Andhra Pradesh High Court – Amravati
Sri Mallelli Rama Murthy (Died) And … vs P.Buchi Reddy (Dead) By Lrs. And Others 3 on 9 March, 2026
APHC010389062016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY,THE NINTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 66/2016
Between:
Sri Mallelli Rama Murthy (died) and Others ...APPELLANT(S)
AND
Sri Mallelli Venkateswara Rao Died and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. VENKATESWARA RAO GUDAPATI
Counsel for the Respondent(S):
1. GHANTA SRIDHAR
2.
The Court made the following:
Reserved on 26.02.2026
Pronounced on 09.03.2026
Uploaded on 09.03.2026
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
SECOND APPEAL No.66 of 2016
JUDGMENT:
This second appeal under Section 100 of the Code of Civil Procedure
(“C.P.C.” for short) is filed aggrieved against the judgment and decree, dated
27.02.2006, in A.S.No.25 of 1999, on the file of the Senior Civil Judge,
Kovvur, in reversing the judgment and decree, dated 07.04.1999, in
O.S.No.593 of 1990, on the file of the I Additional Junior Civil Judge, Kovvur,
West Godavari District.
2. The appellants herein are the defendants and the respondents herein
are the plaintiffs in O.S.No.593 of 1990, on the file of the I Additional Junior
Civil Judge, Kovvur, West Godavari District.
3. The plaintiffs initiated action in O.S.No.593 of 1990, on the file of the
I Additional Junior Civil Judge, Kovvur, West Godavari District, with a prayer
for grant of permanent injunction restraining the defendants and their men
from interfering with the plaintiffs possession and enjoyment of the plaint
schedule property and for costs of the suit.
4. The learned I Additional Junior Civil Judge, Kovvur, West Godavari
District, dismissed the suit filed by the plaintiffs without costs. Felt aggrieved of
the same, the unsuccessful plaintiffs in the above said suit filed A.S.No.25 of
1999, on the file of the Senior Civil Judge, Kovvur. The Senior Civil Judge,
Kovvur, allowed the appeal suit, by setting aside the judgment and decree
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passed by the trial Court. Aggrieved thereby, the defendants in the suit
approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the second appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in
O.S.No.593 of 1990, is as follows:
One Siddayya had two sons by name Mukkaiah and Bheemaiah. The
defendants are the sons of Mukkaiah and Bheemaiah had two sons and two
daughters, by name Mallelli Venkateswara Rao/plaintiff No.1, one
predeceased son Rama Dasu, Ghanta Nakshatram and Pendem Sithratnam.
The plaintiffs pleaded that the deceased Rama Dasu had only one son by
name Rama Krishna, who is the plaintiff No.2 and the schedule property along
with another extent of northern Ac.16.00 cents originally belongs to
Matripragada Bhujanga Rao and the plaintiffs predecessors paid Nazarana to
the said Bhujanga Rao Zamindar and took possession of the land of an total
extent of Ac.32.00 cents. The plaintiffs further pleaded that in partition of the
land between the sons of Siddayya, the defendants’ father got the northern
Ac.16.00 cents and the father of the plaintiff Nos.1, 3 and 4 Bheemaiah got
the southern Ac.16.00 cents of land. The plaintiffs further pleaded that
Mukkaiah and Bheemaiah partitioned the land and are enjoying the same
separately by metes and bounds for the last more than forty years.
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The plaintiffs further pleaded that their names were also entered in the
Government records, showing the possession of respective persons and after
the death of Mukkaiah, the estate of Mukkaiah was fell on the defendants and
after the death of Bheemaiah, the plaintiffs succeeded to the estate of
Bheemaiah. The plaintiffs further pleaded that Mallelli Bheemaiah during his
lifetime, executed two unregistered settlement deeds dated 26.04.1984 in
favour of plaintiff Nos.3 and 4 settling an extent of Ac.4.00 cents out of the
schedule property to each of the plaintiff Nos.3 and 4 and subsequently,
Mallelli Bheemaiah executed a registered settlement deed in favour of the
defendant No.3 on 16.06.1984 and during his lifetime, Mallelli Bheemaiah paid
the taxes in his name and afterwards the plaintiffs are paying the taxes
according to their convenience and are enjoying the same with absolute
rights.
The plaintiffs pleaded that they are in possession and enjoyment of the
schedule property and either the defendants or any other person are never in
joint possession of the schedule property and the defendant who have no
respect for law are making all sorts of efforts to dispossess the plaintiffs from
the schedule property. The plaintiffs further pleaded that they got issued a
registered notice dated 08.10.1988 to the defendants and to the Government
Officials and the defendants have received the same. The plaintiffs further
pleaded that since a week days prior to the filing of the suit, the defendants
again are proclaiming in the village that they will forcibly trespass into the
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schedule land and dispossess the plaintiffs from the schedule land, as such,
the plaintiff is constrained to file the present suit.
7. The defendant No.3 filed written statement before the trial Court. The
brief averments in the written statement filed by the defendant No.3, which
was adopted by the defendant Nos.1 and 2 are as follows:
The Nazarana was paid to the Zamindar by Mallelli Mukkayya only and
he took possession of Ac.32.00 cents in R.S.NO.394 of Lakkavaram and the
same is in continuous possession and peaceful enjoyment of Mallelli
Mukkayya and the defendants. The defendant No.3 pleaded that they have
raised cashew nut garden in the northern Ac.10.00 cents of land about four
years back and the plaint schedule land is in continuous possession and
enjoyment of the defendants and their predecessors since more than fifty (50)
years. The defendant No.3 further pleaded that the plaint schedule land and
some other land was also belonged to his father Mukkayya and the
defendants and their predecessors paid the land revenue. The defendant No.3
further pleaded that the defendants are in actual possession of the plaint
schedule property and they are enjoying the same and the plaintiffs or the
deceased Bheemaiah has no right over the plaint schedule property, as such,
she prayed to dismiss the suit with costs.
8. On the basis of above pleadings, the learned I Additional Junior Civil
Judge, Kovvur, West Godavari District, framed the following issues for trial:
1) Whether the plaintiffs are entitled to the permanent injunction prayed for?
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2) Whether the defendants’ father has got title and if so whether the
plaintiff has got any valid transfer under the Act? and
3) To what relief?
9. During the course of trial in the trial Court, on behalf of the plaintiffs,
P.Ws.1 to 3 were examined and Exs.A-1 to A-11 were marked. On behalf of
the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-11 were
marked.
10. The learned I Additional Junior Civil Judge, Kovvur, West Godavari
District, after conclusion of trial, on hearing the arguments of both sides and
on consideration of oral and documentary evidence on record, dismissed the
suit without costs. Felt aggrieved thereby, the unsuccessful plaintiffs filed the
appeal suit in A.S.No.25 of 1995, on the file of the Senior Civil Judge, Kovvur,
wherein the following points came up for consideration:
1) Whether the plaintiffs (Appellants) are entitled for permanent injunction
as prayed for? and
2) Whether there are sufficient grounds to set aside the decree and
judgment of the Trial Court?
11. The learned Senior Civil Judge, Kovvur, i.e., the first appellate Judge,
after hearing the arguments, answered the points, as above, against the
defendants and allowed the appeal suit filed by the plaintiffs. Felt aggrieved of
the same, the defendants in O.S.No.593 of 1990 filed the present second
appeal before this Court.
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12. On hearing both side counsels at the time of admission of the second
appeal 11.09.2025, this Court framed the following substantial questions of
law:
I. “Whether the appellate Court is correct in reversing the findings of the
trial Court, contrary to the evidence & pleadings”?
II. “Whether the appellate Court can grant relief of injunction when the
plea of the partition is not established by the respondent/ plaintiff’s
herein and the same is evident as per Ex.A5”?
III. “Whether the appellate Court is correct in granting of relief of injunction
without establishing the exclusive possession in the property”?
