The main legal point established in the judgment is the limited scope of interference by the High Court in a second appeal under Section 100 of CPC, emphasizing that findings of fact will generally not be disturbed unless there is an element of perversity involved.

JUDGMENT :

Assailing the judgment and decree dated 27.08.2019 in A.S.No.8 of 2017 on the file of IV Additional District Judge, Nellore, confirming the judgment and decree dated 14.11.2016 in O.S.No.144 of 2012 on the file of III Additional Junior Civil Judge, Nellore.

2. For the sake of convenience and brevity, the parties herein are referred to as they are arrayed in the suit.

3. Plaintiff filed suit O.S.No.144 of 2012 against Syed Sandani Basha, sole defendant seeking perpetual injunction. Pending suit, sole defendant and his legal representatives were brought on record as defendants 2 to 6.

4. The brief averments, in the plaint are that plaintiff is the absolute owner of plaint schedule property, having purchased the same under a registered sale deed dated 31.03.1980; that plaintiff and his family members have been residing by raising house in some extent and left some vacant place for air and light; that 1st defendant filed suit O.S.No.3 of 2009 against the plaintiff seeking injunction restraining him from interfering with his construction of house and the said suit was decreed on 26.12.2011; that 1st defendant shown his northern boundary in O.S.No.3 of 2009 as vacant site belonged to the plaintiff herein; that 1st defendant and his men attempted to raise new constructions in the vacant site belonged to the plaintiff and hence, the suit was filed.

5. Defendants 3 and 4 remained ex parte.

6. Written statement filed by 1st defendant was adopted by defendants 2, 5 and 6. It was contended interalia that 1st defendant purchased southern side portion of Door No.505/1, Ward No.18, an extent of 8 Ankanams from Taburunissa Begum and others under a registered sale deed dated 01.04.1980; that 1st defendant constructed house in 4 Ankanams, out of 8 Ankanams; that there is joint passage of four feet leading to main road for plaintiff and defendant; that when 1st defendant intended to construct new house in 8 Ankanams, the plaintiff raised objection and hence, he filed suit O.S.No.3 of 2009 and the same was decreed ; that present suit was filed by plaintiff for 4 Ankanams, which is part and parcel of land purchased by defendant and hence, prayed the Court to dismiss the suit.

7. During the trial, plaintiff examined himself as P.W.1 and got examined P.W.2. Exs.A-1 to A-7 were marked. On behalf of 5th defendants, defendant was examined as D.W.1 and examined D.Ws.2 and 3. No documents were marked. Through D.W.3 (Advocate Commissioner) Exs.C-1 to C-9 were marked.

8. Trial Court after framing necessary issues decreed the suit with costs vide judgment dated 15.11.2016. Aggrieved by the said judgment and decree, defendants 2 to 6 filed A.S.No.8 of 2017. Lower appellate Court on consideration of oral and documentary evidence, dismissed the appeal vide judgment dated 27.08.2019. Assailing the same, the above second appeal is filed.

9. Heard Sri V.Siva Prasad Reddy, learned counsel for appellants.

10. Learned counsel for the appellants would contend that the Courts below failed to consider Exs.A-2 and A-6 in proper perspective. He would also contend that suit for bare injunction is not maintainable without seeking declaration of title, in view of cloud over the schedule property. He would also contend that suit O.S.No.144 of 2012 is barred by res judicata.

11. The following substantial questions of law arise for consideration in the second appeal:

1) Whether the plaintiff proved title to the schedule property? If so, whether the benefit of presumption that possession follows title would apply, since the schedule property is vacant land?

2) Whether the plaintiff is entitled for injunction as prayed for?

12. Dealing with the scope of Section 100 of CPC, the Hon’ble Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors., (2001) 4 SCC 262 held as follows:

“Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil