the business. Therefore, the learned I Appellate Judge

committed error in appreciating the evidence with regard to the

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possession of the plaintiff over the suit site. In that view of the matter,

the suit for permanent injunction ought not to have decreed, when the

plaintiff failed to prove possession over the suit schedule property.

The burden of proof lies on the plaintiff to prove his possession over

the suit site, to claim a decree for permanent injunction.

15. The respondent/plaintiff would contend that the suit site is a

sacred place known as “Pedda Asharkhana” used for performing Ashar

every year on Milad-un-Nabi day from 04.00 p.m. to 05.30 p.m. It

belongs to religious institution, Ashar Sheriff was managed by Sri

Nawab Nawaj Khan. He was performing Ashar initially, and a sum of

Rs.105/- was paid by Wakf Board for performing Ashar services. Later,

father of the plaintiff Sri Syed Meera Mohiddin Hussaini had been

performing Ashar, every year during his lifetime. Subsequently, the

plaintiff has been performing Ashar every year in the suit site and

receiving a sum of Rs.105/- towards service charges. While so, the

defendant is trying to interfere with the rights of the plaintiff to maintain

the suit site, to perform Ashar every year.

ANALYSIS:

16. The plaintiff filed the suit for permanent injunction in respect of an

open site described in the plaint schedule. The contention of the plaintiff

is that the suit site belongs to a religious institution. It was used as a

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sacred place for performing Ashar every year on the date of Milad-un-

Nabi on payment of Rs.105/- by Wakf Board to the person performing

Ashar. Sri Nawab Nawaj Khan initially performed the Ashar. Later, father

of the plaintiff performed the Ashar in the suit site. Thereafter, the

plaintiff has been performing the Ashar in the suit site.

17. Admittedly, the learned trial Court as well as the learned First

Appellate Court basing on the evidence placed by the plaintiff

concurrently found that the suit site has been used as a sacred site, for

performing Ashar every year on Milad-un-Nabi day from 04.00 p.m. to

05.30 p.m. Both the Courts below also found concurrently that one Sri

Nawab Nawaj Khan performed Ashar initially. Later, the father of

plaintiff performed it, and subsequently the plaintiff has been doing it for

several year in the suit site on payment of Rs.108/- by Wakf Board. It

was also found that the suit site shall be maintained clean and tidy

being a sacred site to perform Ashar every year on Milad-un-Nabi day.

18. It is settled law that in a suit for permanent injunction relating to

an immovable property based on possession, the burden of proof is on

the plaintiff to prove possession and enjoyment of the suit property, on

the date of suit.

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19. The Hon’ble Apex Court in the case of Anathula Sudhakar Vs.

P.Buchi Reddy (dead) by L.Rs and others

1

, held in para 13 as

follows:

“In a suit for permanent injunction to restrain the defendant from

interfering with plaintiff's possession, the plaintiff will have to

establish that as on the date of the suit he was in lawful

possession of the suit property and defendant tried to interfere or

disturb such lawful possession. Where the property is a building

or building with appurtenant land, there may not be much

difficulty in establishing possession. The plaintiff may prove

physical or lawful possession, either of himself or by him through

his family members or agents or lessees/licensees. Even in

respect of a land without structures, as for example an

agricultural land, possession may be established with reference

to the actual use and cultivation. The question of title is not in

issue in such a suit, though it may arise incidentally or

collaterally.”

20. In the case on hand, the disputed property is an open site on the

date of the suite, even as per the case of the defendant. Both the

Courts below concurrently found that it has been used as a sacred site,

for several years, from the period of Sri Nawab Nawaj Khan to perform

Ashar on payment of Rs.108/- by Wakf Board, in the suit site. They

further concurrently found that after Sri Nawab Nawaz Khan, Ashar was

1

AIR 2008 SC 2033

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performed by the plaintiff’s father. Later by the plaintiff continuously

onto the date of suit.

21. The Hon’ble Apex Court in Anathula Sudhakar’s case

considered the issue of possession with respect to a vacant site also,

and held in para 14, as follows:

“But what if the property is a vacant site, which is not physically

possessed, used or enjoyed? In such cases the principle is that

possession follows title. If two persons claim to be in possession

of a vacant site, one who is able to establish title thereto will be

considered to be in possession, as against the person who is not

able to establish title. This means that even though a suit relating

to a vacant site is for a mere injunction and the issue is one of

possession, it will be necessary to examine and determine the

title as a prelude for deciding the de jure possession. In such a

situation, where the title is clear and simple, the court may

venture a decision on the issue of title, so as to decide the

question of de jure possession even though the suit is for a mere

injunction. But where the issue of title involves complicated or

complex questions of fact and law, or where court feels that

parties had not proceeded on the basis that title was at issue, the

court should not decide the issue of title in a suit for injunction.

The proper course is to relegate the plaintiff to the remedy of a

full-fledged suit for declaration and consequential reliefs.”

22. Therefore, in a suit relating to a vacant site, even if it is for a

mere injunction, the issue is one of possession, for deciding the de jure

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possession. In the case on hand, basing on factual matrix, the learned

First Appellate Court observed that plaintiff by establishing that the suit

site has been used as a sacred place, for several years, including onto

the date of suit, for performing Ashar, proved the continuous enjoyment

of the suit site; therefore, plaintiff proved de jure possession over the

suit site on the date of the suit, against the defendant.

23. It is an admitted fact that the plaintiff was authorised to perform

Ashar in the suit site, and has been performing Ashar every year on the

suite site.

24. The defendant plead additional fact that the suit property

belongs to Wakf Board, and it was leased to his brother; After death of

defendant’s brother, defendant came into possession and continued the

business; He admits that on the date of suit, no business has been

carried on the site, no electricity connection and it is an open site.

25. The learned First Appellate Court on additional fact pleaded by

the defendant held that the defendant did not prove Ex.B-1 by

summoning officials of the Wakf Board. Therefore, the learned First

Appellate Court considered Ex.B-1 in a proper perspective, and refused

to accept Ex.B-1, for lack of evidence to prove its content. The learned

First Appellate Court also considered Ex. B-23, marked in the First

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Appeal at the instance of the defendant, and held that it will not improve

the case of the defendant. Further, it was also found that the defendant

did not prove that he is the legal representative of his deceased-

brother, and alleged lease transferred to him; Therefore, he cannot

claim any rights based on the lease deed.

26. Hence, in the light foregoing discussion, contention of the

appellant/defendant that the learned First Appellate Court erroneously

decreed the suit, on the sole basis of evidence placed by the defendant

is not correct.

27. The burden of proof loses much of its importance when both

sides adduced evidence. It is true the initial burden of proof is on the

party making a claim. Its importance become less once both parties

present evidence. The Court has to assess the evidence presented by

both parties to arrive at a just decision. The Court will consider the

overall evidence to determine the outcome of the case.

28. The High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh, in the case of K.Arjuna

Rao Vs. Katuru Yedukondalu

2

, in Civil Revision Petition No.3262 of

2013 dated 10.03.2017 in para Nos.6 and 7, held as follows:

2

2017 AIR CC 2859 (HYD)

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“Order XIV of CPC deals with framing of the issues. While framing

the issues the court has to keep in mind the scope of Order XVIII

Rule 1 of CPC. The underlying object of Order XIV of CPC is

mainly to focus on the lis involved in the suit, which is the basis for

framing of the issues for adjudication, thereby to enable the

parties to adduce evidence to substantiate their stand. A perusal

of Order XVIII Rule 1 of CPC clearly demonstrates that, as a

general rule, the plaintiff has the right to begin the suit, exception

is the right of the defendant to begin. Who has to begin the suit

depends upon the facts and circumstances of each case. There is

no obligation on the part of the defendant to begin the suit first.