13. Heard Sri Venkateswara Rao Gudapati, learned counsel for the
appellants/defendants and Sri Ghanta Sridhar, learned counsel for the
respondents/plaintiffs.
14. The law is well settled that under Section 100 of CPC, High Court
cannot interfere with findings of fact arrived at by first appellate Court, which is
final Court of facts, except in such cases where such findings were erroneous
being contrary to the mandatory provisions of law, or its settled position on the
basis of the pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.
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In the case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held
as follows:
“The High Court was certainly entitled to go into the question as to whether the
findings of fact recorded by the First Appellate Court which was the final Court of fact
were vitiated in the eye of law on account of non-consideration of admissible evidence
of vital nature.”
In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar2,
the Apex Court held as follows:
“The High Court cannot substitute its opinion for the opinion of the First Appellate
Court unless it is found that the conclusions drawn by the lower appellate Court were
erroneous being contrary to the mandatory provisions of law applicable or its settled
position on the basis of pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence.”
15. Both the parties in the suit are interrelated and the admitted case of
both the parties is that one Siddhaiah had two sons by name Mukkaiah and
Bheemaiah. The defendants are the sons of Mukkaiah. Bheemaiah had two
sons and two daughters viz., the plaintiff No.1 and another son, who died and
the plaintiff No.2 is the son of the deceased son of Bheemaiah and the
daughters of Bheemaiah are the plaintiff Nos.3 and 4. Therefore it is evident
that the defendants belong to Mukkaiah branch and the plaintiffs belong to
Bheemaiah branch.
16. It is the specific contention of the plaintiff that the plaint schedule
property along with northern Ac.16.00 cents originally belongs to one
Matripragada Bhujanga Rao and the predecessors of the plaintiffs and the
defendants paid Nazarana to the said Bhujanga Rao Zamindar and took
1
AIR 1993 SC 398
2
AIR 1999 SC 471
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possession of Ac.32.00 cents and later in partition of the said land, the sons of
Siddhaiah, by names Mukkaiah and Bheemaiah partition the entire Ac.32.00
cents of land and the defendants’ father got northern share of Ac.16.00 cents
and Bheemaiah got southern share of Ac.16.00 cents. The defendants in the
written statement itself specifically pleaded that the entire Ac.32.00 cents of
land was purchased by the defendants’ father by paying Nazarana to the
original owner Bhujanga Rao Zamindar and since then, the father of the
defendants and the defendants are in the possession and enjoyment over the
plaint schedule properties.
17. The defendants pleaded in the written statement itself that the
Nazarana was paid to Sri Matripragada Bhujanga Rao by Mallelli Mukkaiah,
who is the father of the defendants and took possession of Ac.32.00 cents of
land and the same is in continuous possession and peaceful enjoyment of
Mallelli Mukkaiah and his sons i.e. the defendants.
18. The plaintiffs herein approached the Civil Court for seeking the relief of
prohibitory injunction against the defendants and their men from ever
interfering with the possession and enjoyment over the plaint schedule
property. In a suit for permanent injunction, to restrain the defendants from
interfering with the plaintiffs’ possession, the plaintiffs will have to establish
that as on the date of filing the suit, they were in lawful possession of the suit
property and the defendants have tried to disturb such lawful possession. The
plaint schedule property herein is only a dry land to an extent of Ac.16.00
cents out of Ac.32.00 cents, it is not difficult to prove the physical or lawful
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possession in the plaint schedule property and the possession may be
established with reference to the actual use and cultivation.
19. As could be seen from the material available on record, the plaintiffs
relied on the evidence of P.W.1 to P.W.5 and Ex.A-1 to Ex.A-11. The main
contention of the plaintiffs is that their predecessors paid Nazarana to the
original owner Bhujanga Rao and took possession of Ac.32.00 cents of land.
The plaintiff No.1 is aged about 52 years and he is the best person to speak
about the alleged payment of Nazarana to the original owner Bhujanga Rao.
But, he did not enter into the witness box to prove the same. The plaintiff No.2
led evidence as P.W.1, as per his evidence, by the date of death of Mukkaiah,
the plaintiff No.2 was aged about 10 years old, therefore, he is not having any
personal knowledge about the jointness of Mukkaiah and Bheemaiah.
Furthermore, he is not aware about the partition of the property in between
Mukkaiah and Bheemaiah and he do not know when the said separation of
land had taken place between his grandfather and his brother. Therefore, his
evidence is not even sufficient to come to a conclusion about the alleged
payment of Nazarana to the real owner Bhujanga Rao and also the partition of
Ac.32.00 cents in between Mukkaiah and Bheemaiah. Furthermore, he
admitted in his evidence in cross-examination that he has not filed any
document to show that his grandfather paid Nazarana to the original owner
and there is no documentary proof evidencing the partition of Ac.32.00 cents
of land in between Bheemaiah and Mukkaiah. He further admits that he has
not filed any patta to show that Bheemaiah is the owner of the suit schedule
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land. His evidence clearly go to show that he is not having any personal
knowledge about the acquisition of Ac.32.00 cents of land by Bheemaiah and
he is also not having any personal knowledge about the alleged partition of
the properties in between Mukkaiah and Bheemaiah, because he is aged
about 10 years by the date of the death of Mukkaiah.
20. P.W.2 is the person who closely related to the plaintiffs and he admits
that he is none other than brother’s wife of the plaintiff No.3 and he admits that
P.W.1 is none other than the son-in-law of his brother and his evidence in
Chief-examination is confined to the ownership and possession of the
plaintiffs. There is no whisper in the evidence of P.W.2 about the source of
acquisition of the plaint schedule property by the plaintiffs and when the
plaintiffs came into the possession of the plaint schedule property.
21. P.W3 is another witness of the plaintiffs, his evidence go to show that
he purchased an extent of Ac.9.50 cents on 02.09.1988, which is situated to
the West of the plaint schedule property. In cross-examination, in his evidence
he admits that the total extent of R.S.No.394 is Ac.240.00 cents and he
cannot say who has been in possession of the land and also the total extent of
respective persons in Sy.No.394. He further admits that he is not aware about
how the Eastern side land owner came into the possession of the property.
Therefore, his evidence is also not even sufficient to come to a conclusion that
the plaintiffs are in a possession and enjoyment over the plaint schedule
property as on the date of filing of the suit.
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22. The plaintiffs relied on Ex.A-1 to Ex.A-3. Ex.A-1 to Ex.A-3 are the
certified copy of the plaint in O.S.No.678 of 1988 and the certified copy of the
Judgment and Decree in O.S.No.678 of 1988. The defendants herein filed the
said suit in O.S.No.678 of 1988 against 3rd parties for seeking relief of
prohibitory injunction. The plaintiffs herein are not the parties in the said suit.
In the said suit also the defendants herein i.e. the plaintiffs therein pleaded
that their father purchased and took possession of the Ac.32.00 cents of land.
There is a specific recital in the plaint in O.S.No.678 of 1988 that, at the time
of survey in the Government Revenue Records, the schedule property was by
mistake noted by the Revenue Authorities as Ac.16.00 cents and the
remaining Ac.16.00 cents is under the possession of Mukkaiah’s brother. It
does not mean that the defendants herein are admitting the possession of
Bheemaiah.
23. The First Appellate Court in its judgment came to wrong conclusions
that since the defendants herein are in possession of Ac.16.00 cents only and
that they have filed the suit for an extent of Ac.16.00 cents of land alone
against 3rd parties. As noticed supra, the defendants herein i.e. the plaintiffs
therein pleaded that “by mistake in the revenue records, the Revenue Officials
noted as Ac.16.00 cents for the defendants and the remaining Ac.16.00 cents
is in the name of Bheemaiah”. It does not mean that the defendants herein are
admitting that the plaintiffs herein are in possession and enjoyment of
Ac.16.00 cents of land. Therefore, Ex.A-1 to Ex.A-3 are no way useful to
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prove that the plaintiffs herein are in possession and enjoyment of the plaint
schedule property.
24. The plaintiffs also relied on Ex.A-4 and Ex.A-10, which are the bunch of
tax receipts, the suit schedule survey number and extent is not at all
mentioned in Ex.A-4 and Ex.A-10. The plaintiffs have not filed any scrap of
paper to show that they are in the possession of suit schedule property and
they have paid land revenue to the suit schedule property survey number.
Mere payment of land revenue is not a proof of possession over the plaint
schedule property. The tax receipts shows about the payment of land revenue
by the person who paid the tax only. The law is well settled that “the payment
of tax receipts is not a conclusive proof of possession of the property”. Ex.A-5
is the registration extract of sale deed said to have been executed by the
father of the plaintiff No.3 in favour of the plaintiff No.3. Ex.A-6 is the copy of
legal notice and Ex.A-7 to Ex.A-9 are the postal acknowledgments. The
plaintiffs relied on Ex.A-11 certified copy of the sale deed said to have been
exhibited by E.Koti Reddy in favour of K.Gangadhara Reddy, it is a document
of the 3rd party and does not relate to the plaintiffs or defendants. Ex.A-11
goes to show that the Bheemaiah was having land with one Rama Murthy at
the Eastern side, who is the neighbor of the said land. It does not mean that
the plaintiffs are in possession and enjoyment of the suit property.
25. The specific case of the plaintiffs is that the predecessors of the
plaintiffs and defendants have purchased Ac.32.00 cents of land and
subsequently, Bheemaiah and Mukkaiah partitioned the entire Ac.32.00 cents
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of land, wherein Ac.16.00 cents of land on the southern side fell to the share
of Bheemaiah and Ac.16.00 cents of land on the northern side fell to the share
of Mukkaiah. The appellants herein/defendants in the suit pleaded in the
written statement itself that their father Mukkaiah purchased total extent of
Ac.32.00 cents and in the earlier suit proceedings also i.e. in O.S.No.678 of
1988 also the same is pleaded by the defendants herein i.e. the plaintiffs
therein. The plaintiffs have not filed any single document or failed to produce
any evidence to show that the predecessors of the plaintiffs and the
defendants paid amount to the original owner of Ac.32.00 cents. The plaintiffs
herein have not examined any other person to prove the alleged partition in
between Mukkaiah and Bheemaiah, in the present case the alleged partition
as pleaded by the plaintiffs is not at all proved by the plaintiffs by examining
any of the neighbors of the plaintiffs. The plaintiffs failed to prove that they are
in possession and enjoyment over the plaint schedule property by the date of
filing the suit.
26. The defendants relied on Ex.B-2 to Ex.B-8. Ex.B-1 is the Adangal copy
for R.S.No.394, issued by the Mandal Revenue Officer, Jangareddygudem,
Ex.B-2 is the certified copy of the 10(1) account relating to R.S.No.352/D,
Ex.B-3 is the certified copy of the decree in O.S.NO.116/45 and Ex.B-4 to
Ex.B-8 are the land revenue receipts. The First Appellate Court came to a
wrong conclusion in its judgment that Ex.B-2 shows that Ac.32.00 cents was
registered in the name of Mallelli Mukkaiah and the said Mallelli Mukkaiah is
elder to Bheemaiah, and that the entire extent might have been registered in
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the name of Mukkaiah. It is nothing but a pervasive finding and another
perversive finding arrived by the First Appellate Court in its judgment is that
the defendants could not file any scrap of paper to show that their father got
rights over Ac.32.00 cents of land and they are in possession of the entire
extent of Ac.32.00 cents of land. Here the defendants have not approached
the Civil Court for seeking relief of prohibitory injunction. The plaintiffs herein
approached this Court for seeking relief of prohibitory injunction against the
defendants to restrain them from ever entering into the possession and
enjoyment over the plaint schedule property. As noticed supra, in a suit for
seeking relief of prohibitory injunction, the plaintiffs have to establish their
lawful possession of the suit property as on the date of filing the suit, but not
by the defendants.
