1

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

IN THE COURT OF THE VII ADDL.CIVIL JUDGE (SENIOR DIVISION): VIJAYAWADA

Present: Sri.Ch.L.Srinivasa Rao, B.A.L, B.L.

VII Addl.Civil Judge (Senior Division),Vijayawada
Monday, this the 29th day of April,2024

A. S. No.128/2016

Between

Kommuri Venkataravamma,
W/o.Lakshmana,
Hindu, aged 40 years,
House wife,
R/o.Kethanakonda village,
Ibrahimpatnam Mandal,
Krishna District. ….Appellant / Plaintiff

And
1.Kommuri Venkateswarlu,
S/o.Ramayya,
Hindu, aged 60 years,
Properties,
R/o.Kethanakonda village,
Ibrahimpatnam Mandal,
Krishna District.

2.Kommuri Suresh,
S/o.Venkateswarlu,
Hindu, aged 24 years,
Properties,
R/o.Kethanakonda village,
Ibrahimpatnam Mandal,
Krishna District.

3.Kommuri Krishnaiah,
S/o.Venkateswarlu,
Hindu, aged 26 years,
R/o.Kethanakonda village,
Ibrahimpatnam Mandal,
Krishna District.

4.Pagadala Appa Rao,

S/o.Venaktaramaiah,
Hindu, aged 55 years,
R/o.Kethanakonda village,
Ibrahimpatnam Mandal,
Krishna District. ….Respondents / Defendants

APPEAL FILED AGAINST THE DECREE AND JUDGMENT DATED

26-02-2016 PASSED IN O.S.No.264 /2015 ON THE FILE OF THE HON’BLE
I ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) AT VIJAYAWADA

BETWEEN:
Kommuri Venkatravamma ….Plaintiff
 2

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

And
1.Kommuri Venkateswarlu
2.Kommuri Suresh
3.Kommuri Krishnaiah
4. Pagadala Appa Rao
……Defendants

This Appeal is coming on 16-04-2024 before me, for final hearing, in the
presence of Sri V.Lakshmi Narayana , Advocate for the Appellant, Sri N.V.Mohana
Rao, Advocate for respondent Nos.1 to 3 and Respondent No.4 remained exparte
and the matter having stood over for consideration till this day, this Court
delivered the following:

JUDGMENT

1. This is a Civil Appeal preferred by the Appellant / Plaintiff

against the Respondents / Defendants under Order 41 rule 1 and Section

96 of CPC to set aside the Judgment and Decree in O.S.No.264 /2015

dated 26-02-2016 on the file of I Additional Civil Judge (Junior Division)

at Vijayawada, whereby the suit filed by the Appellant / Plaintiff against

the Respondents / defendants for Permanent injunction was dismissed and

sought to allow the appeal and to decree the suit as prayed for.

2. The Appellant herein is the Plaintiff and respondents are the defendants

in the said suit.

3. This court being the 1st Appellate court and fact finding court need to

appreciate the pleadings and evidence lead in by both parties by reappreciating

the evidence on record.

4. For the sake of convenience, parties hereinafter will be referred to as they

were arrayed in the said suit.

5. The brief facts of the Plaint reads as follows :-

Plaintiff submitted that she is permanent resident of Kethanakonda

village, Ibrahimpatnam Mandal of Krishna District.The maternal aunt of the

plaintiff by name Smt. Kommuri Venkamma, W/o Lakshmaiah of

Kethanakonda village executed a registered gift deed on 08-03-1991 in

 3

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

favour of plaintiff to an extent of Ac.0.05 cents which is a vacant land which

is equivalent to 242sq.yards in R.S.No.28 situated at Kethanakonda

Village,Ibrahimpatnam Mandal of Krishna District which is described as

plaint schedule herein, out of love and affection vide Doct.No.131/1991

dated.08-03-1991 of SRO, Ibrahimpatnam. Since then the plaintiff is in

peaceful possession and enjoyment of the plaint schedule property with

absolute rights. The plaintiff is keeping heap of hayrick and firewood in the

suit schedule. The defendants 1 to 3 are the same villagers, whereas the 4 th

defendant is the co-owner of the eastern side boundary of the property of

the plaintiff.