Though Order XVIII Rule 1 of CPC does not obligate the

defendant to begin the trial, the defendant has to come into the

witness box at the first instance, if the burden of proof lies on him

on all the issues. Even when burden of proof lies on the defendant

on the main issue, he has to begin the trial, though the burden of

proof on the other issues lies on the plaintiff. However, Rule 3 of

Order XVIII of CPC enables the party who begins the suit to

reserve his or her right to adduce rebuttal evidence.”

“It is needless to say that Sections 101 to 104 of the Evidence Act

deal with burden of proof. It is a settled principle of law that burden

of proof lies on the person, who would fail if no evidence is

adduced on either side. The burden of proof is always static and

does not shift. If the plaintiff discharges the burden cast on him,

the onus of proof shifts on the defendant to substantiate the stand

taken by him. The onus of proof shifts from one party to the other

party depending upon facts and circumstances of each case. If

both parties adduce evidence, the onus of proof loses its

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significance. The basis to begin the suit depends upon whom the

burden of proof lies on the main issue.”

29. In the case on hand, the defendant admits that the suit site has

been used as ‘Asharkhana’ to show Ashar on Milad-un-Nabi day every

year. Evidence on record would show that Ashar was initially performed

by Sri Nawab Nawaz Khan. Later, by the father of the plaintiff during his

lifetime. After demise of the father of the plaintiff, the plaintiff has been

performing Ashar in the suit site on payment of Rs.108/- by Wakf

Board, maintaining the suit site in a tidy and neat condition. The

defendant took an additional plea that the suit site was leased to his

brother by Wakf Board. After his demise, the defendant came into

possession and continued business of his brother for some time.

Therefore, the defendant admits the material part pleaded by the

plaintiff. But he pleads certain additional facts which are in exclusive

knowledge of the defendant. In view of section 106 of the Indian

Evidence Act, if the defendant pleads certain additional facts within his

knowledge, the burden of proof is on the defendant to prove said facts.

Both the Courts below found that the plaintiff proved that the suit site

allocated to perform Ashar on the suit site every year on Milad-un-Nabi

day. Accordingly, Ashar has been performed every year on the suit site,

initially by Sri Nawab Nawaz Khan. Later by the father of the plaintiff

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and after his demise, by the plaintiff on payment of Rs.105/- by Wakf

Board. In those circumstances, the burden is upon the defendant to

prove the additional facts pleaded by him i.e., lease in favour of his

brother, business carried on the suit site by his brother, and after

demise of his brother, lease was transferred in favour of the defendant,

and that he carried on the business in the suit site. The learned trial

Court committed serious error on this aspect and failed to consider this

material aspect. Whereas the learned First Appellate Court considered

this aspect in detail and gave reasons for its finding as to why the

defendant failed to prove the additional facts pleaded by him.

30. In the light of foregoing discussion, this Court has no hesitation

to concur with the finding of learned First Appellate Court that the

defendant failed to prove the additional fact, to say that he discharged

burden of proof, as laid down under section 106 the Indian Evidence

Act.

31. In these circumstances, the contention of the defendant that the

suit was decreed without any evidence is not tenable. The learned First

Appellate Court is right in holding that the plaintiff proved possession of

the suit site on the date of the suit. The learned First Appellate Court

also right in decreeing the suit for permanent injunction, as prayed for

by the plaintiff.

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32. Hence, this Court is of the considered opinion that there are no

grounds to interfere with the judgment and decree passed by the

learned First Appellate Court.

CONCLUSION:

33. In the light of foregoing discussion, the Second Appeal is liable

to be dismissed.

RESULT:

34. In the result, the Second Appeal dismissed, confirming the

judgment and decree dated 15.07.2002 in A.S.13/1997 on the file of

Senior Civil Judge, Adoni, with costs throughout.

As a sequel, interlacutory applications pending, if any, in this

Second Appeal, shall stand closed.

_______________________________

JUSTICE B.V.L.N. CHAKRAVARTHI.

08.05.2025

psk

Note: L.R. Copy is to be marked

B/o. psk.

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THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

01

S.A.No.836 OF 2002

Note: Mark L.R. Copy

B/o. psk.

08

th

May, 2025

W

psk