27. Learned counsel for the respondents placed reliance on a judgment in
Ananthula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and Others 3 ,
wherein the Apex Court held as follows:
“13. The general principles as to when a mere suit for permanent injunction
will lie, and when it is necessary to file a suit for declaration and/or
possession with injunction as a consequential relief, are well settled.
We may refer to them briefly.
13.1) Where a plaintiff is in lawful or peaceful possession of a property and
such possession is interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to protect his possession
against any person who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to an injunction
against the rightful owner.
3
(2008) 4 Supreme Court Cases 594
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13.2) Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition, if
necessary, an injunction. A person out of possession, cannot seek the relief
of injunction simpliciter, without claiming the relief of possession.
13.3) Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, the plaintiff will have to
sue for declaration of title and the consequential relief of injunction. Where
the title of plaintiff is under a cloud or in dispute and he is not in possession or
not able to establish possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.”
In the case at hand, the defendants disputed the title of the plaintiffs in
the written statement and the defendants pleaded that the plaintiffs are not
having any title in the schedule property. But, the plaintiffs herein have not
sought the relief of declaration of title or during the pendency of the suit
proceedings they have not even amended the relief clause in the plaint for
seeking relief of declaration of title in addition of relief of permanent injunction.
28. Learned counsel for the respondents placed reliance on a judgment in
Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu (Dead) by LRs. 4,
wherein the Apex Court held as follows:
“In M.C.Chockalingam V. V.Manickavasagam, (1974) 1 SCC 48, this Court
held that the law forbids forcible dispossession, even with the best of title. In
Krishna Ram Mahale V. Shobha Venkat Rao, (1989) 4 SCC 131, it was
held that where a person is in settled possession of property, even on the
assumption that he had no right to remain on the property, he cannot be
dispossessed by the owner of the property except by recourse to law in
Nagar Palika, Jind V. Jagar Singh, (1995) 3 SCC 426, this Court held that
disputed questions of title are to be decided by due process of law, but the4
(2004) 1 Supreme Court Cases 769
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peaceful possession is to be protected from the trespasser without regard to
the question of the origin of the possession. When the defendant fails in
proving his title to the suit land the plaintiff can succeed in securing a decree
for possession on the basis of his prior possession against the defendant who
has dispossessed him. Such a suit will be founded on the averment of
previous possession of the plaintiff and dispossession by the defendant.”
In the case at hand, the plaintiffs failed to prove their own case as
narrated in the plaint and also failed to prove their possession in the plaint
schedule property. The evidence of P.W.1 to P.W.3 is not even sufficient to
come to a conclusion that the plaintiffs and in possession and enjoyment over
the plaint schedule property. In a suit for bare injunction, the plaintiffs have to
plead and prove that they are in physical exclusive possession over the plaint
schedule property. But the plaintiffs herein have failed to prove that they are in
physical possession over the plaint schedule property as on the date of filing
of the suit
29. The oral and documentary evidence produced by the plaintiffs is not
even sufficient to come to a conclusion that the plaintiffs are in possession
and enjoyment of the plaint schedule property as on the date of filing of the
suit and on appreciation of the entire evidence on record, the learned trial
Judge has rightly dismissed the suit with an observation that the plaintiffs are
not entitled to seek relief of permanent injunction against the defendants in the
present suit proceedings.
30. For the aforesaid reasons, I am of the considered view that the learned
First Appellate Judge came to a wrong conclusion and set aside the findings
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arrived by the learned trial Judge and setting aside the judgment of the trial
Court, therefore, the judgment of the First Appellate Court is liable to be set
aside.
31. In the result, the Second Appeal is allowed and the Judgment and
decree, dated 27.02.2006 in A.S.No.25 of 1999, on the file of the Senior Civil
Judge, Kovvur is hereby set aside. Considering the facts and circumstances of
the case, each party do bear their own costs in the second appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
Date: 09.03.2026
SRT