BVLNC,J S.A.No.611 OF 2001

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APHC010020852001

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3368]

MONDAY, THE TWENTY FOURTH DAY OF MARCH

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

SECOND APPEAL No: 611/2001

Between:

Fakruddin Sab ...APPELLANT

AND

Smt Khairnubi ...RESPONDENT

Counsel for the Appellant:

1. O MANOHER REDDY

Counsel for the Respondent:

1. N RANGA REDDY

The Court made the following:

BVLNC,J S.A.No.611 OF 2001

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

S.A.No.611 OF 2001

Between:

Fakruddin Sab, S/o.Khasim Sab,

Muslim, Aged 79 years,

R/o.D.No.5-8-188-A, Rahamathpur,

Hindupur, Anantapur District. …. APPELLANT

Versus

Smt.Khairunbi, W/o.Late Nayathbaig,

Muslim, Aged 94 years,

R/o.Anantapur, Now C/o.Driver Khaleel,

D.No.5-8-10, Rahamathpur,

Hindpur, Anantapur District. …. RESPONDENT

DATE OF JUDGMENT PRONOUNCED : 24.03.2025

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

BVLNC,J S.A.No.611 OF 2001

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

+ S.A.No.611 OF 2001

% 24.03.2025

# Between:

Fakruddin Sab, S/o.Khasim Sab,

Muslim, Aged 79 years,

R/o.D.No.5-8-188-A, Rahamathpur,

Hindupur, Anantapur District. …. APPELLANT

Versus

Smt.Khairunbi, W/o.Late Nayathbaig,

Muslim, Aged 94 years,

R/o.Anantapur, Now C/o.Driver Khaleel,

D.No.5-8-10, Rahamathpur,

Hindpur, Anantapur District. …. RESPONDENT

! Counsel for the Appellant : Sri O.Manoher Reddy

^ Counsel for the

Respondent : Sri N.Ranga Reddy

< Gist:

> Head Note:

? Cases referred:

1. (2008) 4 SCC 594

2. AIR 2021 SC 4293

This Court made the following:

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

SECOND APPEAL No.611 OF 2001

J U D G M E N T:

This Second Appeal, under Section 100 of the Code of Civil

Procedure, 1908, is filed by the appellant/respondent/plaintiff assailing

the decree and judgment, dated 05.02.2001, of the learned Senior Civil

Judge, Hindupur, passed in A.S.No.26 of 1998.

02. The appellant/plaintiff filed O.S.399/1998 on the file of learned

Junior Civil Judge’s Court, Hindupur, against the respondent/defendant

seeking the relief of permanent injunction, restraining the defendant and

her men from interfering with the peaceful possession and enjoyment of

the schedule mentioned plot bearing No.165 measuring 30x50 feet in

S.No.118/2, 119/1-B and 119/4 within the boundaries, east-plot No.164

west and north-road and south-plot No.165-A and other houses. The

learned trial Court vide judgment and decree dated 15.12.1997 decreed

the suit. The respondent/defendant filed appeal in A.S.26/1998 on the

file of learned Senior Civil Judge, Hindupur, challenging the judgment

and decree of the learned trial Court.

03. The learned Senior Civil Judge, Hindupur, vide judgment and

decree dated 05.02.2001 allowed the first appeal with costs, and thereby

dismissed the suit in O.S.399 of 1998 on the file of learned Junior Civil

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Judge, Hindupur.

04. Heard, Sri O.Manoher Reddy, learned Senior Counsel

appearing for the Appellant/Plaintiff and Sri N.Ranga Reddy, learned

counsel appearing for the Respondent/Defendant. Perused the material

on record.

05. The appellant is the plaintiff. The respondent is the defendant.

The parties in this Second Appeal shall hereinafter be referred to as

arraigned in the Original Suit, for convenience and clarity.