(ii) The defendant Nos. 1 to 3 having land disputes among them and there

are criminal cases pending among them. The defendant Nos. 1 to 3 in

collusion with 4th defendant having an eye against the property of the

plaintiff. Defendant Nos.1 to 4 are having influence in political, money and

muscle powers whereas the plaintiff is a lady and helpless woman. The

plaintiff approached the Panchayat Office to impose tax over the suit

schedule,on that they told the plaintiff that there is any structure in the

property, then only the property tax will be levied. Accordingly, the plaintiff

intended to raise a house in the schedule property therein to her son with

the help of coolies. On 07-04-2015 when the plaintiff is in the plaint

schedule property for leveling the site to construct a house with the help of

coolies, the defendants 1 to 3 along with 4 th defendant came to the plaint

schedule property and obstructed the plaintiff and demanded her to vacate

the site and further demanded the plaintiff to sign on a blank papers by

force, when she restrained the defendants they attacked her and put their

hands on her chest and bet her with hands and legs. The defendants while

leaving the place proclaimed that they will dispossess the plaintiff by hook

or crook and therefore, the plaintiff apprehending danger in the hands of

 4

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

the defendants, gave a representation to the Police Commissioner,

Vijayawada against the defendants and their men.

(iii) The plaintiff contended that the defendants once again came to the

plaint schedule property along with their henchmen on 19-04-2015 and

demanded the plaintiff to vacate and handover vacant possession of the

plaint schedule property and threatened the plaintiff with dire-

consequences.The plaintiff informed them that she is absolute owner of the

plaint schedule property and shown documentary evidence, but the

defendants has not heeded the words of the plaintiff. The plaintiff

approached the police, Ibrahimpatnam and informed the same and the

police suggested the plaintiff to approach a competent civil court to get ap-

propriate orders as the dispute between the parties is of civil nature and

therefore, the plaintiff is constrained to file the suit against the defendants.

6. Defendant No.4 was exparte in this suit. Defendant Nos.1 to 3 filed their

written statement by denying the allegations of the plaintiff and interalia

contending that the plaint schedule property belongs to Kommuri Peda

Panakalu, S/o Venkatanarasaiah of Kethanakondalage,Ibrahimpatnam Man-

dal of Krishna District from whom his two sons by name Kommuri Ramaiah

and Kommuri Venkata Narasaiah inherited the plaint schedule property by

way of succession and got the suit schedule partitioned in between them

according to the custom prevailed by then in the community i.e., by way

of mutual partition. Wherein the Kommuri Ramaiah got an extent of 72.6

sq.yards and Kommuri Venkata Narasaiah got an extent of 72.6 sq. yards

and the same was happened in the year 1977. Since then both Kommuri

Ramaiah and Kommuri Venkata Narasaiah are in absolute possession and

enjoyment to the knowledge of one and all including boundary holder of

the plaint schedule property without having any hindrance, interference

 5

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

from anybody continuously. The said Kommuri Ramaiah and Kommuri

Venkata Narasaiah used their respective shares for keeping hayrick and also

raised a thatched hut in their respective shares of properties for keeping

their buffaloes.

(ii) The 1st defendant is the son of Kommuri Ramaiah, got 72.6 sq. yards

in the plaint schedule property from his father under a gift deed vide

Doct.No.202/1991 dated 10-04-1991 of SRO, Ibrahimpatnam. The

1st defendant accepted the gift from his father and took vacant possession

of 72.6 sq. yards of vacant site from his father/donor and he is in peaceful

possession and enjoyment over the same to the knowledge of one and all

including the plaintiff. The other co-sharer by name K.Venkata Narasaiah

who is the paternal uncle of 1 st defendant has also gifted his portion of

plaint schedule property ie.., an extent of 72.6 sq. yards of vacant house

site to the 1st defendant under valid gift deed vide Doct.No.203/1991,dated.

10-04-1991 of SRO,Ibrahimpatnam. The 1st defendant accepted the gift

from his paternal uncle and taken vacant possession of the plaint schedule

property for an extent of 72.6 sq. yards and he is in possession and

enjoyment of the same to the knowledge of one and all including the

plaintiff.

(iii) Either the 1st defendant or defendant Nos.2 and 3 did not know as to

the creating of false, frivolous, untenable, nonest, void ab-initio document

by the plaintiff until he came to the court. As the 1st defendant has been in

absolute possession and enjoyment of the plaint schedule property, the

plaintiff never came and raised any objection as to the title and possession

of the 1st defendant and there is no occasion to suspect the plaintiff and

having not thought of verifying the registrar office. The 1st defendant is the

father of defendant Nos.2 and 3 and they have no disputes among them as

contended by the plaintiff.The defendant Nos.1 to 3 hailed from an

 6

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

agricultural family and the 1 st defendant devoted his life for agricultural

work and defendants 2 and 3 are devoted their lives for eking their

livelihood by doing private jobs. As such the defendant Nos. 1 to 3 are law

abiding citizens and they are innocent in nature.The 1 st defendant is in

absolute possession and enjoyment of the plaint schedule property and the

plaintiff is not entitled for any relief and there is no cause of action for the

suit and the cause of action averred in the plaint is created for the purpose

of filing this suit and prays to dismiss the suit with exemplary costs.

7. Basing on the above said pleadings the trial court framed the
following issues for trial:-
1) Whether 1st defendant is in possession and enjoyment of
plaint schedule property as contended by him?
2) Whether the plaintiff is in lawful possession and enjoyment
over the plaint schedule property as on the date of filing of
suit?

3) Whether the plaintiff is entitled for decree of permanent

injunction against the defendants as prayed?

4) To what relief?

8. During the course of trial on behalf of the Plaintiff, she herself examined as

as P.W.1, one Pagadala Narayana examined as PW2 and one Pagadala

Venkatramayya examined as PW3 and later his evidence was eschewed and

got marked Exs.A.1 to A.3. On behalf of defendants 1 to 3, the 1st

defendant was examined as D.W.1, 4th defendant examined as DW3,One

Kommuri Venkata Narasaiah examined as DW2 and got marked Exs.B1 and

B2 through him.

9. The trial court by observing the oral and documentary evidence on record,

answered above issues and dismissed the suit in favour of the defendants and

against the Plaintiff.

 7

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

10. Aggrieved by the same, the Plaintiff preferred the Appeal by

contending interalia that the Judgment and decree of the trial court are contrary to

law, weight of evidence and probabilities of the case and vitiated by illegalities that

the trial court failed to appreciate the evidence on record in right perspective

manner that there are contradictory versions in between the Plaintiff and

defendants and their evidence and the trial court ought to have decreed the suit

but erroneously dismissed the same.

11. Contending as above, the Plaintiff prayed this Appellate court to set aside

the said Judgment and decree of the trial court and further prayed to decree the

suit by allowing this appeal in the interest of justice.

12. Heard on both sides on 16-04-2024.

13. Counsel for the Appellant and counsel for the Respondent Nos.1 to 3 are

submitted their oral arguments.

14. Advocates for the Appellant and Respondents reiterated the facts as

mentioned supra and evidence on record, during the course of oral arguments.

15. Now the following points will arise for consideration of the Appellate court is
that :-

1.) Whether the Plaintiff was in lawful possession and enjoyment over the plaint
schedule property as on the date of filing of suit?

2.) Whether the Plaintiff is entitled for decree of permanent injunction against the
defendants as sought for?

3.) Whether the Judgment of the trial court suffers from any irregularity and

illegality?

4.) If so, whether the interference of this appellate court is required to meet the
ends of the justice?

5.)To what Point?

 8

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

POINT Nos.1 to 4 :

16. For the sake of convenience the Point Nos.1 to 4 are discussed and decided

conjointly as they are interrelated and to avoid redundancy in the discussion.

17. I have also carefully perused the record and oral and documentary evidence

relied upon by the parties and other material available on record apart from my

anxious consideration to the rival contentions of the both parties.

18. It is the contention of the Plaintiff that she is the absolute owner of the

plaint schedule property and maternal aunt of the plaintiff by name

Smt. Kommuri Venkamma, W/o Lakshmaiah of Kethanakonda village executed

a Registered gift deed on 08-03-1991 in favour of plaintiff for the plaint

schedule property which is an extent of Ac.0.05 cents which is a vacant land

which is equivalent to 242 sq.yards in R.S.No.28 situated at Kethanakonda

Village,Ibrahimpatnam Mandal of Krishna District and delivered the possession

of the same to her on the even date. Since then she has been in peaceful

possession and enjoyment of the plaint schedule property by keeping heap of

hayrick and firewood in it. The defendant Nos.1 to 3 are the same villagers

and the 4th defendant is the co-owner of the eastern side boundary of the

property of the Plaintiff and they are trying to interfere with the peaceful

possession and enjoyment of the plaintiff over the plaint schedule property.

19. Whereas it is the contention of the defendant Nos.1 to 3 that the

1st defendant is the absolute owner of the plaint schedule property as the said

Kommuri Ramaiah gifted 72.6 square yards of site to the 1st defendant out of

the plaint schedule property under the Registered gift deed dated 10-04-1991

and Kommuri Venkata Narasaiah who is the paternal uncle of the

1st defendant gifted his portion of plaint schedule property i.e., an extent of

72.6 square yards of vacant house site to the 1st defendant under the

Registered gift deed dated 10-04-1991 as they got the said property by way
 9

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

of succession from Kommuri Peda Panakalu who is the original owner of the

Plaint schedule property and donors of both the properties delivered the

possession of the plaint schedule property to him on the even date of the

execution of the said gift deeds and the said gift deeds were acted upon him

and since then he has been in peaceful possession and enjoyment of the plaint

schedule property and plaintiff has nothing to do with the plaint schedule

property and she has never been in possession and enjoyment of the same.

Since the defendants are denying the allegations of the Plaintiff, the initial

burden lies on the Plaintiff to establish that she was in prima facie lawful

possession and enjoyment of the plaint schedule property as on the date of

filing of the suit.

20. In order to prove the same, Plaintiff herself examined as PW1. She

also examined one Pagadala Narayana as PW2. Pagadala Venkatramayya as

PW3 (later his chief examination affidavit was eschewed by the Plaintiff). PW1

reiterated the averments of the Plaint in her chief examination affidavit. PW1

has mainly relied upon Ex.A1 Notarized copy of the registered gift deed dated

08-03-1991 executed by her maternal aunt by name Kommuri Venkamma ,

W/o.Lakshmaiah in her favour. As can be seen from the recitals of Ex.A1

wherein it is clearly shows that the maternal aunt of the Plaintiff by name

Kommuri Venkamma, W/o.Lakshmaiah executed Ex.A1 Registered gift

settlement deed in favour of the PW1 on 08-03-1991 by gifting the site in an

extent of Ac.0.05 cents equivalent to 242 square yards of site to her. Further

the Ex.A1 also containing that she delivered the possession of the same to the

PW1 on the even date. Here the defendants have questioned the very validity

of the Ex.A1 Registered gift settlement deed. When the defendants have

questioned the validitiy of the Ex.A1 Registered Gift settlement deed, it is the

duty of the PW1 to establish that the donor of the PW1 has got right and title

over the plaint schedule property to execute the Ex.A1 Registered gift
 10

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

settlement deed in her favour.

21. Infact the PW1 has not filed any piece of paper before this court to

establish that the donor of the Plaintiff by name Kommuri Venkamma has got

right and title over the plaint schedule property. As can be seen from the cross

examination of PW1 wherein the PW1 deposed that the plaint schedule

property devolved upon the donor of the PW1 through her husband and she

got the documentary proof to show that the husband of the Kommuri

Venkamma by name Lakshmaiah is the absolute owner of the plaint schedule

property and she will file the same before this court. But the PW1 did not file

any documentary proof before his court to establish the flow of title from the

husband of Kommuri Venkamma to her and Kommuri Venkamma to the PW1

under Ex.A1 Registered gift settlement deed. So, it is the duty of the PW1 to

establish her case by adducing cogent and convenience evidence. But there is

no such evidence on behalf of the Plaintiff to establish the said case. Even the

PW1 has not explained any valid reasons what prevented her to file the said

documents before this court to show that the donor of the PW1 acquired the

Plaint schedule property through her husband Lakshmaiah.

22. If really the Plaint schedule property originally belongs to the husband

of the Kommuri Venkamma, certainly, the PW1 would have filed the said

documents before this court to establish the said fact. But she did not do so.

Here the PW1 examined PW2 who is her own brother by name Pagadala

Narayya. But PW2 deposed in his cross examination contra to the evidence of

PW1 that the Plaint schedule property was devolved on the donor of the Ex.A1

Registered gift settlement deed from her ancestors. But the PW2 never stated

the Kommuri Venkamma who is the donor of the PW1 acquired the plaint

schedule property through her husband Lakshmaiah. Even the PW2 has not

disclosed the names of the ancestors of the Kommuri Venkamma and when

she acquired the same from her alleged ancestrors. Even though PW2 who is
 11

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

the own brother of the Plaintiff deposed that PW1 is in actual possession and

enjoyment of the plaint schedule property that evidence is not at all

acceptable without having any documentary evidence on behalf of the PW1 as

he is the own brother of the PW1 and he might have given the oral evidence in

support of his own sister.

23. Further the evidence of PW1 is not inspiring confidence over the case

of the Plaintiff. Here the evidence of PW3 was eschewed by the Plaintiff as

even though several opportunities given to the PW3, he did not turn up for his

cross examination by the defendants. Further here the Plaintiff stated that she

went to the Panchayat office of Kethanakonda village and she made an

application to the Panchayat authorities to mutate her name in the revenue

records with regard to the Plaint schedule property and Pancahayt authorities

stated to her that if there is no structures in the plaint schedule property, no

property tax is levied. Further the PW1 deposed in her cross examination that

panchayat authorities has given a letter to her by stating no property tax is

levied to the vacant sites and she filed the same before the court. But infact

she did not file the alleged letter given by the Panchayat to her before this

court. If really the Panchayat authorities gave alleged letter to the PW1,

certainly, she would have filed the said letter before this court. But she did not

do so. Even she has not explained any valid reaons for non filing of the said

letter before this court.

24. Even she has not examined the authorities of the Panchayat of

Kethanakonda village to establish the said fact. If really the panchayat

authorities has given the alleged letter to the PW1 by stating that if there is

no property tax levied to the vacant site, certainly, PW1 would have examined

the authorities of the Panchayat Kethanakonda village on her behalf as

witness to elicit the said fact. But she did not do so. From this it appears that

the PW1 must be sure that she never went to the office of the Panchayat,
 12

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

Kethanakonda village and she never gave an application to the authorities of

the Pancahayat to mutate her name in the Panchayat records for the plaint

schedule property as such she did not take any steps to examine the

Panchayat authorities as witness on her behalf to establish the said fact.

25. Even the PW1 has not filed any adangals, 1B-Namuna and other

revenue records before this court show that originally either ancestors of the

Kommuri Venkamma or her husband is absolute owner of the Plaint schedule

property and no reasons were assigned by the PW1 what prevented her to file

the said document before this court to establish that Kommuri Venkamma is

the absolute owner of the plaint schedule property. Further the PW1 deposed

in her cross examination that she does not know whether there is any vacant

site around the plaint schedule property or not. If really the plaint schedule

property is in the possession and enjoyment of the PW1, certainly, PW1 would

have disclosed about the vacant sites and structures situated around the

plaint schedule property. So this admission of the PW1 is creating doubt over

the case of the Plaintiff with regard to her alleged possession over the plaint

schedule property.

26. Further here the PW1 has not filed any positive evidence on her

behalf to show that she is in possession and enjoyment of the plaint schedule

property. So, it is the duty of the Plaintiff to establish her prima facie lawful

possession and enjoyment of the plaint schedule property as on the date of

filing of the suit by adducing cogent and convenience evidence. But there is no

such evidence on behalf of the Plaintiff to establish the same. Further Ex.A2

Photographs and Ex.A3 copy of the report given by the PW1 against the

defendants to the Commissioner of Police, Vijayawada are not at all helpful to

the PW1 to establish her prima facie lawful possession and enjoyment of the

plaint schedule property as on the date of filing of the suit. So is not safe to

rely upon the oral testimony of the PW1 and PW2 who are the sister and
 13

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

brother. So, it can be safely held that the Plaintiff miserably failed to establish

that she was in prima facie lawful possession and enjoyment of the plaint

schedule property as on the date of filing of the suit.

27. In order to establish the possession of the 1 st defendant over the

plaint schedule property, 1 st defendant himself examined as DW1 and

Kommuri Venkata Narasaiah examined as DW2, Kommuri Appa Rao examined

as DW3 and the defendant Nos.1 to 3 have relied upon Ex.B1 and Ex.B2

Registered gift settlement deeds dated 10-04-1991 to substantiate their case.

DW1 reiterated the averments of the written statement in his chief

examination. DW1 mainly deposed that originally the Plaint schedule property

belongs to Kommuri Peda Panakalu, S/o.Venkata Narasaiah of Kethanakonda

village and he had two sons by name Kommuri Ramayya and Kommuri

Venkata Narasaiah and after the death of Kommuri Pedapanakalu, his two

sons inherited the plaint schedule property by way of succession and they got

partitioned the plaint schedule property equally by way of mutual partition in

the year 1977 and in that partition Kommuri Ramaiah got an extent of 72.6

square yards and Kommuri Venkata Narasaiah has got an extent of 72.6

square yards of site. Since then they had been in peaceful possession and

enjoyment of the same to the knowledge of one and all including the

boundary holders of the plaint schedule property.

28. Further the evidence of DW1 goes to show that the Kommuri

Ramaiah who is the father of the DW1 gifted the 72.6 square yards of site out

of the plaint schedule property under the Ex.B1 Registered gift settlement

deed dated 10-04-1991 and Kommuri Venkata Narasaiah who is the paternal

uncle of the 1st defendant gifted an another 72.6 square yards of the site to

the DW1 under Ex.B2 Registered gift settlement deed dated 10-04-1991 and

they delivered the possession of the same to the DW1 on the even date and

he accepted the said gift deeds and the said gift deeds were acted upon him.
 14

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

Since then he has been in peaceful possession and enjoyment of the plaint

schedule property to the knowledge of one and all including the Plaintiff.

In order to establish the same, defendants have relied upon Ex.B1 and Ex.B2

Registered gift settlement deeds.

29. Further the recitals of Ex.B1 and Ex.B2 Registered gift settlement

deeds clearly corroborating with the evidence of DW1 with regard to the

gifting of the plaint schedule property to the DW1 by the Kommuri Ramaiah

and Kommuri Venkata Narasaiah under Ex.B1 and Ex.B2 Regsitered gift

settlement deeds. Further the recitals of Ex.B1 and Ex.B2 Registered gift

settlement deeds clearly corroborating with the evidence of DW1 that the

donors of the DW1 delivered the possession of the plaint schedule property to

the DW1 on the even date of execution of Ex.B1 and Ex.B2 Registered gift

settlement deeds. Here the defendants examined the Kommuri Venkata

Narasaiah as DW2 who is the donor of the DW1 under Ex.B2 Registered gift

settlement deed. Further the evidence of DW2 also corroborating with the

evidence of DW1 and the contents of Ex.B2 Registered gift settlement deed

with regard to the gifting of the 72.6 square yards of site to the DW1 under

Ex.B2 and delivery of the possession of the same to him on the even date.

