ARAVEETI SUBBARATNAM Vs. BYSANI SIVALAKSHMAMMA

JUDGEMENT

(1.) An interesting question of law has arisen in this appeal. Admittedly one A. Venkata-Subbaiah the father of appellants 1 to 6 and the husband of the 7th defendant and the first plaintiff B Sivalakshmamma jointly purchased a total extent of 83 acres of wet land under a registered sale deed dated August 17, 1961. Venkata Subbaiah died in 1966. Thereafter, the vendor under the sale deed laid the suit O. S. No. 34/64 on the file of Sub-Court. Kurnool, which was ultimately transferred to the District Court, Kurnool, and renumbered as O S No. 50/67 for setting aside the sale. The suit was decreed. On appeal in A S No. 614/69 filed by the appellants, this Court allowed the appeal and dismissed the suit. Thereafter, the appellants and one another Venkata-Subbaiah, (8th appellant) said to have helped the appellants 1 to 7 to have for possession from tenants and to whom 1/3rd share was alleged to have been promised by appellants 1 to 7 for the services he rendered jointly filed O S No. 483/76 on the file of the District Munsif at Markapur for perpetual injunction restraining the respondents, that is, original purchased Sivalakshmamma and her son the second plaintiff Venkata Satyanarayana for interdicting with their possession and enjoyment. The basis thereof is that Sivalakshmamma disclaimed her interest in the property and the appellants pursued the remedy in A S No. 614/69. The respondents filed O S No. 207/75 for partition of the entire extent into two equal parts, separate possession and profits. There is another suit also. But. it is not relevant for the purpose of this case. All the three suits were tried jointly by a common judgment Ex. A-4 dated September 14, 1978 holding on issue, Nos. 9, 10 and 13 relating to the entitlement of the parties to the shares, partition and separate possession thereof thus: Therefore the plaintiffs are entitled to half share in the suit properties and farther they are entitled for partition and separate possession of their half share in the suit properties.'

(2.) As regards profits are concerned IA 288/77 was filed and the Court by order dated January 28, 1978 permitted to delete the relief for profits obviously prior to the suit or pending suit. Issue No. 11 was accordingly answered The suit for perpetual injunction was dismissed on the ground thus: 'Since the defendants are also co owners of the suit land along with the plaintiffs 1 to 7 (appellants herein), injunction cannot be granted against the plaintiffs. Accordingly dismissed the suit.'

(3.) As a consequence O S No. 51/81 which gives rise to this"appeal was laid for damages for malicious prosecution to the extent of half share in the properties since the respondents were unjustly deprived of profits of their half share in the suit properties. In the plaint also the respondents have reiterated that they are co-owners along with the appellants and that they were in possession of the property but by virtue of an injunction obtained against them from December 27, 1976 the date on which the interim injunction was granted in 1-A 1184/76 under Ex. A-3 till the date of dismissal of the suit, viz., September 14, 1978 under Ex. A-4 they were prevented, without any reasonable cause of enjoyment of the property. They are entitled, thereby to the damages. Therefore the suit was laid for a sum of Rs. 36.000/-. It was resisted by the appellants. The Court below framed as many as six issues. Ultimately it is found that the respondents were prevented unjustly by obtaining an injunction from enjoying the properties which they have found to be in possession and therefore the respondents are entitled to damages in a sum of Rs. 3,000/-: accordingly, it decreed the suit. There are no specific findings as regards issue Nos. 2 to 4 As regards issue No. 5 is concerned, it is found that D-8 is a trespasser. Therefore, the suit is decreed as against all of them. The appeal is now filed against this decree. The decree is to be confirmed as against D-8.