06. The case of the plaintiff is that the Tahsildar of Hindupur granted

a Patta for the suit schedule property on 05.05.1979; The plaintiff

constructed house in the said site in the year 1966 prior to granting of

Patta; Basing on possession, Patta was issued in favour of the plaintiff in

the year 1979; A portion of the house was subsequently demolished to

form a layout and road; The plaintiff repaired the remaining portion of the

house; Boundaries were changed due to formation of layout and road;

The defendant is a resident of Anantapur; The defendant and her sons

constructed houses at Hindupur and let out them; The defendant visiting

Hindupur to collect rents; the defendant falsely claiming right over the

property of the plaintiff, and wanted to make construction in the suit

schedule site. Hence, the suit for permanent injunction.

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07. The case of the defendant is that the plaintiff is staying in the

house bearing D.No.5/8/188-A; The entire plot No.165 measuring 30x50

feet was not assigned to the plaintiff; Only western half belongs to the

plaintiff; The eastern half belongs to the defendant; The defendant has

been in possession of the eastern half of the plot; The plaintiff has

furnished false boundaries; The plaintiff has no right or possession over

eastern half of the plot measuring 26x30 feet; The defendant

constructed a hut in the eastern half; Later, her hut was dilapidated;

When the defendant was trying to rebuilt it, plaintiff filed the suit and

obtained interim injunction.

08. Taking into consideration of the above pleadings, the trial Court

framed the following issues:

1. Whether the plaintiff is entitled for permanent injunction in his

favour?

2. Whether the suit schedule property assigned to the defendant

by the revenue authorities?

3. Whether the suit for bare injunction without prayer for

declaration is maintainable?

4. To what relief?

09. At trial, on behalf of the plaintiff, P.W-1 and P.W-2 were examined

and Exs.A-1 to A-7 were marked. On behalf of the defendant, D.W-1 to

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D.W-3 were examined and Exs.B-1 to B-11 and Ex.C.1 & C.2 were

marked.

10. The learned trial Court on consideration of the above evidence

placed by the respective parties, decreed the suit granting permanent

injunction in favour of the plaintiff. The defendant preferred A.S.26/1998

on the file of learned Senior Civil Judge, Hindupur, challenging the

judgment and decree of the learned trial Court.

11. The learned First Appellate Court on consideration of the evidence

on record referred above, allowed the appeal, holding that the defendant

is entitled to claim right, title and possession over the vacant site

measuring 25x30 feet in plot No.165-A towards eastern side vide Ex.B-1

and that the plaintiff is also entitled to claim right, title and possession

over the tiled house within the measurements of 30x25 feet towards

western side in plot No.165 vide Ex.A-1. Accordingly, granted permanent

injunction in favour of the plaintiff restraining the defendant from

interfering with the peaceful possession and enjoyment of the schedule

mentioned site measuring 30X25 feet towards western side of plot

No.165 vide Ex. A-1. Further, granted permanent injunction in favour of

the defendant also restraining the plaintiff from interfering with the

possession and enjoyment of defendant over the site measuring 25x30

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feet towards western side in plot No.165-A vide Ex.B-1 subject to

payment of court fee within two months from the date of decree.

12. Challenging the above judgment of the learned First Appellate

Court, the plaintiff filed the Second Appeal.

13. On behalf of the Appellant/Plaintiff the following substantial

questions of law are raised in the Second Appeal:

1. Whether Court can decide and declare title of the parties in a

suite for injunction simpliciter based on possession?

2. Whether the Court can decide the validity of Patta issued by

the revenue authorities in the absence of challenge by the

parties?

3. Whether the Appellate Court can declare the title of the

plaintiff and defendant without any issue?

14. QUESTIONS No.1 TO 3:

The learned counsel for the appellant/plaintiff would submit that

admittedly the suit was filed for injunction simpliciter basing on the

possession and title of the plaintiff. The issue was whether the plaintiff

is entitled for permanent injunction based on possession

15. The learned trial Judge basing on the evidence found that the

plaintiff has been in possession of the suit schedule property, and

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accordingly, decreed the suit for permanent injunction.

16. The defendant challenged the judgment and decree of the

learned trial Court in the First Appellate Court. But, the First Appellate

Court went beyond the issues and evidence, decided the title of the

respective parties over the suit schedule property and declared their

rights in the suit schedule property and granted permanent injunction

in favour both parties vice versa, though no counter claim was made

by the defendant to declare title or for injunction, and also without any

prayer by the plaintiff to declare the title.