30. Further the evidence of DW3 also clearly corroborating with the

evidence of DW1 and DW2 that the 1st defendant is in peaceful possession

and enjoyment of the plaint schedule property. Infact the Ex.A1 Registered

gift settlement deed is prior document to the Ex.B1 and Ex.B2 gift deeds as

Ex.A1 deed was executed on 08-03-1991 and Ex.B1 and Ex.B2 were executed

on 10-04-1991. Even though Ex.B1 and Ex.B2 were executed subsequent to

the execution of the Ex.A1 document it cannot effect the right of the Plaintiff

why because it is the duty of the Plaintiff to establish her prima facie lawful

possession over the plaint schedule property as on the date of filing of the

suit. But she failed to establish the same by adducing cogent and convenience
 15

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

evidence. Further nothing was elicited by the Plaintiff during the cross

examination of DW1 to DW3 to disbelieve their testimony. Further PW1

admitted that there is no disputes in between the Plaintiff and the defendants.

When there is no disputes in between the Plaintiff and the defendants there is

no need for the defendants to create sham and nominal documents with

regard to the plaint schedule property. Further the Plaintiff also failed to elicit

during the cross examination of DW1 to DW3 that there is disputes among the

defendant Nos.1 to 3 and they filed criminal cases against each other and due

to that disputes only they created the Ex.B1 and Ex.B2 documents to grab the

plaint schedule property from the Plaintiff.

31. Even the Plaintiff has not filed any alleged police reports lodged by

the Defendant Nos.1 to 3 against each other before this court to establish the

said fact. So, it shows that there is no disputes among the Defendant Nos. 1

to 3 and they have not lodged any reports before the police against each

other. Further the evidence of DW1 to DW3 and the contents of Ex.B1, Ex.B2

clearly establishes that the 1 st defendant has been in peaceful possession and

enjoyment of the plaint schedule property as on the date of filing of the suit.

32. Here in this case, the defendants are denying the title of the plaintiff

over the plaint schedule property. So, it shows that there is a cloud on the

title of the PW1 over the plaint schedule property. When there is a cloud is

raised over the title of the plaintiff with regard to the plaint schedule property

and she does not have any possession, a suit for declaration and possession

with or without consequential injunction is remedy and the suit for injunction

simpliciter is not maintainable.

33. Further I relied upon a citation in between

T.V.Ramakrishna Reddy
Vs.
M. Mallappa
Reported in 2021(9) Laws (SC) Page 12
 16

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

The Hon’ble Apex court held at para 20 that

It is well settle by Catena of Judgment of this Court that in

each and every case where the defendants disputes the title of the
plaintiff it is not necessary that in all those cases the plaintiff has to seek
the relief of declaration. A suit for mere injunction does not lie only when
the defendant raises a genuine disputes with regard to title and when he
raises a cloud over the title of the plaintiff, then necessarily in those
circumstances, plaintiff cannot maintain a suit for bear injunction.

34. As per the citation referred above wherein it is clearly shows that

where the plaintiff is not in lawful possession but her title to the property in

disputes or under a cloud or where the defendants associates title there too. The

plaintiff will be sue for a declaration of his title and possession over the plaint

schedule property. But, here in the present case the plaintiff has no clear title

supported by documents as said, when the plaintiff has no clear title over the

property in question, certainly, P.W.1 has to file a suit for declaration of her title

over the property in question and the present suit for mere injunction simplicitor is

not sufficient.

35. It is well settled proposition of law that the grant of injunction is a equitable

relief, the person who approached the Court must prove the equities to get the

relief of injunction. Omission or suppression of material facts would dis entitle her

to seek the equitable relief of Permanent injunction. In this case, the P.W.1 has not

filed any piece of paper before this Court to establish that she has been in lawful

possession and enjoyment of the entire plaint schedule property as on the date of

filing of the suit.

36. Further here in this case, there is no evidence on behalf of the Plaintiff to

show that on 07-04-2015 when the Plaintiff was in plaint schedule property for

leveling the site to construct a house with the help of coolies, the

defendants 1 to 4 came to the plaint schedule property and restrained her

and demanded her to vacate the site and demanded her to sign on the

blank papers by force. PW1 never stated that, PW2 was also present at the

plaint schedule property at that time. So, it shows that PW2 was not
 17

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

present at the time of alleged incident occurred on 07-04-2015. Further as

per the evidence of PW1, the coolies were present at the time of alleged

incident. But the PW1 has not disclosed the names of the alleged coolies

and she has not examined the alleged coolies on her behalf to elicit the said

fact. Even she has not disclosed the names of the passers who allegedly

restrain the defendants and their men. Even there is no piece of document

to show that on 19-04-2015 the defendant Nos.1 to 4 again came to the

plaint schedule property and thereatened the plaintiff to vacate the same.

Further even though PW1 lodged the Ex.A3 report to the police, basing on

the Ex.A3 it cannot be conclude that the defendants are interefering with

the possession of the plaintiff over the plaint schedule property without

proving the possession of the plaintiff over the plaint schedule property as

on the date of filing of the suit.

37. Here the DW3 is the neighbor of the plaint schedule property and he

categorically deposed that no incident took place at the plaint schedule

property as alleged by the Plaintiff and he clearly deposed that Defendant

Nos.1 to 3 are in exclusive possession and enjoyment of the plaint schedule

property. So, the evidence of DW3 itself clearly establishes that no incidents

were took place at the plaint schedule property either on 07-04-2015 or

19-04-2015. Further no such suggestion was given by the Plaintiff to the

DW3 that the defendant Nos.1 to 4 came to the Plaint schedule property

either on 07-04-2015 or 19-04-2015 and they tried to encroach the plaint

schedule property from the plaintiff and tried to obtain signatures of the

PW1 on the blank papers by force. When the Plaintiff failed to give the said

suggestion to the DW3, it can be presumed that the Plaintiff accepted the

same.

38. Further there is no positive evidence on behalf of the Plaintiff to prove

the alleged cause of action. Further it is not safe to believe the version of
 18

A.S. No.128/2016 VII Addl. Senior Civil Judge’s Court

Dt.29.04.2024 Vijayawada

the Plaintiff basing on the sole testimony of PW1 alone without having

positive and supporting evidence. So, it can be safely held that the Plaintiff

miserably failed to establish that the defendants tried to interfere with the

alleged possession and enjoyment of the PW1 over the plaint schedule

property.

39. In view of the aforesaid circumstances, I am of the opinion that the

Plaintiff is not entitled for granting permanent injunction in her favour and

against the defendants as sought by her and there is no perversity and

irrational reasons assigned by the trial court in the impugned judgment. So,

absolutely there is no necessity to interfere with the impugned judgment of the trial

court. Accordingly Point Nos.1 to 4 are answered in favour of the defendants and

against the Plaintiff.

40. So, in the light of the above discussion, the appeal is devoid of merits and the

same is liable to be dismissed.

POINT No.5 :-

41. In the result, the appeal is dismissed by confirming the impugned

Judgment and decree dated 26-02-2016 passed by the Civil Judge(Junior

Division) in O.S.No.264 /2015 on the file of I Additional Civil Judge

(Junior Division) at Vijayawada. Both parties do bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in

open Court, this the 29th day of April,2024.

Sd/-Ch.L.Srinivasa Rao
VII Addl.CIVIL JUDGE
(Senior Division),
VIJAYAWADA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL

Sd/-Ch.L.Srinivasa Rao
VII Addl.CIVIL JUDGE
(Senior Division),
VIJAYAWADA