P RAJAK SAB Vs. P NARAYANAPET MASTHAN

JUDGEMENT

(1.) THE legal representatives of one P. Rajak Sab, the plaintiff in O. S. No. 76/85 on the file of Principal District Munsif, Adoni are the present appellants in the Second Appeal. The said Rajak Sab instituted the said suit for the relief of permanent injunction against the defendants relating to the land of an extent of Acs. 7-55 cents in S. No. 444/d, within the village limits of Mandigiri, Sub-Registration District of Adoni and Registration District of Kurnool. The defendants filed written statements and Issues were settled. Before the Court of first instance, on behalf of the plaintiff, P. W. l to P. W. 5 were examined and Bxs. A-1 to A-5 were marked and on behalf of the defendants D. W. 1 to D. W. 5 were examined and Exs. B-1 to B-11 were marked and apart from the aforesaid documentary evidence, Exs. X-1 to X-11 were marked as third party series. The learned Principal District Munsif, Adoni after answering all the Issues came to the conclusion that defendants 6 to 9 are the owners of an extent of Acs. 3-87 cents in S. No. 444/d whereas the plaintiff is the owner of an extent of Acs. 3-38 cents only in the same survey number and this fact had been well established by the defendants by way of various documents and since the plaintiff is claiming injunction to an extent of Acs. 7-55 cents including the share of the defendants which is dishonest, the relief was negatived. Aggrieved by the said judgment and decree, the said Rajak Sab filed A. S. No. 18/89 on the file of Subordinate Judge, Adoni and the learned Subordinate Judge also had arrived at the conclusion that unless the plaintiff proves his title and possession over the entire plaint schedule property no injunction can be granted to the plaintiff and the appellate Court also had agreed with the finding of the trial Court that defendants 6 to 9 are the owners of an extent of Acs. 3-87 cents in S. No. 444/d, whereas the plaintiff is the owner of an extent of Acs. 3-38 cents in the said survey number. However, ultimately the appellate Court also had taken the view that since the plaintiff failed to establish his title and possession over the entire extent of the plaint schedule land, he is not entitled to any relief and ultimately dismissed the Appeal without costs. Aggrieved by the same, the said Rajak Sab filed the present Second Appeal and pending the Second Appeal he died and hence the legal representatives were brought on record in C. M. P. No. 2891/2000 and thus at present the legal representatives of the original plaintiff Rajak Sab are prosecuting the present Second Appeal.

(2.) SRI Srinivas, the learned counsel representing the appellants had taken me through the concurrent findings recorded by both the Courts below to the effect that Rajak Sab is the owner of an extent of Acs. 3-38 cents in S. No. 444/d and he is entitled to the said extent. The learned counsel with all emphasis had contended that the Courts below definitely have totally erred in negativing the relief to the extent to which the plaintiff is entitled to merely on the ground that the plaintiff prayed for the relief for a larger extent. The learned Counsel also had drawn my attention to Ex. B-11 and had pointed out that even as per the specific stand taken by the contesting defendants that there was already partition, the question of co-ownership will not arise and dismissal of the suit on the ground that the contesting defendants are co-owners along with the plaintiff in view of the genealogy cannot be sustained since it is definitely contrary to the stand taken by the contesting defendants themselves. The learned counsel in all fairness had submitted that this is the only substantial question of law which arises for consideration in the present Second Appeal.

(3.) COUNTERING the submissions made by the learned Counsel for the appellants, Sri Lakshminarayana Reddy, the learned counsel representing the respondents had drawn my attention to the findings recorded by both the Courts below and also had taken me through the oral and documentary evidence. The counsel also had pointed out that the very stand taken in the written statement is that the plaintiff is entitled to an extent of Acs. 3-38 cents within the specified boundaries. No doubt, both Courts below had recorded the findings to the effect that the plaintiff is entitled to an extent of Acs. 3-38 cents. In all fairness, the learned counsel submitted that since the defendants themselves had produced the documentary evidence to establish this fact, the Courts had recorded such a finding. But however, the learned counsel would maintain that since the relief prayed for is the grant of permanent injunction which is an equitable relief, the party who had not approached the Court with clean hands is not entitled to such relief since under the guise of this litigation, the plaintiff had planned to have undue advantage for a larger extent and hence since the claim is not a bona fide one, the refusal of the relief of permanent injunction in the facts and circumstances of the case, definitely is well justified.