17. He would further submit that the judgment of the learned First

Appellate Court is contrary to the settled legal position that in a suit for

injunction simpliciter, the question relating to title can only be gone into

incidentally with reference to possession, and it cannot be decided as

a main issue and that the Court shall not declare the title of the

respective parties in such suit. Further, the learned First Appellate

Judge without any counter claim filed by the defendant to decide and

declare the title of the defendant and for injunction in favour of the

defendant, declared the tile and granted injunction Therefore, the

decree and judgment of the learned First Appellate Court is not

sustainable in law.

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18. The learned counsel for defendant would submit that there are

no grounds to interfere with the judgment and decree of the learned

First Appellate Court.

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

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

1

, and in the case of

T.V.Ramakrishna Reddy Vs. M.Mallappa and another

2

, held as

follows:

“It is the settled legal position that in a suit for injunction

simpliciter, possession is the issue. Normally, the issue of title will

not be directly and substantially in issue in a suit for injunction

simpliciter. Therefore, 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 arises for consideration, as without a

finding thereon, it will not be possible to decide the issue of

possession. But a finding on title cannot be recorded in a suit for

injunction simpliciter. However, if there are necessary pleadings

and appropriate issue regarding title and parties led evidence, if

the matter involved a simple and straight forward, 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

1

(2008) 4 SCC 594

2

AIR 2021 SC 4293

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of title will not be decided in suits for injunction simpliciter. 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 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. 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”.

20. Undisputedly, the suite in the case on hand is for injunction

simpliciter, basing on possession. The learned trial Court decreed the

suit believing the case of the plaintiff that the plaintiff has been in

possession of the suit schedule property. Admittedly, no issue on title of

the plaintiff was settled, asking the plaintiff to lead evidence to prove

title. Therefore, when there is no issue of title, suite for injunction shall

be decided basing on possession. But the question on title may be gone

into incidentally when possession has to be established on the basis of

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title to the property, as in the case of vacant sites. A finding on title

cannot be recorded as a matter of fact in a suite for injunction simpliciter,

without necessary pleadings, proper issue and parties placing the

evidence.

21. In the case on hand, there are no necessary pleadings with

respect to title of the parties. No appropriate issue was settled regarding

title. Therefore, the parties are not expected to lead evidence with regard

to title. Hence, it is not a case of exceptional nature to decide and

declare the title of the parties, though it is a suite for injunction

simpliciter. Unfortunately learned appellate judge oblivious of the above

settled legal principles decided and declared not only the title of the

plaintiff but also of the defendant. He also granted decree for title and

injunction in favour of the defendant without any counter-claim for such

relief.

22. Therefore, the judgment and decree passed by the learned First

Appellate Court in A.S.No.26 of 1998 on the file of the learned Senior

Civil Judge, Hindupur, is liable to be set aside, and the matter be

remitted to the learned First Appellate Court to consider the appeal

afresh, and dispose of the same as per law, after hearing both sides.

Since the appeal is of the year 1998, with a direction to dispose of it,

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within a period of three (03) months from the date of receipt of copy of

the judgment.

23. In the result, the Second Appeal is allowed. The judgment and

decree passed by the learned First Appellate Court in A.S.No.26 of

1998 on the file of the learned Senior Civil Judge, Hindupur, is set

aside, and the matter is remitted to the learned First Appellate Court to

consider the appeal afresh, and dispose the same as per law, after

hearing both sides. Since the appeal is of the year 1998, it shall be

disposed of as expeditiously as possible, preferably not later than

three (03) months, from the date of receipt of copy of the judgment.

Both parties are directed to cooperate with the First Appellate Court for

expeditious disposal of the appeal. There shall be no order as to costs.

As a sequel, Interlacutory applications pending, if any, shall stand

closed.

______________________________

JUSTICE B.V.L.N. CHAKRAVARTHI.

24.03.2025

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

S.A.No.611 OF 2001

Note: Mark L.R.Copy

B/o. psk.

24

th

March, 2025

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