YAMPARALA VENKATESWARLU Vs. SHAIK KHATUMBI

JUDGEMENT

(1.) This second appeal by the plaintiffs has been admitted on the substantial question of law whether the bare suit for injunction without seeking declaration of title is maintainable and whether the Court fee paid on the plaint is correct.

(2.) The facts leading for preferring this second appeal are as under: The appellants herein are the plaintiffs and the respondents herein are the defendants in the suit O.S.No. 655 of 1981 on the file of the Principal District Munsif, Narasaraopet in Guntur District. They filed the suit for permanent injunction restraining the defendants and their men from interferring with their peaceful possession and enjoyment of the suit property consisting of Ac. 4.36 cents in D.No. 382 situated in Rajapet village in Chilkaluripet taluq within specific Boundaries. It is their case that the total extent of Ac. 35.33 cents in D.No.382 originally belonged to Devisetti Subbaiah and his brother and in the partition of the family the said Subbaiah got Ac. 16.66 1/2 cents out of the said land. Out of it, an extent of Ac. 4.47 cents was purchased by the plaintiffs' maternal uncle and the remaining extent of Ac. 4.36 cents was purchased by the plaintiffs from D.Venkateswarlu son of said Subbaiah under two registered sale deeds dated 21-05-1981. The total extent of Ac. 8.83 cents purchased by the plaintiffs and their maternal uncle is a continuous plot and the said extent is bounded by ridges, and subsequent to the purchase, the plaintiffs have been in possession and enjoyment of their property. The defendants who have purchased the property to the south of the suit property from D. Adinarayana have made attempts to trespass the suit land because of their brutal force in the village. Hence, the plaintiffs filed the said suit for permanent injunction. The defendants have resisted the claim of the plaintiffs. It is their case that the plaintiffs and their maternal uncle brought into existence the registered sale deed with false recitals mentioning more extent than the share for which their vendor is entitled, that the defendants purchased Ac. 4.36 cents under four registered sale deeds, Exs. B-l to B-4 prior to the sale in favour of the plaintiffs and their maternal uncle, that they have got some extent beyond the ridges and that the plaintiffs are not entitled for injunction as prayed for. They also have taken up a plea that the suit for bare injunction is not maintainable without seeking for declaration of the title and that the Court fee paid is not correct. The trial Court settled the relevant issues for trial. On behalf of the plaintiffs, P.Ws. 1 to 3 were examined and Exs. A-1 to A-3 were marked. On behalf of the defendants D.Ws. 1 and 2 were examined and Exs. B-l to B-4 were marked. On a consideration of the oral and documentary evidence placed before him, the learned District Munsif, while holding that the plaintiffs have been in possession of the suit land, dismissed the suit on the ground that the suit for bare injunction is not maintainable without seeking the relief of declaration of title and mat proper Court fee is not paid. On appeal in A.S.No. 96 of 1984, the learned Additional Subordinate Judge also recorded a finding that the plaintiffs are in possession of the suit land but dismissed the appeal on the ground that the plaintiffs ought to have filed a suit for declaration of their title paying proper Court fee. Hence, the plaintiffs have come up with this second appeal. It may also be stated here that while admitting the second appeal, interim injunction has been granted in favour of the plaintiffs by an order of this Court dated 28-07-1989 and the said order of injunction is still in force till date.

(3.) The admitted facts are that the land purchased by the plaintiffs is within specific boundaries and is situated to the north of the land of the defendants. Under Exs. A-l and A-2 the plaintiffs and their maternal uncle purchased Ac. 8-83 cents and there are ridges all around of the said extent. The defendants purchased Ac. 4.00 of land under Exs. B-l and B-3 on 06-04-1981 and another Ac. 0.36 cents under Exs. B-2 and B-4 on 14-05-1981 and the total of the land purchased under Exs. B-l to B-4 comes to Ac.4.36 cents and this land purchased by the defendants is situated to the south of the land of the plaintiffs and their maternal uncle. A commissioner was also appointed during the course of trial in the suit to make a local inspection of the disputed suit land and he submitted his report after local inspection. The Commissioner observed in his report thus: